Tenant’s covenant to repair – Faulty under-floor heating system – Whether tenants entitled to replace system with storage heaters
The defendant council were the tenants of four floors of an office building at 217-285 King Street, Hammersmith, London W6, under a lease dated July 1993 for a period of 10 years from March 25 1993, with a rent review clause operative at March 25 1998. Clause 3(6) of the lease contained a covenant that the tenants would “repair and maintain and in all respects keep in good and substantial repair and condition the interior of the premises and every part therefore including . . . the pipes and all electrical heating mechanical and ventilation installations therein which exclusively serve the premises”. The 10-year lease took the place of five separate leases which were due to expire in 1996. The building was constructed in the 1960s and an under-floor heating system was installed. Electrical power running through cables were embodied in the concrete floors to produce heat during off-peak hours which was stored for later release. Some of the cables were broken or their insulation was damaged. The tenants occupied the premises for some years before 1993 and the existence of defects in the under-floor heating installation was already known to them when they took the 10-year lease.
In 1996 Creska Ltd, the landlord, sought a declaration that the tenants were obliged by virtue of clause 3(6) to carry out repairs to the under-floor heating. The judge found that the tenants were obliged to repair the defects and that they were entitled to discharge that obligation by installing modern electric night storage wall heater units as and when requisite or by relaying the under-floor cables in separate zones with flexible terminators. The landlord appealed contending that the clause meant what it said, and that the under-floor heating system was capable of repair. The tenants submitted that a repairing covenant was capable of being performed by installing the modern equivalent of what was installed before, that repairing the existing installation was no longer a “sensible and practicable” way of maintaining the heating installation and that the party liable under the covenant to repair was entitled to perform the obligation under the covenant by substituting a different system, which performed the same function, in place of the old.
Held The appeal was allowed.
The tenants had undertaken to maintain the existing under-floor installation in good repair. The system was defective and in need of repair and the repairs, although expensive, were capable of being carried out. The fact that repairs carried out now would incorporate some improvements in design did not mean that they would cease to be works of repair which the party liable under the repairing covenant was bound to perform. It was not a case where attempts to repair it would be futile or where the only “sensible and practicable” course was to substitute some other system. The tenants, therefore, were not entitled to discharge their obligations under the repairing covenant by substituting individual storage heaters for the under-floor system, and the question whether they would be entitled or bound to do so, if repairs to the existing installation were no longer praticable, did not arise.
John Cherryman QC and John Davies (instructed by Wiggin & Co, of Cheltenham) appeared for the appellant; Kim Lewison QC (instructed by the solicitor to Hammersmith and Fulham London Borough Council) appeared for the respondents.
