Landlord and tenant — Housing Act 1961, sections 32 and 33 — House in bad condition — Tenant’s claim for damages — Importance of giving landlord notice of defects — ‘The golden rule is ‘tell your landlord about the defects” — ‘Unfortunate’ decision in O’Brien v Robinson (but established law) that liability under the implied covenant in section 32 arises only when landlord learns, or perhaps is put on inquiry, that there is a need for repairs — County court judge in present case dismissed the tenant’s claim, holding that the court was precluded by authority from attributing any liability to the landlord — Court of Appeal, while accepting that liability under section 32 did not arise until the landlord had knowledge of the defects, held that the judge was in error in dismissing the claim for damages, which he should have considered in detail — The landlord was eventually put on notice of the defects when the local authority, after a complaint by the tenant, required the landlord to execute remedial works — He did not do so and
This was an
appeal from a decision of Judge S S Gill at Darlington County Court dismissing
a claim for damages by Kathleen Teresa McGreal, tenant under a short lease of a
house at 7 Langdale Road, Darlington, against her landlord, William Hylton
Wake.
B Sommerville
(instructed by David Baum & Ian Boddy, of Darlington) appeared on behalf of
the appellant; P J Cockroft (instructed by Green, Williamson & Way, of
Wakefield) represented the respondent.
Giving the
reserved judgment of the court, SIR JOHN DONALDSON MR said: This judgment is
that of the court. This appeal may be of considerable interest to tenants of
houses let on short leases. It concerns the liability of landlords to keep them
in structural and external repair and to do the same for installations for the
supply of water, gas and electricity, sanitation and space and water heating.
In case commentators or others read no further, the golden rule is ‘Tell your
landlord about the defects’. If the landlord has no responsibility, no harm
will be done. But if he could be responsible, that responsibility may only
arise when the landlord is told. That was the case here.
The plaintiff,
Kathleen McGreal, took a short lease of 7 Langdale Road, Darlington. The house
was built about the turn of the century and, at the time with which we are
concerned, suffered from rising damp, wet rot, decayed and open-jointed
brickwork and cracked and sagging ceilings in most of the rooms. The defendant,
William Wake, was elderly and lived some 70 miles away. He left the management
of the house to a local agent. The lease contained no express repairing
covenant by the landlord and the plaintiff was unaware that a limited covenant
to this effect was implied by section 32 of the Housing Act 1961. That covenant
requires the landlord to keep in repair the structure and exterior of the house
and the specified installations to which we have referred to a standard which
has regard to the age of the house, its character and prospective life.
It is, as we
think, unfortunate that the House of Lords felt impelled in O’Brien v Robinson
[1973] AC 912 to hold that liability under this covenant only arises when the
landlord learns, or perhaps is put on inquiry, that there is a need for such
repairs, because such a construction penalises the conscientious landlord and
rewards the absentee. Furthermore a covenant to ‘keep in repair’ would appear
to be much more onerous than one to ‘repair on notice’, yet this is how the
section has been construed, notwithstanding that by section 32(4) the landlord
is given power to enter the house to inspect its condition. In this situation
it is very important that tenants should know that they must help themselves by
complaining to their landlords. Whatever the legal position between the
parties, we hope that this appeal will help to achieve that result.
The plaintiff
spent £1,172 on the house in 1976 and 1977, some of which would without doubt
have been recoverable from the defendant if only she had given him notice before
doing the work. After it had been done, she wrote to the defendant and asked
him to pay his share and we are surprised that neither this nor dealings with
his agent were held to constitute notice to the defendant that the house needed
further repairs which were covered by the implied covenant. However, we did not
hear the evidence and it is common ground that the landlord was not put on
notice and that the implied covenant did not bite before the beginning of
November 1979. What then triggered his liability was a complaint by the
plaintiff to the council which led to the service on the defendant’s agent of a
‘notice requiring the execution of works’ issued pursuant to section 9(1A) of
the Housing Act 1957. This gave the defendant 42 days in which to execute the
works expiring on December 14 1979. The defendant did nothing, but the notice
fixed him with knowledge of the defects.
As the
defendant did nothing, the council resolved to do the work called for by its
notice and to do so at the defendant’s expense. In order to facilitate this
work the plaintiff agreed to move out and took a temporary tenancy of other
premises at £10 a week. It was 15 weeks before she was able to return and
meanwhile she continued to pay the rent for 9 Langdale Road, which was £8 per
week with £2.95 per week for rates. In addition she moved her furniture and
carpets into store, which cost her £127.50. When the council had finished its
work, she returned to 9 Langdale Road and was faced with cleaning up the dirt
and debris. In addition she spent £30 having her carpets refitted. However, the
largest single item of expenditure was for redecorating. The council, as they
were entitled and possibly bound to do, had excluded all decorative work from
their statutory notice and from the work which they did. Accordingly the
plaintiff had to do it and it cost her £608.51. No doubt she ended up with a
house which is in improved decorative condition, but we infer that some of the
work was necessary in order to make good damage to the decorations inherent in
the doing of the structural work of the council.
The plaintiff
claimed these sums from the defendant together with general damages for having
to live in a house which was less habitable and pleasant to live in than it
would have been if the defendant had complied with his obligations under the
covenant. The claim was heard by His Honour Judge Gill in the Darlington County
Court on December 23 1982 and was dismissed with costs. Leave to appeal to this
court was given. The learned judge’s reasons are revealed in the following
passage from a note of his judgment:
Mr Cockcroft
however, on behalf of the defendant landlord, raises the argument that these
expenses are not recoverable because the plaintiff never gave notice of the
state of disrepair to the landlord. A landlord is only liable to repair on
notice and he refers to the cases of O’Brien v Robinson [1973] AC
912, a case of an accident due to a ceiling falling, and Morgan v Liverpool
Corporation [1927] 2 KB 131 where a sash fell and injured the occupier.
These are cases of accidental physical injury due to the state of the premises,
while the case I am dealing with is one of financial loss while the premises
are being put in repair. Do the same principles apply? It may be that it is this principle which
solves the problem that I noted at the outset of the case, namely that if on
receiving notice the landlord carries out the repairs and the tenant has to
move out because of this the tenant can recover: this is the situation Judge
Clark was dealing with in Daejan Properties v Bauven (1964) 109
SJ 362. But what is the position where he does nothing and the local authority
do the work (which he pays for), and the tenant moves out not because the house
is uninhabitable due to its state of disrepair but because the work is being
done?
I am not
satisfied there is any real difference between this case and the former
situation I refer to. The landlord was in no way liable until he received
notice in November 1979. The delay of a few months was negligible and whenever
the work was done the landlord was not liable for incidental expenses —
including redecoration.
In reaching
this decision the learned judge did not have the benefit of the judgments of
this court in Calabar Properties Ltd v Stitcher [1983] 3 All ER
759 which were delivered in July 1983 and inter alia examined and
explained Green v Eales (1841) 2 QB 225.
A landlord’s
covenant to keep in repair involves two different elements — a duty to do the
repairs and a duty to do them at a particular time. Late performance may cause
loss and damage to the tenant in that he has to live in unrepaired premises
whereas, if the duty had been performed timeously, he would have been living in
repaired accommodation. A total or partial failure to repair will cause expense
to the tenant if he does the repairs himself. In the instant appeal the
plaintiff has advanced claims under both heads.
Delay
Given that the
defendant only had notice of the defects at the beginning of November 1979,
there was no breach of covenant by him before the expiration of a reasonable
time for putting the house into adequate repair. Basing ourselves upon the
local authority’s notice, it seems to us that that time had expired by January
1 1980. The local authority completed its work by the end of June 1980, but the
work of cleaning up kept the plaintiff out of her house until the end of July.
In our judgment, on these facts, the plaintiff has a valid claim for having to
live in an unrepaired house for some months after it should have been repaired
and, with all respect to the learned judge, we do not see how this can be
described as ‘negligible’.
Failure to
repair — cost of repairs
The defendant
landlord failed to do any work pursuant to his obligation under the covenant,
but work was done by the local authority which pro tanto extinguished the
landlord’s obligation. If this local authority work had been co-extensive with
that which the landlord was obliged to do, the plaintiff might have had no
further claim. That does not, however, seem to have been the case.
The facts are
not as clear as they might have been because the learned judge seems to have
concentrated upon the claim based upon the cost of alternative accommodation to
the exclusion of other heads of claim. However, it seems to us that
consideration has to be given to two different aspects of the cost of repairs
in so far as they fell upon the tenant. The first is the cost of completing the
local authority’s work and the second is the cost of what might be described as
co-operating with or assisting the local authority.
(a) The cost of completing the local authority’s
work
As we have
said, the local authority did no work of decoration, but we assume that the
house was decorated when they moved in to do the work of repair. Clearly the
removal of all or most of the ceilings would cause extensive damage to
decorations and the other works may also have done so. Although we have been
referred to no authority directly in point, we consider that the landlord’s
obligation to effect repairs must carry with it an obligation to make good any
consequential damage to decorations. The learned judge has held that the
plaintiff’s expenditure on redecoration was reasonable and the only possible
objection to her recovering the £608.51 which she spent is that it no doubt
involved an element of betterment. Betterment was considered by this court in Harbutt’s
‘Plasticine’ Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447 at pp
468, 473 and 476, where it was held that a defendant is not entitled to make a
deduction to take account of betterment if the plaintiff is unable to make good
his loss without betterment. That seems to be this case.
The work of clearing
the debris and cleaning up was clearly part of the landlord’s obligation, but
it was left to the plaintiff to do it. No figure has been put on this work
because no one was paid to do it, but we see no reason in principle why the
plaintiff should not be compensated for her efforts.
(b) The cost of co-operation and assistance
The local
authority or their contractors seem to have asked the plaintiff to move out of
the house and to take her furniture and carpets with her in order that they
might do the work of repair. Very reasonably she agreed and this involved her
in the expense of lifting the carpets, removing the furniture, storing,
returning the furniture to the house and having the carpets relaid. It also
involved her ‘storing’ herself in alternative accommodation.
Green v Eales (supra) was regarded by the learned judge as
authority for the proposition that a landlord who is under an obligation to
repair the house is not also obliged to provide another house for the tenant
while the repairs are being effected. The same point was made in Saner v
Bilton (1878) 7 Ch D 815 by Fry J in the context of repairs to a
warehouse. In Green v Eales the jury was directed by Rolfe B:
That the
plaintiff was entitled to recover for all his expenses, if they were reasonably
incurred, and such as a prudent man would have taken upon him; and he left it
to them to say whether, under the circumstances of this case, the entire
rebuilding of the wall
which fell
down and ought to have been repaired by the defendant landlord
and the
removal to other premises in the meantime were reasonable expenses . . .
The jury
having awarded all the expenses claimed, the Court of Queen’s Bench (Lord
Denman CJ) struck out the cost of obtaining alternative accommodation upon the
ground that (p 238):
We are of
opinion that the defendant was not bound to find the plaintiff another
residence whilst the repairs went on, any more than he would have been bound to
do so if the premises had been consumed by fire.
Griffiths LJ
in Calabar Properties v Stitcher [1983] 3 All ER 759, 769,
referred to this passage from the judgment of Lord Denman and said:
But I take
that passage to do no more than draw attention to the fact that a landlord is
not in breach of his covenant to repair until he has been given notice of the
want of repair and a reasonable time has elapsed in which the repair could have
been carried out. If in this case the landlords had sent workmen round to carry
out the repairs promptly on receiving notice of the defect and the defendant
for her own convenience had decided to move to a hotel whilst the repairs were
carried out, she could not have claimed the cost of the hotel accommodation
because the landlords would not have been in breach of the repairing covenant.
That Lord Denman CJ meant no more than this is I think apparent from his
observation that the tenant might have had a claim on the basis that the time
he had to be in alternative accommodation had been lengthened by the delay in
carrying out repairs.
For these
reasons I do not regard Green v Eales as an authority for the
proposition that there can be no claim for the costs of alternative
accommodation, but if it did purport so to decide, it was in my view wrongly
decided.
Stephenson LJ
at p 764 said:
I have to say
that I regard the court’s reason for disallowing those items as unsound (unless
it is interpreted as Griffiths LJ interprets it) and the trial judge’s
direction to the jury as correct. I would have accepted the argument of counsel
for the plaintiff tenant that the judge left the question of damages properly
to the jury, and their verdict ought not to have been disturbed (see (1841) 2
QB 225 at 234, 114 ER 88 at 92).
May LJ agreed
with both these judgments.
In these
circumstances it seems to us that we are entitled and indeed bound to look at
the matter afresh. Plainly the plaintiff cannot recover unless she can show
that her expenditure flowed from the defendant’s breach of covenant. Fry J was
an acknowledged expert in property law and we accept his decision in Saner
v Bilton (supra) that the covenant to repair involves not only a
duty, but also a right, to do the repairs and that it further involves an
implied licence by the tenant allowing the landlord ‘to enter upon the premises
of the lessee and to occupy them for a reasonable time to do that which he has
covenanted to do’. However, it does seem to us that this right to enter and
occupy must be limited to that which is strictly necessary in order to do the
work of repair. The obligation to allow the landlord to enter and occupy in
order to effect repairs does not seem to us to involve a further obligation to
give the landlord exclusive occupation unless this is essential for the
execution of the repairs. Nor does it involve an obligation to give him access
to all parts of the house at the same time unless again this is essential. In
the cases contemplated by Lord Denman CJ (premises destroyed by fire) and by
Fry J (collapse of the floors and bulging of walls rendering a warehouse
unusable), the tenant could not occupy or use the premises and this point did
not have to be considered.
In the present
case a Mr Scarr, an estimator for the contractors, said: ‘I remember the job
quite well. Impossible to remain in house. If she remains in it takes
longer.’ On this evidence the learned
judge held that the plaintiff was obliged to move out, but we think that he
must have meant that if the work was to be done as it was done, this was
inevitable. Mr Scarr’s evidence certainly implies that the work could have been
done with the plaintiff in residence, albeit it would have taken longer and
presumably have been more expensive.
If the
plaintiff had herself employed the contractors and been faced with the choice
of (a) moving herself and her furniture out while the work was done, or (b)
staying in the house, but having to pay a larger sum to the contractors, and
had reasonably elected to adopt the former course in mitigation of damage,
there can be no doubt that the cost of moving and storing herself and the
furniture would have been recoverable as part of the cost of remedying the
defendant’s breach. We do not see why the position is any different because the
local authority paid the contractor.
This view can
be tested by considering what would have been the position if the defendant had
himself undertaken the work of repair. He could have asked the tenant to move
out, but if this was not essential — and it does not seem to have been — he
could not have compelled her to do so. He would have had to make the same
choice as that which confronted the tenant — pay more for getting the work done
in circumstances in which the contractors could tackle only one room at a time
and had to protect the plaintiff’s furniture and carpets or pay less and meet
the plaintiff’s expenses. There can be little doubt that he would have adopted
the latter course. This confirms the measure of damage.
The plaintiff
by her notice of appeal asks only that we set aside the learned judge’s
decision that there was no liability on the part of the defendant. Her case,
and we think it is right, is that the learned judge never seriously considered
the detail of the damages claimed because he thought that he was precluded by
authority from holding that the landlord was under any liability. Consistently
with this view, the plaintiff asks that we set aside the
in the light of our judgments. We would allow the appeal and make the order
sought by the plaintiff.
The appeal
was allowed with costs and the case remitted to the judge to assess damages in
the light of the court’s judgment.