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Post Office v Aquarius Properties Ltd 1987

Post Office v Aquarius Properties Ltd 1987

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Post Office v Aquarius Properties Ltd 1987

The tenant covenanted to keep premises in good and substantial repair. As a result of an original construction defect, when the water table rose, the basement became flooded. The water table subsequently fell leaving the basement once again dry and, apart from letting in water, no other damage was caused to the building. The defect had not grown worse but was in the same condition as it was when the building was first built.

The court held that the tenant’s obligation only arose when the property was in a state of disrepair. As the defect had existed since construction of the building and there had been no worsening or deterioration of the condition of the premises, no want of repair existed and therefore no liability arose on the part of the tenant.

The water table in the area in which the property was situated had risen after its construction. As a result of a defective ‘kicker’ joint between the walls and the floor in the basement, it became ankle deep in water. However, the joint was in exactly the same condition it had been in when the property was built. Moreover, there was no evidence that any part of the property to which the repairing covenant applied had become defective or fallen out of repair. Therefore, the court held that there was no disrepair:

‘A state of disrepair … connotes a deterioration from some previous physical condition.’