Landlord and tenant – Rent suspension clause – Uninhabitable premises – Garden wall of rented property collapsing – Respondent tenant claiming repayment of rent on basis that property unfit for occupation – Court ordering part repayment – Appellant landlord appealing – Whether risk of further damage of a similar nature, rendering property unfit for habitation, sufficient to invoke rent suspension clause – Appeal dismissed
The respondent entered into a tenancy agreement on a house and garden known as Ferndown in Charing, Kent. The agreement had a two-year term and no break clause. The respondent paid all of the rent (approximately £34,000) in advance. Some four months later, a part of one of the garden walls collapsed onto a path in front of it. Before the collapse of that part of the wall, the respondent had contacted the letting agents on a number of occasions between July and November 2008. He drew attention to the fact that the wall was bulging and that action needed to be taken before it collapsed. The letting agents agreed, but no action was taken. On 10 November 2008, part of the wall collapsed causing the passage to the side of the property to become blocked by rubble and causing damage to the pipe supplying the heating system to Ferndown. The respondent said that material from the wall continued to fall, cracks appeared in the house and the kitchen bulged. He contacted the letting agent about the property’s suitability for occupation. He appointed a structural engineer who reported that there was a serious problem and that the back wall could collapse as well. The risk of damage was very high and there was a risk of further landslip so that the building was not safe to live in.
The respondent claimed part of his rent back because the property had become uninhabitable. His claim was based on clause 14 of the lease which provided that rent, or a fair proportionate of rent, should be suspended if the property was destroyed or damaged so as to be unfit for occupation. The district judge heard evidence from the parties, the engineer and the appellant landlord’s expert. He found that clause14 had been activated. Accordingly, the appellant was ordered to pay the respondent £18,059 including interest, release his £2000 deposit and pay his costs.
The appellant appealed contending that the judge had erred in finding that the front part of the wall collapsing might cause the whole wall to collapse, triggering clause 14. He argued that a photograph showed that bulging had been present at the time the tenancy was signed, and that as the wall had been built in two sections, the collapse of one part did not mean that it was likely that the rest of the wall would collapse.
Held: The appeal was dismissed.
(1) As a matter of interpretation of clause 14, damage having occurred during the tenancy, a risk of further damage of a similar nature, which rendered the property unfit for habitation and use, was sufficient to invoke the rent suspension clause. Many leases provided for rent to be suspended in specified circumstances. Such provisions were valid, but were to be interpreted strictly, so that the rent was only suspended on the happening of the precise events specified in the clause. In the present case, clause 14 was not limited to the occurrence of specified events, such as damage caused by fire, storm or tempest. It applied if the premises or any part thereof should, at any time during the tenancy, be destroyed or damaged by any risk insured by the landlord; there being no issue on this appeal as to the fact that the relevant risk was insured by the landlord. Clause 14 had two relevant requirements, which gave rise to factual enquiries. First, during the tenancy, part of the premises was destroyed or damaged. Secondly, the nature of the destruction or damage was such as to render the premises unfit for occupation and use, based upon the risk of further damage. If the state of repair of a house was such that by the ordinary user damage might naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house was not in all respects reasonably fit for human habitation. The occurrence of damage during the tenancy was a prerequisite for the operation of the rent suspension clause. However, once damage had occurred during the tenancy, the real risk of further damage of a similar nature, which rendered the premises unfit for occupation and use, was sufficient to satisfy the requirements of clause 14, particularly where such further damage was potentially dangerous to the occupants of the premises. The alternative interpretation of the clause, which would require the tenant to continue to pay rent whilst the property was at risk of landslip, was not commercially sensible. There had to be sufficient connection between destruction or damage during the tenancy and the unfitness for occupation and use. The fact of damage during the tenancy, coupled with the risk of further such damage, with the consequence that the premises were unfit for habitation and use, was a sufficient connection: Summers v Salford Corporation [1943] AC 283 followed.
(2) Given the nature of the expert evidence, if the appellant wished to establish a break in the chain of causation, that point needed to be put to the expert during cross examination so that he could deal with it. The appellant did not suggest that the expert was asked about that issue. A positive, factual case was advanced by the appellant on appeal. An appellate court did not find facts, and the court was not willing to reach to factual conclusions, not found by the judge, on the basis of a photograph which was not explored with the relevant witness. The judge had considered the matter from a common-sense perspective; half the wall had collapsed. He had been entitled to conclude from that that continued occupation was dangerous.
Mark Dencer (instructed by Whitehead Monckton, of Kent) appeared for the appellant; the respondent appeared in person.
Eileen O’Grady, barrister