Repairing covenants – Mansion and estate converted into separate dwellings – Dwellings let on long leases with respondent management company as landlord – Respondent liable for repairs to “buildings” – Whether liable to repair cloisters within appellants’ leases – Whether liable for exterior redecoration of windows — Judge finding appellants having responsibility for works – Appeal allowed
The respondent company was the landlord of an estate consisting of a mansion house and ancillary buildings that had been converted into 17 separate dwellings let on 999-year leases. The mansion house had been built on a downward slope, which allowed for the construction of terraces to the rear with arched cloisters beneath. A chapel above one of the cloisters had been demolished, leaving the floor slab, which was not waterproof, to form the roof of that cloister. The appellants were the lessees of a dwelling comprising part of the mansion house, the cloisters and terraces and several acres of parkland. They owned shares in the respondent company and contributed to its running costs in the proportion specified by their lease; namely at 14%. By clause 5 of the appellants’ lease, they covenanted to maintain the demised premises “other than the parts thereof comprised and referred to in clause 6”. By clause 6, the respondent covenanted to maintain “the main structure… of the buildings” and to “decorate the exterior including the wood and ironwork”.13
Repairs became necessary to the chapel cloister. The Georgian-style sash windows of the mansion house, 25 of which were included in the appellants’ property, also required redecoration. The appellants brought an action claiming that the respondent was liable to pay for the works. Dismissing the claim, the judge held that: (i) the cloister was not a “building” in the conventional sense and would not reasonably have been understood to fall within that term as contained in clause 6, given that: (a) the potential expense of maintaining it was huge; (b) it had never been in a state where that enabled it to be effectively maintained; and (c) the radical works required to make that possible would benefit only one lessee; and (ii) the windows were the appellants’ responsibility, being specifically included in the demised premises and not “comprised or referred to” in clause 6. The judge also allowed a counter-claim by the respondent, finding that a gate erected by the appellants on a path across their land interfered with a right of way reserved to the respondent and had to be removed. The appellants appealed.
Held: The appeal was allowed.
(1) The question of whether the chapel cloister was a building fell to be resolved at the date of execution of the lease, with the physical configuration as it then was, making it irrelevant that the cloister had previously formed part of the demolished chapel. The structure at that time, which had a floor, three walls and a colonnade, fell within the normal meaning of a building and was included within that term on the face of the lease. The other matters to which the judge had referred did not justify a contrary conclusion. Although it would have been obvious that the cloister, being open to the elements on one side, would need repair from time to time, so too would the structural parts of all the dwellings. Although some of the repairs might be expensive and of direct benefit to only some of the lessees, that was commonly the case in circumstances where a complex of buildings was in multiple occupation and would be taken into account in assessing the percentage contributions under each of the leases.
(2) Although the windows were comprised in the demised premises, they were also an important element in the exterior of the building and its visual appearance, which was of concern to all lessees and occupants such that it would be normal to find some standardised obligation to decorate. The fact that the windows were clearly part of the exterior of the buildings and were also in need of constant redecoration was sufficient for them to be “comprised and referred to” in clause 6. Although the lessee was obliged to repair the windows under clause 5, the respondent was liable for the decoration of their exterior surfaces under clause 6.
(3) There was insufficient evidence to indicate that the gate had been erected over the site of a right of way vested in the respondent or any of the other lessees.
Malcolm Warner (instructed by Kitson Hutchings, of Torquay) appeared for the appellants; Michael Berkley (instructed by WBW, of Newton Abbey) appeared for the respondent.
Sally Dobson, barrister
