Substandard housing, much of it occupied by
tenants, remains a serious problem. Landlords’ repairing covenants often confer
inadequate protection, so recent attempts by tenants to secure a better deal by
a different route have attracted widespread attention. That the Court of Appeal
has found itself divided on the question indicates that the House of Lords will
soon have the final say
The usefulness of a repairing covenant where a
dwelling is fundamentally substandard is limited in a number of ways. First,
the landlord will not be in breach unless there is disrepair. Inherent design
defects do not always constitute disrepair. Second, a repairing covenant does
not oblige a landlord to carry out works of improvement. Hence, a landlord is
not required to upgrade a dwelling built to standards that fall well short of
what would now be imposed. Third, since landlords are usually only obliged to
repair the structure and exterior of the premises, internal disrepair is not
covered. In view of the frailties of the law on repairs, any new way of
imposing a wider duty is crucial. The avenue currently under exploration is the
covenant for quiet enjoyment.
All leases contain a covenant for quiet enjoyment
and, while this started life as a pure covenant for title (under which the
landlord guaranteed not to interfere with the tenant’s title or possession), it
has long been pressed into somewhat wider service. Of particular relevance in
the present context is the line of authority, commencing with Sanderson
v Mayor of Berwick-on-Tweed (1884) 13 QBD 547, which holds that a common
landlord can be liable under the covenant where one of his tenants, acting in
accordance with the terms of his lease, substantially interferes with another
tenant’s use and enjoyment of his land. In this type of situation, liability
under the covenant for quiet enjoyment bears marked similarities to the tort of
nuisance and, in many of the cases, the courts have held the landlord to be
liable under both principles.
The opportunity for the courts to consider the
covenant for quiet enjoyment in isolation from the tort of nuisance has been
provided by two recent cases involving almost identical facts. In both Baxter
v Camden London Borough Council [1998] 2 EGLR 29 and Southwark London
Borough Council v Mills [1998] 2 EGLR 30, the tenant of a flat was
suffering intolerable noise as a result of the ordinary use and enjoyment of
the adjoining flat by another tenant. This was due to the totally inadequate
soundproofing throughout the building in which the flats were located.
Both cases were pleaded purely on the covenant
for quiet enjoyment. In Baxter, the Court of Appeal, while accepting
that the landlord could be liable in these circumstances, did not make a ruling
to that effect because the matter had to be referred back to the county court
for a rehearing.
However, in the second case, Laddie J concluded
that the Sanderson case, together with the subsequent Court of Appeal
decisions in Sampson v Hodson-Pressinger [1982] 1 EGLR 50 and Baxter,
was clear authority for the proposition that the covenant for quiet enjoyment
could be used in these circumstances. While far from happy with compelling the
landlords to carry out works that went beyond those covered by the repairing
covenant, he refused to interfere with the ruling by Southwark Arbitration
Tribunal that the landlords must undertake soundproofing works.
The Mills case has now been to the Court
of Appeal, where it was held by a majority that the landlords were not liable
under the covenant for quiet enjoyment. The ruling has a distinct air of
artificiality, since a number of important issues have, in effect, been left
for argument before the House of Lords, to which leave to appeal has been
given.
So, for example, the landlords did not seek to
challenge the principle that, under the covenant for quiet enjoyment, a
landlord can be liable for acts (whether his own or those of another of his
tenants) that interfere with the ordinary and lawful enjoyment of the demised
premises.
Thus, the central question for the Court of
Appeal was not the principle of this liability but the limits that should be
placed upon it. Although the court was unanimous in ruling that it is not
necessary for the activities complained of to amount to an actionable nuisance,
their lordships disagreed on everything else.
Mantell LJ felt that the tenants must fail
because, in his view, the covenant for quiet enjoyment could not encompass a
positive obligation to carry out works that the landlords would not otherwise
be required to do under their covenant to repair. Despite the authorities mentioned
above, which, he acknowledged, suggested otherwise, he preferred the approach
adopted in Duke of Westminster v Guild [1983] 2 EGLR 37 (a case
on repairs that had not been cited to the court and dealt only peripherally
with quiet enjoyment).
Schiemann LJ rejected the tenants’ claim on a
different basis. In his view, the ambit of the covenant for quiet enjoyment is
limited by the knowledge and expectations of the parties at the date of the
tenancy. It does not guarantee some abstract standard of freedom from
interference, but rather maintains the quality of enjoyment apparent at the
date of the letting. In the present case, there was no evidence that the
situation had deteriorated after that date. He said: ‘I find it inconceivable
that either the tenant or the landlords thought that they were entering into a
contract under which the landlords agreed to prevent the neighbouring tenants
from leading normal lives or to evict them or to install soundproofing.’
Peter Gibson LJ would have upheld the tenants’
claim. To suggest that the covenant for quiet enjoyment was being used to
impose a positive obligation to improve the premises was, in his view, to
confuse the right with the remedy. The tenants would only be entitled to
damages, not an order that improvements be carried out.
He also firmly rejected the approach
adopted by Schiemann LJ, which he felt was neither supported by existing case
law nor acceptable as a matter of policy. He agreed that the covenant did not
entitle the tenants to an abstract standard of quietness, but felt that the
standard of quietness in each case should depend on the locality and nature of
the premises, rather than the knowledge of the parties at the date of the
tenancy.
