Premises let to tenant subject to no express obligation on part of landlord–Some such obligation necessarily to be implied–In the case of multi-storey premises, an obligation must be implied by which the landlord assumes responsibility for repair and maintenance of lifts and other common parts, rubbish chutes, etc–De Meza v Ve-Ri-Best Manufacturing Co Ltd (1952) 160 Estates Gazette 364 cited in support by Lord Wilberforce and Lord Edmund-Davies–Further point on the statutory repairing obligation in section 32 (1) (b), Housing Act 1961–‘Keep’ in repair covers a case in which the design of a fitting is defective from the outset
This was an
appeal by Mr Leslie Irwin and his wife, Mrs Maureen Irwin, of 50 Haigh Heights,
Liverpool 3, from a decision of the Court of Appeal granting their landlords,
Liverpool City Council, an order for possession of their maisonnette and
dismissing their counterclaim for damages and an injunction based on an
allegation that the council were in breach of an implied obligation with regard
to repair of the maisonnette and of certain common parts.
Mr G Godfrey
QC and Mr D M Evans (instructed by Kingsford, Dorman & Co, agents for the
Vauxhall Community Law Centre, of Liverpool) appeared for the appellants, and
Mr H E Francis QC and Mr J Boggis (instructed by Howlett & Clarke Cree
& Co, agents for the solicitor to the council) represented the respondents.
In his speech,
LORD WILBERFORCE said: This case is of general importance, since it concerns
the obligations of local authority, and indeed other, landlords as regards
high-rise or multi-storey dwellings towards the tenants of these dwellings.
This is a comparatively recent problem, though there have been some harbingers
of it in previous cases. No 50 Haigh Heights, Liverpool, is one of several
recently-erected tower blocks in the district of Everton. It has some 70
dwelling units in it. It was erected 10 years ago following a slum clearance
programme at considerable cost, and was then, no doubt, thought to mark an
advance in housing standards. Unfortunately, it has since turned out that
effective slum clearance depends upon more than expenditure upon steel and
concrete. There are human factors involved too, and it is these which seem to
have failed. The defendants moved into one of the units in this building in
July 1966: this was a maisonnette of two floors, corresponding to the ninth and
tenth floors of the block. Access to it was provided by a staircase and by two
electrically-operated lifts. Another facility provided was an internal chute
into which tenants in the block could discharge rubbish or garbage for collection
at the ground level. There has been a consistent history of trouble in this
block, due in part to vandalism, in part to non-co-operation by tenants, in
part, it is said, to neglect by the corporation. The defendants, with other
tenants, stopped payment of rent, so that in May 1973 the corporation had to
start proceedings for possession. The defendants put in a counterclaim for
damages and for an injunction, alleging that the corporation was in breach of
its implied covenant for quiet enjoyment, that it was in breach of the
statutory covenant implied by section 32 of the Housing Act 1961, and that it
was in breach of an obligation implied by law to keep the ‘common parts’ in
repair.
The case came
for trial in the Liverpool County Court before His Honour Judge T A Cunliffe. A
good deal of evidence was submitted, both orally and in the form of reports.
The judge himself visited the block and inspected the premises: he said in his
judgment that he was appalled by the general condition of the property. On
April 10 1974 he gave a detailed and careful judgment granting possession to
the corporation on the claim, and on the counterclaim judgment for the
defendants for £10 nominal damages. He found that the defects alleged by the
defendants were established. These can be summarised as consisting of (i) a
number of defects in the maisonnette itself–these were significant but not
perhaps of major importance; (ii) defects in the common parts, which may be
summarised as continual failure of the lifts, sometimes of both at one time,
lack of lighting on the stairs, dangerous condition of the staircase with
unguarded holes giving access to the rubbish chutes, and frequent blockage of
the chutes. He found that these had existed or been repeated with considerable
frequency throughout the tenancy, had gone from bad to worse, and that while
some defects in the common parts could be attributed to vandalism, not all
could be so attributed. No doubt also some defects, particularly the blocking
of the rubbish chutes, were due to irresponsible action by the tenants
themselves. The learned judge decided that there was to be implied a covenant
by the corporation to keep the common parts in repair and properly lighted, and
that the corporation was in breach of this implied covenant, of the covenant
for quiet enjoyment and of the repairing covenant implied by the Housing Act
1961, section 32. The corporation appealed to the Court of Appeal, which
allowed the corporation’s appeal against the judgment on the counterclaim.
While agreeing in the result, the members of that court differed as to their
grounds. Roskill and Ormrod LJJ held that no covenant to repair the common
parts ought to be implied. Lord Denning MR held that there should be implied a
covenant to take reasonable care, not only to keep the lifts and stairs
reasonably safe, but also to keep them reasonably fit for use by the tenant and
his family and visitors. He held, however, that there was no evidence of any
breach of this duty. The court was agreed in holding that there was no breach
of the covenant implied under section 32 of the Housing Act 1961; the tenants
did not seek to uphold the judge’s decision on the covenant for quiet
enjoyment, and have not done so in the House.
I consider
first the tenants’ claim in so far as it is based on contract. The first step
must be to ascertain what the contract is. This may look elementary, even
naive, but it seems to me to be the essential step and to involve, from the
start, an approach different, if simpler, from that taken by the members of the
Court of Appeal. We look first at documentary material. As is common with
council lettings there is no formal demise, or lease or tenancy agreement.
There is a document headed ‘Liverpool Corporation, Liverpool City Housing Dept’
and described as ‘Conditions of Tenancy.’
This contains a list of obligations upon the tenant–he shall do this, he
shall not do that, or he shall not do that without the corporation’s consent.
This is an amalgam of obligations added to from time to time, no doubt, to meet
complaints, emerging situations, or problems as they appear to the council’s
officers. In particular there have been added special provisions relating to
multi-storey flats which are supposed to make the conditions suitable to such
dwellings. We may note under ‘Further special notes’ some obligations not to
obstruct staircases and passages, and not to permit children under 10 to
operate any lifts. I mention these as a recognition of the existence and
relevance of these facilities. At the end there is a form for signature by the
tenant stating that he accepts the tenancy. On the landlords’ side there is
nothing, no signature, no demise, no covenant: the contract takes effect as
soon as the tenants sign the form and are let into possession. We have, then, a
contract which is partly, but not wholly, stated in writing. In order to
complete it, in particular to give it a bilateral character, it is necessary to
take account of the actions of the parties and the circumstances. As actions of
the parties, we must note the granting of possession by the landlords and
reservation by them of the ‘common parts’–stairs, lifts, chutes, etc. As
circumstances we must include the nature of the premises, viz a maisonnette for
family use on the ninth floor of a high block, one which is occupied by a large
number of other tenants, all using the common parts and dependent upon them,
none of them having any expressed obligation to maintain or repair them.
To say that
the construction of a complete contract out of these elements involves a
process of ‘implication’ may be correct: it would be so if implication means
the supplying of what is not expressed. But there are varieties of implications
which the courts think fit to make, and they do not necessarily involve the
same process. Where there is, on the face of it, a complete bilateral contract,
the courts are sometimes willing to add terms to it, as implied terms: this is
very common in mercantile contracts where there is an established usage: in
that case the courts are spelling out what both parties know, and would, if
asked, unhesitatingly agree, to be part of the bargain. In other cases, where
there is an apparently complete bargain, the courts are willing to add a term
on the ground that without it the contract will not work–this is the case, if
not of The Moorcock (1889) 14 PD 64 itself on its facts, at least of the
doctrine of The Moorcock as usually applied. This is, as was pointed out
by the majority in the Court of Appeal, a strict test, though the degree of
strictness seems to vary with the current legal trend, and I think that the
majority were right not to accept it as applicable here. There is a third
variety of implication, that which I think Lord Denning MR favours, or at least
did favour in this case, and that is the implication of reasonable terms. But
though I agree with many of his instances, which in fact fall under one or
other of the preceding heads, I cannot go so far as to endorse his principle:
indeed, it seems to me, with respect, to extend a long, and undesirable, way
beyond sound authority. The present case, in my opinion, represents a fourth
category, or I would rather say a fourth shade on a continuous spectrum. The
court here is simply concerned to establish what the contract is, the parties
not having themselves fully stated the terms. In this sense the court is
searching for what must be implied.
What then
should this contract be held to be?
There must first be implied a letting, ie a grant of the right of
exclusive possession to the tenants. With this there must, I would suppose, be
implied a covenant for quiet enjoyment, as a necessary incident of the letting.
The difficulty begins when we consider the common parts. We start with the fact
that the demise is useless unless access is obtained by the staircase: we can
add that, having regard to the height of the block, and the family nature of
the dwellings, the demise would be useless without a lift service: we can
continue that there being rubbish chutes built into the structures and no other
means of disposing of light rubbish there must be a right to use the chutes.
The question to be answered–and it is the only question in this case–is what is
to be the legal relationship between landlord and tenant as regards these
matters. There can be no doubt that there must be implied (i) an easement for
the tenants and their licensees to use the stairs, (ii) a right in the nature
of an easement to use the
be accompanied by any obligation upon the landlord, and what obligation? There seem to be two alternatives. The first,
for which the council contends, is for an easement coupled with no legal
obligation, except such as may arise under the Occupiers’ Liability Act 1957 as
regards the safety of those using the facilities, and possibly such other
liability as might exist under the ordinary law of tort. The alternative is for
easements coupled with some obligation on the part of the landlords as regards
the maintenance of the subject of them, so that they are available for use. In
order to be able to choose between these, it is necessary to define what test
is to be applied, and I do not find this difficult. In my opinion such
obligation should be read into the contract as the nature of the contract
itself implicitly requires, no more, no less: a test, in other words, of
necessity. The relationship accepted by the corporation is that of landlord and
tenant: the tenant accepts obligations accordingly, in relation inter alia
to the stairs, the lifts and the chutes. All these are not just facilities, or
conveniences provided at discretion: they are essentials of the tenancy without
which life in the dwellings, as a tenant, is not possible. To leave the
landlord free of contractual obligation as regards these matters, and subject
only to administrative or political pressure, is in my opinion inconsistent
totally with the nature of this relationship. The subject-matter of the lease
(high-rise blocks) and the relationship created by the tenancy demand, of their
nature, some contractual obligation on the landlord.
I do not think
that this approach involves any innovation as regards the law of contract. The
necessity to have regard to the inherent nature of a contract and of the
relationship thereby established was stated in this house in Lister v Romford
Ice & Cold Storage Co Ltd [1957] AC 555. That was a case between master
and servant and of a search for an implied term. Viscount Simons makes a clear
distinction between a search for an implied term such as might be necessary to
give ‘business efficacy’ to the particular contract and a search, based on
wider considerations, for such a term as the nature of the contract might call
for, or as a legal incident of this kind of contract (p 579). If the search
were for the former, he says, ‘I should lose myself in the attempt to formulate
it with the necessary precision.’ We see
an echo of this in the present case, when the majority in the Court of Appeal,
considering a ‘business efficacy’ term–ie a ‘Moorcock‘ term–found
themselves faced with five alternative terms and therefore rejected all of
them. But that is not, in my opinion, the end, or indeed the object, of the
search. We have some guidance in authority for the kind of term which this
typical relationship (of landlord and tenant in multi-occupational dwelling)
requires in Miller v Hancock [1893] 2 QB 177. There Bowen LJ said
at p 180:
The tenants
could only use their flats by using the staircase. The defendant, therefore,
when he let the flats, impliedly granted to the tenants an easement over the
staircase, which he retained in his own occupation, for the purpose of the
enjoyment of the flats so let. Under those circumstances, what is the law as to
the repairs of the staircase? It was
contended by the defendant’s counsel that, according to the common law, the
person in enjoyment of an easement is bound to do the necessary repairs
himself. That may be true with regard to easements in general, but it is
subject to the qualification that the grantor of the easement may undertake to
do the repairs either in express terms or by necessary implication. This is not
the mere case of a grant of an easement without special circumstances. It
appears to me obvious, when one considers what a flat of this kind is, and the
only way in which it can be enjoyed, that the parties to the demise of it must
have intended by necessary implication, as a basis without which the whole
transaction would be futile, that the landlord should maintain the staircase,
which is essential to the enjoyment of the premises demised, and should keep it
reasonably safe for the use of the tenants, and also of those persons who would
necessarily go up and down the stairs in the ordinary course of business with
the tenants; because, of course, a landlord must know when he lets a flat that
tradesmen and other persons having business with the tenant must have access to
it. It seems to me that it would render the whole transaction inefficacious and
absurd if an implied undertaking were not assumed on the part of the landlord
to maintain the staircase so far as might be necessary for the reasonable
enjoyment of the demised premises.
Certainly that
case, as a decision concerning a claim by a visitor, has been overruled (Fairman
v Perpetual Investment Building Society [1923] AC 74). But I cite the
passage for its commonsense as between landlord and tenant, and you cannot
overrule commonsense. There are other passages in which the same thought has
been expressed. De Meza v Ve-Ri-Best Manufacturing Co Ltd (1952)
160 EG 364 was a case of failure to maintain a lift in which Lord Evershed MR,
sitting with Denning and Romer LJJ, held the landlords liable in damages for
breach of an implied obligation to provide a working lift. The agreement was
more explicit than the present agreement, in that there was an express demise
of the flat ‘together with the use of the lift,’ but I think there is no doubt
that the same demise or grant must be implied here, and if so can lead to the
same result. In Penn v Gatenex Co Ltd [1958] 2 QB 210, a case
about a refrigerator in a flat, Sellers LJ said this at p 227:
If an
agreement gives a tenant the use of something wholly in the occupation and
control of the landlord, for example, a lift, it would, I think, be accepted
that the landlord would be required to maintain the lift, especially if it were
the only means of access to the demised premises. I recognise that a lift might
vary in age and efficiency, but in order to give meaning to the words ‘the use
of’ and to fulfil them, it should at least be maintained so that it would take
a tenant up and down, subject to temporary breakdown and reasonable stoppages
for maintenance and repairs.
That was a
dissenting judgment, but Lord Evershed MR (p 220) makes a similar observation
as to lifts. These are all reflections of what necessarily arises whenever a
landlord lets portions of a building for multiple occupation, retaining
essential means of access. I accept, of course, the argument that a mere grant
of an easement does not carry with it any obligation on the part of the
servient owner to maintain the subject-matter. The dominant owner must spend
the necessary money, eg in repairing a drive leading to his house. And the same
principle may apply when a landlord lets an upper floor with access by a
staircase: responsibility for maintenance may well rest on the tenant. But
there is a difference between that case and the case where there is an
essential means of access, retained in the landlord’s occupation, to units in a
building of multi-occupation: for unless the obligation to maintain is, in a
defined manner, placed upon the tenants, individually or collectively, the
nature of the contract, and the circumstances, require that it be placed on the
landlord.
It remains to
define the standard. My Lords, if, as I think, the test of the existence of the
term is necessity, the standard must surely not exceed what is necessary having
regard to the circumstances. To imply an absolute obligation to repair would go
beyond what is a necessary legal incident and would indeed be unreasonable. An
obligation to take reasonable care to keep in reasonable repair and usability
is what fits the requirements of the case. Such a definition involves–and I
think rightly–recognition that the tenants themselves have their
responsibilities. What it is reasonable to expect of a landlord has a clear
relation to what a reasonable set of tenants should do for themselves. I add
one word as to lighting. In general I would accept that a grant of an easement
of passage does not carry with it an obligation on the grantor to light the
way. The grantee must take the way accompanied by the primeval separation of
darkness from light, and if he passes during the former must bring his own
illumination. I think that the case of Huggett v Miers [1908] 2
KB 278 was decided on this principle, and possibly also Devine v London
Housing Society Ltd [1950] 2 All ER 1173. But the case may be different
when the means of passage are
case, to the extent that the easement is useless without some artificial light
being provided, the grant should carry with it an obligation to take reasonable
care to maintain adequate lighting–comparable to the obligation as regards the
lifts. To impose an absolute obligation would be unreasonable; to impose some
might be necessary. We have not sufficient material before us to see whether
the present case on its facts meets these conditions.
I would hold,
therefore, that the landlords’ obligation is as I have described. And in
agreement, I believe, with your Lordships, I would hold that it has not been
shown in this case that there was any breach of that obligation. On the main
point, therefore, I would hold that the appeal fails. It will be seen that I
have reached exactly the same conclusion as that of Lord Denning MR, with most
of whose thinking I respectfully agree. I must only differ from the passage in
which, more adventurously, he suggests that the courts have power to introduce
into contracts any terms they think reasonable or to anticipate legislative
recommendations of the Law Commission. A just result can be reached, if I am
right, by a less dangerous route. As regards the obligation under the Housing
Act 1961, section 32, again I am in general agreement with Lord Denning MR. The
only possible item which might fall within the covenant implied by this section
is that of defective cisterns in the maisonnette giving rise to flooding or, if
this is prevented, to insufficient flushing. I do not disagree with those of
your Lordships who would hold that a breach of the statutory covenant was
committed in respect of the matter for which a small sum of damages may be
awarded. I would allow the appeal as to this matter and dismiss it for the rest.
LORD CROSS: I
have had the advantage of reading the speeches of my noble and learned friends
Lord Wilberforce, Lord Salmon and Lord Edmund-Davies. I agree with them that on
the main point–the liability of the respondent council to pay damages to the
appellants for failure to keep the staircases and chutes in repair and the
lifts in working order–this appeal should be dismissed; but that it should be
allowed so far as concerns the claim under section 32 of the Housing Act 1961
relating to the lavatory cistern inside the maisonnette. I do not wish to add
anything with regard to the latter claim, but in view of its general importance
and because I am–with respect to him–unable to agree with a passage in the
judgment of the Master of the Rolls I will add a few words of my own on the
main point.
When it
implies a term in a contract the court is sometimes laying down a general rule
that in all contracts of a certain type–sale of goods, master and servant,
landlord and tenant, and so on–some provision is to be implied unless the
parties have expressly excluded it. In deciding whether or not to lay down such
a prima facie rule the court will naturally ask itself whether in the
general run of such cases the term in question would be one which it would be
reasonable to insert. Sometimes, however, there is no question of laying down
any prima facie rule applicable to all cases of a defined type, but what
the court is being in effect asked to do is to rectify a particular–often a
very detailed–contract by inserting in it a term which the parties have not
expressed. Here it is not enough for the court to say that the suggested term
is a reasonable one the presence of which would make the contract a better or
fairer one; it must be able to say that the insertion of the term is necessary
to give–as it is put–‘business efficacy’ to the contract, and that if its
absence had been pointed out at the time both parties–assuming them to have
been reasonable men–would have agreed without hesitation to its insertion. The
distinction between the two types of case was pointed out by Lord Simonds and
Lord Tucker in their speeches in Lister v Romford Ice & Cold
Storage Co Ltd [1957] AC 555 at pp 579 and 594, but I think that Lord
Denning in proceeding–albeit with some trepidation–to ‘kill off’ Lord Justice
Mackinnon’s ‘officious bystander’ must have overlooked it. Counsel for the
appellant did not in fact rely on this passage in the speech of the Master of
the Rolls. His main argument was that when a landlord lets a number of flats or
offices to a number of different tenants, giving all of them rights to use the
staircases, corridors and lifts, there is to be implied, in the absence of any
provision to the contrary, an obligation on the landlord to keep the ‘common
parts’ in repair and the lifts in working order. But for good measure, counsel
also submitted that he could succeed on the ‘officious bystander’ tests.
I have no
hesitation in rejecting this alternative submission. We are not here dealing
with an ordinary commercial contract by which a property company is letting one
of its flats for profit. The respondent council is a public body charged by law
with the duty of providing housing for members of the public, selected because
of their need for it, at rents which are subsidised by the general body of
ratepayers. Moreover, the officials in the council’s housing department would
know very well that some of the tenants in any given block might subject the
chutes and lifts to rough treatment and that there was an ever-present danger
of deliberate damage by young ‘vandals,’ some of whom might in fact be children
of the tenants in that or neighbouring blocks. In these circumstances, if at
the time when the respondents were granted their tenancy one of them had said
to the council’s representative, ‘I suppose that the council will be under a
legal liability to us to keep the chutes and the lifts in working order and the
staircases properly lighted,’ the answer might well have been–indeed I think,
as Roskill LJ thought, in all probability would have been–‘Certainly not.’ The official might have added in explanation,
‘Of course we do not expect our tenants to keep them in repair themselves,
though we do expect them to use them with care and to co-operate in combating
vandalism. The council is a responsible body conscious of its duty both to its
tenants and to the general body of ratepayers, and we will always do our best
in what may be difficult circumstances to keep the staircases lighted and the
lifts and chutes working; but we cannot be expected to subject ourselves to a
liability to be sued by any tenant for defects which may be directly or
indirectly due to the negligence of some of the other tenants in the very block
in question.’ Some people might think
that it would have been, on balance, wrong for the council to adopt such an
attitude; but no one could possibly describe such an attitude as irrational or
perverse.
I turn,
therefore, to consider the main argument advanced by the appellants. One starts
with the general principle that the law does not impose on a servient owner any
liability to keep the servient property in repair for the benefit of the owner
of an easement. If I let you a house on my land with a right-of-way to it over
my property, and the surface of the way in need of repair, you cannot call on
me to repair it if I have not expressly agreed to do so. I can say, ‘I do not
use that road much myself and so the fact that it is out of repair does not
trouble me. If it troubles you, you can repair it yourself.’ I see no reason why the same principle should
not be applicable when the owner of a house lets part of an upper storey in it
to a single tenant. The landlord would, no doubt, be subject to the liability
of an occupier under the Occupiers’ Liability Act 1957; but as a matter of
contract between himself and his tenant he could, I think, say, ‘I agree that
the staircase is dark and somewhat in need of repair; but I am content with it
as it is. If you are not content with it you can repair it and light it
yourself.’ But must it follow that the
same principle must be applied to the case where a landlord lets off parts of his
property to a number of different tenants, retaining in his ownership ‘common
parts’–halls, staircases, corridors and so on–which are used by all the
tenants? I think that it would be
contrary to commonsense to press the general principle so
that instead of the landlord being under no obligation to keep the common parts
in repair and such facilities as lifts and chutes in working order unless he
has expressly contracted to do so, he should–at all events in the case of
ordinary commercial lettings–be under some obligation to keep the common parts
in repair and the facilities in working order unless he has expressly excluded
any such obligation. This was the view taken by the Court of Appeal in Miller
v Hancock [1893] 2 QB 177, and though the actual decision in that case,
which gave a visitor the right to sue on the implied obligation, was wrong and
was later overruled by this House, I think that so far as concerns the position
as between landlord and tenant the Court of Appeal was right. I agree, however,
with your Lordships that the obligation to be implied in such cases is not an
absolute one, but only a duty to use reasonable care to keep the common parts
and facilities in a state of reasonable repair and efficiency.
So far as
concerns ordinary commercial lettings, I do not suppose that the acceptance by
this House of the correctness of the view expressed by the Court of Appeal in Miller
v Hancock as to the implied obligations of a landlord in such cases is
of much importance, for normally the tenancy agreement contains detailed
provisions as to the extent of the landlord’s liability for the repair,
cleaning and lighting of the common parts and the maintenance of the lifts,
coupled often with provisions for the payment by the tenants of a service
charge separate from the basic rent to cover the cost incurred by the landlord
in such repair and maintenance. But the question remains–and it is the only
question in this appeal over which I have felt any doubt–whether the considerations
which make it to my mind impossible to apply the ‘officious bystander’ test in
this case ought not to lead to the drawing of a distinction between ordinary
commercial lettings and the grant of tenancies of council flats, so that while
in the former class the landlord should be under an obligation unless he has
expressly excluded it, the general rule as to the repair of easements should
apply in the latter class and the council only be under an obligation if it has
expressly assumed it. But on reflection I do not think that the differences
between the letting of council flats and of privately-owned, flats are great
enough or clear cut enough to justify the drawing of such a distinction.
Nowadays most tenants pay less than the full economic rent for their
accommodation, though in the case of privately owned properties the subsidy is
at the expense of the landlord and not of the local community, and it is not
only council flats that suffer from ‘vandalism.’ If local authorities wish to avoid any contractual
liability to their tenants with regard to the repair and lighting of the common
parts and maintenance of the lifts and chutes then they must expressly exclude
it. But to succeed in their claim the appellants had to prove negligence on the
part of the respondent council, and I agree with all the judges in the Court of
Appeal and with your Lordships that they did not prove it in this case.
LORD SALMON:
On July 11 1966 Liverpool City Council accepted the defendant and his wife as
their tenants of a council maisonnette consisting of three bedrooms, together
with a sitting room, kitchen, bathroom, we and an outside balcony. This
dwelling was on the 9th floor of a 15-storey block known as Haigh Heights which
comprised some 70 similar dwellings. The only access to any of the 15 storeys
was by two lifts and a staircase. These lifts and this staircase remained in
the possession and control of the council. The original rent was £3 1s 2d a
week inclusive of rates. This was undoubtedly a low rent; and it still is,
although I understand that it has now been increased by about three times that
amount. The tenancy was terminable by either party giving to the other four
weeks’ notice in writing ending on any Monday. After a rent strike by the
tenants (including the defendant), caused by what the county court judge found
to be appalling conditions to which the tenants in this multi-storey block were
all subjected, a notice to quit was served upon the defendant in 1973.
Subsequently the council brought an action to evict him, and on June 18 1973
the defendant filed a defence and a counterclaim for £10 nominal damages. The
county court judge found, rightly, that there was no defence to the action, and
made an order for possession. He awarded the defendant the £10 damages
counterclaimed. The judgment on the counterclaim was based chiefly on the
ground that the council, in breach of its obligations, continuously failed to
keep the lifts in operation and left the staircase in complete darkness, and
also on the ground that the council was in breach of section 32 (1) (b) of the
Housing Act 1961, to which I shall presently refer. Without challenging any of
the facts, the council appealed from that judgment, and the appeal was allowed,
the majority of the Court of Appeal, Roskill and Ormrod LJJ, deciding that the
council was under no obligation of any kind to keep the lifts or the staircases
in repair, and Lord Denning MR deciding that although the council was under a
duty to use reasonable care to keep the lifts working and the staircase lit and
in repair, they had not failed in that duty. The court of Appeal unanimously
concluded that the council was not in breach of the Housing Act 1961. The
defendant now appeals from that judgment.
This appeal
turns chiefly upon whether the council was under any, and if so what,
contractual obligation to their tenants. The printed conditions of tenancy
dated July 11 1966 imposed a great many express obligations upon the tenants
but did not expressly impose any obligations of any kind upon the council. It
has been argued that the council should not be taken to have accepted any legal
obligations of any kind. After all, this was a distinguished city council which
expected its tenants happily to rely on it to treat them reasonably without
having the temerity to expect the council to undertake any legal obligations to
do so. I confess that I find this argument and similar arguments which I have
often heard advanced on behalf of other organisations singularly unconvincing.
Clearly, there was a contractual relationship between the tenants and the
council with legal obligations on both sides. Those of the tenants are
meticulously spelt out in the council’s printed form, which mentions none of
the council’s obligations. But legal obligations can be implied as well as
expressed. In order to discover what, if any, are the council’s implied
obligations, all the surrounding circumstances must be taken into account.
Among the more important surrounding circumstances are the following. This was
a block 15 storeys high which was built to be let to parents with young
children. The lifts and staircases were obviously provided by the council as
being necessary amenities for their tenants which they impliedly gave the
tenants and their families and visitors a licence to use. As Bowen LJ said in Miller
v Hancock [1893] 2 QB 177 at 181:
This is not
the mere case of a grant of a [licence] without special circumstances. It
appears to me obvious, when one considers what [a block] of this kind is, and
the only way in which it can be enjoyed, that the parties to the demise of it
must have intended by necessary implication, as a basis without which the whole
transaction would be futile, that the [council] should maintain [the lifts and
staircases, which are] essential to the enjoyment of the premises demised, [and
that the council] should keep [them] reasonably safe. . . . It seems to me that
it would render the whole transaction inefficacious and absurd if an implied
undertaking were not assumed on the part of the [council] to maintain the
[lifts and staircases] so far as might be necessary for the reasonable
enjoyment of the demised premises.
Could it in
reality have been contemplated by the council or their tenants that the council
undertook no responsibility to take, at any rate, reasonable care to keep the
lifts in order and the staircases lit?
No doubt the tenants also owed a
implied in the printed terms of the tenancy. Can a pregnant woman accompanied
by a young child be expected to walk up 15, or for that matter nine, storeys in
the pitch dark to reach her home? Unless
the law, in circumstances such as these, imposes an obligation upon the council
at least to use reasonable care to keep the lifts working properly and the
staircase lit, the whole transaction becomes inefficacious, futile and absurd.
I cannot go so far as Lord Denning MR and hold that the courts have any power
to imply a term into a contract merely because it seems reasonable to do so.
Indeed, I think that such a proposition is contrary to all authority. To say,
as Lord Reid said in Young & Marten Ltd v McManus Childs Ltd [1969]
1 AC 454 at 465 that ‘no warranty ought to be implied in a contract unless it
is in all the circumstances reasonable’ is in my view quite different from
saying that any warranty or term which is in all the circumstances reasonable
ought to be implied in a contract. I am confident that Lord Reid meant no more
than that unless a warranty or term is in all the circumstances reasonable
there can be no question of implying it into a contract, but before it is
implied much else besides is necessary, eg that without it the contract would
be inefficacious, futile and absurd.
The decision
in Miller v Hancock [1893] 2 QB 177 to the effect that a visitor
to demised premises who met with an injury could take advantage of the implied
contractual terms between the landlord and tenant and accordingly sue the
landlord for injuries which the visitor suffered as a result of the breach of
those terms was naturally overruled in Fairman v Perpetual Investment
Building Society [1923] AC 74. But the general propositions of Bowen LJ to
which I have referred have never been overruled. It has, however, been made
clear that those propositions were not intended to impose an absolute
obligation to maintain, but only an obligation to take all reasonable care to
maintain the lifts and staircase for the reasonable enjoyment of the demised
premises (Dunster v Hollis [1918] 2 KB 795 at 803). For my part,
I do not think that the propositions laid down by Bowen LJ as modified are in
any way weakened–indeed, I think they are supported–by two of the authorities
cited by Roskill LJ, namely, In re Comptoir Commercial Anversois v Power,
Son & Co [1920] 1 KB 868 and R v Paddington & St
Marylebone Rent Tribunal ex parte Bedrock Investments Ltd [1947] KB 984. In
the first of these cases, Scrutton LJ said at pp 899-900 ‘[the court] ought not
to imply a term merely because it would be a reasonable term to include if the
parties had thought about the matter, or because one party, if he had thought
about the matter, would not have made the contract unless the term was
included; it must be such a necessary term that both parties must have intended
that it should be a term of the contract and have only not expressed it because
its necessity was so obvious that it was taken for granted.’ In the second authority, Lord Goddard CJ said
at p 990: ‘No covenant ought ever to be implied unless there is such a
necessary implication that the court can have no doubt what covenant or
undertaking they ought to write into the agreement.’ I find it difficult to think of any term
which it could be more necessary to imply than one without which the whole
transaction would become futile, inefficacious and absurd, as it would do if in
a 15-storey block of flats or maisonnettes, such as the present, the landlords
were under no legal duty to take reasonable care to keep the lifts in working
order and the staircases lit.
It may be that
further codification of the law of landlord and tenant is desirable. The
recommendations of the Law Commission referred to in the Court of Appeal may be
translated into statutes sooner or later–perhaps much later. I respectfully
agree with Lord Denning MR that, in the meantime, the law should not be
condemned to sterility and that the judges should take care not to abdicate
their traditional role of developing the law to meet even the advent of tower
blocks. The next point for decision is whether the defendant has proved that
the continuous failure of the lifts and of the lights on the staircases was due
to the council’s failure to take reasonable care. The difficulty is that in his
pleadings the defendant never alleged that the council owed a duty to take reasonable
care. He alleged that they were under an absolute duty to maintain the lifts
and keep the staircases lit. If any such absolute duty rested on the
council–which, as I have indicated, I cannot accept–the defendant, on the
judge’s findings of fact, would clearly be entitled to succeed. I of course
recognise that in the county court pleadings are apt not to be so strictly
regarded as in the High Court. I am also conscious that most of the evidence on
both sides seems to have been directed to the issue of whether or not the
failure of the lifts and the lights were to be attributed to the council’s
fault. Nevertheless, had failure to take reasonable care (which was the
council’s only obligation under the contract) been pleaded, as it should have
been, it may be that the council would have armed themselves with more
convincing evidence that they had done everything which could reasonably be
expected of them. I have, with some reluctance and doubt, come to the
conclusion that it would not be fair to find against them on an issue which has
never been pleaded against them, or indeed expressly raised before the county
court judge. My doubts are certainly not diminished by the impression I have
drawn from the judge’s notes that if failure to take reasonable care had been
pleaded the judge might well have found it proved. The lifts were out of action
inordinately often, and only a little more than half the time on account of
vandalism. Moreover, Mr Tyrer, the council’s district housing manager, conceded
that a lot of the damage was not done by the children in the blocks–Haigh
Heights being one of a group of three blocks. Since, however, only an absolute
obligation was pleaded against the council to which they had a complete answer,
I do not think it would be right for the reasons I have already given to find
against them on the ground that they failed to take reasonable care. I would
accordingly dismiss the appeal in so far as it relates to the lifts and
staircase.
It remains to
consider whether the council were in breach of their obligations under section
32(1)(b) of the Housing Act 1961, which admittedly applies to the tenancy in
question. It reads, so far as relevant, 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 . . . (b) to keep in repair and proper working
order the installations in the dwelling-house–(i) for the supply of water . . .
for sanitation (including . . . sanitary conveniences . . . ).’ The judge found that every time a water
closet was used, the water overflowed and was apt to flood the floor and escape
on to the landing, where it lay without any means of dmining away. Whether the
ball-cock as fitted caused this tiresome fault, or whether it was due to the design
of the sanitary convenience, is not clear, nor in my view does it matter. Some
tenants tried using pails to catch the overflow. Others attempted to bend the
ball-cock down, which stopped the overflow but did not allow sufficient water
to flush the water closet efficiently. For my part I do not understand how on
any acceptable construction of the section, it can be held that in the
circumstances I have recited the council complied with their statutory
obligations to keep the sanitary conveniences in proper working order. I can
well understand that sanitary conveniences may be in proper working order even
if they are too small or there are too few of them, but how they can be said to
be in proper working order if every time they are used they may swamp the floor
passes my comprehension. I would accordingly allow the appeal in relation to
that part of the counterclaim based on the council’s breach of the Housing Act
1961, and reduce the damages awarded from £10 to £5.
LORD
EDMUND-DAVIES: The questions to which this appeal gives rise fall into two
parts: (1) Were the respondents, the Liverpool City Council, under any
obligation to the plaintiffs as ninth-floor tenants of Haigh Heights, Everton,
in respect of the common parts of that tower block which they, as landlords,
retained in their possession and control?
If so, what was the nature of their obligation, and were they in breach
of it? (2) Were the respondents in
breach of section 32(1) of the Housing Act 1961?
The conditions
of tenancy signed by the appellants imposed no express duty on their landlords.
They were drafted mainly with houses in mind, and towards the end there were
added ‘Further special notes for multi-storey dwellings.’ These imposed on the tenants certain
prohibitions in respect of hallways, staircases and lifts, but again imposed no
express obligations on the landlords. Yet, to all save tenants occupying
ground-floor maisonnettes, the tenancies were useless unless adequate means of
ascent were provided. Even so, the finding of the majority of the Court of
Appeal was that there was no sort of obligation on the landlords to keep
available such access, without which the premises were not worth even the
extremely low weekly rent of £3 1s 2d fixed in July 1966. Such a conclusion is
explicable only on the basis that the members of the Court of Appeal adopted
what I respectfully regard as an initially wrong approach to the novel problem
presented by the facts. The case for the tenants was founded upon Miller
v Hancock [1893] 2 QB 177, where a landlord was held liable to
compensate his tenant’s visitor for personal injuries sustained while
descending stairs leading from the tenant’s second-floor premises owing to the
worn and defective condition of one of the stairs. Woodfall (27th ed p
577) cites that decision as authority for the proposition that ‘where the
landlord of a building let out in flats or offices retains the possession or
control of a staircase, there is an implied agreement by him with his tenants
to keep the staircase in repair.’ That
set the Court of Appeal off on considering in what circumstances a contractual
term could be implied, and that understandably but unfortunately led them to The
Moorcock (1889) 14 PD 64, CA. It had not been cited in Miller v Hancock
(ante), but the Court of Appeal considered that it enshrined the
only possible basis for implying such a term as that contended for by the
tenants. It is right to say, furthermore, that such was the only basis advanced
on behalf of the tenants themselves at that time. The Court of Appeal
accordingly proceeded to consider whether, in the light of The Moorcock (ante),
such a term could be implied in the tenancy agreement. Roskill LJ (with whom
Ormrod LJ agreed) said ([1975] 3 WLR 677):
I cannot
agree . . . that it is open to us in the court at the present day to imply a
term because subjectively or objectively we as individual judges think it would
be reasonable so to do. It must be necessary in order to make the
contract work, as well as reasonable so to do, before the court can write into
a contract as a matter of implication some term which the parties have
themselves, assumedly deliberately, omitted to do.
Lord Denning
MR, on the other hand, ‘with some trepidation’ (which was understandable), took
a different view, and, after referring to some out of the ‘stacks’ of relevant
cases, said (ibid) 670B):
In none of
them did the court ask: what did both parties intend? If asked, each party would have said he never
gave it a thought: or the one would have intended something different from the
other. Nor did the court ask: Is it necessary to give business efficacy to the
transaction? If asked, the answer would
have been: ‘It is reasonable, but it is not necessary.’ The judgments in all those cases show that
the courts implied a term according to whether or not it was reasonable in all
the circumstances to do so. . . . This is to be decided as a matter of law, not
as a matter of fact.
I have
respectfully to say that I prefer the views of the majority in the Court of
Appeal. Bowen LJ said in the well-known passage in The Moorcock (ante,
at p 68):
In business
transactions such as this, what the law desires to effect by the implication is
to give such business efficacy to the transaction as must have been intended at
all events by both parties who are businessmen; . . . to make each party
promise in law as much, at all events, as it must have been in the
contemplation of both parties that he should be responsible for. . . .
That is not to
say, of course, that consideration of what is reasonable plays no part in
determining whether or not a term should be implied. Thus, in Hamlyn &
Co v Wood & Co [1891] 2 QB 488 at 491, decided only two years
after The Moorcock (to which he had been a party) Lord Esher said:
The court has
no right to imply in a written contract any such stipulation unless, on
considering the terms of the contract in a reasonable and business manner, an
implication necessarily arises that the parties must have intended that the
suggested stipulation should exist. It is not enough to say that it would be a
reasonable thing to make such an implication. It must be a necessary
implication in the sense that I have mentioned.
Bowen and Kay
LJJ, who had also been members of The Moorcock court, delivered similar
judgments. The touch-stone is always necessity and not merely reasonableness:
see, for example, the judgment of Scrutton LJ in Reigate v Union
Manufacturing Co [1918] 1 KB 592 at 605, and in the case cited below by
Roskill LJ, In re Comptoir Commercial Anversois v Power, Son & Co
[1920] 1 KB 868 at 899. But be the test that of necessity (as I think, in
common with Roskill and Ormrod LJJ) or reasonableness (as Lord Denning MR
thought), the exercise involved is that of ascertaining the presumed intention
of the parties. Whichever of these two tests one applies to the facts of the
instant case, in my judgment the outcome would be the same, for, in the words
of Roskill LJ (ibid) at 677H):
I find it
absolutely impossible to believe that the Liverpool City Council, if asked
whether it was their intention as well as that of their tenants of these flats
that any of the implied terms contended for by Mr Godfrey should be written
into the contract, would have given an affirmative answer. Their answers would
clearly have been ‘No.’
It follows that,
had such continued to be the case presented on the appellants’ behalf to your
Lordships’ House, for my part I should have rejected it. But it was not, for Mr
Godfrey adopted before your Lordships a previously unheralded and more
attractive approach, which was very properly not objected to by Mr Francis
despite its late appearance on the scene. As an alternative to his argument
based on The Moorcock (ante), Mr Godfrey submitted before this
House that an obligation is placed upon the landlords in all such lettings of
multi-storey premises as are involved in this appeal by the general law, as a
legal incident of this kind of contract, which the landlords must be assumed to
know about as well as anyone else. This new approach was based largely upon Lister
v Romford Ice & Cold Storage Co Ltd [1957] AC 555, a case concerning
the incidents of a contract of service between master and servant, in which
Viscount Simonds said (at p 576):
For the real
question becomes, not what terms can be implied in a contract between two
individuals who are assumed to be making a bargain in regard to a particular
transaction or course of business; we have to take a wider view, for we are
concerned with a general question, which, if not correctly described as a
question of status, yet can only be answered by considering the relation in
which the drivers of motor-vehicles and their employers generally stand to each
other. Just as the duty of care, rightly regarded as a contractual obligation,
is imposed on the servant, or the duty not to disclose confidential information
(see Robb v Green), or the duty not to betray secret processes
(see Amber Size & Chemical Co Ltd v Menzel), just as the duty
is imposed on the master not to require his servant to do any illegal act, just
so the question must be asked
condition of the relation of master and man that the master should, to use a
broad colloquialism, look after the whole matter of insurance. If I were to try
to apply the familiar tests where the question is whether a term should be
implied in a particular contract in order to give it what is called business
efficacy, I should lose myself in the attempt to formulate it with the
necessary precision. The necessarily vague evidence given by the parties and
the fact that the action is brought without the assent of the employers shows
at least ex post facto how they regarded the position. But this is not
conclusive; for, as I have said, the solution of the problem does not rest on
the implication of a term in a particular contract of service but upon more
general considerations.
From this
basis one reverts to Miller v Hancock itself, where Lord Esher MR
said (at p 179):
What . . .
are the rights of the tenants and the duties of the landlord towards them? Their only mode of access to their tenements
was . . . by this staircase. This may be called an easement, but it was in my
opinion, under the circumstances, such an easement as the landlord was bound to
keep so as to afford a reasonably safe entrance and exit to the tenants. It
seems to me that there is an implied obligation on the part of the landlord to
the tenants to that effect, or else he is letting to the tenants that which
will be of no value to them.
Bowen LJ (p
180) and Kay LJ (182) expressed similar views. Mr Godfrey submitted (and it is
important to stress that Mr Francis did not challenge) that in lettings of the
kind here under consideration, the general law confers upon the tenants
easements of access by the staircases and lifts provided such as would give
them a legal remedy were the landlord to prevent the tenants from enjoying them
by, for example, locking the lifts or erecting a barrier across the stairs. But
the question is whether the general law imposes any duty upon the landlord save
the duty of non-interference, and above all, whether it obliges the landlord to
repair such means of access. Mr Francis denies that any such extended
obligation exists and relies upon the well-established principle that the law
imposes, for example, no duty of repair on the servient owner in respect of a
right-of-way over his land, leaving it to the dominant owner to effect such
repair as he finds necessary for the proper enjoyment of his easement.
Accordingly, so ran his argument, to hold that any obligation of repair rests
upon the Liverpool Corporation would be a radical and impermissible departure
from well-established law, and only Parliament can impose such an obligation.
But there appears to be no technical difficulty in making an express
grant of an easement coupled with an undertaking by the servient owner to
maintain it. That being so, there seems to be no reason why the easement
arising in the present case should not by implication carry with it a similar
burden on the grantor. As Bowen LJ said in Miller v Hancock (ante,
at p 181):
It was
contended by the defendant’s counsel that, according to the common law, the
person in enjoyment, of an easement is bound to do the necessary repairs
himself. That may be true with regard to easements in general, but it is
subject to the qualification that the grantor of the easement may undertake to
do the repairs either in express terms or by necessary implication. This is not
the mere case of a grant of an easement without special circumstances. It
appears to me obvious, when one considers what a flat of this kind is, and the
only way in which it can be enjoyed, that the parties to the demise of it must
have intended by necessary implication, as a basis without which the whole
transaction would be futile, that the landlord should maintain the staircase,
which is essential to the enjoyment of the premises demised. . . .
There is
modern support for such a view. Thus in De Meza v Ve-Ri-Best
Manufacturing Co Ltd (1952) 160 EG 364, where a fourth-floor flat had been
demised ‘together with the use of the lift’ and the lift had been out of order
for three years, the tenants were held entitled to damages for the landlords’
failure to maintain it in working order. Lord Evershed MR (with whom Denning
and Romer LJJ concurred) dealt with the submission advanced on the landlords’
behalf that there was no express covenant to repair in the tenancy agreement,
and that none could be implied, by saying that the terms of the agreement
imposed upon the landlords the obligation to maintain a working lift. The
tenants are afforded a further measure of support by the observation made obiter
by Sellers LJ in his dissenting judgment in Penn v Gatenex Co Ltd [1958]
2 QB 210 at p 227 that:
If an
agreement gives a tenant the use of something wholly in the occupation and
control of the landlord, for example, a lift, it would, I think, be accepted
that the landlord would be required to maintain the lift, especially if it were
the only means of access to the demised premises. I recognise that a lift might
vary in age and efficiency, but in order to give meaning to the words ‘the use
of’ and to fulfil them, it should at least be maintained so that it would take
a tenant up and down, subject to temporary breakdown and reasonable stoppages
for maintenance and repair.
I therefore
conclude that the city council were under an obligation to the tenant in
relation to the maintenance of stairs and lifts in Haigh Heights in such a
condition as to enable them to be used as means of access to and from their
maisonnettes. This also involved the maintenance of reasonably adequate
lighting of the staircases at such times and in such places as artificial
lighting was called for.
The next
question that arises is: what is the nature and extent of such obligation? In other words, is it absolute or
qualified? If the former, any failure to
maintain (save of a wholly minimal kind) would involve a breach of the landlord’s
obligation, and in Hart v Rogers [1916] 1 KB 646 at 650 Scrutton
J considered that such was the view taken by the court in Miller v Hancock
(ante). But later decisions such as Dunster v Hollis [1918] 2
KB 795 and Cockburn v Smith [1924] 2 KB 119 treat the duty only
as one of reasonable care, and such is the conclusion I have come to also. To
impose an absolute duty upon the landlords in the case of buildings in multiple
occupation would, I think, involve such a wide departure from the ordinary law
relating to easements that it ought not to be held to exist unless expressly
undertaken and should not be implied. Then, adopting the standard of reasonable
care, were the landlords shown to have been in breach? The county court judge made no such finding,
and this for the good reason that no such breach had been alleged in the
counterclaim of the tenants, who were then asserting that the landlords owed an
absolute duty. In these circumstances, and for the reasons appearing in the
judgments of Lord Denning MR and Roskill LJ, it would, I think, be wrong now to
hold on such evidence as was adduced that lack of reasonable care had been
established. I therefore concur with my Lords in dismissing this part of the
appeal.
There remains
the Housing Act question. It is clear that section 32 (1) (b) of the Act
of 1961 imposes an absolute duty upon the landlord ‘to keep in repair
and proper working order the installations in the dwelling-house. . . . ‘ It could be said that the opening words (‘to
keep . . .’) apparently limit the landlord’s obligation to preserving the existing
plant in its original state and create no obligation to improve plant which
was, by its very design, at all times defective and inefficient. But the phrase
has to be read as a whole and, as I think, it presupposes that at the inception
of the letting the installation was ‘in proper working order,’ and that if its
design was such that it did not work properly the landlord is in breach.
Bathroom equipment which floods when it ought merely to flush is clearly not in
‘working order,’ leave alone ‘proper’ working order (if, indeed, the adjective
adds anything). To say that such whimsical behaviour is attributable solely to
faulty design is to advance an explanation that affords no excuse for the clear
failure
Just as badly-designed apparatus has been held not of ‘good
construction’ (Smith v A Davies & Co (Shopfitters) Ltd (1968)
5 KIR 320, per Cooke J), so in my judgment the landlords here were in breach of
section 32 (1) (b) by supplying bathroom equipment which, due to bad
design, throughout behaved as badly as did the Irwins’ cistern. I do not,
however, find established any of the other statutory breaches alleged. In the
result, while otherwise dismissing the appeal, I hold that the appellants are
entitled to succeed in the one respect indicated, and I concur in the award of
damages of £5 in respect thereof.
LORD FRASER: I
have had the advantage of reading in print the speech of my noble and learned
friend on the Woolsack. I agree with him that there is to be implied, as a
legal incident of the kind of contract between these landlords and these
tenants, an obligation on the landlords to take reasonable care to maintain the
common stairs, the lifts and the lighting on the common stairs. I agree also
that the landlords have not been shown to be in breach of that obligation. With
regard to the second point, I am of opinion that the landlords were in breach
of their statutory obligation under section 32 (1) (b) (i) of the
Housing Act 1961 in respect of the cisterns, but not in any other respects. The
cisterns, apparently because of their faulty design, were so inefficient that
tenants had either to bend the ball-cock arm so that the cistern did not fill
completely, with the result it did not flush the lavatory properly, or to leave
the ball-cock in the designed position, with the result that the cistern
overflowed and caused flooding. Such a cistern was clearly not in ‘proper
working order’ and in my opinion the landlords failed to ‘keep’ it in proper
working order. I would allow the appeal on the second point and reduce the
damages to £5.
