Can the landlord require the tenant to pay the costs of complying with s 251 of the Building Act?

Yesterday I posted an article about s 251 of the Building Act 1993. The effect of s 251 is that if the owner of a property is required by the Act or by the Building Regulations 2006 to keep premises in a specified state:

(i)  the owner cannot contract out of those obligations by, for example, including provisions in a lease that make the tenant liable to repair the particular items; 

(ii)  a tenant can do the work that the landlord was obliged to do and recover the costs from the landlord owner; and

(iii) a tenant can set-off the costs of doing the work that the landlord owner was obliged to do against the rent.

After the article was posted I was asked if the landlord could recover from the tenant the costs of complying with s 251.  Section 39 of the Retail Leases Act 2003 permits the landlord to recover outgoings from the tenant in specified circumstances.  Section 41(1) of the 2003 Act makes void a provision in a lease that requires the tenant to pay an amount in respect of capital costs.  In my view, s 251 would take precedence over s 39 of the 2003 Act with the consequence that the costs of complying with s.251 would not be recoverable.

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