Landlord and tenant — Application of section 32 of Housing Act 1961 — Alleged failure of landlord to repair roof of building over flat in breach of section 32 — Whether roof was a part of ‘the structure and exterior of the flat’ — It was conceded that the roof was not part of the demised premises — However, judge below accepted that it was established by Campden Hill Towers v Gardner, by which he was bound, that the phrase ‘structure and exterior’ in section 32 was not limited to the subject-matter of the demise — Nevertheless, he interpreted the enumeration of items given in the judgment of Megaw LJ in the Campden Hill case as indicating that the roof above a top-floor flat could never form part of the structure and exterior unless it was included in the demise — Held that the judge was in error in coming to this conclusion, in response to a preliminary point of law, without hearing evidence — The mere fact that the roof was not part of the demise did not conclude the matter — On the other hand, it could not be said that the roof of every top-floor flat fell within section 32(1)(a) of the 1961 Act; for example, there might be a void space or an uninhabited loft between the flat and the roof — Everything depended on the particular facts of the case — Appeal from decision on preliminary point allowed and case referred back to court for rehearing
This was an
appeal by Miss Kay Douglas-Scott, tenant of a third-floor flat at 47 Crawford
Street, London W1, from a decision of Mr Assistant Recorder Goldstein at Bloomsbury
and Marylebone County Court, dismissing actions which Miss Douglas-Scott, as
plaintiff, had brought against the defendant, Mr Dudley Scorgie, her landlord.
John Hamilton
(instructed by Rubinstein Callingham) appeared on behalf of the appellant;
Francis Phillimore (instructed by Mackrell & Co) represented the
respondent.
Giving the
first judgment at the invitation of Watkins LJ, SLADE LJ said: The appellant in
this appeal is Miss Kay Douglas-Scott. She has been a tenant of the respondent,
Mr Dudley Scorgie, of the third-floor flat, 47 Crawford Street, London W1, the
third floor being the top floor of the building in which the flat is situated.
Two actions were instituted by Miss Douglas-Scott, as plaintiff, in the
Bloomsbury and Marylebone County Court against Mr Scorgie, as defendant, in
1976 and 1979, seeking damages against him substantially on the ground that he
had failed to keep in repair the roof of the building over the flat in breach
of his alleged implied obligations under section 32 of the Housing Act 1961.
The actions took a shockingly long time to come to trial, but eventually, by an
order made in that court on May 21 1982, Mr Goldstein, sitting as an assistant
recorder, refused an application by the plaintiff to amend her particulars of
claim in the two actions and dismissed both of them. He dismissed the actions
without hearing evidence, in response to a preliminary point of law taken on
behalf of the defendant, this being that the obligations of repair imposed on
the defendant as landlord by section 32 of the 1961 Act cannot extend to the
roof of the premises. The application to amend, which he refused, was an
application by the plaintiff for leave to amend her pleadings, in effect by
pleading a breach of the defendant’s obligations at common law as opposed to
statute.
There are now
before the court, first, an application by the plaintiff for leave to appeal
from the refusal of the assistant recorder to give her leave to amend her
pleadings; and secondly, an appeal from his order dismissing the two actions.
I shall deal
with the substantive appeal first. The question arising on it may, I think, be
summarised thus: was the assistant recorder right to hold as a matter of law,
without hearing evidence, that the
1961 Act cannot extend to the roof of the premises?
The original
tenancy agreement was dated February 28 1967 and was made between the defendant
as landlord and the plaintiff as tenant. Clause 1, so far as it is material,
provided:
The Landlord
shall let and the Tenant shall take — ALL that suite of rooms or flat
consisting of one room kitchen and bathroom on the 3rd floor forming part of
the messuage or buildings known as 47 Crawford Street W1. Together with the use
of the entrance hall and lift (if any) staircase outer door and vestibule of
the said buildings in common with the other tenants and occupiers thereof And
together with the fixtures furniture and effects now in and upon the premises
hereby agreed to be demised and more particularly specified in the inventory
thereof signed by the parties hereto for the term of 7 months from the 1st day
of March 1967 . . .
And then the
clause goes on to specify the rent.
By clause 2(3)
the tenant agreed to keep the interior of the premises in repair. Clause 6
provided:
This Agreement
shall take effect subject to the provisions of section 32 of the Housing Act
1961 if applicable to the tenancy hereby created.
The original
term of seven months under the tenancy agreement has of course long since
expired. I understand that the plaintiff now holds as statutory tenant on the
terms of the agreement so far as applicable to the statutory tenancy.
At this point
it will be convenient to read the relevant provisions of section 32 of the 1961
Act. Subsection (1), so far as material, provides as follows:
In any lease
of a dwelling-house, being a lease to which this section applies, there shall
be implied a covenant by the lessor —
(a) to keep in repair the structure and exterior
of the dwelling-house (including drains, gutters and external pipes);
I need not read
the rest of that subsection.
Section 32(5)
provides, inter alia:
‘Lease of a
dwelling-house’ means a lease whereby a building or part of a building is let
wholly or mainly as a private dwelling, and ‘the dwelling-house’ means that
building or part of a building.
Section 33(1)
provides that section 32 of the Act applies to any lease of a dwelling-house
granted after the passing of the Act, being a lease for a term of less than
seven years.
Pausing here,
there is, I think, no doubt that section 32 applies in general terms to the
tenancy of this flat and that, having regard to the definitions which I have
quoted, the flat itself is ‘the dwelling-house’ for the purpose of applying the
provisions of section 32. The contrary has not been argued.
The plaintiff
claims that the roof of the premises, 47 Crawford Street, is part of ‘the
structure and exterior’ of that dwelling-house within the meaning of section
32(1)(a). The assistant recorder held that it was not. The plaintiff challenges
his decision on this point. More narrowly stated, this is the substantive issue
now before this court.
It is perhaps
convenient to begin by considering whether the roof of the premises, 47
Crawford Street, actually forms part of the premises let to the plaintiff. This
point can be dealt with very shortly. In this context we have been referred to
the decision of this court in the case of Cockburn v Smith [1924]
2 QB 119, and to the observations of Bankes LJ at p 128 of the report, and of
Sargant LJ at p 134 of the report. In the face of this decision Mr Hamilton, on
behalf of the plaintiff, has not attempted to argue that the roof actually
forms part of the demised premises in the present case. Since this point has
not been argued before us, I will proceed on the assumption that this
concession is a correct one.
However, the
mere fact that the roof does not, in conveyancing terms, form part of the
demised premises by no means concludes the matter, as is shown by the recent
decision of this court in Campden Hill Towers Ltd v Gardner
[1977] QB 823. That case concerned an underlease of a third-floor flat
comprised in a block of flats, not on the top floor of the building in
question. The county court judge had taken the view that in applying the
provisions of section 32(1) of the 1961 Act to a flat comprised in a block of
flats, the whole shell of the building had to be regarded as the exterior of
the dwelling-house. The Court of Appeal rejected this very broad construction
of paragraph (a) of section 32(1). On the other hand, it likewise rejected a
very narrow construction submitted on behalf of the landlords to the effect
that paragraph (a) cannot apply to anything, with the exception of drains,
gutters and external pipes, which is not a part of the property demised.
Megaw LJ, in
the course of delivering the judgment of the court, said this at p 834:
We do not
accept the lessors’ contention in so far as it would limit ‘the structure and
exterior of the dwelling-house’ to that which, in the conveyancing meaning, is
included in the particular terms of the demise in the lease. Anything which, in
the ordinary use of words, would be regarded as part of the structure, or of
the exterior, of the particular ‘dwelling-house’, regarded as a separate part
of the building, would be within the scope of paragraph (a). Thus, the
exclusion by the words of clause 2 of the underlease of ‘any part of the
outside walls’ would not have the effect of taking outside the operation of
paragraph (a) that which, in the ordinary use of language, would be regarded as
the exterior wall of the flat — an essential integral part of the flat, as a
dwelling-house; that part of the outside wall of the block of flats which
constitutes a wall of the flat. The paragraph applies to the outside wall or
walls of the flat; the outside of inner party walls of the flat; the outer
sides of horizontal divisions between flat 20 and flats above and below; the
structural framework and beams directly supporting floors, ceilings and walls
of the flat. We do not accept the lessees’ contention so far as it goes
further.
Having cited
this passage in his judgment in the present case, the assistant recorder then
proceeded immediately to accept the argument of Mr Phillimore, who then, as
now, was appearing on behalf of the defendant, in the following passage as
recorded in the note of his judgment:
Mr Phillimore
goes on to argue that there is only one possible interpretation of the words of
Megaw LJ. If the roof was part of the demise there would be no problem. Mr
Phillimore says the roof is expressly excluded from the agreement. The roof is
an external part of the building, not subject to the provisions of section 32.
What are you left with? One is left with
the definition of the operation of section 32 as given by Megaw LJ. It seems to
me that I am totally bound by Megaw LJ’s words in that judgment and I am happy
so to be bound since it tells me the extent of the obligations under section
32. They do not include, regrettably as far as the plaintiff is concerned, the
roof. Mr Phillimore says, and sensibly, that it does not mean to say the
landlord has no obligations as far as his dealings with the roof are concerned
but they do not happen to be the obligations mentioned by section 32 of the
Housing Act 1961, and I agree. It seems therefore that Mr Phillimore’s
preliminary point is well founded. I have a certain amount of sympathy with
those who have pleaded the plaintiff’s case — but the particulars of claim as
drafted show no cause of action. Unless I hear an application to amend and
allow it the consequences are that the actions fail.
The assistant
recorder then proceeded to hear an application for leave to amend. He dismissed
that and the actions as well.
Mr Phillimore
has told us that, in the course of counsel’s addresses to the assistant
recorder, he was given some information as to the factual position in regard to
the roof. Mr Phillimore clearly considered that the case proceeded before the
assistant recorder on an agreed basis in regard to the relevant facts. However,
I think that no agreement of this nature has been established to an extent that
this court can safely proceed on it. There is no such agreement recorded in any
of the documentation before us and none is referred to in the judgment of the
assistant recorder.
The assistant
recorder himself appears to have regarded the passage which I have cited from
the Campden Hill Towers case, which he himself cited, as authority for
the proposition that a roof above the top-floor flat of premises can never form
part of the structure and exterior of a dwelling-house in relation to that
top-floor flat, within the meaning of paragraph (a) of section 32(1), unless
the roof actually forms part of the demised flat. For my part, I think this
involves a misunderstanding of what Megaw LJ said. In my opinion, for present
purposes the crucial sentence in Megaw LJ’s judgment in the Campden Hill
Towers case is this:
Anything
which, in the ordinary use of words, would be regarded as part of the
structure, or of the exterior, of the particular ‘dwelling-house’ regarded as a
separate part of the building, would be within the scope of paragraph (a).
Following this
guidance given by the Court of Appeal, the crucial question to which the
assistant recorder should have directed his mind was, in my opinion, whether
the roof of the premises would, in the ordinary use of words, be regarded as a
part of the structure or of the exterior of the plaintiff’s top-floor flat,
when that flat is regarded as a separate part of the building, 47 Crawford
Street. If on the evidence the proper answer to this question is in the
affirmative, I can see no reason why the roof should not fall within the scope
of paragraph (a).
It is true
that in his judgment Megaw LJ, having enunciated the relevant test, proceeded
(at p 834) to enumerate a number of
would apply, that is to say:
. . . the
outside wall or walls of the flat; the outside of inner party walls of the
flat; the outer sides of horizontal divisions between flat 20 and flats above
and below; the structural framework and beams directly supporting floors, ceilings
and walls of the flat.
This
enumeration thus did not include the roof of the building in that case. The
assistant recorder, as I read his judgment, appears to have attached much
importance to this omission. However, he apparently did not appreciate that
there was one obvious reason for it, and one crucial distinction between the
facts of that case and the facts of this. The flat in question in the Campden
Hill Towers case was not a top-floor flat. Presumably, therefore, in the
ordinary use of words there would have been no question of the roof in that
case being regarded as a part of the structure or of the exterior of that
particular flat, viewed as a separate part of the building. It seems to me that
quite different considerations may apply where the subject of a tenancy is a
top-floor flat. I can see no reason in principle why the roof above such a flat
should not be capable in some circumstances of falling within the scope of
paragraph (a).
To take the
simplest case by way of example, if the ceiling and roof of a particular
top-floor dwelling all formed part of one flat, inseparable, structural unit,
it would seem to me prima facie that in the ordinary use of words, the
roof and ceiling would be regarded as part of the structure or exterior of that
dwelling, as much as its outside walls, inner party walls, and so forth. On the
other hand, I do not think one can go so far as to say that the roof, or part
of the roof, which lies above any so-called top-floor flat necessarily
will fall within the definition in paragraph (a) of the subsection. Borderline
cases, for example, might arise where one found a void space or an uninhabited
loft between the flat and the roof. Everything must depend on the particular
facts of the case.
In the present
case we have been told that the roof of the plaintiff’s flat is not a flat
roof, that it has a valley gutter and that there is a gap between the roof and
the ceiling of the flat — though I think none of these matters is yet formally
in evidence. These points, if they are agreed or are supported by proper
evidence, may conceivably provide some ammunition for the defendant when he
seeks to argue that the roof of these particular premises cannot, in the
ordinary use of words, be regarded as part of the structure, or of the exterior,
of this particular top-floor flat, and thus does not fall within paragraph (a)
of section 32(1). On the other hand, the plaintiff will no doubt argue that,
notwithstanding these points, the roof is still an ‘essential integral part of
the flat’, viewed as a separate dwelling-house, to echo the words of Megaw LJ.
In my judgment
the learned assistant recorder plainly erred in dealing with this matter as a
preliminary question of law in the absence of evidence, or in the absence of
clearly agreed facts, and in holding, in effect as a matter of law and without
regard to the evidence, that the plaintiff’s claim, based on section 32(1)(a)
as pleaded, was on the face of it demurrable. For the reasons which I have
tried to explain, the mere fact that the roof does not actually form part of
the demised premises by no means concludes the matter. I therefore think that
the assistant recorder erred in accepting the preliminary point advanced by the
defendant’s counsel and in dismissing the action without proceeding to a full
hearing with proper evidence.
Regretfully,
therefore, because it will inevitably put the parties, or the legal aid fund,
to considerable further expense and delay, I would set aside the assistant
recorder’s orders in both actions and direct a new trial of both of them before
another judge. The parties will of course be free to adduce before him such
relevant evidence as they may be advised, or formally to agree the relevant
facts sufficiently specifically to enable him to reach his decision. In the
light of that evidence, or those facts, the judge hearing the case will, in my
opinion, have to follow the guidelines given by this court in the Campden
Hill Towers case and, in so far as they are not agreed, to make the
necessary findings of fact in regard to this particular building.
With regard to
the plaintiff’s application for leave to appeal from the assistant recorder’s
refusal to grant her leave to amend her pleadings, I would give her such leave.
On the appeal on this point, I would simply remit her application for leave to
amend to be dealt with by the judge who conducts the new trial. For my part, I
would not wish to fetter his discretion in dealing with that application for
leave to amend when it comes before him, by expressing any opinion as to its
merits or otherwise. He will, I think, have to deal with it in the
circumstances as they exist when he hears the case, though no doubt he will
take into account any submissions which may be based on the long past history
of this unfortunate matter.
Agreeing,
WATKINS LJ said: As my lord has explained, this matter has been troublesome in
many respects. It has involved a great deal of expense, which is being borne by
the legal aid fund — in other words, by the public. But a point of considerable
importance to landlords and tenants is involved, which requires clarification
so far as roofs of buildings within which there are a number of flats are
concerned, and especially with regard to the top flat, or flats, within such a
building.
Like my lord,
I believe it to be the proper function of the learned judge who tries this
matter upon a rehearing to determine such application as is made to him on
behalf of the plaintiff for leave to amend the particulars of claim. I did at
one stage during the argument express the view that I would be unlikely to
grant that application; however, following that observation it is right to say
that Mr Hamilton informed me that there was in his possession an affidavit made
by the plaintiff which purports to provide an explanation, at least, for the
delay which has been occasioned in bringing about a hearing of her claim. That
affidavit was not shown to this court. Accordingly, I should not like it to be
said, in the absence of seeing the contents of that affidavit, that I have formed
any concluded view as to how I would deal with the application. That leaves the
circuit judge who is directed to take this rehearing absolutely free to
determine the matter as he sees the justice of it.
Accordingly,
the order of this court is that the appeal be allowed; that the substantive
matter be referred back to the Bloomsbury and Marylebone County Court for
rehearing. The rehearing must be conducted by one of the circuit judges sitting
regularly at that court.
I think it is
necessary to add that, regardless of what is said in the affidavit as an
explanation for the delay, it is incumbent upon all those connected with this
matter, and upon the court at Bloomsbury, to ensure as far as is possible that
the rehearing takes place without any further delay.
The appeal was allowed from the assistant recorder’s
decision on the preliminary point and the case remitted for a rehearing as
directed by Watkins LJ.