Repair — Covenant by lessor — Covenant by lessee to contribute towards repairs — Minor defect caused significant damage — Whether breach of covenant — Whether lessee entitled to carry out repairs and recover from lessor — Claim against lessor succeeds
In May 1986 the plaintiff acquired by assignment a lease of 45A Adelaide Road, London NW 3; the lease was for a term of 99 years expiring on March 24 2071. The premises is one of four flats all let on the same terms, the freehold reversion in the building being owned by the defendant. By clause 5 of the lease the lessor covenanted “to maintain and keep in good and substantial repair and condition: … the roof … with its main water tanks, drains, gutters and rain pipes …”. All four lessees covenanted to contribute a specified proportion in respect of any expenditure incurred by the lessor in fulfilling his obligations under clause 5.
The plaintiff claimed that the defendant was in breach of clause 5 in allowing the main water tanks to overflow, causing water to collect on a flat roof to which there was inadequate guttering. As a consequence, it was alleged that water penetrated the roof and dry and wet rot resulted to the timbers. The plaintiff said the defendant was made aware of the situation by November 1986 and took no steps to remedy the defects by June 1987. Accordingly, the plaintiff commissioned a report by John Goedecke FRICS, undertook the repairs at her expense and claimed damages. The defendant asserted that the works of repair were unauthorised and that the plaintiff had no cause of action and had suffered no loss recoverable in law; there could be no liability on his part until he had received notice of the breach. He contended that as he had written to all the lessees consenting to all repairs being carried out by them and at their expense, in organising the repairs the plaintiff had accepted the terms of that letter and was estopped from claiming from the defendant.
Held The claim was allowed.
The evidence adduced on behalf of the plaintiff was to be preferred to that of the defendant. The consequential damage was caused by the lessor’s failing to attend to the ball valves on the water tanks; the overflowing tanks and the inadequate gutters allowed water penetration and rot. The cause of the damage was on a roof not demised; and it was subject to the lessor’s express covenant of repair. He was liable without prior notice for such a breach and for the consequential damage to the flat demised to the plaintiff. The plaintiff was entitled to proceed as she had done with the repairs and there had been no trespass.
The plaintiff was entitled to £200 per month for the period while repairs were being carried out, £1,790 for her temporary accommodation expenses and £14,322 for the cost of repairs.
Melles & Co v Holme
[1918] 2 KB 100 and
Bishop v Consolidated London Properties Ltd
(1933) 102 LJKB 257 followed.
Alun Jones (instructed by Collyer-Bristow) appeared for the plaintiff; and Nicholas Wood (instructed by Binks Stern & Partners) appeared for the defendant.
