Landlord and tenant — Tenancy contained a covenant requiring tenant to keep inside of a house in repair but there was no express obligation on the landlords or on anyone to keep the outside in repair, although there was a right of access allowed to the landlord for all reasonable purposes — Tenant was a statutory tenant by second transmission, the tenancy having begun in 1941, so that the statutory implied covenants imposed by section 32 of the Housing Act 1961 (now section 11 of the Landlord and Tenant Act 1985) did not apply — The question was whether the landlords were under an implied obligation to repair at common law — There was also a question raised under the Defective Premises Act 1972 — The case breaks new ground or at least clarifies old areas
complained that the disrepair of the structure and exterior had caused
extensive water penetration and damage to internal plaster and timbers — The
landlords denied liability, but it was agreed in the county court action that
the damages would be £1,250 if liability were found — The recorder did in fact
find the landlords liable, holding that a covenant by them to repair the
outside should be implied, either on the ‘officious bystander’ or the ‘business
efficacy’ test — He gave judgment for the sum of £1,250 and for a mandatory
injunction requiring the works of repair to be carried out within six months —
He also considered that the landlords were in breach of the Defective Premises
Act 1972 — The landlords appealed
landlords relied on the often-cited proposition that in the case of an
unfurnished house or flat no covenant was to be implied for the landlord to
carry out repairs — Reference in support of this was made to Hart v Windsor and to
the dictum of Bankes LJ in Cockburn v Smith — The court, however, reviewed other
cases which showed that there was no rule of law against the implication of a
repairing covenant by the landlord in suitable circumstances, Liverpool City
Council v Irwin, Sleafer v Lambeth Borough Council and Westminster (Duke of) v Guild — The
court considered that the principle of ‘correlative obligation’ mentioned by
Slade LJ in the Liverpool case applied to the present case, the implied
obligation of the landlord being correlative to the tenant’s express covenant —
Sooner or later the tenant’s covenant, which was enforceable throughout the
tenancy, could not be complied with unless the outside was kept in repair — An
obligation to keep the outside in repair must fall on someone and that someone
could only be the landlords — It was unnecessary for the court to determine the
point under the Defective Premises Act 1972, but it expressed the view that, on
the basis of proper evidence and the fulfilment of injunction rules, there was
no reason why an injunction should not issue to enforce obligations under
section 4(1) of the Act in appropriate circumstances — Appeal dismissed
The following
cases are referred to in this report.
Cockburn v Smith [1924] 2 KB 119
de Falco v Crawley Borough Council [1980] QB 460; [1980] 2 WLR 664;
[1980] 1 All ER 913; (1979) 78 LGR 180, CA
Hart v Windsor (1843) 12 M&W 68
Liverpool
City Council v Irwin [1977] AC 239; [1976] 2
WLR 562; [1976] 2 All ER 39, HL
Sleafer v Lambeth Borough Council [1960] 1 QB 43; [1959] 3 WLR 485;
[1959] 3 All ER 378; (1959) 57 LGR 212, CA
Smith v Bradford Metropolitan Council (1982) 44 P&CR 171;
[1983] HLR 86, CA
Warren v Keen [1954] 1 QB 15; [1953] 3 WLR 702; [1953] 2 All ER
1118, CA
Westminster
(Duke of) v Guild [1985] QB 688; [1984] 3
WLR 630; [1984] 3 All ER 144; (1983) 48 P&CR 42; [1983] EGD 541; 267 EG
762, [1983] 2 EGLR 37, CA
Wilchick v Marks & Silverstone [1934] 2 KB 56
This was an
appeal by the landlords, Lounova (1982) Ltd, from a decision of Mr Assistant
Recorder Keane QC, in the Shoreditch County Court, in favour of Mrs Elsie May
Barrett, the tenant of 70 Lansdowne Drive, Hackney, London E8. The assistant
recorder had ordered the landlords to pay Mrs Barrett £1,250 damages and to
carry out repairs to the house.
Robert Pryor
QC and Simon Monty (instructed by Bernstein & Co) appeared on behalf of the
appellants; Derek Wood QC and Martin Seaward (instructed by Geo J Dowse &
Co) represented the respondent tenant.
Giving
judgment, KERR LJ said: This is an appeal from a decision of Mr Recorder Keane
in the Shoreditch County Court given on December 10 1987. The case concerns an
end-of-terrace house in the East End of London in the Borough of Hackney, 70
Lansdowne Drive, E8, which has been occupied under the Rent Acts since 1941.
The outside of the premises is in a bad state of repair and dilapidated;
probably no work has been done to it for decades.
The issue is
whether the landlord is bound to repair the outside. The tenancy contained a
covenant that the tenant should keep the inside in good repair and it gives the
landlord access for any reasonable purpose. But there is no express obligation
on anyone to keep the outside in repair. The recorder held that a term was to
be implied, correlative to the tenant’s obligation, to the effect that the
landlord would keep the outside in a reasonable state of repair. There is also,
in the alternative, an issue under section 4 of the Defective Premises Act
1972, but the main issue on this appeal has been whether a term can be implied
as the recorder has held.
I turn to the
tenancy agreement. This was made on April 5 1941 between a Mr Frank Hayllar of
Brighton, described as a solicitor, as ‘the landlord’, and a Mr Albert Arbon of
Dalston, described as a bread baker, as ‘the tenant’. It demised the house
together with the landlord’s fixtures in and about the premises,
From the
twelfth day of April 1941 for the term of One year certain and thereafter on a
monthly tenancy at the yearly rent of Seventy-eight pounds such rent to be
payable weekly in advance on Monday in each week. The first payment of one
pound ten shillings to be made on the signing hereof.
There followed
the covenant to pay the rent; I need not read that. But I must read the
following one:
The tenant
hereby agrees . . . To do all inside repairs (if any) now required and to keep
and at the expiration of the tenancy to leave the inside of the said premises
and fixtures in good repair order and condition but fair wear and tear to be
allowed at the end of the tenancy.
Next the
tenant agreed:
To permit the
landlord and his agents to enter at all reasonable times upon the said premises
and for all reasonable purposes.
Then I can go
on to the tenant’s agreement.
Not without .
. . consent . . . to make any alterations in or addition to the said premises
(and) not to carry on any trade or business upon the said premises or to use
the same otherwise than as a private dwellinghouse.
The only
relevant agreement on the part of the landlord was that the tenant should be
entitled to quiet possession in the usual way and that the landlord would pay
all rates and taxes payable in respect of the premises so long as the tenant
performed his part of the agreement and paid all moneys due from him
punctually.
The whole
agreement must of course be construed by reference to the circumstances as they
existed at the conclusion of the contract. The recorder referred to some
allowances in the early rent books in evidence, which had evidently been made
by the landlord for minor external work done by the tenant, as being consistent
with his conclusion that the landlord was under an obligation to repair, though
rightly not as any aid to the construction of the agreement. I put that matter
out of my mind.
The plaintiff
occupies the house as the result of two transmissions under the Rent Acts.
After the death of the original tenant the tenancy was transmitted to his widow
and I understand that the plaintiff is her daughter. So far as the landlord
company is concerned, it is not known when it acquired this freehold.
To complete
the history, more for historical than for any other purposes, the rent has now
gone up to £15 per week.
Complaints from
the tenant about the state of disrepair of this property began in May 1985, and
proceeded with a solicitors’ letter in August 1985. There was then a surveyors’
report with further chasers which were sent more or less throughout 1986.
Ultimately there was some response from the landlord and an inspection was
carried out on his behalf. But recently the landlord changed his mind and
claimed that upon the true construction of the agreement there was no
obligation to repair.
The
particulars of claim were issued on March 20 1987. Under the heading
‘Particulars of Defects’ they include the following:
The structure
and exterior, including the drains and gutters, of the premises is in such poor
condition as to cause extensive water penetration and damage to the internal
plaster and timbers.
Then there is
reference to a survey report which sets out the defects in detail.
There was also
a claim in the alternative under the Defective Premises Act 1972, to which I
shall come later.
The defence
was simply a denial of liability on all counts.
In the course
of the hearing it was agreed that the plaintiff was entitled to damages in the
sum of £1,250 subject to liability. These were to cover special as well as
general damages — damages for inconvenience, any damage caused to the contents
by damp and so forth.
A fairly
comprehensive schedule of dilapidations was also agreed, on the basis of what a
repairing covenant by the landlord, if one were to be implied, would require to
be done to the premises. The cost was estimated at about £10,000.
As I have
mentioned, the recorder took the view that such a covenant should be implied.
He accordingly gave judgment for the sum of £1,250 and ordered an injunction in
terms of the schedule agreed between the surveyors, to be carried out within
six months from December 10 1987, the date of his order. He granted a stay of
21 days for the purposes of an appeal, but only subject to the payment of
£5,000 into court within seven days.
Apart from
giving notice of appeal, the landlord did nothing at all in relation to that
order and it was rightly conceded on his behalf that the company was clearly in
contempt of court.
When the time
for the hearing of this appeal approached, a few days after the expiry of the
six-month period on June 10, it appears that a builder was sent to the
premises, but without any prior notice, and not surprisingly he was not
admitted by the plaintiff in those circumstances. Moreover, the sum of £5,000
was not brought into court.
Accordingly,
we declined to proceed with the appeal unless and until £5,000 was not brought
into court. That was done last Monday, the day on which we heard this appeal,
and the sum was duly paid into the Shoreditch County Court.
Against that
background I turn to the issue whether or not there is to be implied a term to
the effect that the landlord was bound to keep the outside in reasonable
repair, as the recorder decided.
In that regard
it is common ground that he directed himself correctly when he said:
Clearly on
the authorities the law does not permit the court to imply terms merely on the
basis that implication would seem to be reasonable or fair. In essence, what is
required before such implication is made is either a situation where the
parties to the agreement, if asked about the suggested implied term would have
said words such as ‘Oh yes, of course we both agree. Is there any need to
mention it?’; or where it is not merely desirable but necessary to imply such a
term to give business efficacy or in other words necessary to make the contract
workable, which amounts to the same thing.
Those two ways
of putting the test as to whether or not a term should be implied, sometimes
referred to as ‘the officious bystander test’ and the ‘business efficacy test’,
are of course correct.
But whether or
not, on applying those tests, the implication falls to be made is not easy, and
the authorities are of no direct assistance.
The landlord
relied strongly on a well-known passage in Woodfall on Landlord and Tenant,
28th ed, para 1-1465 at p 618/3 in the following terms:
In general,
there is no implied covenant by the lessor of an unfurnished house or
flat, or of land, that it is or shall be reasonably fit for habitation,
occupation or cultivation, or for any other purpose for which it is let. No
covenant is implied that the lessor will do any repairs whatever . . .
The first was
the old case of Hart v Windsor (1843) 12 M&W 68. There was a
full tenant’s repairing covenant of a house, but he declined to pay the rent
because the house was bug-infested to such an extent that he said it was unfit
for human habitation. That plea was rejected. Parke B, giving the judgment of
the court, said at p 87:
We are all of
opinion . . . that there is no contract, still less a condition, implied by law
on the demise of real property only, that it is fit for the purpose for which
it is let. The principles of the common law do not warrant such a position; and
though, in the case of a dwellinghouse taken for habitation, there is no
apparent injustice in inferring a contract of this nature, the same rule must
apply to land taken for other purposes — for building upon, or for cultivation;
and there would be no limit to the inconvenience which would ensue. It is much
better to leave the parties in every case to protect their interests
themselves, by proper stipulations, and if they really mean a lease to be void
by reason of any unfitness in the subject for the purpose intended, they should
express that meaning.
Second, there
is an even stronger passage in a dictum of Bankes LJ in Cockburn v Smith
[1924] 2 KB 119, a decision of this court. The owner of a block of flats had
let one of the top flats but had kept the roof of the building and the
guttering in his own possession and control. The guttering became defective,
water escaped and wetted the tenant’s outside wall and so caused damage to the
inside. Not surprisingly, it was held that since the landlord had retained
control of the guttering he was under a duty to take reasonable care to remedy
any defects in it of which he had notice and which were a source of damage.
Those facts, of course, do not apply here, but in an obiter dictum Bankes LJ
said at p 128:
I want to
make it plain at the outset that this is not a letting of the whole house
where, without an express covenant or a statutory obligation to repair, the
landlords would clearly be under no liability to repair any part of the demised
premises whether the required repairs were structural or internal and whether
they had or had not notice of the want of repair.
That statement
was not only obiter, but if it purported to lay down any general rule that no
repairing covenant could arise by implication then, with all respect, it
clearly went too far, as shown by later cases.
Finally in
this context, the landlord relied on the decision of Goddard J, as he then was,
in Wilchick v Marks & Silverstone [1934] 2 KB 56. But
implication derived from the true construction of the terms of the letting was
not raised in argument in that case. It was also not dealt with by the judge, since
no relevant implication could have been derived from the terms of that
particular instrument.
I turn now to
the more recent cases. They show that there is no rule of law against the
implication of any repairing covenant against landlords and that the ordinary
principles of construction concerning implied terms apply to leases in that
context as they apply generally in the law of contract. That is illustrated,
but in a very different context, by the decision of the House of Lords in Liverpool
City Council v Irwin [1977] AC 239. I need not refer to that case,
but I should mention two other cases, both decisions of this court, which show
that implication of a landlord’s repairing covenant is a permissible approach
if the terms of the agreement and circumstances justify it.
The first is Sleafer
v Lambeth Borough Council [1960] 1 QB 43. That was an extraordinary
case, in which the tenant found that he was unable to open his front door owing
to a minor defect which caused it to jam. So he pulled hard on the only
external handle, the letterbox knocker. That came off, and he fell backwards
against an iron balustrade and suffered injury to his back. He sued the
landlord for allowing the door to get into that state. Perhaps not
surprisingly, it was held that in relation to a minor defect of that kind no
question of any obligation on the landlord could arise. It is also to be noted
that the lease provided, by clause 2, that the tenant was to reside in the
dwelling — that is to say, in the same way as here, that it was not to be used
for any business purposes; and by clause 9 the tenant was not to do, or to
allow to be done, any decorative or other work without the landlord’s consent
in writing. In rejecting the tenant’s claim against the landlord, Morris LJ,
who gave the first judgment, quoted the passages in Hart v Windsor
and Cockburn v Smith which I have already set out. But I do not
think that he said anything about the possibility of implying a term dealing
with repairs. However, that was dealt with by Ormrod LJ at p 60, in a passage
which I must read:
When this
matter was argued before the judge it was contended by counsel for the
defendants that in no circumstances could a condition be implied that the
landlords should be under an obligation to repair. The judge dealt with that in
this way: ‘Although I cannot follow Mr Lowe in saying that the mere fact that
the landlord has reserved the right to do repairs means that there is imposed
on him an obligation, I cannot agree with Mr Rawlinson when he says to me that
the absence of some express term in the tenancy, whether oral or in writing,
means that there can never arise a contractual duty on the landlord to do the
repairs — in other words, that such term can never be implied. I am not sure
that that is right; I am not prepared to say that circumstances may not arise
in which a court could find itself impelled to imply such terms in a tenancy
agreement.’
He went on:
Without
having, of course, to decide that question, as at present advised I should
certainly agree with the judge. A tenancy agreement, like any other agreement,
must be read as a whole, and it may very well be that in construing the
agreement it is possible to imply an obligation on the landlord to do repairs.
But the question which the judge had to decide and which this court has to
decide was whether in this particular agreement such an obligation could be
implied.
That is equally
the issue which arises on the present appeal.
Wilmer LJ said
at p 63:
I think there
is much to be said for the view that clause 2 of the agreement, which requires
the tenant to reside in the dwellinghouse, does by implication require the
landlords to do such repairs as may make it possible for the tenant to carry
out that obligation. At least it seems to me that that is a possible view.
Then he said
that even if that view were right, in his judgment the obligation would not
extend to cover the type of repairs which fell to be considered in that case,
which was no more than easing the bottom of the jammed door. He said in that
regard:
Wherever the
line is drawn, even assuming that Mr Beney is right in saying that some
obligation on the part of the council to execute repairs must be implied, that
line must be drawn, I should have thought, well short of including the
responsibility for such a trivial repair as the unsticking of this door.
Finally, there
is a recent decision of this court in Westminster (Duke of) v Guild
[1985] QB 688, in which the judgment was delivered by Slade LJ. On pp 696 and
697 he referred to two decisions in which an obligation from landlords had been
implied to do certain work, in the first case the cleaning of the common parts
of the premises and in the second painting the premises. These obligations were
implied from terms imposed on the tenants to pay for the cost of a cleaner in
the first case and for the cost of the necessary paint in the second. The
position in those cases was of course far stronger than here. At p 697, before
quoting the general proposition from Woodfall which I have already set
out, Slade LJ said:
We do not
question the correctness of these two decisions on their particular facts, or
doubt that in some instances it will be proper for the court to imply an
obligation against a landlord, on whom an obligation is not in terms imposed by
the relevant lease, to match a correlative obligation thereby expressly imposed
on the other party. Nevertheless we think that only rather limited assistance
is to be derived from these earlier cases where obligations have been implied.
and then he
referred to the propositions preceded by the words ‘In general’ from Woodfall,
which I have read.
So it follows
that a repairing obligation upon the landlord can clearly arise as a matter of
implication. But that leaves the question already mentioned, which I find difficult
and on the borderline, whether the terms and circumstances of this particular
lease enable such an implication to be made. As to that, although I have not
found this an easy case, I agree with the conclusion of the recorder. In my
view the clue lies in what Slade LJ referred to as a ‘correlative obligation’,
in this case one which is correlative to the express covenant by the tenant to
keep the inside and fixtures in good repair, order and condition.
The
considerations which lead me to that conclusion are the following. It is
obvious, as shown by this case itself, that sooner or later the covenant
imposed on the tenant in respect of the inside can no longer be complied with
unless the outside has been kept in repair. Moreover, it is also clear that the
covenant imposed on the tenant was intended to be enforceable throughout the
tenancy. For instance, it could not possibly be contended that it would cease
to be enforceable if the outside fell into disrepair. In my view, it is
therefore necessary, as a matter of business efficacy to make this agreement
workable, that an obligation to keep the outside in repair must be imposed on
someone. For myself, I would reject the persuasive submission of Mr Pryor QC,
on behalf of the landlord, that both parties may have thought that in practice
the landlord would do the necessary repairs, so that no problem would arise. In
my view that is not a businesslike construction of a tenancy agreement.
Accordingly,
on the basis that an obligation to keep the outside in a proper state of repair
must be imposed on someone, three answers are possible.
First, that
the tenant is obliged to keep the outside in repair as well as the inside, at
any rate to such extent as may be necessary to enable him to perform his
covenant. I would reject that as being unbusinesslike and unrealistic. In the
case of a tenancy of this nature, which was to become a monthly tenancy after
one year, the rent being paid weekly, it is clearly unrealistic to conclude
that this could have been the common intention. In that context it is to be
noted that in Warren v Keen [1954] 1 QB 15 this court held that a
weekly tenant was under no implied obligation to do any repairs to the
structure of the premises due to wear and tear or lapse of time or otherwise,
and that it was doubtful whether he was even obliged to ensure that the
premises remained wind and watertight. Any construction which casts upon the
tenant the obligation to keep the outside in proper repair must, in my view, be
rejected for these reasons; and also because there is an express tenant’s
covenant relating to the inside, so that it would be wrong, as a matter of
elementary construction, to imply a covenant relating to the outside as well.
The second
solution would be the implication of a joint obligation on both parties to keep
the outside in good repair. I reject that as being obviously unworkable and I
do not think that Mr Pryor really suggested the contrary.
That leaves
one with the third solution, an implied obligation on the landlord. In my view,
this is the only solution which makes business sense. The recorder reached the
same conclusion by following much the same route and I agree with him.
Accordingly I would
dismiss this appeal.
However, for
the sake of completeness I should also refer briefly to the alternative claim
under section 4 of the Defective Premises Act 1972, with which the recorder
also dealt. Subsection (1) of section 4 is in the following terms:
Where
premises are let under a tenancy which puts on the landlord an obligation to
the tenant for the maintenance or repair of the premises, the landlord owes to
all persons who might reasonably be expected to be affected by defects in the
state of the premises a duty to take such care as is reasonable in all the
circumstances to see that they are reasonably safe from personal injury or from
damage to their property caused by a relevant defect.
Subsection (4)
provides as follows, so far as material:
Where
premises are let under a tenancy which expressly or impliedly gives the
landlord the right to enter the premises to carry out any description of
maintenance or repair of the premises, then, as from the time when he first is,
or by notice or otherwise can put himself, in a position to exercise the right
and so long as he is or can put himself in that position, he shall be treated
for the purposes of subsections (1) to (3) above (but for no other purpose) as
if he were under an obligation to the tenant for that description of
maintenance or repair of the premises . . .
The recorder
held that the effect of subsection (4), read together with subsection (1) and
in the present case with the express right of entry for any reasonable purpose
granted to the landlord, was that the landlord owed a duty of care under
section 4(1) and was in breach of it, and that this enured to the benefit of
the tenant as well as third parties.
Originally the
landlord had appealed against that conclusion. But that was rightly dropped,
having regard in particular to the decision of this court in Smith v Bradford
Metropolitan Council (1982) 44 P&CR 171, where it was held that the
reference to ‘any person’ in subsection (1) of section 4 could include the
tenant himself.
The sum of
£1,250 by way of damages, which I have already mentioned, had been agreed also
to cover any liability, as is now conceded, owed to the tenant under the 1972
Act. But the schedule of dilapidations had not been agreed with reference to
the limited scope of the statutory duty. In those circumstances it was conceded
below by counsel for the tenant — not Mr Wood QC, who appeared on this appeal —
that no injunction could issue under the Act compelling the landlord to carry
out any repairs. On the present state of the evidence, that is clearly right.
But on proper evidence and proper considerations as to whether or not an
injunction should issue, there is no reason, of principle or jurisdiction, why
an injunction to enforce obligations under section 4(1) of the 1972 Act should
not issue in appropriate circumstances. In that context there was a brief
reference to the decision of this court in De Falco v Crawley Borough
Council [1980] 1 QB 460.
If this appeal
had been allowed instead of being dismissed, we would accordingly have remitted
the matter to the Shoreditch County Court to deal with the alternative claim
under the Defective Premises Act for the purpose not of recovering damages,
which are already covered by the agreement which was made, but to enable the
plaintiff to apply for an injunction under the Act if so advised. However,
since we are agreed that this appeal fails, that aspect falls away.
It follows
that, in my view, the plaintiff is entitled to the agreed damages and to an
injunction, once again in mandatory terms, to compel the landlord to carry out
the work in the agreed schedule of dilapidations. In relation to that we shall
have to hear counsel as to a timetable which, having regard to the lamentable
history, should be stringent.
For those
reasons I would dismiss this appeal.
Agreeing,
SWINTON THOMAS J said: I confess that my mind has wavered in the course of the
extremely persuasive submissions that have been presented to us on this appeal.
Like the learned judge below, I do not find the central point that arises in
the appeal easy, but in the end I have been wholly persuaded that in order to
give business efficacy to this tenancy agreement it is necessary to imply the
term set out by Kerr LJ in his judgment.
I am also
persuaded that if the parties had been asked, in April 1941, whether such a
term should be included in this particular tenancy agreement, which provides
that the tenant shall be responsible for internal repairs, they would
immediately and without hesitation have agreed that it should be so included.
Accordingly,
and for the reasons that have been given by Kerr LJ, I, too, would dismiss this
appeal.
The appeal
was dismissed with costs; legal aid taxation ordered; injunction to continue on
the basis that the work should be done within four months from date of
judgment; £5,000 to remain in court until that order is complied with;
application by appellant for leave to appeal to House of Lords refused.
