Landlord and tenant — Repairs — Service charges — Whether external walls and roof within expression ‘mutual or party walls’ or ‘mutual or party structures’
The plaintiff
landlord occupied the first and second floors of a dwelling-house; the
defendant occupied the ground floor and basement by way of an underlease. By clause 3(4) of the underlease the
defendant covenanted to repair the demised premises. By clause 3(7) of the underlease the
defendant covenanted to contribute and pay a rateable or due proportion of the
costs and expenses expended by the landlord in repairing, inter alia,
all ‘mutual or party walls and fences mutual or party structures and other
items which may belong to or be used for the demised premises in common with
other premises near or adjoining thereto’.
The plaintiff landlord incurred expenditure in repairing the roof and
upon its non-payment by the defendant obtained an order for possession in the
court below following forfeiture proceedings.
The defendant appealed contending that the roof did not fall within the
terms of clause 3(7).
Looking at the terms of the underlease as a whole, the external walls
are not included in the demise.
Considering clause 3(7) on the general basis that the clear intent of
the underlease as a whole was that the tenant should be responsible for
‘internal repairs’ of his demised premises, that he should have no obligation
with regard to the internal parts of the premises occupied by his landlord, but
that the expenses of repairing the external parts of the premises are to be
shared in common with a landlord. The
roof can be regarded as being a ‘mutual structure’. The same approach can be adopted in the case
of external walls, which are mutual structures.
If there was any doubt about the position and the roof was not a mutual
structure it was certainly an ‘other item’.
It was largely a question of impression for the court. The word ‘mutual’ has the meaning of ‘in
common’. The fact that the roof was not
physically adjacent to the demised premises did not prevent it from being a
‘mutual structure’.
The following
case is referred to in this report.
Douglas-Scott v Scorgte [1984] 1 WLR 716; [1984] 1 All ER 1086; (1984) 48
P&CR 109; [1984] EGD 325; 269 EG 1164, [1984] 1 EGLR 40, CA
This was an
appeal from Judge Edwards (sitting at Brentford County Court), who on March 11
1988 made an order for possession against the defendant, Robert David
Charrington, in respect of 37 Church Street, Twickenham, in proceedings for
forfeiture and arrears of service charges brought by the plaintiff, Brian
Charles Twyman.
Edward Cousins
(instructed by Camerons, of Harrow) appeared for the appellant; David Elvin
(instructed by Coleman & Betts, of Kingston upon Thames) represented the
respondent.
Giving the
first judgment, WOOLF LJ said: This is an appeal from a judgment of
Judge Edwards, sitting at Brentford County Court, which he gave on March 11
1988. On that occasion he held that the
plaintiff was entitled to recover possession of premises which were part of 37
Church Street, Twickenham, and ordered that a sum of money totalling £129.40
together with certain costs were to be paid.
Although the proceedings took the form of forfeiture proceedings and for
possession, in fact the purpose of the proceedings was to resolve a dispute
between the plaintiff and the defendant as to the proper interpretation of the
lease pursuant to which the defendant was in possession of the ground floor and
basement of 37 Church Street, Twickenham.
The plaintiff
occupies the first and second floors of those premises. He was an assignee of the lease of the whole
premises and the underlease was one entered into by the plaintiff’s predecessor
in title with the defendant’s predecessor in title. By the underlease the defendant was entitled
to occupy the ground floor and basement, as already indicated, and the
underlease which gave rise to the dispute contained a number of covenants. Fortunately, however, it is only necessary
for the purposes of this appeal to refer to a few of those provisions because
in fact the dispute is confined to determining whether the defendant tenant is
responsible for making a contribution to the costs of repairs to the roof.
By the
underlease it was provided that there was demised ‘unto the Tenant ALL THOSE
premises more particularly described in the Schedule hereto (hereinafter
referred to as ‘the demised premises’)’.
The schedule
is in these terms:
ALL THOSE
premises comprising the ground floor and basement of the building known as 37
Church Street Twickenham . . . as the same are for the purpose of
identification only shown coloured pink on the attached plan.
The court has
looked at the attached plan, but the attached plan provides no assistance in
resolving the question which is of some relevance as to whether or not the
external walls are included in the demise.
The underlease
contains a covenant — covenant 3(4) — pursuant to which the tenant is under an
obligation to repair. That is not the
covenant which is primarily involved in the issue on this appeal but it is,
however, relevant and I should read it.
It is in these terms:
THE Tenant
hereby COVENANTS with the Landlord . . .
(4) to repair maintain cleanse and keep in good
and substantial repair and to replace or rebuild where necessary the demised
premises and all additions and improvements thereto and all Landlord’s fixtures
and fittings thereunto belonging and all appurtenances forming part of the
demises premises (damage by any insured risk only excepted) AND ALSO when and
so often as any Landlord’s fixtures belonging to the demised premises shall so
require to substitute other fixtures of a similar description quality and value
to the satisfaction of the Landlord.
The covenant
which is directly relevant to the issue on this appeal is at clause 3(7), and
that is the only other covenant to which I need refer. It provides:
The Tenant
hereby COVENANTS with the Landlord . . .
(7) to contribute and pay a rateable or due
proportion of the costs and expenses (to be determined by the Landlord’s
Surveyor) expended by the Landlord or the Superior Landlord in making laying
repairing maintaining
watercourses mutual or party walls and fences mutual or party structures and
other items which may belong to or be used for the demised premises in common
with other premises near or adjoining thereto and to keep the Landlord and the
Superior Landlord indemnified against such proportion of such costs and
expenses.
The judge came
to the conclusion that the effect of clause 3(7) was that the tenant was under
an obligation to pay a contribution towards the costs of repairing roof to the
building. He said, in the note of his
judgment:
It seems to
me that repairs to the roof are within the covenant (clause 3(7)) as being
repairs of a mutual structure used for the demised premises . . . with other
premises. Or it is an ‘other item’ which
maybe so used within the wording of the covenant. The arguments adduced by the Plaintiff are
stronger than those by the Defendant.
It is common
ground that sadly this lease is not drawn with the precision that is
desirable. There is a dispute, first of
all, between the landlord and the tenant as to whether the external walls of
the ground floor and basement are included in the demise. As to that, looking at the terms of the lease
as a whole, I am quite satisfied that the external walls are not included. Having come to that conclusion, I approach
the construction of clause 3(7) on the general basis that the clear intent of
the lease as a whole is that the tenant should be responsible for what I will
describe in general as ‘internal repairs’ of his demised premises, that is, the
ground floor and basement; that in general he should have no obligation with
regard to the internal parts of the premises which are occupied by his
landlord; but with regard to the external parts of the premises the expenses of
repairing these is to be shared in common with his landlord. Such an approach fits in with the headlease,
pursuant to which the plaintiff is under an obligation to keep in repair the
whole of the premises. These premises
being now in the form of two flats, the convenient way for the cost of keeping
them in repair to be met when they are in dual occupation is for the costs in
relation to the external parts and what I will call in general the ‘common
parts’ to be shared by the two occupiers.
That, in my view, is the general intent of clause 3(7).
When one
condescends to look at the terms in detail of that clause, one finds that there
is such an obligation clearly established with regard, for example, to sewers
and drainpipes; and indeed in relation to mutual or party walls. That, in my view, helps when considering the vital
words which were considered by the judge in coming to his conclusion in favour
of the landlord. First of all, the judge
came to the conclusion that the roof could be regarded as a mutual
structure. In the context of this
covenant I would agree with the learned judge’s conclusion in that regard. It is important that the word ‘mutual’ is
followed by ‘structures or party structures’.
Clearly the intent here is that structures which are immediately
adjoining the demised premises shall be regarded as party structures, and those
parts which are used for their common benefit which are not immediately
contiguous should be regarded as mutual, and I would so regard the roof. It provides benefit to both demised premises
and it is within the general intent of the clause that the costs of repair should
be contributed to by the tenant.
So far as the
external walls are concerned, that is clearly dealt with by the preceding words
‘mutual or party walls’, and I would adopt the same approach with regard to
structures.
If there were
any doubt about the position, then, in my view, the doubt is removed by the
reference which follows ‘structures’ to ‘other items which may’ (and here I
quote the relevant words) ‘be used for the demised premises in common with
other premises near or adjoining thereto’.
To talk about a roof as an ‘other item’ might not be the normal language
which one would apply, but as ‘other items’ is clearly intended to embrace all
that goes before and to be therefore of general import, the fact that it goes
on to identify those items as being ones which are used in common with the
other premises means that if the roof was not a mutual structure it was
certainly an ‘other item’.
In the very
helpful arguments which were advanced on behalf of both sides by Mr Edward
Cousins and Mr David Elvin, we were referred to references in the Oxford
Dictionary — the shorter and concise dictionaries — as to the meaning of
the word ‘mutual’. We were also referred
to the decision of this court in the case of Douglas-Scott v Scorgie
[1984] 1 All ER 1086*. We were also
referred to an authority dealing with the general approach to the contra
proferentum rule. However, I do not
propose to make any further references to those authorities because, in my
view, they do not provide any real assistance on the issue which arises on this
appeal. As Mr Cousins readily accepted
in the course of argument, this is largely a question of impression for the
court. Clearly in this case it is open
to the court to form a view as to whether the roof is covered by the
obligations placed upon the tenant by clause 3(7) and I find the language of
that clause sufficiently clear to enable this court to uphold the decision of
the learned judge without reference to other assistance.
*Editor’s
note: Also reported at (1984) 269 EG 1164, [1984] 1 EGLR 40.
I accordingly
would dismiss this appeal.
Agreeing that
the appeal should be dismissed, SIR JOHN MEGAW said: I would add my
agreement with the tribute which Woolf LJ has paid to the very concise and
well-expressed arguments put by counsel on both sides. They also have my sympathy in being faced
with the formidable task of construing a document, in particular subclause (7)
of clause 3 of the lease, which is, at the best, very unfortunately phrased
from the point of view of clarity. The
principal difficulty, I think, is the use of the word ‘mutual’. That is a word which in its original and
proper meaning involves reciprocity, but it has long since escaped from that
narrow meaning in its ordinary everyday use in the English language. Very often now it is used to mean no more
than ‘in common’, such as ‘our mutual friend’, which has got nothing to do with
reciprocity, but simply refers to somebody who is a friend of each of the two
people concerned.
I think that
the word ‘mutual’ in clause 3(7) really has the meaning of ‘in common’, and a
‘mutual structure’ includes in this case the roof because that structure
provides a service, a benefit, an advantage, to the demised premises as well as
to the rest of the building, even though it is not physically adjacent to the
demised premises, being separated from it by the other floors of the
building. But I do not think that in the
circumstances here the fact that it is not physically adjacent prevents it from
being a ‘mutual structure’ for the purposes of the clause.
I would agree
also that, if there is doubt about the meaning of ‘mutual structures’ in this
context, that doubt ceases to be of importance because of the following words
‘other items which may belong to or be used for the demised premises’. It is agreed that the words ‘may belong to’
are not of relevance here. It is
submitted with some force by Mr Elvin that it is difficult to describe the roof
as being ‘used for’ the demised premises in common with adjoining premises, but
to my mind it is not very difficult to see that the real intention is that the
roof should be regarded as being ‘used’ for the demised premises just in the
same way as a sewer or a drain or a downfall water-pipe would be properly
described as being ‘used for the demised premises’. Here the roof is used for the demised
premises because, if the roof were not there, the demised premises would
ultimately suffer from the effects of rainfall coming through an unroofed
building.
I agree that
the appeal should be dismissed.
Appeal
dismissed with costs.
