Landlord and tenant — Construction of provisions in a deed of covenant and a lease in regard to repairs and services — Plaintiff tenant sought by originating summons a determination of the questions whether the defendant landlords were empowered to replace defective old wooden-framed windows in the plaintiff’s flat with new double-glazed windows and whether the plaintiff was obliged to pay for the replacement — There was a subsidiary question as to the plaintiff’s liability to pay certain other expenses incurred by the defendants — As a result of the joint operation of the deed and the lease the defendant landlords undertook, inter alia, to repair and maintain and otherwise provide services and amenities to the structure and common parts of the block — Plaintiff tenant covenanted to contribute to the costs of so doing and to such further or additional costs as the defendants incurred in ‘providing and maintaining additional services or amenities’ — Defendants claimed contributions from the plaintiff on the ground that the installation of the new windows was a repair, and alternatively that the expenditure was incurred in ‘providing and maintaining additional services or amenities’ to the block — The judge rejected the claim on both grounds — The replacement of the old windows was not a repair but a long-term improvement — Although the new windows had attributes which made them desirable, they could not be regarded in the ordinary sense as an ‘amenity’ — As regards the subsidiary claim for expenses, the court did not have sufficient information to make a declaration — Judgment for plaintiff tenant on the two main questions raised in the summons.
This was an
originating summons by which the plaintiff, Stephen Paul Mullaney, sought
determinations on questions of construction raised by a deed of covenant and a
lease. Maybourne Grange (Croydon) Management Co Ltd were the defendant.
Gregory Stone
(instructed by Symons, of Croydon) appeared on behalf of the plaintiff; Alastair
Norris (instructed by Stoneham Langton & Passmore) represented the
defendant.
Giving
judgment, MR J JEFFS QC said: By this summons the plaintiff seeks the
determination of the court of the following questions:
(1) whether on the true construction of the Deed
of Covenant made 4th June 1984 between the plaintiff and the defendant and the
lease made the 31st day of January 1969 between Western Land Holdings Ltd and
George William Reed and Olwen Mary Reed, the defendant is empowered to replace
the existing windows of the plaintiff’s flat at 24 Maybourne Grange aforesaid
with double-glazed windows under the provisions of the said Deed of Covenant
and the said Lease; (2) whether on the true construction of the said Deed of
Covenant and the said Lease the defendant is entitled to seek payment from the
plaintiff and the plaintiff is obliged to make payment to the defendant in
respect of the replacement of the existing windows in the plaintiff’s flat at
24 Maybourne Grange aforesaid by double-glazed windows under the provisions of
the said Deed of Covenant and the said Lease.
The summons
goes on to seek further and other relief and costs. By an amendment which was
put forward today and which was not opposed by Mr Norris, who appears for the
defendant, I am further asked to make a declaration that the plaintiff is not
liable to make payment to the defendant in respect of any costs or expenses
incurred by the defendant before June 4 1984 under clause 2 of the deed of
covenant of the same date.
Maybourne
Grange is a modern tower block of flats. It was constructed originally with
wooden-framed windows which, it appears, from the very outset have been a
source of trouble, leaking water, requiring painting every four years in
accordance with the terms of the lease and causing considerable trouble and
expense to many of the lessees of the flats in that block. Looking at it in
terms of good housekeeping, it may well have been very desirable to get rid of
this nuisance and in the interests of everyone to replace the defective and
unsatisfactory windows with something more durable and calling for less
maintenance.
That, however,
is not the question that I am asked to decide in these proceedings. I can
summarise very briefly the provisions of the lease and of the covenant in this
way. Parts I and II of the first schedule to the lease define the demised
premises as excluding external and load-bearing walls of the block of flats,
and certain common parts of the Grange are defined as including those external
and load-bearing walls. Under para 2 of the fourth schedule to the lease the
lessee is required to keep the glass and the windows properly repaired and
cleaned.
I now come to
the fourth schedule to the lease, which is headed ‘Covenants by the Lessee in
respect of the Demised Premises’. By clause 14 of that schedule it was laid
down that the lessee ‘will not assign the demised premises except to a person
who has committed himself to the other lessees of flats in Maybourne Grange and
Maybourne Grange (Croydon) Management Co Ltd for the performance and
observation of the covenants on the part of the lessee contained in clause 7
hereof’. Clause 7 laid down inter alia that he ‘will be jointly liable for the
upkeep and management of the block’, and it refers to the structure and common
parts, which I have already mentioned.
Under para 4
of the fifth schedule the lessee is under an obligation to paint the woodwork
of the flats every four years, the painting to be executed so that the block of
flats looks attractive and harmonious in appearance with other buildings on the
estate. It is put forward that the heading of the fifth schedule implies that
the outside windows are part of the common parts.
By the deed
dated June 4 1984 the defendant covenanted ‘to perform and observe the
covenants in the fifth schedule to the lease’. The defendant was accordingly
bound to paint the window frames every four years. The plaintiff was
responsible, however, personally for damage to the glass.
The
defendant’s case is put in this way. First that having the maintenance-free
windows installed was merely a way of complying with the defendant’s repairing
and decorating obligations and further or alternatively that the installation
of double glazing and maintenance-free windows throughout the block of flats
constitutes the provision of a service or amenity to the block and that clause
2(b) of the deed of June 4 1984 entitles the defendant to require from the
plaintiff 2.5% of the cost properly incurred in providing and maintaining
‘additional services or amenities to Maybourne Grange’.
At this point
it is convenient to refer to the exact terms that were used in that deed of
covenant. It is recited in recital 3 that the lease inter alia requires
the lessee to ‘repair, maintain, insure, cleanse and otherwise provide services
and amenities to the structure and common parts of Maybourne Grange’. The
operative part of the deed, para 1, states:
In
consideration of the premises and the covenant on the part of the Lessee
hereinafter contained the Company hereby covenants with the Lessee to observe
and perform the covenants on the part of the Lessee contained in the Fifth
Schedule to the Lease.
Para 2 states:
The Lessee
for himself and his personal representatives hereby covenants with the Company
and the other Lessees in Maybourne Grange that so long as the Lease remains
vested in him or them he or they will (a) pay to the Company from time to time
on demand 2 1/2% of the costs and expenses incurred by the Company in the
observance and performance of the covenant on its parts hereinbefore contained;
and (b) such further or additional costs which the Company shall properly incur
in providing and maintaining additional services or amenities
I emphasise
those words
additional
services or amenities to Maybourne Grange or the said Garage Block and which
shall be authorised by resolution at a General Meeting of the Company.
There is
therefore provision for the supply of additional amenities.
Let me say
here and now that I do not regard the provision of these double-glazed windows
as an additional amenity. It is stretching altogether the terms of the lease
and the meaning of the word ‘amenity’ so to construe it. ‘Amenity’ is defined
in the Shorter Oxford Dictionary as inter alia ‘the pleasurable
features of an estate’. Chambers Dictionary puts it rather differently:
‘pleasantness as in situation, climate, manners, disposition; a pleasing
feature, object, characteristic; civility’.
These windows
no doubt had certain attributes which may have made them desirable, but I do
not regard them as being in any normal sense of the word an amenity. That the
time had come to paint and repair them is established beyond doubt. Various
estimates were obtained and I have one before me in the affidavit of Mr
Fitzpatrick, sworn on April 18 1985. Painting cost £9,641; joinery repairs,
£17,333; a supervision fee for the managing agents, £4,046 — making a total of
expenditure of £31,019 to which VAT of £4,653 had to be added. So that was what
was necessary to pay in terms of the repairs and maintenance.
The new
windows cost almost double that, some £70,000. They may well have been a very
desirable improvement, but I am quite satisfied that they fell into the
category of improvements and not simply of maintenance. I would refer in this
connection to Woodfall’s Landlord and Tenant, vol 1, para 1-1436 at p
598, where the learned author says this:
A covenant to
repair does not involve a duty to improve the property by the introduction of
something different in kind
and the words
‘in kind’ are in italics
from that
which was demised, however beneficial or even necessary that improvement may be
by modern standards. So a lessor of old premises not constructed with a damp
course or with waterproofing for the outside walls was not bound by his
repairing covenant to render the place dry by waterproofing the walls. If a
defect in design has given rise to dry rot, the elimination of that existing
rot and the replacement of affected timber is, within the principle of renewal
of subordinate parts which is dealt with below, an obligation imposed by a
covenant to repair, but there is no obligation to undertake the structural
alteration which is needed to prevent a recurrence of the rot, for that is
improvement and not repair.
Thus it
appears to me in the context of the replacement of the windows that what was
being done here went beyond what was necessary for the purpose of effecting a
repair and was by way of a long-term improvement. It was looking to the future
not to the present.
Accordingly, I
am satisfied that the plaintiff has made out his case on the relief he sought
in paras 1 and 2 of the summons which I have just read out.
I am not,
however, satisfied that the plaintiff is entitled to the declaration which he
seeks in relation to the costs or expenses incurred before June 4 1984, that
being the date at which the deed was entered into. It may be useful at this
stage to summarise some of the crucial dates. On February 13 1984 the plaintiff
took an assignment of the lease. On April 26 there was an extraordinary general
meeting of the defendant company which resolved to change the windows. On May 2
there was an invoice for work done. On May 25 the plaintiff became a
shareholder in the company. On June 4 the deed of covenant was entered into.
Although the
deed of covenant was not entered into until so late a date, the assignment of
the lease was taken earlier and was subject to the clause which I have already
read out whereby the purchaser of the lease was under an obligation to enter
into the arrangement which was finally embodied in the lease. This provision
was, I am informed, included in his contract of purchase of the premises, a
contract which I have not seen, but it was agreed that it contained such a
clause.
I am not for
the purpose of this action immediately before me called upon to make any
positive finding with regard to any specific costs or expenses incurred by the
defendant before June 4 1984, and I do not do so. It may be that if any action
is pending relating to such expenses further discovery may throw light on the
matter in a way which at the moment I cannot envisage. But I do not think it
appropriate on the information at present before me to grant the declaration
sought by the amendment.
