Landlord and tenant — Extent of tenant’s duty to act in a tenant-like manner as formulated in Warren v Keen — Extent of landlord’s duty under section 32 of the Housing Act 1961 to keep in repair and proper working order installations within the demised premises for the supply, inter alia, of water — Appeal by tenant against county court judge’s decision holding tenant liable to landlords for damage to house caused by bursting of rising mains water pipe — Tenant in freezing weather left house to stay with a friend for one night, but in fact stayed for two nights during which temperature dropped to 6 or 7 degrees below freezing — Rising main which passed through kitchen to attic and was controlled by stop-cock in kitchen was not lagged and no heating was left on in the house during the two nights — Mains pipe burst causing substantial damage — Landlords contended that the duty of tenant-like user required tenant to take precautions when leaving the house in freezing weather, such as turning off the water and draining the system, having regard to the unlagged mains pipe and the absence of heating — Tenant contended that it was the landlords’ duty under section 32 of the 1961 Act to have the mains pipe lagged — Held (1) that the landlords’ duty under section 32 was to keep the pipe in good mechanical condition but that an unlagged pipe which, in freezing conditions, became cracked when the water in it turned to ice was not a breach of this condition; (2) that a tenant could not reasonably be expected, under the doctrine of tenant-like user, necessarily to lag an internal water pipe or always to keep the house heated as a precaution against freezing — Extent of tenant’s duty must depend on circumstances, including the length of absence from the house and the severity of the weather — In the present case the judge was wrong in holding that the tenant acted unreasonably — Tenant’s appeal allowed
This was an
appeal by Mrs Mary Norris Barnett, a service tenant of Wycombe Health
Authority, against a decision of Judge Peck at High Wycombe County Court
whereby he awarded the authority as plaintiffs, in an action against Mrs
Barnett, damages representing the cost of repairs required to the house,
Memorial Cottage, Wycombe Road, Princes Risborough, let to her by the authority.
The action against the defendant was based on an allegation of negligence, but
the issues argued both in the county court and the Court of Appeal related to
the extent of the tenant’s duty of tenant-like user and the extent of the
landlords’ duty under section 32 of the Housing Act 1961.
A G L Prynne
(instructed by the solicitor to the Royal College of Nursing) appeared on
behalf of the appellant; G C M Mitchell (instructed by Reynolds, Parry-Jones
& Crawford, of High Wycombe) represented the respondent authority.
Giving the
first judgment at the invitation of Sir John Arnold P, WATKINS LJ said: The
defendant appeals against a judgment of His Honour Judge Peck given at High
Wycombe County Court on June 9 1981 whereby he awarded the plaintiffs damages
in the sum of £150 against the defendant, representing the cost of repairing a
house of which she was the tenant.
The damage to
the house occurred in the following circumstances. At the material time the
defendant was employed by the plaintiffs as a district nurse. To enable her to
carry out her work she was granted a service tenancy, at a monthly rental, of
their house which was known as Memorial Cottage, Wycombe Road, Princes
Risborough. It was in fact a detached three-bedroom cottage which had been
built in about 1920. It was heated by a gas boiler in the living-room and a
storage heater in the hall. The usual services were provided to it including a
mains water supply which could be turned off by a stop-cock situated in the
kitchen. The rising main passed from the stopcock upwards to the attic where it
joined a cistern, the level of the water in which was governed by a ball-cock.
The rising mains pipe was not lagged.
The heating
provided was inadequate to make the house comfortably warm in the coldest parts
of the winter, but in the two years during which the defendant lived in the
house she had given no thought to lagging water pipes inside the house and none
to the need in very cold weather to turn off the water supply by closing the
stopcock and opening the taps so as to empty the water system before leaving
the house when she intended to absent herself from it for any appreciable
length of time. She had not been away from home for long at any one time since
she commenced to live there.
During the
latter part of January and the early part of February 1978 the weather varied
from cold to very cold. On February 7 and 8 the temperature was a little below
freezing. During February 9 and 10 it fell to 6 or 7 degrees below freezing at
various times.
In the morning
of Friday February 9 the defendant went to visit a friend who lived a few miles
away, at Flackwell Heath, intending to return to her home on the following day.
Some time later that day she changed her mind and in fact stayed with her
friend until the evening of Sunday February 11, when she returned home. Upon
entering it she and her husband, who followed her in, found that the mains
water pipe had burst. Consequently, serious damage had been done to an upstairs
and to a downstairs ceiling. Her husband, with considerable difficulty because
it was stiff, turned off the stop-cock. The plaintiffs’ engineer was called to
the scene and he discovered that the rising mains pipe had fractured, owing to
the effect of the freezing temperature and a subsequent thaw at some time
during the weekend, and at a place fairly close to its entry into the cistern
in the attic. The damaged upstairs ceiling had to be renewed completely and the
damaged downstairs ceiling repaired to a substantial extent.
In seeking to
recover the cost of repairing this damage the plaintiffs alleged that it had
been caused as a direct result of the defendant’s negligence in failing to turn
off the water supply at the main when she ought reasonably to have foreseen the
possibility of a burst pipe if she did not do so.
The defendant
by her defence denied that this act of omission, if such it was, could
constitute negligence. Alternatively, it was averred that she had not been
negligent and that the direct or effective cause of the escape of water from
the rising main after a burst caused by freezing temperature was the failure of
the plaintiffs to insulate, ie lag the pipe.
The
plaintiffs’ engineer said in evidence that the burst had
lagged it would not have burst. The defendant said that she and her husband had
never gone away for long periods in the winter. She had never turned off the
mains water at the stop-cock and it did not occur to her to do so at the
relevant time, especially seeing that she only intended, before departing, to
be away from home for one night. She did not give the matter a thought.
The learned
judge came to the following conclusions:
In my
judgment a tenant takes premises as he finds them and if at the start of the
tenancy pipes are unlagged the tenant must either lag them himself or take all
reasonable precautions on the basis that they are unlagged. I do not consider,
therefore, that Mrs Barnett can escape liability on this ground. The question
remains whether she acted unreasonably in leaving the house unoccupied as she
did without draining. I have not found this question easy to answer but in the
end I have come to the conclusion that the tenant who leaves home during
winter, even for a quite short period, must, if he leaves the premises
unheated, take the fairly elementary precaution of emptying the water system.
If Mrs Barnett had taken this precaution or if she had left some heating in the
premises — as no doubt she would have done if merely going on night duty — the
burst would probably not have taken place. In all the circumstances therefore,
while I have considerable sympathy for her predicament, I feel bound to hold
her liable for the damage which arose.
It is obvious
from that passage that he did not found his decision upon the plaintiffs’
allegation of negligence but upon a failure by the defendant to use the house
in a tenant-like manner. He was apparently assisted to reach this conclusion by
what Lord Denning (as he then was) said in Warren v Keen [1953] 2
All ER 1118 at p 1121 which was as follows:
The tenant
must take proper care of the premises. He must, if he is going away for the
winter, turn off the water and empty the boiler; he must clean the chimneys,
when necessary, and also the windows; he must mend the electric light when it
fuses . . . he must do the little jobs about the place which a reasonable
tenant would do. In addition, he must not, of course, damage the house wilfully
or negligently; and he must see that his family and guests do not damage it —
if they do, he must repair it. But, apart from such things, if the house falls
into disrepair through fair wear and tear or lapse of time or for any reason
not caused by him, the tenant is not liable to repair it.
Pursuant to
his grounds of appeal learned counsel for the defendant argues that this basis
for finding for the plaintiffs constitutes a failure by the judge properly to
confine his consideration of the plaintiffs’ claim to an allegation of the
damage having been caused by the commission by the defendant of the tort of
negligence. Since, however, he conceded that the proceedings in the county
court, without objection from either party, were not conducted with strict
observance of the pleadings, and that the submissions of both counsel to the
judge were in fact concentrated upon the duty of a tenant to act in a
tenant-like way in looking after a house, and the duty of the plaintiffs as
landlords to carry out the provisions of section 32 of the Housing Act 1961,
which undoubtedly applied to the plaintiffs’ dwelling-house, this argument
clearly cannot assist the defendant in this court. It was but faintly pressed
upon us anyway, so it will not I think surprise anyone to learn that this
ground must surely fail.
Secondly, it
is submitted that the effective cause of the damage was the failure of the
plaintiffs, in breach of their duty arising out of the implied covenant under
section 32, to lag the pipe or that part of it which is in the attic at the
very least because, put more broadly, this duty involves a landlord keeping and
maintaining internal water pipes in proper working order at all times and in
all circumstances.
Section 32, so
far as relevant here, provides:
32 Repairing
obligations in short leases of dwelling-houses.
(1) In any lease of a dwelling-house, being a
lease to which this section applies, there shall be implied a covenant by the
lessor —
. . .
(b) to keep in repair and proper working order
the installations in the dwelling-house —
(i) for the supply of water, gas and electricity
. . .
(2) The covenant implied by this section
(hereinafter referred to as the lessor’s repairing covenant) shall not be
construed as requiring the lessor —
(a) to carry out any works or repairs for which
the lessee is liable by virtue of his duty to use the premises in a tenant-like
manner, or would be so liable apart from any express covenant on his part; . .
.
How onerous is
this implied covenant, having particular regard to the expression ‘to keep in
repair and good working order’? Contrary
to Mr Prynne’s contention, Mr Mitchell submits that a landlord conforms to it
if, at the commencement of the tenancy, the installations (as regards, in the
present context, water pipes) are in repair and good working order for the
intended purpose, namely the supply of water from the mains to the house and
they so thereafter remain.
I find of
assistance in this connection observations made by Megaw LJ in Campden Hill
Towers Ltd v Gardner [1977] 1 All ER 739. At p 746 he said:
In our
judgment, the meaning of para (b) is as contended for by the lessors. The
installations in the physical confines of the flat must be kept in repair and
capable, so far as their own structural and mechanical condition is concerned,
of working properly. But no more than that. The lessor may be under additional
obligations but, if so, they do not arise from this statute.
I do not think
it can rightly be said that an unlagged water pipe is not in a good mechanical
condition in this sense merely because it becomes cracked when, in freezing
conditions, there is water in it which turns to ice. It will, or may be,
otherwise if, for example, a leak develops in a water pipe through its
condition becoming out of repair by the effects of rust or other process of
deterioration. Seeing that there is no suggestion that the water pipe in the
plaintiffs’ house, before the onset of the frost, was otherwise than in good
mechanical condition, they were not in my opinion in breach of the implied
covenant created by section 32. This conclusion renders unnecessary any further
references to subsection (2)(a) and such slight argument as was addressed to us
upon the meaning of the word ‘works’ as used therein.
The third and
final submission on behalf of the defendant is to the effect that the learned
judge extended the duty of a tenant to act in a tenant-like manner beyond
reasonable limits and certainly beyond those contemplated by Lord Denning in Warren’s
case. There is, he said, no obligation upon a tenant to lag water pipes. Lord
Denning, in spelling out the obligation of a tenant to perform certain tasks to
keep a house in repair, was envisaging, in relation to water pipes and other
fittings, circumstances in which it was unoccupied for a fairly long time. It
is going much too far to say that a prudent tenant can be expected whenever a
cold spell of weather occurs, when contemplating being away from home for a
night or two, to turn off the stop-cock and drain the water system.
Accordingly, the learned judge was in error in finding that the defendant by
omitting to take this precaution had behaved in an untenant-like manner and so
was liable for the damage which occurred.
Mr Mitchell
contends that a tenant is required to do those things which cost very little or
nothing and which are within his or her competence to do. Examples of this are
changing a washer on a tap and replacing a burnt-out electricity fuse. Taking
the precaution of turning off the water from the mains and draining the
internal system of water takes but a short time, he says, and is a simple task
to perform. It is reasonable for a landlord to leave such a precaution to a
tenant, having regard to the fact that the tenant is in day-to-day charge of
the premises. There is nothing onerous about an obligation of that kind and it
is one which can properly be said to be within the requirements referred to by
Lord Denning. He did not, as I understand him, go so far as to say that a
tenant’s obligation includes that of lagging an internal water pipe in any
event, but he did seek to support the finding of the learned judge that if, at
the start of a tenancy, pipes are unlagged, the tenant must either lag them
himself or take all other reasonable precautions on the basis that they are
unlagged before leaving the house unoccupied even for so short a time as two or
three days.
However, I am
not persuaded that a tenant, in order to behave in a tenant-like manner, can
reasonably be expected inevitably to lag an internal water pipe as a precaution
against the vicissitudes of freezing temperatures. Nor do I regard the
obligation of the tenant to extend to always keeping the house heated as a
further or alternative precaution. Furthermore, a tenant is not in my view to
be expected, even in cold weather, inevitably to turn off a stop-cock and drain
the water system when leaving the house, though knowing that it would
thereafter be unheated and the pipes were unlagged.
What
precaution including lagging, heating and turning off water a tenant can be
expected to take in order to be found to have behaved in a tenant-like manner
in cold climatic conditions must depend upon the circumstances obtaining at the
relevant time, including the severity of cold weather conditions within the
house and the length of any contemplated absence from the house. Taking into
consideration the facts as found in the present case, it appears that when the
defendant left home on the Friday morning the weather was, although she may not
have appreciated this, at about freezing point. While she knew that the pipes
in the house were not lagged and
home for only the Friday night. She was, in fact, away for just one more night.
It seems to me to be extremely unlikely that, during that time, rather less
than three full days, although the weather became a few degrees colder, she or
any other reasonable person in her position would have appreciated that there
was a risk of the water pipes in her home freezing in her absence. I cannot,
therefore, agree, with respect to the learned judge, that she acted
unreasonably in leaving the house unoccupied without draining the water system
and turning the water off at the stop-cock. The weather would have had to have
been appreciably colder in all the circumstances to lead me to such a
conclusion. Seeing that the facts as found by him were really not in dispute, I
feel free to, and do, prefer my conclusion to his and I would therefore allow
this appeal.
I choose to
add that, although a landlord is not called upon within the terms of the
implied covenant under section 32 to lag water pipes, it may, nevertheless, be
prudent for him to do so, seeing that there are circumstances in which a tenant
will not be found to have acted in an untenant-like way by leaving a house in
the condition in which the plaintiffs’ house was left by this defendant upon
the occasion following which damage arose.
Agreeing that
the appeal should be allowed, MAY LJ said: Watkins LJ has retailed the facts
and arguments in this appeal and consequently I need not repeat them. I merely
add a few comments of my own.
In so far as
the argument based upon the provisions of section 32 of the Housing Act 1961 is
concerned, there was and is no dispute that the provisions of this section
applied to the appellant’s tenancy. Subsection (1), in so far as is material in
this case, provides that in any lease of a dwelling-house there shall be
implied a covenant by the lessor to keep in repair and proper working order the
installations in the dwelling-house for the supply of water, gas and
electricity. Subsection (2), however, provides that the covenant implied by
subsection (1) shall not be construed as requiring the lessor to carry out any
works on repairs for which the lessee is liable by virtue of his duty to use
the premises in a tenant-like manner. Counsel contended that because the water
pipes were not lagged, or so soon as the water in the pipes froze as the result
of the drop in the outside temperature, the water installation in the
dwelling-house fell out of proper working order and that it was this that was
the real or proximate cause of the subsequent leak and damage to the ceilings,
not the earlier alleged failure on the part of the appellant to use the
premises in a tenant-like fashion. He submitted that subsection (2) had no
relevance because it could not properly be said that the appellant’s obligation
to use the premises in a tenant-like manner required her, for instance, to lag
the water pipes and thus prevent the breach that occurred. In reply, counsel
for the respondents argued that the water installation in the cottage was at
all times in proper working order: the mere fact that the temperature, whether
coupled with any failure on the part of the tenant or not, had caused ice to
form in the pipes did not prevent the installation from being and remaining in
‘proper working order’.
I agree with
the contentions advanced on behalf of the respondents. I do not think that a
water installation in a cottage ceases to be in proper working order within the
statutory provision just because the water in one of the pipes freezes. In the
same way, an electricity installation does not cease to be in proper working
order merely because a fuse blows. The position would, I think, be different if
a water pipe rusted through, or if the insulation on the electric wiring in the
cottage deteriorated to such an extent that a ‘short’ developed. In my opinion
the phrase ‘proper working order’ in its context relates to the physical or
mechanical condition of the installation as such and involves that it shall be
capable of working properly as an installation.
In so far as
subsection (2) is concerned, although replacing a washer on a tap or a fuse in
a fusebox may not, as a matter of construction, be properly described as ‘works
or repairs’, I do not think that it in any way follows that the tenant’s duty
to use the premises in a tenant-like manner does not include the obligation to
replace the washer or the fuse. Indeed the use of the phrase ‘works or repairs’
in subsection (2) reinforces the view that I have expressed on the proper
meaning of ‘proper working order’ as applied to the specified installations in
subsection (1).
On the other
point argued before us, however, I too differ respectfully from the view of the
learned judge below. When she left the cottage on Friday February 9 1978 the
appellant intended, as the judge found, to be away only one night and the
temperature was not so extreme that she should have had special precautions in
mind. In these circumstances I think that to hold that her obligation to use
the premises in a tenant-like manner required her to turn off and empty the
whole water system in the house before she left for that short absence was
wrong and imposed too heavy a burden upon her.
For that
reason I also would allow the appeal and set aside the respondents’ judgment
against the appellant.
SIR JOHN ARNOLD
P said: I agree and, although we are differing from the learned judge, there
really is nothing which I can usefully add to what my Lords have said.
The appeal
was allowed with costs.
