Landlord and tenant — Section 32 of Housing Act 1961 — Appeal from county court — Scope of covenant to repair implied by section 32 — Application to tenancies from local authorities — Rising damp in council house let to appellant caused by absence of damp-course — Old back-to-back terraced house — Appellant claimed that the implied covenant to repair under section 32 imposed on the landlord authority a duty to provide a damp-course so as to eradicate the damp — Held, upholding decision given in the county court, that the implied obligation did not extend to providing the tenant with a new and different thing, namely, a house with a damp-course in place of a house without one — The position under section 32 was the same as under a covenant to repair at common law, as illustrated by Pembery v Lamdin — The extent of the implied obligation under section 32 was the same for local authority as for private tenancies — Appeal dismissed
This was an
appeal by the tenant, Cranford Wainwright, from a decision of Mr Recorder
Hampton, sitting as a judge of the county court at Leeds. The point raised in
the appeal was the judge’s rejection of a submission that the covenant to
repair, implied in the tenancy from Leeds City Council, the present
respondents, put upon the landlords an obligation to provide a damp-course so
as to eradicate damp in the tenant’s council house.
C R
Sinclair-Morris (instructed by Saffman & Co, of Leeds) appeared on behalf
of the appellant; John Behrens (instructed by M Rawnsley, director of
administration and solicitor to Leeds City Council) represented the
respondents.
Giving
judgment, DUNN LJ said: This is an appeal from the order of Mr Recorder
Hampton, sitting as a judge of the county court on April 14 1983, whereby he
gave judgment for the defendants and, on a claim by the plaintiff under section
32 of the Housing Act 1961, awarded a sum of £25 damages.
Only one point
has been raised on the appeal by Mr Sinclair-Morris. He raised it in his
skeleton argument, he raised it in his notice of appeal and it is also
contained in the advice which he wrote following the hearing. It is set out in
the notice of appeal in the following way:
The grounds
of this appeal are that the learned recorder has erred and/or has misdirected
himself in law in that, having found as a fact that ‘rising damp was present
there and was wholly or in part due to the absence under the said premises of a
damp course’ he declined to find for the plaintiff and refused to grant him the
necessary or any relief [which he claimed].
The case
related to a dispute about the house which the plaintiff held as a tenant of
the defendant council since 1981. It was a back-to-back terraced house in a
poor part of Leeds, which had been built in the early part of this century and
which had no damp-course. Ever since he had been there the plaintiff had been
complaining about the state of the premises in various respects, including the
existence of damp in the cellar and damp in other parts of the building. It is
only fair to say that, during that period, a considerable amount of work had
been done to the premises by the council but they had not been able to
eradicate the damp, the reason being that there was no damp-course.
The recorder
had before him a surveyor’s report and he said this about it:
It is clear
from the report that the main trouble was condensation caused by the lack of
ventilation and heat. It is impossible to say precisely how much damp is caused
by each problem. I am satisfied most of the problem is condensation and air
circulation and heat. The work carried out by the city council should have
cured the air circulation and if the property is heated the condensation could
possibly be eradicated.
But the basic
submission which was made by Mr Sinclair-Morris to the recorder was that the
covenant to repair, which was imported into the lease as an obligation under
section 32 of the Housing Act 1961, properly construed put upon the landlord
the obligation to provide a damp-course so as to eradicate the damp.
The recorder
held himself bound by a decision of this court, Pembery v Lamdin
[1940] 2 All ER 434. That case concerned, as does this case, an old house, 100
years or more in age, built at a time when modern devices for avoiding the
consequences of damp were unknown. The covenant in that case was a covenant by
the lessor to keep the external part of the premises in good and tenantable
repair and condition. The covenant to be implied by the statute is in
substantially the same terms. It is a covenant to keep in repair the structure
and exterior of the dwelling-house, including drains, gutters and external
pipes. In Pembery v Lamdin Slesser LJ, with whose judgment
Clauson LJ and Luxmoore LJ agreed, dealt with the matter in this way:
The first
question which arises in this case is what was the nature of the obligation to
repair. In order to ascertain that, it is first necessary to consider the
nature of the premises which had to be repaired under the covenant. I think
that, for the purposes of this case, the principle, which has never been
doubted, is to be found stated in a short passage in a judgment of Lord Esher
MR in Lister v Lane & Nesham. That is a case which has been
subsequently followed and approved in Lurcott v Wakely & Wheeler.
In Lister v Lane & Nesham, after reviewing the earlier authorities,
Lord Esher MR, who was speaking there of a tenant, says, at pp 216, 217:
‘Those cases seem to me to shew that, if
a tenant takes a house which is of such a kind that by its own inherent nature
it will in course of time fall into a particular condition, the effects of that
result are not within the tenant’s covenant to repair. However large the words
of the covenant may be, a covenant to repair a house is not a covenant to give
a different thing from that which the tenant took when he entered into the
covenant. He has to repair that thing which he took; he is not obliged to make
a new and different thing. . . .’
Applying that
to a landlord, in the same way as it is in that case applied to a tenant, if
the counterclaim here made by Mrs Lamdin be correct, she is entitled to receive
at the hands of this landlord ‘a different thing’ from that which she took when
she entered into the covenant. She took this old house with a cellar without
any waterproof protection, and she is asking the landlord so to repair that
house as to give her a cellar which has a waterproof protection and is dry.
That is not a right which she can possibly maintain, because the obligation of
the landlord is to repair that which is demised, and not to give her something
much drier in its nature than that which was demised.
For myself,
for the purposes of this case, I do not feel it necessary to go into any
further authorities, but I will point out that Sir H H Cozens-Hardy MR in Lurcott
v Wakely & Wheeler says substantially the same thing at p 914:
‘Is what has happened of such a nature
that it can fairly be said that the character of the subject-matter of the
demise, or part of the demise, in question has been changed?’
In the same
case, Fletcher Moulton LJ says the same thing, at p 916:
‘Now what is the meaning of keeping old
premises in good condition? I can see no
difficulty in deciding the meaning of that. It means that, considering that
they are old premises, they must be in good condition as such premises.’
If for the
words ‘old premises’ are substituted the words ‘not waterproofed’, we have here
the exact case. They have to be kept in repair in the condition of the house
when it was demised, according to the character of the house. Buckley LJ gives
judgment to the same effect, approving of what was said in Lister v Lane
& Nesham.
So, applying
the facts of that case to the facts of this case, the tenant in this case took
a house without a damp-proof course. What he is asking from the landlord is a
house with a damp-proof course, which is a different thing to the house which
was the subject of the demise. As Slesser LJ makes clear from the passage of
the judgment that I have read, the obligation of the landlord does not go
beyond repairing the thing which was the subject of the demise, namely in this
case a house without a damp-proof course, so on the facts I find Pembery
v Lamdin indistinguishable from the facts in this case, and indeed Mr
Sinclair-Morris realistically accepts that. But, he says, that case and the
earlier cases which were cited in the judgment were all cases at common law.
They emphasise that the tenant had a choice whether to take an old house, or
whether or not to take a house without any method of waterproofing and, having
chosen to take the house that he did, he cannot ask the landlord to improve the
house so that it is a different house from the house which he originally took.
But, says Mr Sinclair-Morris, a council tenant is in a different situation,
because he has no choice in the matter. The council may or may not be under an
obligation to house him, but he applies to the council for housing because he
has no alternative. He has insufficient means to provide himself with
accommodation and, says Mr Sinclair-Morris, in a situation of that kind the
obligation of the council is to provide him with a house which is free from
damp. He supports that analogy by reference to section 4 of the Housing Act
1957, which is dealing with houses which are unfit for human habitation.
Section 4 provides: ‘. . . in determining whether a house is unfit for human
habitation, regard shall be had, amongst other things, to whether it is free
from damp.’ Mr Sinclair-Morris says,
‘take this very case; the plaintiff is in his 50s; he is educationally
subnormal, he has been unemployed for years and he has no alternative but to
accept the housing that the council give him and, accordingly, the same
considerations do not apply to him in the construction of the repairing
covenant as would apply to a private tenant who had exercised a choice.’
It is worth
mentioning that this house is not unfit for human habitation. If it were, the
plaintiff would indeed have a remedy under the Housing Act 1957. The only
question, as I see it, which arises on this appeal is whether, in construing
the statutory covenant contained in section 32 it should be differently
construed in the case of a local authority to the way in which it was construed
in the case of a private tenant in Pembery v Lamdin. I can see no
reason why that should be so. I can see no reason why a higher obligation
should be put on a local authority than is put on any other landlord by a
repairing covenant. With respect to Mr Sinclair-Morris, most of the arguments
which he has adduced in this court and in the written document which he has put
in are related to social matters rather than to legal matters.
So far as I am
concerned, I find it quite impossible to distinguish this case from Pembery
v Lamdin. That judgment is binding on this court and accordingly this
appeal must be dismissed.
WOOD J agreed
and did not add anything.
The appeal
was dismissed with costs, appellant’s contribution assessed at nil; usual order
made against the Legal Aid Fund, not to be drawn up for 10 weeks.
