Landlord and tenant — Covenant to repair — Claim by lessee for damages for breach of lessor’s covenant — Lessee, after unsuccessful efforts to make lessor carry out his repairing responsibilities, executed the necessary remedial works at her own expense — Lessor’s neglect over a long period resulted in substantial consequential deterioration to flats of plaintiff and fellow lessees, including growth of dry rot and wet rot
plaintiff’s flat was one of five into which a semi-detached house of four
floors, one of many houses owned by the defendant, had been converted — The
plaintiff had acquired the lease of her basement flat in 1986, the term being
from 1962 to 2071 — The plaintiff was plagued by troubles soon after the
beginning of her occupation — A survey which the plaintiff had commissioned before
purchase showed a certain degree of dampness but it did not then appear
excessive and there was no mention in it of dry or wet rot — Later events,
however, indicated that the lessor’s neglect had already laid the foundation
for serious misfortunes for the plaintiff and other lessees — At the centre of
the trouble was the flat roof of an extension, on part of which water tanks
were placed, the remainder forming a patio — The judge found that rainwater
entered the house through splits or cracks in the asphalt under the tanks in
the tank housing — The rainwater got there through gaps between the tank
housing and the side wall of the house and between the housing and the parapet
— This, rather than any overflows from the ball valves in the tanks, was the source
of the disastrous penetration of water — Every time it rained water entered the
plaintiff’s flat — Rainwater from the roof of the house drained across the flat
roof of the extension — As downpipes deteriorated and guttering dropped off, a
greater volume of rainwater fell on the tank housing and found its way through
gaps and splits into the house — The result, apart from the direct inflow of
water and incidence of dampness, was the growth of dry and wet rot — The
judge’s lengthy judgment is characterised by a detailed description of these
events and his findings thereon
under the covenants of her lease was liable for the repair of her flat,
including walls, drains and pipes therein, but she was not found to be in
breach of any of her obligations — The judge found the lessor to be in breach
of his repairing obligations and that the breaches were the direct cause of the
deterioration of the property and the damage suffered by the plaintiff — The
entry of the rainwater had led to the continuing growth of rot — After vain
attempts to secure satisfaction from the landlord and those working for him,
the plaintiff was held to be fully justified in taking the necessary remedial
steps herself at her own expense to halt further and possibly disastrous deterioration
of his judgment the judge dealt with a large number of points in the
plaintiff’s and defendant’s cases — The following is a summary of the most
important:
into her own hands did not amount to waiver or estoppel in regard to the writ
in her action;
plaintiff should have sought an interlocutory mandatory injunction instead of
relying on self-help;
the occurrence of a severe storm during the history of these events as a novus
actus interveniens was rejected;
not to be reduced by reason of contributions she may have
must not be required to pay more than once; as regards the works, it was not in
fact possible to repair for one without repairing for all;
ball valves it was, in the circumstances, the lessor’s liability;
dependent on his receiving a notification of disrepair;
increase the amount of the service charge by reason of his own default in
delaying repair and thus adding to the expenditure required; and
the remedial works herself was probably not a trespass but an entry under an
implied licence; even if it were a trespass, that would not be a bar to
recovery of damages
awarded general damages of £900, itemised expenses of £1,709.25 and cost of
remedial works at £14,322, a total of £16,931.25 — A decision on interest,
costs and form of declarations (if any) was reserved to a further hearing
The following
cases are referred to in this report.
Bishop v Consolidated London Properties Ltd (1933)
102 LJ KB 257; 148 LT 407
Bond v Nottingham Corporation [1940] Ch
429
Granada Theatres Ltd v Freehold Investments
(Leytonstone) Ltd [1959] Ch 592; [1959] 1 WLR 570; [1959] 2 All ER 176, CA
Jeune v Queens Cross Properties Ltd [1974]
1 Ch 97; [1973] 3 WLR 378; [1973] 3 All ER 97; (1973) 26 P&CR 98; [1973]
EGD 976; 228 EG 143
Melles & Co v Holmes [1918] 2 KB
100; (1918) 119 LT 191
Parker v Camden London Borough [1986] Ch
162; [1985] 3 WLR 47; [1985] 2 All ER 141; (1985) 84 LGR 16, CA
Parry v Cleaver [1970] AC 1; [1969] 2
WLR 821; [1969] 1 All ER 555; [1969] 1 Lloyd’s Rep 183, HL
Payne v Rogers (1794) 2 Blackstone 350
Rapid Results College Ltd v Angell [1986] 1 EGLR
53; (1986) 277 EG 856, CA
In this action
the plaintiff, Dr Sabina Adele Loria, sued the defendant, Mr B Hammer, for
damages for breach of his repairing responsibilities in respect of her basement
flat at 45 Adelaide Road, London NW3, in a house owned by the defendant. The
plaintiff held the flat under a long lease.
Robert
Powell-Jones (instructed by Collyer Bristow) appeared on behalf of the
plaintiff; Nicholas Wood (instructed by Binks Stern & Partners) represented
the defendant.
Giving
judgment, MR JOHN LINDSAY QC said: This action is between the plaintiff, Dr
Loria (‘the tenant’) for whom Mr Powell-Jones appears, and her landlord, Mr
Hammer, for whom Mr Nicholas Wood appears. The action, which was heard on a
number of days between May 15 and June 9 1989, concerns a house, 45 Adelaide
Road, London NW3, which I must describe in some detail.
The house was
built, it is thought, in or about the 1850s. The front is painted stucco, the
flank London stock brick. The house is semi-detached. It is on four floors, the
lowest of which (although I think largely above ground level) is referred to as
‘the basement’. The house, which faces roughly north, has its front door on the
western side, to the right of the house when viewed from the road, up some
eight steps. The front door opens not into the main body of the house but into
a small brick and stucco entrance porch built on to the side of the house. This
extension is about one and a half times to twice the width of the door. At its
top it is roughly level with the floor to the house’s first floor; at its base
it runs down to the ground. An alley runs down the side of the house.
At some date,
probably about 1971 or 1972, the house was converted into five flats. The top
and first floors now have one flat each, the basement also is one flat. The
so-called ground floor (which, by reason of the eight or so steps up, is above
ground level) comprises two smaller flats called ‘studio flats’. At some date,
and very likely as part of the conversion of the house, the original entrance
porch was extended rearwards so as to provide: at basement level, a kitchen for
the basement flat; at ground-floor level, a kitchen for one of the ground-floor
flats; and, on the roof of the extension, a patio or terrace for the
first-floor flat. An internal partition wall divides what had been the entrance
of the house (and which, I think, has remained the principal or only entrance
to all flats but the basement flat) and the kitchen to the ground-floor flat.
The entrance hall was given a false ceiling as, indeed, was the entrance hall
of the basement flat.
Probably as
part of the conversion of the house into flats, in the early 1970s three water
tanks were installed on the front portion of the side extension. Roughly speaking,
they occupy that part of the roof of the extension which had always been there
as an entrance porch, while the patio represents the area which had been added
in the course of the rearwards extension. I am not told how the roof of the
porch drained before the conversion, but after it the patio drained to the
south-west, to a hopper at the rear of the house. That hopper was in a similar
position to the one now on the rear extension, best seen in photograph 4 of
exhibit ‘P1’. The three water tanks were fibreglass, and most likely each of
the three served a different one of the two studio flats and the basement flat.
Which tank served which flat is not now known. The tanks rested not on the roof
of the porch but on short metal beams running at 90 degrees to the side wall of
the house and some 12 to 15 inches or so above the roof level of the porch.
A large number
of pipes were connected to three tanks, and most of these pipes left the roof
of the porch together at a point at the south-west end of the front portion of
the extension. As the pipes left the roof vertically they were surrounded by a
raised rectangular portion, perhaps some 12 to 14 inches wide, standing some
two inches or so proud of the immediately surrounding surfaces. This raised
portion enclosed the pipes but was not sealed at the top. The pipes were
circular, so that there were gaps between them and between them and the inside
walls of the raised portion. Thus, an open pipe duct was created, leading
downwards, close to and parallel with the internal partition wall which divides
the hall from the kitchen to the ground-floor flat. It is not clear how far the
duct ran. The water tanks each had a conventional ball valve and an overflow
pipe. The overflow pipes were so positioned that their ends were not more than
12 inches from the flank wall of the house. They pointed towards the house and
were, or some were, towards the rear of the area covered by the tanks, in the
area which was at the south-eastern end of the front portion of the extension.
The water
tanks, as one would expect, were not open to the weather but were covered, as
also was the pipe duct, with a structure which has been referred to as the tank
housing. This structure had three sides, the fourth side being the flank wall
of the house. At the front of the porch it rose vertically above the parapet.
It may have been lipped over the parapet so that the housing overlapped the
parapet, but I cannot be sure of that. At the side the housing rose vertically
and did overlap the parapet to the extent of about half the width of the
parapet. At the rear, facing the patio, the tank housing ran vertically. The
housing was made out of a stout wooden frame covered by plywood. Its roof,
which had a slope of some 10 to 12 per cent or so, was similarly constructed
and overlapped the sides, as might a looser form of the lid of a biscuit tin.
The roof was not hinged to lift up but may have been capable of folding. The
sides of the housing, where it met the house, were simple butt joints. There
was no flashing where the roof of the housing met the wall of the house nor
where the sides of the housing met the wall of the house. The lid of the
housing was heavy, so heavy that one man on his own would have difficulty in
removing it, though it was possible for one man to lift it sufficiently to peer
inside. The lid at least, and perhaps, too, the sides, were covered with a
mineral felt, probably laid, in the roof’s case, in August 1985.
The patio was
also covered with felt and above the felt were paving tiles laid on pads of
cement at their corners, but otherwise with voids underneath. Where the patio
met the housing, the felt of the patio was folded up against the side wall of
the housing. (I shall need to return later to the relative levels of the top of
that felting and the top of the pipe duct.)
The felt on the patio was also turned up some inches against the walls
of the parapet walls which enclosed the patio. The paving stones and underlying
felt of the patio were laid, as I have mentioned, with a fall to the hopper at
the rear of the house.
Underlying the
area covered by the tank housing (and very likely underlying also the paving
and felt on the patio) was a series of layers consisting, moving downwards, of
a membrane of asphalt laid on timber boarding in turn laid on timber joists.
Whether the membrane of asphalt was one continuous membrane laid at one time
from front to back, laid with one consistent fall to the hopper at the rear, or
whether it was in effect two, one laid over the original porch area and one
joining it and laid over the newer patio area, the evidence has failed to make
clear.
To revert to
the tank housing, if one were to view it from above, something like 80 per cent
of its internal area represented the plan area of the three tanks. On top of
the tanks, inside the housing, was a wood or plank covering itself covered with
fibre-glass insulation. Similar material was to be found at places down the
sides of the tanks and probably by the pipe duct which I have described.
Turning to the
rainwater system for the house, the whole roof of the house drained into
gutters which led to a rainwater downpipe, roughly half-way down the flank wall
of the house, above the patio. It could be that originally it ran aft of the
original porch and down to ground level, but, at all events, once the porch had
extended rearwards, as I have described, the rainwater pipe discharged on to
the patio paving stones to the rear of the tank housing, draining towards a
hopper at the rear of the house. I shall have to return to the guttering in
more detail later, but it will be noticed that the whole of the rainwater from
the roof of the house drained across the patio.
So far as
concerns occupation of the flats at the material times, the top-floor flat,
flat E, was occupied by Miss Lewis, sister of the occupant of the ground-floor
back flat. The first-floor flat, flat D, was occupied by a Mr Appleby. He it
was who enjoyed the use of the patio. The ground-floor flat at the rear, flat
C, was occupied by Mr Lewis. The front ground-floor flat, flat B, was occupied
by Miss Tipler, a young lady who was kept very busy in her work and was seldom
in the house, probably less than any other tenant. Lastly, the basement flat,
flat A, was occupied, as it still is, by the plaintiff, Dr Loria, a medical
doctor and paediatrician, herself at the material times often away for weeks at
a time.
The lease of
Dr Loria’s flat is dated October 18 1972. The leases of the other flats are in
like form, and I need look only at Dr Loria’s. The sum of the properties
demised by the several leases does not amount to the whole building. There are
parts retained by the landlord, as I shall describe later.
Mr Hammer, at
a date I am not told of, became assignee of the lessor. The demised premises in
Dr Loria’s case, in addition to what one would ordinarily think of as the
basement flat, include: ‘all cisterns, tanks, sewers, drains, pipes, wires,
ducts and conduits used solely for the purpose of the flat but no others’. The
demise includes the interior face of the external walls. Dr Loria, an indirect
assignee of the original lessee, has the express benefit of certain easements,
rights and privileges mentioned in the third schedule. They include, so far as
material, right to shelter and protection from the other parts of the building:
third schedule, para 2. The term of the lease is from March 24 1962 to March 24
2071. The yearly rent is £50.
As lessee, Dr
Loria covenants throughout the term (clause 3(3)) to repair, maintain, renew,
uphold and keep the demised premises and (leaving out immaterial language) all
water apparatus, walls, drains and pipes therein in good and substantial repair
and condition. She is also obliged (clause 3(5)) to permit the lessor and his
surveyor on notice to enter the demised premises for the purpose of examining
the state thereof. She is obliged to make good defects of which she is given
notice; in default, the lessor may enter to make good at the lessee’s expense.
She is obliged (clause 3(6)) not to alter the plumbing of the demised premises.
The lessor also has right of entry (clause 3(10)) for the purpose of repairing
any part of the building; he can, therefore, enter to repair his retained
parts.
The lessee is
obliged to pay, in addition to rent, a service charge (clause 4(2)) and a further
10 per cent thereof as administration costs. The service charge is computed by
reference to what the lessor spends on carrying out his obligations under
clause 5 of the lease. The proportion attributable to the basement flat is a
quarter.
In clause 5 the
lessor covenants to insure and (subclause (2)) to maintain and keep in good and
substantial repair and condition the main structures of the building and the
exterior walls and roof thereof and main water tanks, drains, gutters and drain
pipes other than such as are within any particular flats in the demised
premises, also all pipes, water and sewage ducts in, under or upon the building
as are used by any lessee in common with owners and lessees of other flats.
Property falling within the landlord’s obligation to repair is excluded from
the tenant’s repairing obligation (clause 3(3)).
By clause 8 it
was provided (I paraphrase) that the lessor should not be liable to his lessee
in respect of any neglect of his agents or servants or for loss suffered by the
lessor’s carrying out of works which seem to him to be necessary.
It follows
from the language of the leases that:
(1) the lessor was not liable for upkeep of the
water tanks on the extension or the overflow pipes leading therefrom. This is
because each served one flat only and was thus the responsibility of each
respective lessee;
(2) the lessor is liable for the upkeep of the
tank housing and the horizontal surfaces and joists which represent the
flooring beneath the tank and the patio;
(3) the lessor is liable for the upkeep of the
common entrance hall;
(4) Dr Loria may have been obliged not
substantially to alter the overflow pipe from her flat’s tank. That may have
been part of the plumbing of the demised premises, alteration of which was
forbidden by clause 3(4) or its alteration could have involved a trespass as
against either her landlord or other lessees;
(5) the duct by which pipes ran into and out of
the tank housing, being for the ducting of piping of three flats rather than
one, was not within Dr Loria’s demise and was the lessor’s responsibility;
(6) the lessor is liable for the upkeep of the
exterior of the parapet walls of the extension and the coping at the top
thereof.
I should now
say a few words about the parties. Mr Hammer, the defendant, carries on the
business of landlord and he or companies within his control own some 200
properties. In the case of another four properties than no 45 he has repairing
obligations similar to those he owes in the case of no 45. He thus has every
reason to be familiar with the duties expected of him. Mr Hammer gave evidence
before me. In three small respects I was disturbed to find that he was willing
to create (and not, I think, inadvertently) a false impression. First, seeking
to show he was a landlord with good relations with tenants generally, he said
that he got on very well with Miss Tipler and that she was still his tenant. It
transpired that she was to his knowledge in Australia and that she had already
asked through solicitors for licence to assign. Second, when cross-examined as
to the number of houses he had, he said, at first more than 30, then in the
hundreds and lastly around 200. Third, when his inexperience in litigation was
being suggested, he said that this was his first and only case in the High
Court. It transpired that he had been party to many cases in the county court.
In each of the three instances his initial evidence, while literally true,
would, had it been left uncorrected, have created a quite false impression. I
conclude that I cannot safely rely on his evidence and in particular need to be
careful not to credit it with any meaning beyond its strictly literal content.
I cannot safely draw inferences from it or build upon it. Where it conflicts
with Dr Loria, I prefer the evidence of Dr Loria. I do not wish to portray Mr
Hammer as a landlord unmindful of his obligations or as one who refuses to perform
them. But he is, I think, very concerned to carry out his business with maximum
economy and with as little outlay and as great a recovery from others as is
possible. A landlord who does so runs the risk that he does too little too
late.
I should next
mention a company called Hammers Estate Offices Ltd. Mention was made of this
company for the first time only in cross-examination of Mr Hammer, the last
defence witness. It acts as managing agent of, inter alia, no 45. Mr
Hammer is a director. There are no regular periodical inspections by the
company of the properties within its management, rather the system is that
whenever a problem arises Mr Hammer tries to deal with it. A cleaner attends no
45 to clean the common parts and if there is any problem Mr Hammer is notified
by her. Inspection of the property was ordinarily limited to that; of course,
if and when a surveyor was instructed, his report would be to Mr Hammer. The
flow of information from the cleaner was such that Mr Hammer was not even told when
the works done by the lessees in this case were completed. Asked if the cleaner
had not informed him, he answered that he had not asked her. No notes of any
reports as to no 45 from any cleaner were produced on discovery, although that
is hardly surprising, as one would expect such reports to be oral. But there
was no note either of Mr Hammer’s having received such a report, a matter that
the management company might well have committed to writing. Nor was there
discovery of any surveyors’ or other experts’ reports on no 45 other than those
of October 1986 and thereafter which I shall later describe.
The management
company charged a fee for inspecting the property and providing cleaners and so
on and that charge was passed on to the lessees. Despite that, the system
employed for the inspection of and report as to the landlord’s demised premises
was not one likely to give warning of potential defects before they occurred or
even to catch defects as they occurred. Mr Hammer’s system may or may not have
been sufficient in cases where his liability to repair arose only after his
receipt of notice of disrepair from his tenants. It is not a system adequate in
cases where his duty to repair arises independently of the receipt of any
specific notice of disrepair.
I next turn to
Dr Loria, the plaintiff and tenant. Mr Wood said in the course of the case that
she had at one stage in the correspondence become upset and had dramatised the
situation. He said that she had become intensely preoccupied with the case as a
grievance. There is no doubt that Dr Loria had paid close attention to the
papers in the case and that she has a considerable command of them. However,
her interest in the case has commendably remained on the right side of
obsession and I found her a careful and fair-minded witness, meticulous in her
truthfulness and accuracy. Where there is a conflict, I prefer her account to
that of any rival.
Before I turn
to the unfolding events, I should mention that a number of photographs and
plans were produced during the hearing. I have mentioned one already. They have
in varying degrees proved helpful. They have been explained and commented on in
oral evidence. It is not to be thought, as I shall hardly mention them again,
that they have not been taken into account.
I turn now to
the events in chronological order. In this chronology I shall also include at
convenient stages in the narrative some findings of fact in respect of which I
have had in mind not merely the evidence which I shall have related by that
stage in the chronology but all the material evidence. The chronology begins
for all practical purposes in 1985.
The tanks on
the patio had frozen in early 1985, and when they thawed two pipes burst,
flooding the hall and the spare bedroom in the basement flat. The then occupant
was able quickly to get plumbers in and only £26.16 worth of damage was done. I
can only assume from the small size of that bill that the water was turned off
very promptly and that it is unlikely that any long-term damage was caused by
this incident, though it would seem the decoration of the hall remained
unattended to for a while at least. There is no suggestion that the plumbers
had then found the ball valves faulty in the water tanks on the extension. How
well the tanks had been covered previously I know not, but, in August 1985, two
only of the three sides and also the roof of the housing were repaired. The
tanks inside the housing were covered on top with plywood and fibre-glass
insulation was laid on top of that. The work was done by a carpenter and
joiner. While it may have been outside his province to study such things, it
is, in my view, unlikely that he would have proceeded to insulate the pipes, as
he did, and to have covered the tanks, as he did, without comment, if at the
time there had already been leaking tanks, leaking ball valves, or water
gathered in the housing such as to threaten the integrity of the area.
The overflow
pipes from the tanks should have been placed so that any overflow was readily
noticeable. Here, however, the pipes discharged inside the covered housing.
Dr Loria had a
survey done of her flat before she purchased. It was done by Batty Stevens
Good, of Highgate, and their report is dated December 17 1985. Their report is
limited to what they call ‘main defects’. Damp readings were not excessive,
although, as one would expect in the basement of an older house, there was a
degree of dampness to be found. Damp was not of a degree to lead to any
superficial effect in the flat. The report mentions that there had been a water
burst and comments that the common entrance hall had not been made good or
decorated. Cracks in the rendering are described, particularly in the parapet
wall of the patio and it was suggested that quite large areas needed hacking
off and renewal. At that stage the gutters appeared serviceable. There is no
mention of dry rot or wet rot or excessive damp as either present or likely to
occur in the foreseeable future. I feel entitled to approach later periods from
the starting point that I have no good reason to believe that the ball valves
had been leaking or were unusually prone to leak.
On May 8 1986
Dr Loria entered into a deed with Mr Hammer whereby she covenanted directly
with him that she would observe and perform the obligation on the lessee’s part
contained in clause 3(4) of the lease as to decoration. Transfer was, it seems,
affected on or about May 12 1986 and Dr Loria moved in that day. In June 1986
Dr Loria, having spoken to Mr Hammer about repairs, sent him extracts from the
survey done for her by Batty Stevens Good. The passages sent did not relate to
the tank housing but did suggest that large areas of rendering needed hacking
off and renewal. She heard nothing from him. It may be that the extracts he
received prompted Mr Hammer into contacting surveyors.
On September 8
1986 Mr Hammer spoke to Mr Kritzler BSc FRICS ACIArb of the firm Ord, Carmell
& Kritzler, surveyors and estate managers, of Golders Green. Mr Kritzler
gave evidence before me as an expert witness. He was not an independent expert
called in after the events to give evidence but was, as will appear, personally
involved as the events unfolded. He was, therefore, less disinterested and more
defensive than was helpful. I am sure he wished to give me the best assistance
he could, but, at the same time, he wished also to justify his and his client’s
(Mr Hammer’s) actions and inactions. His approach, for that reason, was rather
more partisan than I could have wished, but his evidence was, none the less,
helpful on many points.
Mr Kritzler
was asked to prepare a schedule and specification of works in order that Mr
Hammer should comply with his lessor’s repairing covenants. Mr Kritzler
indicated that if Mr Hammer wished, he (Mr Kritzler) would also obtain tenders
and arrange for the works to be done. The giving of these instructions, the
receipt of which Mr Kritzler recorded in his letter of September 9 1986,
suggests to me that Mr Hammer was then aware that the lessor’s repairing
covenants were at that time not complied with. Why else should a schedule of
works to comply with the covenants be required?
I have to assume, I think, that Mr Hammer did not accept what I think
was Mr Kritzler’s invitation, namely that he (Mr Kritzler) should not only prepare
a schedule and specification but should in the same operation go on to obtain
tenders and arrange for the necessary works to be done. No such schedule was
drawn up by Mr Kritzler at any material time.
Having
received instructions from Mr Hammer, Mr Kritzler wrote to the tenants of no 45
on September 10 1986 asking them to return a questionnaire. A stamped and
addressed envelope was supplied. The questionnaire was largely concerned with
arrangements for giving access to the surveyors, but it did include the
question:
Is there anything in particular you wish
to draw to my attention?
No tenant drew anything in particular to
Mr Kritzler’s attention although Dr Loria drew his attention to the fact that
her flat had recently been surveyed by Batty Stevens Good. Dr Loria wanted the
inspection to be in the next three days or, because of her furniture then being
moved in, after seven days had elapsed from her move so that she would have had
time to sort things out. In the event, on October 6 the inspection was fixed by
Mr Kritzler for October 22 1986 between 10.30 am and 1 pm. At some stage Mr
Kritzler had been furnished by Mr Hammer with extracts of Batty Stevens Good’s
survey. Mr Kritzler said he could not be sure whether he had received it before
his inspection. I think it likely he did. If Mr Hammer saw fit to supply the
extracts at all, the sensible course, which I would have expected Mr Hammer to
follow, would have been to have supplied them before, so as to illuminate and
direct the inspection. Mr Hammer thought it possible but unlikely that he had
given Mr Kritzler the extracts before the inspection as, he said, he did not
wish Mr Kritzler to be influenced. Having observed both giving evidence on this
point I would, if necessary, hold that the extracts were supplied before the
inspection.
Mr Kritzler
inspected no 45 on October 22 1986. He made notes at the time. He found
numerous defects in the house including dry rot in the hallway. His notes say,
obviously by way of attributing a cause to that rot:
Probably roof above — still wet.
His notes suggest full exposure would be
required at a provisional cost of some £3,000. As for the basement flat, he
found various cracks in the rendering at the rear but also defective rendering
to the parapet of the first-floor side extension.
On October 28
Mr Kritzler reported the result of his inspection to Mr Hammer. He reported the
presence of dry rot, which he said was related to water penetration from the
first-floor side-addition roof used as a patio. He reported works had been
carried out but that there was evidently still water penetration. He was
obviously familiar with no 45 from the past, and this reference to works and
‘still water penetration’ rather suggest that there had been earlier
penetration which those previous works had failed to cure. However, the letter
of October 28 falls short of a schedule and specification of works to comply
with the lessor’s repairing covenants, which is what Mr Kritzler had been asked
to prepare, but it is plain he expected to discuss the matter further with Mr
Hammer. That he did on October 30, and he was given instructions, inter alia,
to arrange for an inspection of the dry rot by specialists.
On November 5
1986 Mr Kritzler informed the tenants of the presence of dry rot, indicating he
had asked two specialist companies, Phoenix Preservation Ltd (which I shall
call ‘Phoenix Ltd’) and Rentokil Ltd, to inspect and report to him. On the
second
estimate for the remedial costs they might consider necessary. He gave the two
specialists details of the tenants so that they could make arrangements
directly with them for access.
On November 12
Mr Kritzler asked the Sun Alliance, insurers of the property, for a claim form.
Waiting for insurers to settle obviously involves delays. He considered the
benefit of insurance outweighed the risk of progressive deterioration during
the wait. I can see that a balance may need to be struck, but the balance
requires some consideration of how likely recovery from the insurers really is.
A progressive deterioration in the case of dry rot is almost inevitable, so it
needs an almost inevitable recovery from insurers to balance it if delay is to
be worthwhile on account of insurance. There was in the policy in this matter a
specific exclusion for dry rot.
The position
thus far is that the landlord, very likely at the prompting of the new incoming
tenant, Dr Loria, and having had the existence of that new tenant’s survey
drawn in outline to his attention, commissioned an appropriately qualified
surveyor to inspect and to report as to what needed to be done for the
landlord’s covenant for repair to be complied with, and such an inspection and
report were soon arranged. Further, dry rot having been found, instructions
were very soon given for suitable specialist attention to be brought to bear.
The matter appeared to be taking a conventional if not speedy course.
Mr Eric James
Tew of Phoenix Ltd inspected the premises on November 21 1986. He gave evidence
before me. He was then a project surveyor for Phoenix Ltd. As such his
experience was perhaps more connected with finding and treating dry rot and wet
rot than establishing their initial causes, but he was a disinterested witness
doing his best to assist. He wrote a report dated November 28 1986. He had
found dry rot in the skirting of the hall. It was also in the floorboard ends
beneath the skirting in the hall. The walls in the hall were saturated over an
inverted ‘v’ shaped area at the rear outside end of the hall. The flank wall within
that ‘v’ was saturated, so much so that a hand put up against it would be very
damp. The plaster within the ‘v’ had absorbed as much water as it could. The
moisture was spreading out, the starting point, the point of the ‘v’, being the
far top-right-hand corner of the hall, viewing it from the front. There was
moisture in the flank wall of the kitchen of the rear ground-floor flat. When
he inspected, water had not penetrated as far as the basement flat. Mr Tew
found the dampness was coming from the roof. He thought it could be due to a
defective flat-roof covering, but he did not go on to the roof as the owner of
that first-floor flat, Mr Appleby, was not then in. Mr Tew’s present view,
while he could not be sure on the point and while he recognised that dry rot
could lie dormant and did not spread at a uniform rate, was that the dampness
must by November 1986 have been present for months in order for dry rot to have
been found at skirting-board level in the hall. I accept that evidence.
On this first
visit Mr Tew was simply sizing things up. He was perhaps more concerned with
whether there was rot and where there was rot rather than with what had caused
it, but he did consider that seepage from the water tanks was a possibility.
Had there been such a seepage, it plainly could have been a cause, but I
received no evidence suggesting the tanks themselves or the joints to the tanks
leaked, although I did receive evidence about the possibility of ball valves
leaking, a subject to which I will return later. Another possibility as a cause
of damp, thought Mr Tew, was that the heavy weight of the tank housing could,
as he said, ‘have deteriorated the felt’ and that heavy garden tubs which he
later saw on the patio might have done the same. However, there is no suggestion
that any material dampness spread uphill, as it were, from the patio to the
housing area, so I cannot see any garden tubs as relevant contributors to any
defects in the roof. Moreover, given that the whole of the roof drained across
the patio, the likelihood, I think, is that had there been a defect in the
water-tightness of the rear part of the extension (the part covered by the
patio), it would very soon have showed up and would have been more extensive
than the damage of which evidence had been given. As for the weight of the
housing itself, Mr Tew initially spoke of it as digging into the felt. I am not
at all sure there was felt under the frame of the housing. But Mr Tew also said
the weight had contributed to the defective roof covering, so I take it he saw
the weight of the housing as a possible cause of the defect on whatever the
housing rested, namely, if not felt, then on the asphalt. I accept this was
indeed a possibility.
Mr Tew’s
report recommended that there be an exploratory opening up to chase the rot to
its very perimeters. His report concludes by inviting instructions from Ord,
Carmell & Kritzler, to whom it was addressed. The dry rot exposure works
were quoted by Phoenix Ltd to cost £93.50; the quotation was sent to that firm,
together with a notice of acceptance by which that quotation could have been
accepted. The report was not made known to the lessees. They did not see it
until discovery in the action.
Given the
serious defects found by Mr Tew and referred to in his report and the other
defects found by Mr Kritzler, one might reasonably have expected accelerated
action from the landlord. However, his intention had been to instruct two
specialist dry rot firms in order to compare their reports and suggestions,
and, through no one’s fault but Rentokil’s, the other firm which had been
consulted, Rentokil, could not offer to inspect until January 13 at the
earliest. A number of the tenants were unhappy about waiting so long and Dr
Loria did not, in any event, care for Rentokil. But January 26 1987 was finally
confirmed as the date of the Rentokil inspection.
In early
December Mr Kritzler received the Sun Alliance claim form. Already, in my view,
there had been a breach by the landlord of his repairing covenant.
On December 15
1986 there was a cloud burst in the afternoon. It rained most of the afternoon,
but with a concentrated cloud burst of perhaps some 30 to 45 minutes. Dr Loria,
who was in her flat at the time, had not taken any particular notice of it. But,
when a friend called upon her, the friend asked:
Why is it raining inside as well?
It was then that Dr Loria noticed drops
of water dropping very hard, ‘hammering down’, as she put it, from the lintel
of the door let into the side extension to the house. She went up to speak to
Mr Lewis, and together they went into his kitchen at the rear of the side
extension and found water streaming down the side and back walls of his
kitchen. Dr Loria concluded water was coming from the roof. She then rang Ord,
Carmell & Kritzler and spoke to Mr Kritzler’s secretary. She was told the
firm were not Mr Hammer’s agents but that they had merely been instructed to do
a survey and that she should ring Mr Hammer. That she did. She told him of the
problem and Mr Hammer asked her whether she could get a little man to fix it.
Dr Loria said it was a serious structural problem, not suitable for an odd-job
man. After telling Mr Hammer that she was sure of that, she was told by Mr
Hammer that in that case he would get Mr Kritzler to deal with it. So Mr Hammer
would put the matter in Mr Kritzler’s hands; that was the conclusion of the
phone call, so far as Dr Loria understood it.
At some stage,
probably a little later, after Mr Appleby had returned from work, Dr Loria went
out on to the patio roof and saw the cracks in the rendering. She saw water
cascading out of the guttering from the roof, which guttering was not level,
but tilted away from the house and was not solidly attached to the house. The
cascade was some two or three feet wide, in the area of the downpipe. It fell
partly on to the tank housing and partly on to the patio. The fall of water on
to the tank housing was thus greatly increased. The guttering seemed to be
flapping loose and was not firmly attached to the wall.
Having been
told by Mr Hammer that he would get Mr Kritzler to deal with the problem, Dr
Loria began herself to telephone Mr Kritzler’s firm. She phoned on December 16
and several times on December 17. She was repeatedly told Mr Kritzler was out.
She said she would therefore keep phoning till she found him in. At that point
she was put through to him. She was plainly left with the feeling that,
notwithstanding that Mr Hammer had entrusted (or had said that he would
entrust) Mr Kritzler with the response to the severe leaking, Mr Kritzler was
avoiding the problem and was at any rate doing nothing immediate to solve it.
Dr Loria is forthright in her views and she told Mr Kritzler that when he had
surveyed the house only some six weeks before he had, as she put it, obviously
missed something important and that it was essential that he should return to
see what was going on. Mr Kritzler absolutely refused to do so. He said his
firm were not agents in the matter but only surveyors, that he was very busy
and that he was moving office. He did not suggest any builder or emergency
contractor whom he could send round to assist. He offered no interim assistance
and no emergency contractor — I am here preferring Dr Loria’s version to that
given by Mr Kritzler. He did end by saying that he would get Mr Hammer to send
a man round. It was not a happy conversation. No one did come round. In the
meantime, whenever it rained, water entered her flat. The plaster was saturated
and water oozed out at all times. When it was raining outside, the entry was in
the form of dripping water. Mr Kritzler recognised the incursion of water would
cause the dry rot to spread.
There had been
a good deal of rain on and after December 15. Christmas was coming, with the
attendant difficulties of getting work done. Dr Loria was left far from happy
with the conversation with Mr Kritzler; she considered it his responsibility to
do something or to get something done. Dr Loria would have been happy had
anyone come round to make a proper diagnosis, but no one did. She had not been
impressed with Mr Kritzler in the first place but by now was left lacking in
all trust in him. She felt very strongly, as I have said, that as he had done a
survey some weeks before and a serious fault had developed so shortly afterwards,
it was his responsibility to come quickly.
Mr Kritzler at
some stage thereafter presumed, he said, that the water was not pouring in any
more. He presumed someone had dealt with it. He thought the incursion was
something radically different to the entry of water in the past — either that
or that the trouble in the past had got far worse. Yet he did not visit the
house, nor did anyone else in the landlord’s interest. Whatever might the case
have been before this conversation, in my judgment, Dr Loria was justified in
concluding, shortly after December 17, that if the necessary remedial steps
were to be arranged at an appropriate speed then the matter could not be left
in the hands of Mr Hammer and Mr Kritzler.
On December 16
Mr Kritzler on the landlord’s behalf completed and despatched an insurance
claim form. It gave as ’cause of loss or damage’ the information ‘burst tank’
and said estimates were awaited. It did not give details of the loss for which
recovery was being sought.
On December 17
1986 Mr Hammer again rang Mr Kritzler on the subject of the work needed at the
house. He said that if a temporary job was done costs could be duplicated and
the lessees would not like that. He obviously had it in mind that costs were to
be passed on to the tenants. He reiterated that he wanted Mr Kritzler to deal
with the matter and said that he did not want a temporary job done. In oral
evidence Mr Hammer said that he instructed Mr Kritzler to get an emergency man
in to stop the water running but that Mr Kritzler said that Dr Loria did not
want anyone in to stop the water gushing. Whether Mr Kritzler did say that to
Mr Hammer I do not need to determine. If he did say it, it would not, in my
judgment, have been the truth. As I have mentioned earlier, I have preferred Dr
Loria’s version; no emergency contractor was offered to her by Mr Kritzler and
none was declined.
On December 23
Dr Loria and Mr Appleby wrote to Mr Kritzler’s firm. They sent a copy to Mr
Hammer making the point that no action had been taken in the eight days since
the incursion on the 15th and stating that they had been unable themselves to
find a builder to deal with it until after Christmas or the New Year. They
indicated they were putting up a water-proof panel and would try to get a
builder to do the job properly in the New Year. The letter to Mr Kritzler’s
firm, indicating dissatisfaction with his service, informed him, if he had not
known before, that water came in whenever it rained.
Mr Kritzler
received the letter of December 23 and it prompted him to write, on December
30, to Mr Hammer. Mr Kritzler obviously thought an interim repair was necessary
but that it would be wasteful to do extensive works only to find that the dry
rot exploration or the remedial works for dry rot might require such interim
repairs to be undone.
On January 6
Mr Hammer sent a copy of Mr Kritzler’s letter to Mr Appleby and to Dr Loria.
The message given them was that Mr Kritzler had advised that to carry out roof
repairs at that time could prove to be a waste of money. Mr Kritzler wished to
wait for Rentokil’s report, which, as the inspection arranged for January 26
would need to precede it, was a month or more away. The tenants were thus in a
position in which for a month or so they were expected to tolerate water coming
in whenever it rained and that there was no guarantee that that position would
cease at the end of that month’s wait and that, in the meantime, so far as they
knew, nothing was being proposed to be done by the landlord.
I should add
that in his letter of December 30 to Mr Hammer Mr Kritzler wrote that Dr
Loria’s unhelpfulness in affording access to Rentokil was the main reason why
Rentokil had not been able to return to the house to inspect it. That was not
true. The earliest date for inspection ever proposed by Rentokil had been
January 13 and thus there never had been a prospect of their inspecting and
reporting by December 30. Dr Loria had not been happy about Rentokil at all and
had wanted another firm to quote. I mention this point because it indicates Mr Kritzler
was, I fear, prepared to depart from accuracy in order to justify his actions
or, indeed, inaction for his client.
Although Mr
Kritzler had dealt with the tenants’ letter of December 23 in correspondence
with Mr Hammer on December 30, he did not answer it to Dr Loria for a further
fortnight. He wrote to her on January 16. He wrote that it was entirely
reasonable that a builder be asked to carry out an interim repair and yet he
seems to have made, and certainly to have mentioned, no arrangements for such a
repair to be done, perhaps because Mr Hammer had told him on December 17 that
he did not want a temporary job done. Mr Kritzler’s letter would thus have left
its readers with the impression that nothing immediate or early was being
arranged to be done by way of works by Mr Kritzler or Mr Hammer. The message
left by Mr Hammer’s letter of January 6 was thus confirmed some 10 days later.
Mr Appleby had
arranged a roofer from the local firm of Stapleton & Woolhouse, builders,
to have a look at the problem, but on inspecting the site the roofer said that
the whole roof was leaking like a sieve and that any serious builder would
require a surveyor’s specification. He said a tarpaulin would not do any good.
He suggested that contact should be made with the Royal Institution of
Chartered Surveyors for that body to supply a list of suitable names. Mr
Kritzler in his evidence accepted Stapleton’s reaction was understandable from
the point of view of contractors: it was common sense and caution on their
part.
Dr Loria did
approach the RICS. They gave her a list of three local surveyors and also
suggested she should get a solicitor to act for her. From a list of three Dr
Loria chose the firm Watkinson & Cosgrave. She spoke to a Mr J W Goedecke
ARICS of that firm, and he made a good impression on her. She spoke to her
fellow lessees about him. He was invited to do a survey.
On January 31
four of the tenants wrote to Mr Kritzler. They told him that they had been able
to get the roofing expert from a local builders to inspect the roof. They were,
of course, referring to the Stapleton & Woolhouse visit of January 24. They
told Mr Kritzler that the builder had said that a surveyor’s report and
specification was a necessary prerequisite for any reputable builder embarking
upon the job. They told Mr Kritzler that the RICS had supplied them with a list
of three local surveyors. It was plain they were going to obtain their own
survey and specification which the Stapleton firm had told them was necessary.
On the same day they wrote to Mr Hammer, largely in similar vein, enclosing a
copy of their letter to Mr Kritzler, but including the information that water
had continued to penetrate throughout the downpours and snowstorms of the
latter half of January 1987.
As he had done
earlier with the tenants’ letter of December 23, Mr Kritzler first dealt with
the tenants’ letter of January 31 by writing not to them but to Mr Hammer. He
did so on February 4. He felt the lessees were taking a rather arrogant
attitude. He proposed to await Rentokil’s report and then to prepare his own
schedule.
Rentokil
inspected, as arranged, on January 26. They reported on February 4. While not
entirely perfunctory, it hardly seems worthy of the wait. It mentions water
penetration into the basement, water seepage in the entrance lobby and a
continuation of ingress of water in flat C’s kitchen (the roof at the rear of
the side extension to the house). It had not proved possible for them to
inspect the extension’s roof, but the inspector said the problem appeared to
emanate from that level. The specified cost of further exploration was
considerably higher than Phoenix Ltd’s estimate which had been received, months
before, in late November.
Mr Goedecke of
Watkinson & Cosgrave reported on February 11 1987. He is a Fellow of the
Royal Institution of Chartered Surveyors, having qualified as a member in May
1974. He had some 19 1/2 years’ experience as a chartered building surveyor. He
gave evidence at the trial. He, too, was not a wholly independent expert coming
to the events only after they had happened. His response to this position was
to retreat from controversy. He had visited the house on February 5. I will not
paraphrase the report, but he found the covering to the tank had split in three
places and that water lay inside the housing. He found the tops of the parapet
wall to the side extension had cracked and that water ran into the brickwork.
He said that without doubt that was the route (not, be it noted, a
route) through which the water was percolating to the inside. He recommended, inter
alia, work to the guttering, repair to the top of
it was essential to eradicate the source of dampness which he had found before
the dry rot was to be treated.
In oral
evidence Mr Goedecke explained how he inspected the housing in its position. He
was able to lift a corner but it was too heavy for him to remove it entirely.
He found the felt on the roof of the housing to be split in three places, the
splits being some two inches long and an eighth of an inch wide. The splits
were in the middle, over joists in the underlying board of the housing roof. He
thought water got in this way and would have done so even without supposing
torrential conditions. It was a likely source of water, though he could
not say it was the most likely. He did not see whether the wood under the
splits was wet. He did not see if the fibre-glass under the splits was wet, as
he would expect it to be if water had been dripping from the splits. It is a
pity Mr Goedecke was not more thorough on that visit.
Mr Kritzler
said that water could have entered where the defects were but that a vast
quantity would have run off. He was sceptical about the splits causing any
build-up of water under the housing and, I share his scepticism, at any rate so
far as concerns periods when the guttering or downpipe above the housing was
properly in place. I do find, however, that in extreme conditions, such as when
the guttering above the patio was broken, water did enter the housing by way of
these splits in quantities which were small but not negligible.
Mr Goedecke
saw water lying inside the housing although he did not think it had then been
raining recently. He could not see the floor of the housing. He did not think
water could have got into the housing from the rest of the patio. The housing
butted up against the brickwork of the house. Mr Goedecke felt that 95 per cent
of such water as permeated the timbers was water which somehow had got under the
roof of the housing, as opposed to water entering in through cracked or spalled
coping or rendering. His oral evidence thus attributed far less importance to
that latter possibility than had his report of February 11. I prefer his oral
evidence. Of the water which had got under the housing, he thought it went
downwards, either through the duct which was open at its top or through defects
in the asphalt membrane. As his evidence progressed, he emphasised the
likelihood of entry through the membrane rather than through the duct. This I
accept as the more likely mode of entry because, as later appears, the
likelihood is that the lip to the duct was set higher than the top of the felt
to the patio.
By reference
to Mr Tew’s evidence that the walls in the hall were damp to the touch in
November 1986, Mr Goedecke felt that that was a state which it would have taken
several months of incursion to have arrived at. It would have needed a long
time to soak through the brickwork and to have arrived at the degree of wetness
that Mr Tew found. I accept that evidence.
Mr Goedecke
accepted that a possible source of water from the housing was from overflow
pipes from the ball valves in the tanks but that it was no more than a
possibility. It was possible, too, that a defect in the ball valve was only
intermittent. He said there was a 20-30 per cent likelihood that there had been
some unnoticed defect in the ball valves in the year before the marked overflow
to which I will refer which occurred in April 1987. Where he got that figure
from, I do not know, and while I do not think I can greatly rely upon it, its
converse presumably is that in his view there was a 70-80 per cent chance that
the ball valves had not suffered any unnoticed defect in that period.
On February 11
Mr Kritzler wrote to Mr Hammer saying that the lessees were naive in the
extreme. He wrote:
If they wish to attribute the problem of
rot to only the roof, then there is no insurance claim. If it is also
associated with the burst tank there is a real prospect of them obtaining
partial/full reimbursement.
It is difficult to resist the feeling
that Mr Kritzler’s advices were coloured by his view that if ‘the burst tank’,
whatever that means, rather than any leaking or overflow from the tank, was to
blame for the dry rot in the roof, then a recovery could be made from the
insurers and Mr Hammer’s outlay would be minimised, as he would undoubtedly
have wished. The policy, as I have mentioned, had an exclusion ‘damage by wet
or dry rot’ and it had as a head of recoverable loss ‘water escaping from tanks
apparatus or pipes’.
On February 12
Dr Loria and Mr Appleby sent Mr Goedecke’s report to Mr Hammer. They proposed
that Watkinson & Cosgrave should draw up a specification, find them a local
builder and supervise the work. They asked Mr Hammer to confirm that he had no
objection to this plan. While the letter perhaps contemplates that it would be
the tenants instructing Watkinson & Cosgrave, there was nothing that
suggests that that was a necessary part of the writers’ plan. They wanted the
work done and for it to be supervised by Watkinson & Cosgrave. But they
were not, I think, being dogmatic about in whose name instructions were to be
given. Mr Hammer answered by letter on February 16 by saying that he could not
let the leaseholders deal with the matter, as one leaseholder, meaning Miss
Tipler, dissociated herself from their endeavours. He said Mr Kritzler would be
dealing with the matter. Mr Hammer said in this letter that he had not received
a copy of Watkinson & Cosgrave’s report, so Dr Loria delivered one on
February 18, although she was sure she had sent a copy earlier. She handed it
to Mr Hammer, who refused to read it, saying only that he could not judge
between one surveyor and another and that he would pass it on to Mr Kritzler.
Dr Loria had underlined a passage on p 2 of the report as to action being
recommended without delay.
On February 27
Mr Kritzler wrote to ask Phoenix Ltd to advise him of the cost of opening up
the building to establish the full extent of the rot. He had in fact had that
figure since November 29. Phoenix Ltd must have advised him of the price, as on
March 6 he was asking Mr Hammer whether he should instruct Phoenix Ltd to open
up, while advising Mr Hammer of the cost of doing so.
As I have
mentioned, the RICS had also suggested that solicitors should be brought in,
and Dr Loria took that advice and obtained that assistance. On March 6 Maxwell
Batley & Co, then Dr Loria’s solicitors, wrote to Mr Hammer. The letter
sets out problems and solutions by reference to Mr Goedecke’s report. It
mentions a continuing deterioration in the property in the period of nearly
three months since the heavy rain of December 15. It required the guttering to
be attended to within one week and required Mr Hammer to seek tenders from
reputable local builders and to present them to the lessees within 14 days. It
proposed Phoenix Ltd should be subcontracted to the builders so as to eradicate
the rot once the structure had been made waterproof. It asked for confirmation
by March 18 that the guttering had been dealt with. It advised that unless a
satisfactory response was received Dr Loria would be advised to begin
proceedings. By this time Dr Loria took the view that the guttering was
dangerous and liable to fall. I hold her to have been right in that view. Later
events suggest she was correct.
On March 12 Mr
Hammer approved the opening-up work in a telephone call to Mr Kritzler and Mr
Kritzler instructed Phoenix Ltd to open up the property. Arrangements were made
for Phoenix Ltd to visit the house on March 25 and they did so. On March 27
they reported to Mr Kritzler’s firm. It was Mr Tew who wrote the report. I
found him a disinterested witness who is to be relied on within the fairly
limited area of his expertise. On this visit he went on to the patio and looked
at the tank housing. He found water inside the housing. He gave me three routes
by which the water may have got there, namely: from some defects in the tank or
some defects in the pipework or overflow from the ball valves. However, I have
heard of no evidence of defects in the tanks themselves or in the pipework.
Such defects would in any event be outside Mr Tew’s expertise. Of the three, I
regard overflow from the ball valves as the only one to require further
consideration or as a serious possibility. There are, of course, other
possibilities unmentioned by Mr Tew. Mr Tew also made the point that if the
roof of the extension under the tanks had been in good condition, water lying
under the tanks would not have got through to membranes underneath. I accept
that. He told me too, which I accept, that dry rot grows when dampness is
between 20 and 22 per cent.
Phoenix Ltd
had found wet and dry rot in the roof timbers of the entrance hall, in the
window frames of the hall, in its skirting and in the flooring timbers. There
was wet rot and dry rot in the joists. The boarding over them was decayed. The
flooring joists in the hall were near to disintegration, being close to the
stage of the infection of dry rot at which a form of weakness called ‘cubing’
takes place. After a further three months or so, thought Mr Tew, the floor
joists could have fallen in. The dry rot was not merely under the tanks but
spread to the length of two or three courses of paving stones into the patio
area. Phoenix Ltd gave at the time four possible sources for the moisture
causing the decay, namely: defective flat roof coverings, poor external
renderings, and a cracked parapet, inadequate rainwater goods, and possible
leakage and seepage from the tank housing. Wet rot develops in saturated
conditions, and Mr Tew said it indicated a continued state of saturation. The
works they considered necessary included completely removing the roof to the
extension and relaying new coverings and repairing the rendering and parapet.
Phoenix Ltd
divided the necessary steps into ‘clients’ works’, which could be expected to
be done by the clients’ builders and ‘Phoenix’ works, which Phoenix Ltd would
do. The estimate for Phoenix works was some £5,308 at that time, exclusive of
VAT. The estimate was specified to remain open for 28 days and a form of
acceptance was included. Mr Tew felt one could not treat dry rot in Dr Loria’s flat
without treating the rest of the building; work could not be done other than in
conjunction with the rest of it.
On April 5
1987 Mr Appleby found a large quantity of water running across his patio from
under the tank housing. He shut off the input taps to the three tanks. I have
not heard evidence from Mr Appleby, but this incident is recorded in a
contemporary letter from Dr Loria to Mr Hammer. I have no reason to doubt the
contemporary account and I accept the incident took place as there described.
The incident
is of some importance as it points to a conclusion that the lip to the duct was
higher than the top of the turned-up felt between the tank housing and the
patio. Had the entrance to the duct been lower or at the same height as the
felt at the top, water building up under the tank housing would have gone first
or equally down the duct. However, there was no report of any flooding down the
duct on April 5, rather that water coursed from under the tank housing and
across the parapet.
Dr Loria arranged
for a plumber to call on April 6. The plumber found water under the tanks. He
arranged to call again on April 7. When the plumber returned, he found all
three ball valves to be defective and he replaced them. I have not heard
evidence from the plumber. Unfortunately, I am not told whether the defects he
found caused only the large overflow on April 5 or whether they caused or could
have caused an earlier escape at a slower rate. The overflow pipes discharged
into the housing, so that if water had overflowed through a defective ball
valve or valves, it would have built up invisibly under the housing until it
got to the level of the top of the felt between the housing and the patio. Only
then would it have become visible outside the housing as it did on the fast
escape on April 5. A slow escape from a defective ball valve or valves could
thus provide a source of water to permeate the membrances under the front part
of the housing and find its way into roof timbers and into the walls of the
entrance hall. If the discharge was slow enough merely to feed evaporation
losses and the rate of escape into roof timbers and walls, it could occur for
months or even, no doubt, years before any overflowing would occur on to the
patio.
This a
difficult area, in which the evidence is incomplete. The major overflow on
April 5 proves the ball valves could be defective, but it might also be said to
indicate that if and when they failed they failed visibly and noticeably, as
they then did. Mr Goedecke’s evidence was that there could have been an
earlier defect, not that there had been. On the evidence I do not feel that I
can conclude on the balance of probabilities that the ball valves had in fact
leaked at any material time before April 5. As I said, the plumber repaired all
three ball valves in early April. I have no reason to think that there was any
subsequent overflow from the tanks. If, notwithstanding that repair, water
continued to enter, that would suggest that a source had been other than the
water tanks, either all along or, at any rate, since December 15. And that was
the case. Dr Loria was clear that every time it rained, then some five or 10
minutes after rain started water came in, not just by seeping but by drips, and
that it did so even after April 8.
On April 10 Dr
Loria’s new solicitors, Anthony J Newton & Co, wrote to Mr Hammer saying
that there had been no satisfactory response to Maxwell Batley’s letter of
March 6 and that proceedings were being prepared.
On April 16 Mr
Kritzler wrote to the lessees asking to confirm that they wanted Phoenix Ltd to
do the work. He also wrote asking Phoenix to quote for the ‘clients’ work’
which they regarded as necessary.
On April 21 Dr
Loria’s solicitors wrote to Mr Hammer. After setting out complaints the letter
concluded by saying that Dr Loria was issuing proceedings that very day. The
writ was issued on April 22 1987 and served on April 23. It was endorsed with
the statement of claim. The relief sought was then for a mandatory order for
the doing of certain works, damages, interest, further or other relief, and
costs.
On April 24 Mr
Kritzler wrote to Mr Hammer suggesting the cheapest course would be for him to
hand the matter over to Dr Loria’s surveyors. On the same day Dr Loria’s
solicitors wrote to Mr Hammer indicating that she was happy to have Phoenix Ltd
do the work but suggesting that Watkinson & Cosgrave should supervise,
rather than Mr Kritzler, in whom, they wrote, the lessees lacked confidence.
On April 27,
by a letter signed by all five lessees, Mr Hammer was told that they were all
agreed that Watkinson & Cosgrave should supervise the works and appoint a
builder, with Phoenix doing the dry rot works. They asked for his confirmation
that that was acceptable. This was not answered until May 8 by a ‘without prejudice’
letter from Julius Back & Co, Mr Hammer’s solicitors, which, despite that
heading, had been put in evidence. Mr Hammer would not in terms agree the
suggestion made by all the tenants, but he said he was not averse to it. It was
proposed as a possibility that his consent to it should be conditional on the
discontinuance of the newly begun proceedings or that they should be stayed on
terms that Mr Hammer was not to be responsible for the plaintiff’s costs. Dr
Loria’s solicitors answered on the same day. They indicated that Mr Hammer
needed proceedings to be taken against him to spur him into activity. They did
not intend to discontinue. It will be noticed that Mr Hammer’s solicitors did
not mention any conflict being understood by them to exist between the nature
of the relief sought in the newly issued proceedings and the lessees’ wish that
work should be done as they had described it in their joint letter of April 27.
Mr Hammer at one stage suggested there was confusion but, in cross-examination
he said it was not he who was confused but Dr Loria.
On May 9 all
lessees wrote to Watkinson & Cosgrave, asking them to begin immediately to
prepare a specification and then to seek tenders from suitable builders and to
ensure that the builders should work with Phoenix. They also asked that the
possibility of an insurance claim should be pursued by Watkinson &
Cosgrave. On the same day all lessees accepted Phoenix Ltd’s offer by signing
the notice of acceptance which had been sent with Phoenix’s report of March 27.
Mr
Powell-Jones accepts that thereupon all tenants became jointly and severally
liable to Phoenix Ltd and that they were jointly and severally liable to the
builders employed.
On May 12
Phoenix Ltd acknowledged receipt of the joint notice of acceptance. They
scheduled works to begin on June 1 1987. On the same day, May 12, Mr Hammer’s
solicitors wrote to all lessees telling them that he was being advised not to
accede to their proposal of April 27, that Watkinson & Cosgrave should
supervise and appoint a builder and that Phoenix Ltd should do the dry rot work
‘at any rate until litigation has been concluded’. ‘Hopefully’, said a letter,
‘this will be within the year’.
On May 14, if
not earlier, Mr Hammer’s solicitors were told that work would start on June 1.
By May 19 Watkinson & Cosgrave had drawn up a specification of works and
were putting it out to tender by three local firms. On May 22 Mr Hammer served
a defence. On the same day Watkinson & Cosgrave accepted an estimate of
£480 from Clooney Contractors Ltd for work to begin on June 1 for disconnecting
and removing the water tank and stripping the roofing so that Phoenix Ltd could
do their work. Temporary weather-proofing was to be provided.
Clooney
Contractors did disconnect and remove the tank and strip the roof on June 1. I
have had no evidence from them as to what they found. However, Mr Peter Sharp
of Watkinson & Cosgrave did visit the site twice on June 1. He also took
photographs. He made a note at the time. He gave evidence. He was a junior building
surveyor and assistant to Mr Goedecke. While relatively inexperienced, he was
nevertheless a helpful and thoughtful witness on whom I feel able to rely. He
had not seen the housing when it was in place. Mr Sharp thought that the
asphalt on the porch roof was some five to 10 years old at least. It had
already deteriorated with age and had minor splits in it consistent with age. I
find that to be an important observation.
Mr Goedecke,
who did not inspect the asphalt, thought the asphalt was not younger than the
conversion, which was thought to have been made in 1970 or 1971. He thought it
likely the asphalt was, at youngest, contemporary with the installation of the
three water tanks, but that it could have been that the asphalt was even older
than that and that it was not redone when the patio extension was made. As he
did not inspect the asphalt under the tanks, this evidence was necessarily
rather speculative. Asphalt, if properly laid, should last some 20 to 25 years.
It may, therefore, be that either this asphalt was in the first place poorly
laid or that the front part under the tanks was older than the conversion.
Indeed, consistent with Mr Sharp’s evidence (and he did see the asphalt) the
position may have been that
two: the front laid down at one earlier stage and the rear, the patio section,
laid later at another. At the rear there was felt with paving stones over it.
At the front there was only asphalt.
Mr Kritzler
was also of the view that if there were splits in the asphalt then that was a
possible route by which water permeated downwards. He could not say, however,
whether there were any such splits. He never saw the asphalt under the tank in
any way that allowed him to give a view on the subject. He was very reticent
about giving his view as to what he believed had caused entry of water, as
opposed to what might have done. He was, I think, principally attracted by the
possibility of water from the tank’s overflow pipes building up and then
falling down the duct. However, he had not, I think, recognised the likelihood
that the duct lip was higher than the kerb to the patio, which, if correct,
made this form of entry unlikely. I have, moreover, already indicated that I hold
against leakage from the ball valves.
Mr Kritzler
was also of the view that some water could have found its way under the housing
by having run off the lip, fallen on to the parapet and having then run inside
rather than outside. Some might have flowed backwards, as it were. He did not
think there was any flashing along the vertical and horizontal joints between
the side housing and the side wall of the house. Those joints were not
watertight and, while he would not have expected water to enter thus in substantial
quantities, it was a route for the penetration of water if the wind was blowing
against the house. Rainwater could also run down the side wall of the house and
enter the housing that way. Indeed, he thought one of the photographs showed
water discoloration of the area of the side wall covered by the housing. I
accept his evidence on all these possible routes for the entry of rainwater.
Mr Sharp also
found staining on the inside of the parapet walls consistent, in his view, with
penetration of water over a long period. The state of the roofing at the front
end of the porch was such that the contractors did not want to walk on it in
its then condition, so a board was provided for. Clooney Contractors Ltd also
put a tarpaulin up intended to protect the extension, by then devoid of a roof,
from the weather.
On June 5, C H
Peppiatt & Son Ltd, one of the builders approached by Watkinson &
Cosgrave, tendered, giving a breakdown of their total, item by item, among the
various details in Watkinson & Cosgrave’s specification. The estimate was
later revised. Godfrey Klage Ltd were to do the plumbing work.
At the weekend
of June 6 to 7 there was a storm and some part of the downpipe came away from
the roof and fell through the tarpaulin. The tarpaulin came adrift, although
whether before or after the downpipe fell through it I cannot be completely
sure. The more likely sequence as, on the balance of probabilities, I find is
that the downpipe fell through the tarpaulin before it came adrift. A temporary
downpipe was installed and an additional tarpaulin was put in place. This
damage led to a separate claim against the insurers. Phoenix Ltd had begun
their works and in the course of them they found further dry rot and wet rot.
On June 10 they submitted a further estimate.
On June 17 the
five tenants confirmed to Mr Goedecke that they wished Peppiatt’s revised
estimate to be accepted, and Mr Goedecke did so on June 18. In the meantime, Mr
Goedecke had met the insurers’ loss adjusters at the site.
On June 18
Phoenix Ltd wrote to Dr Loria stating, in effect, that the cause of the decay
was the very defective flat-roof covering. They advised that decay had spread
in the interval between their first inspection on November 21 1986 and the
commencement of works in June 1987. They said that if it had been allowed to
continue much longer there would have been a realistic possibility of the floor
in the hall falling in.
On July 6 Mr
Hammer’s solicitors indicated to the lessees that he was prepared to allow them
to organise all repairs themselves on certain stringent terms. By then, of
course, contractual arrangements had already been made and a proportion of the
work had already been done. The works were, I think, completed by the end of
the first week in October 1987.
When work
began, Dr Loria moved out of her flat. I do not find it necessary to recite
what the condition of the premises was at the various stages in the progress of
the works; suffice it to say that I find it would not have been reasonable to have
expected her to remain there during the works. Dr Loria produced careful
records of what she spent on alternative accommodation and storage of her
belongings. I find her figures justified. She moved back on or after November 3
1987. She said that she would have moved back sooner had she been able to.
The tenants
had been proceeding on the basis that they would contribute to the cost of all
works on an agreed shared basis, three of them paying a quarter each and two of
them an eighth each. This arrangement was further qualified by agreement
between Paula Lewis and her brother, so that, between them, the Lewises were to
bear three-eighths. A lessees’ joint account was opened for the purpose but, in
practical terms, as I have understood the matter, Dr Loria paid what had to be
paid and was then to be recouped by her fellows. It is understood that if Dr
Loria recovers in this action in respect of the cost of repairs to which her
fellows have contributed then she will pass on what she recovers to them in a manner
which will reflect their respective contributions. She offered an undertaking
in any form necessary to implement that plan, though its precise form has been
left open for further consideration. This seems a practical and economical way
of dealing with the position, and certainly more so than having had all lessees
as co-plaintiffs throughout the whole action.
In January
1988 Mr Goedecke received an offer of a contribution of £2,000 less £100 excess
from the insurers. He felt it not unreasonable. He sought the lessees’
instructions. A form of mandate was submitted to Mr Hammer to authorise payment
directly to the lessees’ joint account. He signed it on February 24 1988. It
was expressed to be for damage arising from an outbreak of dry rot due to the
external penetration of water or defective ball valve first discovered in
October 1986. No comment was made by Mr Hammer at the time that this
represented a settlement at too low a figure. Mr Stead, the loss adjuster, had
at one stage denied all liability for dry rot. Mr Goedecke told me that he felt
he was lucky to get anything and that Mr Stead, who seemed rather
inexperienced, so far as Mr Goedecke could judge it, had become confused by the
several claims then being made.
Mr Kritzler’s
argument to the contrary was that if he could show that the dry rot was a
consequence of an insured peril such as escape from ball valves or a burst then
the cost of dry rot eradication would be recoverable. But there was no evidence
that the rot was caused by a burst tank. Mr Kritzler said he did not think that
the wetness was due to a burst tank, and the answer to a claim that it was
caused by escape from a ball valve, even if that had been proved to the
necessary degree, would surely have been that it was the defect to the asphalt
on which the water fell from the ball valves that truly caused the rot. All in
all, while for reasons appearing below I need not make any finding on the
point, I would not have found that the plaintiff had failed adequately to
mitigate by way of recovery from the insurers. Indeed, I find Mr Kritzler’s
continued espousal of this part of the case as indicative of a partisanship
which I would have preferred not to have found in an expert witness.
So far, I have
been concerned with the facts as I have found them, and which I have largely
described in their chronological order. I now turn to a consideration of a
number of points of argument. I shall deal first with some points raised by Mr
Wood.
(i) He
argued that if tenants sue their landlord in respect of a liability for which
the landlord has an indemnity or contractual ability to recover from those
tenants, then the tenants’ proceedings generate a circuity of action which is
to be discouraged. I am not sure if he goes to the length of saying that it is to
be discouraged to the extent of denying the tenants in such a case any cause of
action. He relies on Payne v Rogers (1794) 2 H B1 350, 126 ER
590. I cannot derive support for that proposition from that case and, in any
event, I see the argument as failing on the facts, in the sense that, as I
shall come to below, I do not see the landlord as having to any substantial
extent an indemnity or contractual ability to recover from the tenants.
(ii) Mr
Wood argued that there was a waiver or estoppel by conduct in that Dr Loria
took matters into her own hands in a manner inconsistent with the writ as
endorsed. I fail to find the reliance by Mr Hammer and the detriment to Mr
Hammer flowing from that reliance which would be necessary to ground such a
case.
(iii) Mr
Wood argued that Dr Loria cannot recover, as she prevented her landlord from
fulfilling his obligations. He relied on Granada Theatres Ltd v Freehold
Investments (Leytonstone) Ltd [1959] Ch 592 (CA). In that case (see at
p 595) the landlord sent his men to repair the premises and they began work. On
the instructions of the tenants’ managing director they were ordered off the
premises and not allowed to continue the repairs. Not only is there in the
present case nothing so clear as that as a prevention of the landlord but I
hold there was no material prevention at all.
(iv) Mr
Wood argued that Dr Loria could have proceeded not by way of self-help but for
an interlocutory mandatory injunction requiring Mr Hammer to carry out whatever
repairs were necessary. Here he relied on Parker v Camden London
Borough Council [1986] 1 Ch 162 (CA). That case makes it plain at pp 173H,
177A-D and 179D-E that interlocutory mandatory relief by way of specific
performance will be available only in rare and exceptional cases. I do not find
it necessary to determine whether Dr Loria’s case would have been such a case
because I do not see that the availability of an alternative to self-help, even
if it were truly available, would of itself make self-help inappropriate.
(v) The
defendant’s pleadings had been amended to take the point that there had been an
underrecovery by the plaintiff from the insurers and that that represented a
failure adequately to mitigate her loss. However, during the course of Mr
Powell-Jones’ reply Mr Wood helpfully, and in my view wisely, indicated that
the point was no longer relied upon.
(vi) Mr
Wood sought to confine the period during which Dr Loria could claim for the
expenses involved in her living elsewhere by claiming that the storm on June 6
and 7 was novus actus, which caused works to be prolonged beyond the
date by which they would and should otherwise have been concluded and that the
landlord could not be responsible for that extended period. It is by no means
clear how far the period of disturbance was extended by reason of the storm. It
will be remembered that a downpipe or guttering came down at the time of the
storm, and that represented, in my view, a clear breach of the landlord’s
covenant to maintain. The falling pipe, as I have held, tore or dislodged the
tarpaulin. It would thus be necessary, if this point were to be developed
further, to estimate the consequences of the storm as they would have been
without the damage to the tarpaulin and the failure of the pipework. However,
in my judgment it is in the nature of our weather that building works even, or
as some might say especially, in June may, despite all reasonable precautions,
be affected by storms and thereby be prolonged. There are stages when buildings
unavoidably become unusually vulnerable in the course of their repair. I cannot
regard the storm as a novus actus in any relevant sense so as to exonerate the
landlord; the cost of the provision of alternative accommodation after the
storm is, in my judgment, an expense as fairly and reasonably arising naturally
and foreseeably as a consequence of the want of repair as was the corresponding
cost before the storm.
(vii) Mr
Wood next argues that Dr Loria cannot on any footing recover the whole of the
costs of repair. The works of repair effected repairs not merely for her but
for all tenants. She voluntarily assumed the task of commissioning and paying
for the works, he said, and then she received contributions from her
co-lessees. She can recover at best only a sum which reflects the fact that she
had already received those contributions. In answer, Mr Powell-Jones said that
the fact that her fellow lessees came to her aid should no more reduce her
recovery from Hammer than did the policeman’s receipt of a pension reduce his
recovery in Parry v Cleaver [1970] AC 1. If a reduction were thus
to be brought about, he said, the only beneficiary would be Mr Hammer — for
this purpose the wrongdoer — and that would be as unjust as Lord Reid
vigorously indicated at p 14C-D it would have been in the Parry v Cleaver
case. I feel the force of that. Further, on a different but related point, in
the present case it cannot be said that the works of repair properly to be done
or paid for at the suit of Dr Loria were anything but identical to those to be
done and paid for at the suit of any other tenant. It was not possible to
repair for one without repairing for all, and repairing for all involved
nothing further than repairing for one. In these circumstances I hold that any
recovery by Dr Loria is not to be reduced by reference to whatever she may
receive or have received from her fellow lessees. Mr Hammer must, though, be
protected against the possibility of any other tenants in no 45 together or
separately proceeding against him in respect of the very same failures. I shall
revert to this subject below.
(viii) Mr
Wood next submits that to the extent that the incursion of water was due to
leakage from the tank overflow pipes on the failure of ball valves, it must be
the responsibility not of the lessor but of the lessees. If there were such a
leakage it could, I think, have been only a gentle one, gentle enough not to
have attracted attention either by causing a visible flow of water across the
patio, as did the overflow on April 5, or a considerable flow downwards or by
the noise of the outflow or by the noise created when, by reason of a leakage,
there is a corresponding inflow into the tank. I accept that the lessees alone
are responsible for the ball valves and condition of the overflow pipes. They
could not, perhaps, change the position of the overflow pipes. That, contrary
to good sense and practice, was such that they discharged out of sight, very
likely (save in the case of a severe overflow) out of earshot and not to the
ground but over part of the building. This I regard as an inherent design
defect for which the lessees were probably not responsible. Moreover, if a
landlord provides or is faced with a design in which the overflow is not over
the side of and away from the house but is such that any overflow is over parts
of the building, he should ensure that the parts over which the flow will take
place are watertight. I say this, because it is in the nature of water valves
serving water tanks, and it is to be expected of them, that sooner or later
they will or may drip or overflow, even if conscientiously maintained. No one
could ever be sure that an overflow was impossible, which is doubtless why
overflow pipes are required and fitted. Given the combination of an overflow
system that the tenants presumably could not change, an overflow system
discharging as I have described, and given, too, the difficulty of access
inherent in the position of the tanks standing on the landlord’s retained parts
of the premises and under the cover of the landlord’s heavy tank housing, if
the ball valves had dripped without the water escape being noticeable by the
tenants, I would hold that any ingress of water into the structure from that
dripping would not have been the lessees’ responsibility but that of the
landlord. In the circumstances I have described and in any case, he should have
provided a water-tight membrane such that any unnoticed drips would not cause
damage. He did not. If damage flowed from the ball valve defects, it was his
responsibility, not that of his lessees.
Turning to the
plaintiff’s case, Mr Powell-Jones submitted, first, that the lessor’s liability
to keep his retained premises in repair is not dependent on his first receiving
a notice of want of repair. Mr Powell-Jones cited Melles & Co v Holme
[1918] 2 KB 100. This was cited to show that the reason why notice is a
prerequisite in cases where a lessee is in occupation of the relevant parts is
that, that being so, a landlord has no means of knowing of the defect until he
is told of it. That reason plainly cannot apply when the want of repair is of
parts retained by a landlord who can obtain access to them. The reason for the
rule thus not existing, neither should the rule apply. Immediately after that
case was cited Mr Wood helpfully accepted, rightly in my view, that he could
not rely on any absence of notice. Mr Powell-Jones’ submission thus ceased to
be in issue and I accept it.
Mr
Powell-Jones submitted, second, that a landlord’s covenant to keep in repair
created an obligation (just as did a corresponding lessee’s covenant) to keep
in repair at all times. Here he relied on Bishop v Consolidated
London Property Ltd (1933) LJKB 257, a case in which a dead pigeon had
lodged in a pipe. It was held that a disrepair amounted to a breach of covenant
even if it was, as there, quite fortuitous. I accept this submission of Mr
Powell-Jones. Its corollary would seem to be that the landlord is in breach as
and when a disrepair occurs, and not only at some time afterwards, and,
furthermore, Mr Powell-Jones thirdly submitted that a lessor does not have a
reasonable or indeed any period of time between a disrepair occurring and his being
liable for breach of covenant. The moment there is a disrepair, he submits, the
duty to keep in repair has been broken. I accept this submission, although it
must be recognised that in a covenant as to a landlord’s retained parts that
can conveniently be reached only through tenants’ premises some time may need
to be taken up in the landlord’s giving notice to and arranging access with his
tenants so as to avoid his trespass in inspecting and repairing the retained
parts.
Next, Mr
Powell-Jones dealt with the interrelation in this
repairs by way of a service charge from the lessees and the landlord’s covenant
to repair. Is it the case that whatever the landlord spends on repair he can
pass on to his tenants? If Dr Loria
recovers from Mr Hammer, will Mr Hammer be able to recoup that payment by way
of service charge? Mr Powell-Jones
submits that the lessor’s expense in a timely performance of his repairing
covenant may properly be passed on to the lessees but that the consequences of
his not punctually performing his covenant, he says, may not. It is in the
nature of building defects that they get worse with the passage of time, often
at an accelerating rate. A stitch in time, he reminds me, can save nine; the
landlord can, as it were, recover the cost of the timely one stitch but, if he
fails to make that one stitch, he cannot later pass on the cost of the nine
which would have become necessary simply because the one was not made or was
not made in good time.
Mr Wood met
this argument by citing Rapid Results College Ltd v Angell [1986]
1 EGLR 53 (CA). I find that case of no assistance. It concerned a limited point
of construction of no relevance to the present case and the argument now
advanced by Mr Powell-Jones was not advanced in that case. While it will almost
always be considerably more difficult than the proverb suggests to distinguish
between the one stitch and the nine, so to speak, namely between the work of
repair that should have been done initially and the work that has become
necessary in consequence of that failure, I see force in Mr Powell-Jones’
submission. If it were not so, a careless or unobservant or even wilfully
malicious landlord could greatly increase the burden on his lessees, who not
only would then have to pay more by way of service charge for more extensive
repairs than otherwise would have been necessary but would further suffer
periods of disrepair as well. I appreciate that this notion requires a landlord,
if only out of self-interest, to inspect his retained parts regularly, to
anticipate defects so far as possible and certainly to catch them as they
occur, if he is to be able to pass on the direct costs to his tenants. However,
I do not see that that creates any unreasonable burden, and certainly not on
the facts of this present case, where the landlord is a person who carries on
the business of being a landlord and where a management company makes charges
for inspection which are passed on to the tenants.
Mr
Powell-Jones goes on to submit that, on the facts of this case, by October 1986
the premises were, and had for months at least been, in a state of disrepair
and that the relevant works were exclusively a consequence of the landlord’s
failure punctually to have performed his covenant. The disrepair began, he
says, when the first drop of water found its way through to parts which should
have been protected against the incursion of water, and that that must have
happened well before October 1986. Apart from a quibble on the word
‘exclusively’, I accept that submission. All but the costs of a timely repair
to the asphalt under the tanks and a timely fixing of the guttering are, in my
judgment, a consequence of the landlord’s failure punctually to have performed
his covenant. To mark the fact that the landlord could have recovered the cost
of those timely repairs had he done them, I propose to deduct £150 from what
otherwise would have been my award.
Mr
Powell-Jones next dealt with an argument that he anticipated would come from Mr
Wood, namely that, as is a familiar maxim in landlord and tenant law, an
obligation to keep in repair involves also an obligation to put in repair. The
landlord was here able to pass on to the lessees by way of service charge all the
costs of putting the premises into repair, however the disrepair might have
come about. He said that that was to apply the familiar maxim out of context
and would allow the landlord to rely on his own wrong. I agree. The argument,
if right, would lead to the grossly unjust conclusion I have already described
in that the longer the tenants suffered periods of disrepair through their
landlord’s failure to repair, then not only the less valuable their possession
would have become by reason of his failures but also the more likely they would
be to have to pay greater sums by way of service charge. The anticipated
argument is satisfied by the deduction of the £150 which I have mentioned,
which would have been the cost of a timely putting of the premises into repair.
Mr
Powell-Jones next sought to anticipate the defendant’s argument that the
carrying out of works was a trespass. He relied on the provision of Schedule 3,
clause 2 of the lease. He argued that once shelter and protection ceased to be
provided, as they should have been, the lessee had a right to enter the
retained premises to the degree necessary to effect such works as were needed
to restore the appropriate shelter and protection. He cited by way of analogy Bond
v Nottingham Corporation [1940] Ch 429. In that case, Sir Wilfrid
Greene MR, speaking of easements of support, said, at pp 438-439, that the
owner of the dominant tenement was not bound to sit by and watch the gradual
deterioration of the support constituted by his neighbour’s building but was
entitled to enter and take the necessary steps to ensure that the support
continued by himself effecting repairs.
Mr Wood sought
to distinguish Bond but, bearing in mind that it is only an analogy, I
find it a helpful analogy. No landlord and tenant case was cited to me in which
a party’s rights to do works on another’s lands had overridden the occupier’s
right to object to a trespass. Mr Wood suggested that there was no such case,
but it is clear from the judgment of Jenkins LJ in Granada Theatres (supra) at
p 608 that a landlord will be given an implied licence to enter on his tenant’s
premises for the purposes of performing his covenant. If such a licence can be
implied in a landlord’s favour, I cannot see why a corresponding one should
not, in an appropriate case, be implied in a tenant’s favour when the entry is
to do the works which the landlord should have done.
Standing in
the way of such an implied licence, said Mr Wood, are the observations of Sir
John Pennycuick V-C in Jeune v Queens Cross Properties [1974] Ch
97. In that case tenants of flats sought specific performance of their
landlord’s covenant to repair and to maintain a stone balcony outside the areas
demised as flats. At p 100B Sir John Pennycuick appears to have accepted that,
notwithstanding that the landlord was in breach, it would have been a trespass
for the tenants to have done the works themselves. However, he plainly did not
see the fact that it could have been a trespass as precluding the tenants from
lawfully doing the works, as, at p 99F-G, he indicated that a mandatory order
was more convenient ‘than an order for damages leaving it to the individual
plaintiffs to do the work’. In truth, the learned Vice-Chancellor (who had
heard argument from one side only, namely the side concerned to say that the
tenant’s entry would have been a trespass) was concerned with the general
boundaries of specific performance and not with landlord and tenant law in any
detail, and I do not regard Jeune as preclusive of an implied licence in
tenants, in appropriate cases, to enter the landlord’s retained parts of
premises. It does, however, suggest that tenants may recover the cost of works
in appropriate cases where a landlord has failed to honour his repairing
covenant.
I see force in
the analogy with easements which Mr Powell-Jones put forward, but I do not find
it necessary finally to rule upon its applicability, because I do not see that,
even if there was a trespass, that, of itself, would bar recovery. No case to
that effect has been cited to me. It might or might not lead to the equivalent
to a 40 shilling claim in damages for trespass, but no such cross-claim has
been mounted by the defendant. No protest was made at the time of the works
being done that they represented a trespass and, of course, they have improved
rather than harmed the landlord’s premises. I would be sorry indeed to have to
accede to so artificial a complaint. Accordingly, I attach no weight to the
defence based on the allegation that there can be no recovery of the costs of works
because the works were in the course of a trespass.
I am now in a
position to collect and summarise my principal conclusions on subjects other
than quantum. They are as follows:
1 Mr Hammer’s position under this lease is
such that he can be liable for failure to keep the relevant parts of the porch
extension and the tank housing in repair, even if no notice that either needed
repair was given to him.
2 His obligation was to keep these premises
in repair at all times.
3 The landlord’s repairing obligation was
breached some months before October 1986 in that rainwater had begun to enter
the house through splits or cracks in the asphalt under the tanks in the tank
housing. The rainwater got there through the gaps between the tank housing and
the side wall of the house and between that housing and the parapet. It also to
a lesser extent entered through defects in the rendering to the parapet and in
the coping on the top of the front portion of the parapet and to some little
extent through small splits in the covering on the roof of the tank housing.
4 I do not need to find what in particular
caused the defects in the asphalt, as they were caused by its not having been
laid correctly in the first place, or by its being beyond proper age or by the
weight of the tank housing causing it to split. Whichever is correct, or
whatever combination would be correct, the responsibility was exclusively the
landlord’s.
5 Nor do I need to apportion blame between
defects in the parapet and the coping and the gaps between the housing and its
surroundings and so on. Again, whichever is correct or whatever combination is
right, the responsibility was exclusively the landlord’s.
6 The rainwater entering in the ways I have
described caused dry rot and wet rot, the continuing and growing presence of
which was itself a breach of the landlord’s repairing covenant. It also caused
severe dampness in the plasterwork of the walls. The landlord continued thus to
be in breach of his covenant.
If, as on balance I do not hold, water
other than rainwater found its way into the house, in particular by water
dripping from the ball valves to the tanks, I would not hold the lessees
responsible for any damage which that water caused, as, in my view, it would
not have caused damage had the landlord not been in breach of his repairing
covenant in failing to provide a water-proof membrane under and from the point
at which the overflow pipes would discharge.
On and from
December 15 1986 there was a further and continuing breach of the repairing
covenant in that guttering which should have been fixed firmly to the house
ceased to be so. This defect caused rainwater to enter the house at a greater
rate than previously because it increased the amount of water falling on the
tank housing, entering in the gaps between the housing and its surroundings and
entering through some small splits in the housing roof.
By December 17
or thereabouts Dr Loria was justified in concluding that if the remedial steps
necessary to restore the premises to good and substantial repair and condition
were to be taken at an appropriate speed then the matter could not be left in
the hands of Mr Hammer or Mr Kritzler but that she, with or without her fellow
lessees, would have to make her own or their own arrangements.
If I am wrong
in thinking that as early as December 17 or thereabouts Dr Loria could have
concluded as I have mentioned, I would find she was certainly so entitled by
April 10 when her then new solicitors wrote the letter I have mentioned to Mr
Hammer, no satisfactory works or arrangements for works having by then been put
in hand.
A further
breach of the landlord’s covenant occurred during the weekend of June 6 to 7
1987 when the downpipe or guttering fell off the house and through the
tarpaulin then protecting the premises.
The works
needed to put the premises in repair at the suit of Dr Loria were neither more
nor less nor different in any material ways from those necessary at the suit of
any other tenant and the works necessary to be done could not be done other
than, as it were, ‘en bloc’.
As for quantum
and the remaining topics, Dr Loria’s principal claim for damages falls under
three broad heads:
(i) The cost of remedial works: para 14 of the
re-re-re-amended statement of claim.
(ii) Itemised expenses peculiar to her, including
storage and accommodation costs: para 17.
(iii) General damages for distress and
inconvenience: para 18.
I will deal with these in reverse order.
(iii) Para 18: general damages. I have no doubt
that Dr Loria has a good claim under this head. My only difficulty in this
nebulous area is in fixing a sum. Mr Powell-Jones expressed the claim not as a
lump sum but as £200 per month for the period from June 1 1987 to October 31
1987. Whereas the cost of storage and alternative accommodation may run as late
as October 31, I think it right that distress would have stopped sooner. Doing
the best I can, I award £900.
(ii) Itemised expenses: para 17. £1,709.25 is
claimed. I find that claim is established and award that sum.
(i) Costs of remedial works: para 14. I hold that
the works commissioned by Dr Loria with others were no more than were
reasonably necessary to restore the premises to the condition in which the
landlord should have kept them. I hold, further, that they were carried through
at reasonable cost and were not unnecessarily prolonged in any way such that
some deduction should be made for damages under this or any other head. The
final claim under this head was expressed as being for £14,472. I hold that
claim to be good and award Dr Loria that sum less the £150 I have mentioned,
namely £14,322.
Thus, in
aggregate I award the plaintiff £16,931.25 as principal.
I expressed
concern during the hearing that if I were to make an award in Dr Loria’s favour
under her para 14 then I must be assured that no other tenant would be able to
raise a claim against Dr Hammer for the same breaches of covenant or for the
same works, other than in respect of different losses to those described in
para 14. Both counsel were confident that this presented no difficulty. There
are doubtless a number of ways of avoiding the problem. When this matter is
restored, as, for reasons which I will explain below, it will need to be, I
will wish to hear counsel and to be satisfied on this point.
That leaves
over costs, interest and the appropriateness or otherwise of the declarations
sought in paras 1, 2 and 3 of the prayer. As for the declarations, while I have
no objection to them in principle, I have not heard argument as to their proper
form and, save as to the third, which relates to the service charge, I do
wonder if they would now serve any practical purpose. As I am going to hear
argument later on costs, I will leave over the form of declarations, if any, to
be made until I have heard counsel on the point.
I have also
heard no argument on interest. That, too, I leave over until I have heard
counsel.
As for costs,
as I indicated at the outset before I began this judgment, by prior arrangement
that subject is to be left over until the parties have been able to consider
this judgment and can appear with the counsel who were engaged in the hearing
of the action. A date for a further hearing will be arranged through the usual
channels. Unless counsel have any point needing to be dealt with today, I
therefore adjourn the matter for limited further argument on the subjects I
have indicated, the date to be fixed through the usual channels.
Case adjourned for further consideration
of interest, costs and the form of declarations, if any.