by Mark Pawlowski
Surveyors and lawyers are often faced with the difficult task of giving effect and meaning to particular words and phrases used in legal documents. Problems of interpretation arise frequently in the context of a repairing covenant where the parties have sought to define their respective obligations in regard to the maintenance and upkeep of the demised premises. This article attempts to set out the general principles adopted by the courts in construing repairing covenants and to outline the legal meaning of particular words and phrases commonly used in such covenants.
The general rule of construction in regard to covenants contained in a lease is that they are to be construed according to the intention of the parties as expressed by their own words, having regard to the context in which they are used. It is permissible, therefore, for the whole of the lease to be examined as an aid to the interpretation of the particular words in question.
The correct approach is to adhere, as strictly as possible, to the express words that are found in the covenant and to give to those words their natural, ordinary meaning. The words are not necessarily to be given their strict literal meaning, since, in all cases, it is the “good sense of the agreement” which has to be ascertained: per Tindal LJ in White v Nicholson (1842) 4 M&G 95 at p 98. For example, a covenant “forthwith” to put premises in repair must receive a reasonable construction and cannot be construed in its strict literal meaning. Accordingly, the word “forthwith” means with all reasonable speed and not necessarily “immediately”, since it is always a question of fact in each particular case whether the landlord/tenant has done what he reasonably ought to have done in performance of the covenant: Roberts v Brett (1865) 11 HLC 337 at p 355.
It is important, however, to bear in mind that decisions upon the meaning of particular expressions provide valuable guidance only and must not be relied on as binding precedents, since the factors which it is permissible to take into account will vary from case to case: per Lord Atkin in Calthorpe v McOscar [4] 1 KB 716 at p 731.
Extrinsic evidence
As appears from the foregoing, the meaning of a particular phrase or expression intended by the parties must, in the first instance, be construed by reference to the actual terms of the lease itself. Thus, where the precise purport and scope of a covenant are plain from the express words used it is not permissible to look beyond the lease in which the covenant is contained. But if a doubt still remains as to the precise meaning, regard may be had to the surrounding circumstances with reference to which the lease was entered into.
The surrounding circumstances include the nature of the property and the purpose for which it is suitable but not the past history of the matter, the conduct of the parties or the statements of their intention: Wolf v Hogan [9] 2 KB 194 and City and Westminster Properties (1934) v Mudd [1959] Ch 129.
Conditional and dependent/independent covenants to repair
A conditional covenant is one which is subject to the fulfilment of a condition precedent and, accordingly, no liability can arise under it until the particular condition is satisfied. Moreover, it is a question of construction in each case whether the condition precedent is itself a covenant by the other party. A few illustrations will, it is hoped, make the position clear.
Take, for example, the following: “If in 1988 the landlord repaints the exterior, the tenant will repaint the interior.” In this case, the tenant’s covenant is conditional, so that the tenant is not bound to repair the interior until the landlord decides to repair the exterior. Moreover, he cannot compel the landlord to repaint the exterior if he chooses not to do so. In other words, there is no covenant by the landlord to repaint the exterior which can be enforced by the tenant.
Compare this with the following: “In 1988 the landlord will repaint the exterior whereupon the tenant will repaint the interior.” Here, the tenant’s covenant is dependent on the landlord’s covenant and the tenant can compel the landlord to repaint the exterior if he (the landlord) fails to do so. In this last case, both parties make promises and so the covenants are mutual.
Another example of mutual covenants arises where the covenants of the parties are not dependent but are independent of each other. For example: “In 1988 the landlord will repaint the exterior and the tenant will repaint the interior.” Here, since the covenants are independent, the tenant cannot set up non-performance of the landlord’s covenant as a defence to an action upon his own non-performance.
Two leading cases may be contrasted at this point. In Westacott v Hahn [8] 1 KB 495, the tenant covenanted that he would “from time to time during the said term … being allowed all necessary material for this purpose … repair … the farmhouse …”. This was held to be a conditional covenant by the tenant with no corresponding covenant on the part of the landlord to provide the requisite materials. The result was that the tenant was not bound to execute the repairs if the landlord did not previously assent to bear the cost of the materials necessary for them.
In Tucker v Linger (1882) 21 Ch D 18, the tenant covenanted to repair the demised premises. By a subsequent clause in the lease, the landlord covenanted to provide the requisite materials. The landlord failed to supply the materials and the resulting disrepair damaged the tenant’s crops. It was held that the tenant’s covenant was independent of the landlord’s covenant and so the landlord could not be held liable for the damage. In this case, the tenant should have repaired the premises under his own covenant and then claimed the cost of the materials under the landlord’s covenant.
It is apparent from the foregoing analysis that each case will be decided upon its own particular facts and the particular wording of the covenant used.
Joint and several liability
Where a covenant is entered into by two or more persons, it may become necessary to determine whether liability of the covenantors is joint or whether it is several or both joint and several. The nature and extent of the obligation will depend on the particular wording used in the covenant. The trend of the cases is to adhere to the very words of the covenant when they are plain and unambiguous and not to depart from them merely on grounds of hardship or inconvenience. In the words of Lord Hershell in White v Tyndall (1888) 13 App Cas 263 at p 276:
Where several persons covenant with another in terms which import without ambiguity a joint and not a several obligation, the covenant must be held to be a joint one. When the terms are ambiguous and may import either a joint or a several obligation, you may no doubt look at the other parts of the deed, the interests of the covenantors and indeed any other circumstances appearing on the face of the instrument which will aid in the determination of the intention of the parties.
Under section 81 of the Law of Property Act 1925 (where the section applies) a covenant with two or more jointly is to be construed as being made also with each of them severally unless a contrary intention appears from the express words of the covenant.
Meaning of particular words and phrases
It will now be convenient to consider the way in which the courts have interpreted particular expressions used in repairing covenants:
(a) “To keep in repair”
A tenant who has covenanted to repair and keep in repair the demised premises during the term must have them in repair at all times during the term and so, if they are at any time out of repair, he commits a breach of the covenant: Luxmore v Robson (1818) 1 B&Ald 584. Consequently, the covenant obliges the tenant to put the premises in repair (if they are not in repair when the tenancy begins) and to leave them in repair during the currency of the tenancy. Moreover, a covenant without qualification to repair and keep in repair buildings binds the covenantor at common law to rebuild the premises in case they are destroyed, whether the injury proceeds from the act of the Queen’s enemies, or strangers, or from accidental fire, lightning or tempest: Paradine v Jane (1647) Aleyn 26. However, so far as destruction by the Queen’s enemies is concerned the covenantor is relieved by the Landlord and Tenant (War Damage) Act 1939 of this obligation, and the covenant by the landlord implied by section 11 of the Landlord and Tenant Act 1985 does not impose on the landlord any obligation to rebuild or reinstate the premises in the case of destruction by fire, tempest, flood or other inevitable accident.
(b) “To leave/deliver up in repair”
Under this wording when used alone, no liability can arise on the part of the tenant until the end of the term of the tenancy.
(c) “To put into repair forthwith”
A covenant to put premises into repair “forthwith” is performed if the repairs are done with reasonable speed: Doe d Pittman v Sutton (1841) 9 C&P 706.
(d) “To repair in the [seventh] year of the term”
Here, the tenant’s liability to repair will arise as soon as the specified year commences.
(e) “Repair, good repair, habitable/tenantable repair, substantial repair”
All these expressions mean repair to the standard as laid down by Lopes LJ in Proudfoot v Hart (1890) 25 QBD 42, namely, “such repair as, having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it”.
In Calthorpe v McOscar [4] 1 KB 716, it was sought to apply this definition literally to a tenant’s covenant in a 95-year lease to “well and sufficiently repair” the premises. The Court of Appeal rejected the tenant’s contention that his obligation was to do only such repairs as would make the premises reasonably fit for occupation by a tenant of the class now likely to take them and held that the true test involved the tenant’s putting the premises into that state of repair in which they would be found if they had been managed by a reasonably minded owner having regard to what, at the time of the demise, were the age, character and ordinary user of the premises or the requirements of the class of tenant then likely to take them. In other words, the standard of repair was not to be increased by an improvement or lowered by the deterioration in the requirements of the class during the passage of time.
The standard of repair is therefore to be measured by reference to the parties’ contemplation regarding the age, nature and condition of the premises at the time when the lease is made and when the covenant begins to operate.
Thus, where premises are old at the time of the demise the tenant need only maintain them in a fit state of repair as old premises. He is under no duty under his covenant to bring the premises up to date.
Covenants to repair in tenantable, good or habitable repair etc must also be construed reasonably, so that the landlord is not entitled to claim for slight defects. For example, in Perry v Chotzner (1893) 9 TLR 488, it was held that, under a covenant to repair and paint, the tenant was not bound to fill up cracks in plaster and holes made by nails within the period of redecorating.
As a general rule, a repairing covenant does not carry with it the obligation to carry out decorative repairs except painting necessary for the prevention of decay as opposed to mere ornamentation. In Crawford v Newton (1886) 36 WR 54, the Court of Appeal held that a tenant who agreed to keep the inside of the premises in tenantable repair and who occupied them for 17 years without having painted or papered was only bound to paint and paper so as to prevent the house from going into decay. In Proudfoot v Hart, however, the Court of Appeal, while laying down the general rule that the tenant is not bound by a general repairing covenant to do repairs which are merely decorative, also concluded that he is bound to repaper, paint and whitewash walls and ceilings if the condition of the house in those respects is such that it would not be taken by a reasonably minded tenant of the class likely to take it.
(f) “To repair and renew”
This has been held to be no wider than a covenant to repair, stronger and clearer words being necessary to impose a larger and more onerous obligation: Collins v Flynn [3] 2 All ER 1068.
(g) “Structural repairs”
These are repairs which involve interference with or alteration to the essential structure, fabric or framework of the building in question, including the walls (external and internal supporting or load-bearing), roof, foundations, floors, etc: Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [9] Ch 592.
In Samuels v Abbints Investments (1963) 188 EG 689, the defective outside plumbing was held to be within the main structure of the block of flats and within the landlord’s covenant to repair and in Pearlman v Keepers and Governors of Harrow School [9] 1 All ER 365, the installation of a central-heating system, by affecting and being connected to the fabric of the house, amounted to a structural alteration to it, but the installation of kitchen sinks and cookers with the necessary plumbing works has been held not to amount to a structural alteration: Monk v Murphy, Monk v Brock [1949] EGD 294. Certainly, however, decorative repairs cannot be regarded as structural, because these will not interfere with the main structural framework or fabric of the demised premises.
It has been argued that the covenant for structural repairs does not apply to minor works to the structure (eg repairing cracks) but is confined to matters essential to preserving the structure as such, the stability of the walls or repairs to the roof. The contrary view is that all repairs are either structural or decorative and if the repair is of those parts of the building which are the structure, it is a structural repair, however minor: Vaisey J in Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [8] 2 All ER 551 at pp 552-553.
(h) “Main walls”
This expression has been held not to include wooden frame windows in an ordinary house with the normal amount of windows (Holiday Fellowship v Hereford [9] 1 WLR 211), but the position may be different in the case of a building with walls largely of glass.
(i) “Exterior”
This word has been held to include, on a letting of a semi-detached house, the partition wall between it and the adjoining house (Green v Eales (1841) 2 QB 225); windows and skylights (Boswell v Crucible Steel Co of America [5] 1 KB 119 and Harris v Kinloch & Co [1895] WN 60); outside drains (Howe v Botwood [1913] 2 KB 387); flagstones and steps leading to the dwelling (Brown v Liverpool Corporation [1969] 3 All ER 1345), but not the back yard of a dwelling (Hopwood v Cannock Chase District Council [1975] 1 WLR 373).
The word “exterior” does not necessarily include the roof of a building where the demise includes the top floor of a building but not the roof itself: Rapid Results College Ltd v Angell [6] 1 EGLR 53 and Douglas-Scott v Scorgie [1984] 1 All ER 1086. In Bird v Elwes (1868) LR 3 Ex 225, it was held that an agreement by the landlord to repair the demised premises did not bind him to cleanse an ornamental pond.
In Campden Hill Towers v Gardner [7] QB 823, the phrase “structure and exterior” of a dwelling-house in the context of (what is now) section 11 of the Landlord and Tenant Act 1985, when applied to a flat separately occupied within a block of flats, meant not the exterior of the whole building but anything which would be regarded as part of the structure or the exterior of the particular flat in question. Accordingly, “exterior” extended to that part of the outside wall of the block of flats which constituted a wall of the flat to its other outside wall or walls, the outside of its inner party walls, the outer sides of horizontal divisions between the flat and those above and below and the structural framework and beams directly supporting its walls, ceilings and floors.
(j) “Fair wear and tear excepted”
When this expression is used in a repairing covenant the tenant is not bound to make good dilapidations caused by the friction of air and by exposure and ordinary use: Terrell v Murray (1901) 17 TLR 570. The tenant, however, is not released from his obligation to repair anything which has become damaged as a direct consequence of a defect originally proceeding from reasonable wear and tear. Consequential damage, therefore, does not come within the “fair wear and tear” exclusion and the tenant will be liable for its repair under his covenant.
A simple illustration will make the position clear. Owing to the ordinary operation of natural forces, a number of tiles are dislodged from the roof of the demised premises. This, in turn, causes rainwater penetration to damage the walls within. The tenant will not be liable to repair the roof, since this falls within the exception, but he will be responsible under his repairing covenant for the consequences flowing from that wear and tear (which wear and tear would not directly produce), namely, the damaged walls.
(k) “To repair the demised buildings”
The general principle is that a covenant to repair extends to buildings erected subsequently to the demise on the ground that such buildings, like fixtures, become a part of the land. The words used in the lease may show a contrary intention, so that a covenant to repair “the demised buildings” (as opposed to “demised premises”) applies only to buildings existing at the time of the demise: Cornish v Cleife (1864) 3 H&C 446.
(l) “Repair to surveyor’s satisfaction”
If a tenant covenants to do work, whether of repair or of building, to the satisfaction of a surveyor to be appointed by the landlord, such appointment is a condition precedent to the tenant’s liability, but it has been held to be otherwise where the work is to be subject to the supervision of specified persons, and then such supervision is not a condition precedent: Cannock v Jones (1849) 3 Exch 233.
(m) “To keep in repair and proper working order”
This expression was considered in Liverpool City Council v Irwin [7] AC 239 in relation to a water closet cistern which flooded every time it was used. It was not clear whether this was due to a defect in the ballcock or whether it was due to the poor design of the sanitary convenience, but the House of Lords held that, whatever the position, a water cistern which flooded the floor every time it was used (even if due to a design defect) could not be said to be in “repair and proper working order” within the meaning of section 11 of the Landlord and Tenant Act 1985 (formerly section 32 of the Housing Act 1961).
Repair contrasted with renewal and improvement
The test to be applied in deciding whether particular works can properly be described as “repair” as opposed to works of renewal or improvement is whether they entail giving back to the landlord a wholly different thing from that demised under the lease: Ravenseft Properties Ltd v Davstone (Holdings) Ltd [0] QB 12 following the test laid down by Lord Esher MR in Lister v Lane and Nesham [1893] 2 QB 212. In deciding the question whether the works would entail giving back to the landlord a wholly different thing, regard may be had, as a guide, to the proportion which the cost of the disputed works bears to the value of cost of the whole of the premises: Ravenseft. It has been suggested that in a situation where the value of the demised building when repaired is very much less than the cost of putting up a new building altogether, it is the cost of putting up the new building, not the value of the old building when repaired, which should be compared with the cost of the works required to repair the old building: Elite Investments Ltd v T I Bainbridge Silencers Ltd [1986] 2 EGLR 43.
Prior to these cases, it had been thought that “repair” did not include the remedying of an inherent defect in the design or construction of the premises. This view has now been exploded and the question, in all cases, is one of degree.
A detailed discussion of this particular area is outside the scope of this article and the reader is therefore referred to the following (excellent) texts which give a much fuller exposition of the subject:
“The Meaning of Repair”, D W Williams, Estates Gazette (1982) 263 EG 963.
“The Repairing Covenant”, D W Williams, Law Society’s Gazette, September 5 1984.
Chapter 4, Surveying for Dilapidations, by Malcolm Hollis, published by The Estates Gazette Ltd (1988).
