A repairing obligation will, normally, require a party to a lease to "repair" the property and it is, generally, understood that before that repairing obligation can bite, the property must be in "disrepair". It follows that the wording "keep in repair" places an obligation upon the party to put the property into repair if it is in disrepair at the start of the lease, as a party cannot comply with their repairing covenant until the property is in repair.
But what if the repairing obligation contains other phrases such as "keep in good condition" or "maintain"– how do you interpret such clauses?
In some cases, the Courts have determined that these extra words add nothing whereas, in other cases, the Courts have held that they are a series of different obligations, with each word carrying a different meaning.
In particular, the addition of the words "keep in good condition" could be a more onerous duty than a "keep in repair" covenant alone.
This is because a covenant to keep a property in good condition could bite even if it is not in disrepair and/or a bad condition. The Courts have considered that such an obligation could be wide enough to require works to be done to a property, to put it into a particular condition, even if the property had not been in such a condition previously.
That being said, the covenant to keep in good condition still requires a defect i.e. it requires that the property is not in a good condition or that it will shortly fall out of good condition. Similar to "repair" what will be considered "good condition" will be fact dependent and would be determined having regard to the age, locality and character of the property and what would be regarded as acceptable by a reasonably minded tenant of the type likely to lease the property.
This does not, however, mean that the an obligation to keep in repair and an obligation to keep in good condition will always be considered to be the same.
This may be of importance when considering building and fire safety issues, as it may be that a repairing obligation would not bite if the property is not compliant with building and fire safety requirements, as there is no "disrepair." It may well bite however, if the lease requires the property to be kept in good condition, as it could be arguable that building and fire safety compliance is a requirement of a property being in good condition.
As always, the interpretation of a repairing covenant is not straightforward and it will very much be fact dependent, so we would always recommend taking advice as to your obligations should you be unsure as to the position.
