Who Pays For Repairs When Your Lease Is Silent?

What does Section 108 say about repairs?

Section 108 of the Transfer of Property Act, 1882 sets out the rights and liabilities of the lessor and the lessee, in the absence of a contract or local usage to the contrary. Several clauses bear on repairs and condition.

Section 108(a) requires the landlord to disclose any material defect in the property, of which the landlord is aware and the tenant is not and could not with ordinary care discover, that affects its intended use. Section 108(c) implies a covenant that a tenant who pays rent and performs the tenant's obligations may hold the property without interruption.

On the tenant's side, Section 108(m) requires the tenant to keep the property in as good condition as when the tenant was put in possession, and to restore it in that condition at the end, subject to reasonable wear and tear or irresistible force. It also requires the tenant to allow the landlord to enter at reasonable times to inspect, and to give notice of defects.

The qualifier matters as much as the content: these are defaults. A rent agreement that allocates repairs differently is doing so against this background, which is why an all-repairs-on-the-tenant clause is worth noticing rather than skimming.

Can I deduct repair costs from my rent?

Sometimes, yes. Section 108(f) provides that if the landlord neglects to make, within a reasonable time after notice, any repairs which the landlord is bound to make, the tenant may make them and deduct the expense with interest from the rent, or otherwise recover it from the landlord.

The important words are "which he is bound to make". The Act does not itself list the repairs a landlord must carry out; that obligation usually comes from the agreement, from local law, or from local usage. So the right to repair and deduct is strongest where your agreement clearly puts a particular repair on the landlord, you have given written notice, and a reasonable time has passed.

Where the agreement is silent on who repairs what, or puts repairs on you, deducting is risky and can be characterised as non-payment of rent, which is a ground for eviction in most State laws. In that position, take advice before deducting rather than after, and keep paying rent while you resolve the repair.

Minor upkeep versus structural repairs

Day-to-day upkeep, such as replacing bulbs, changing tap washers, servicing appliances you use heavily and keeping the property clean, is ordinarily a tenant matter and few tenants dispute it.

Structural repairs and building systems are different in character. Seepage from a shared wall, a leaking roof, a failing water tank or pump, concealed electrical wiring, and lift maintenance relate to the fabric of the property rather than your use of it. A clause pushing those onto a tenant on an eleven-month agreement asks you to maintain an asset you do not own and will leave.

Are appliances supplied with the flat the landlord's responsibility?

Furnished and semi-furnished flats come with a refrigerator, washing machine, air conditioners, geysers and a water purifier, and the agreement usually lists them in a schedule. That schedule is often the only place appliances are mentioned, which leaves open who pays when one fails.

A sensible approach, and the one most fair agreements adopt, distinguishes between three things. Routine servicing, such as cleaning air conditioner filters or changing purifier cartridges, is a running cost of use and usually sits with the tenant. Breakdown caused by misuse, such as a washing machine overloaded until the drum fails, is the tenant's cost. Failure through age or ordinary use, such as a compressor giving out on a seven-year-old refrigerator, is the landlord's cost, because the appliance is part of what the landlord is letting.

If the schedule says nothing about this, propose the three-way split in writing before you sign, and photograph each appliance working at move-in. Note the approximate age of each appliance if the landlord knows it. An appliance that was already old when you moved in is much harder to blame on you when it stops.

What to negotiate before signing

• A split stated explicitly: minor repairs below a value threshold to the tenant, structural and systems repairs to the landlord.
• A value threshold in rupees, such as ₹2,000 per item or ₹5,000 per month, so the boundary is not argued each time.
• A response timeline for landlord repairs, such as 48 hours for an emergency like no water and 7 days for other repairs.
• An express right, after written notice and the timeline passing, to carry out the work and deduct the documented cost from rent.
• Clarity on appliances provided with the property, including who repairs and who replaces at the end of their life.
• For apartments, who bears regular maintenance charges and any special assessments levied by the society or association.
• Sample wording: "The Tenant shall bear minor repairs not exceeding ₹2,000 per item. All other repairs, including structural repairs, seepage, plumbing, wiring and the repair or replacement of fixtures and appliances failing through age or ordinary use, shall be carried out by the Landlord within 7 days of written notice, failing which the Tenant may carry out the repair and deduct the documented cost from the next rent payment."

A worked example

A tenant in Chennai pays ₹24,000 a month. In December, the eight-year-old geyser supplied with the flat stops working. The agreement says the landlord will repair fixtures and appliances failing through age within 7 days of written notice, and gives the tenant a right to repair and deduct.

The tenant sends a WhatsApp message and an email the same day with a photograph, and a reminder on day 5. By day 9 nothing has happened. The tenant gets two quotes, has the geyser replaced for ₹9,000 by the cheaper vendor, and sends the landlord the invoice and photographs with a note that ₹9,000 will be deducted from January's rent. The January payment of ₹15,000 is made by bank transfer with a covering message explaining the deduction.

Every step is in writing and follows the agreement, so the tenant's position is strong. Without the clause, the same tenant would be relying on Section 108(f) and the argument that replacing an aged geyser was the landlord's obligation, which is a weaker and more contestable position.

The tenant should also keep the old geyser or photographs of it, in case the landlord later argues that it could have been repaired more cheaply than replaced.

What if the property is damaged by fire or flood?

Section 108(e) deals with a different situation: where, by fire, tempest or flood, or violence of an army or a mob, or other irresistible force, any material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, the lease is, at the option of the tenant, void. The section does not apply where the damage results from the tenant's own wrongful act or default.

In plain terms, if a flood makes the flat permanently unusable, the tenant can choose to end the lease rather than keep paying rent for a home that cannot be lived in. Temporary damage that can be repaired is treated differently, and the agreement may also address it. Write to the landlord promptly stating what happened and what you elect to do.

Making a record

Report every repair in writing, even where you also call. A dated message describing the problem, with a photograph, and a follow-up noting the absence of response, turns a series of frustrating conversations into evidence.

That record matters twice: for the repair itself, and later, when the deposit is being settled and the landlord attributes to you damage that you reported months earlier. Seepage you reported in month three cannot fairly be deducted from your deposit in month eleven as damage you caused.

Keep invoices for any repair you pay for, and note whether it was a minor repair you agreed to bear or a repair you carried out on the landlord's behalf. If you use a society or association complaint register for common-area problems, keep a photograph of each entry.