Landlord and tenant — Housing Act 1961, sections 32 and 33 — Obligation of local authority landlords under section 32 to carry out repairs — Whether obligation included liability to make good damage to decorations involved in work of repair — Repairs required to electric wiring — Landlords contended that they were under no obligation to make good damage to decorations and county court judge, on tenant’s claim for cost of decorations, upheld this contention — Judge referred to fact that under the tenancy agreement it was the tenant’s duty to maintain the dwelling-house in a clean condition and to be responsible for its interior decoration — Tenant appealed — Held, on appeal, that whether or not the tenant’s covenant imposed on him a positive duty to redecorate, which was by no means clear, this could not override the landlords’ duty under section 32 — It was provided by section 33(7) that no contrary covenant could override the landlords’ duty — McGreal v Wake, a decision of the Court of Appeal, was authority that the obligation to repair under section 32 included the reinstatement of decorations — McGreal v Wake was indistinguishable in this respect from the present case — The judge was wrong in attempting to distinguish it and in his view the tenant had forfeited his rights, if any, to require redecoration by failing to carry out his own covenant to redecorate — Landlords in present case were under an obligation to make good any consequential damage to the decorations — In some circumstances this may give a tenant the windfall of better decorations than he had before and there could be a claim for the inconvenience of having to live in an undecorated house pending the effecting of the decorations — Appeal allowed
This was an
appeal by David Bradley, tenant of a house at 41 Harestone Avenue, Chorley, of
which the respondents, Chorley Borough Council, were the landlords, from a
decision of Judge Sellers at Chorley County Court, dismissing a claim by the
appellant for the cost of redecorations.
C Limb
(instructed by Sierzant & Co, of Chorley, Lancs) appeared on behalf of the
appellant; Robert Brown (instructed by Anthony Marshall, chief legal officer of
Chorley Borough Council) represented the respondent council.
Giving
judgment, SIR JOHN DONALDSON MR said: In this case Mr David Bradley appeals
against a judgment given in favour of the Chorley Borough Council by His Honour
Judge Sellers sitting in the Chorley County Court on April 12 1984.
Mr Bradley was
at the material time and, so far as I know, still is the tenant of 41 Harestone
Avenue, Chorley, which is a house owned by the Chorley Borough Council. He had
been moved into that house at a time when it was in a poor state of decoration.
In due course the local authority came to the conclusion that the electric wiring
required repair. They were under a statutory and contractual obligation to
repair, the obligation being found in section 32 of the Housing Act 1961.
Necessarily
the work of repair involved some damage to whatever decorations were in
existence at the time. The local authority did the work very efficiently; they
put in modern sockets, as we can see from the photographs; but, when it came to
making good the damage to the decorations, they took the view that they were
under no such obligation. The learned county court judge upheld their view and
dismissed Mr Bradley’s claim for the cost of redecoration.
The learned
judge’s reasoning seems to have been this. He referred to the fact that under
the tenancy agreement it was the tenant’s duty to maintain the dwelling-house
in a clean condition and be responsible for its interior decoration. He went on
to say:
When the
plaintiff moved into the premises the decoration was in a very poor state
indeed. The paint was old and faded, the wallpaper discoloured and torn. The
plaintiff lived in the house for 16 months before the re-wiring was carried out
without taking any steps to improve the decoration. He has utterly failed to
carry out his obligations under the tenancy agreement. In these circumstances
it would be quite inequitable for the council to do it for him. The decoration
was in such a poor state before the work was done that the removal of paper and
replastering for this purpose has not appreciably worsened the decorations as a
whole. They were almost non-existent. Certain plastering had previously been
done by the council because of dampness, which was still undecorated at the
time of the re-wiring.
Then he refers
to the photographs.
Although we
are not a court which is concerned with fact, there has been no attempt to
uphold the learned judge’s finding that the decorations were almost
non-existent, and one only has to look at the photographs to see that that is
an incorrect finding of fact. The decorations may well not have been of the
highest standard, but some of the rooms were fully papered, subject possibly to
one or two minor tears. There was only one room (the kitchen) where I would
have real doubt as to the state of its decoration. But it is right to say that
the tenant had done nothing to improve or repair the decorations during his
tenancy.
There is a
further difficulty about this part of the learned judge’s judgment, and that is
this. It is by no means clear that under a covenant by the tenant to maintain
the dwelling-house in a clean condition and be responsible for its interior
decorations that he is required to redecorate. It may mean — and I would not be
minded to decide what it does mean — that he is under an obligation to keep the
dwelling-house clean, and whether and to what extent he decorates may be a
matter for him. Supposing the learned judge was right and the covenant put upon
the tenant a positive obligation to maintain the interior decorations of the
dwelling-house, it is quite impossible to rely upon that covenant as putting
upon the tenant an obligation to redecorate in order to make good damage done
to the decorations in the course of fulfilling a statutory obligation under
section 32 of the Housing Act 1961 if the landlord, under that section or an
equivalent contractual provision, is under an obligation to do it himself,
because in section 33(7) there is a provision that no contrary covenant shall
override the landlord’s duty.
The learned
county court judge also said:
If the
plaintiff has any right to require the defendants to redecorate he has, in my
view, forfeited those rights because of his complete failure to carry out his
own obligation to decorate the interior, or even any part thereof.
I know of no
doctrine of law or of equity which would produce a forfeiture in that sense. In
other circumstances, failures by one party to fulfil his obligations, which are
concurrent or related to the obligations of the other party, may well be taken
into consideration under a head of damages, but I really do not understand what
principle of law the learned judge was applying at that stage.
He went on to
hold that there was no implied duty on the borough council to redecorate under
the Housing Act — in other words, he was holding that repairs did not include
the reinstatement of decorations. At that time a transcript of the decision of
this court in McGreal v Wake (a decision given on February 3
1984) was not available to the learned judge*, but it was made available to him
between the end of the hearing and the delivery of his judgment, and he
appreciated that there was a necessity to distinguish that case. In that case a
landlord had wholly failed to fulfil his obligations. The council had to come
in, having served notice, and had done the repair work other than the
reinstatement of decorations. They had thereby relieved the landlord of his
obligations, albeit at the price of themselves having a claim against the
landlord and the tenant was suing the landlord for the cost of consequential
redecorations. This court said:
Although we
have been referred to no authority directly in point, we consider that the
landlord’s obligation to effect repairs must carry with it an obligation to
make good any consequential damage to the decorations.
*Editor’s
note: The decision was reported at (1984) 269 EG 1254, [1984] 1 EGLR 42. The
passage quoted is at p 1256.
The learned
county court judge thought that that could be distinguished because he said
that I, in giving the judgment of the court in that case, did not intend to say
that the implied obligation to decorate applied to a faultless landlord. It is
quite correct that we were not considering a faultless landlord in that case,
but I am quite unable to see what difference it makes. If the landlord’s
obligation is as we stated it to be, namely to make good any consequential
damage to the decorations, the only difference between a faultless landlord and
one who is faultful is that the faultless landlord will do the decorations and there
will be no claim from the tenant; the faultful landlord will not, and there
will be a claim for the cost of the decorations, as indeed there was in McGreal‘s
case, and in addition there may be a claim for the inconvenience of having to
live in the house in its undecorated state pending the effecting of the
decoration.
In my judgment
this case is wholly indistinguishable from the principle stated in McGreal‘s
case. McGreal‘s case may be wrongly decided. I say that not as
indicating that I think it was, but merely because all things are possible and
there has been no appeal to the House of Lords. Subject to that, both we and
the learned county court judge are bound to hold that it was the obligation of
the Chorley Borough Council to make good any consequential damage to the
decorations. In some circumstances that may involve a windfall profit to the
tenant because it may be impossible to do that without giving him rather better
decorations than he had beforehand. That was also considered in the same case,
and we referred to Harbutt’s Plasticine v Wayne, Tank & Pulp Co
Ltd [1970] 1 QB 447 as authority for the proposition that if there is no
way in which one can put the other party in the same position as he ought to
have been without conferring an additional benefit on him, that is the
obligation and it is just his good luck.
A good deal of
anxiety has been engendered by this case among local authorities, particularly
the Chorley Borough Council, that this will involve them in enormous
expenditure. If it does involve them in expenditure, that is obviously not a
ground for distorting the law. It may be a ground for altering the statute, but
that is another matter. But this fear may be exaggerated, because the tenant,
who has very torn, damaged wallpaper which is further damaged, may well not be
in a position to complain that the landlord has failed to make good
consequential damage to the decorations if he is presented with an
emulsion-painted wall. It may even be that the existing wallpaper is so damaged
anyway that there was no consequential damage to the decorations, looking at
the matter in the round. Those are decisions which will have to be made on the
facts of every case. The law as it exists at the moment is that the landlord’s
obligation is to make good consequential damage to decorations.
For those
reasons I would allow the appeal, and on that basis it seems to have been
virtually agreed that the amount for which judgment will be given will be £220.
Agreeing, SIR
EDWARD EVELEIGH said: I think that this case is governed by McGreal v Wake,
and I am quite unable to distinguish it. Therefore the landlord is under an
obligation to reinstate the property to a reasonable standard, and that would
apply to putting right damage done to the decorations. What work can reasonably
be required of the landlord will depend upon the facts of each particular case.
We have not been concerned with the details of that in this case, because it
has been argued in this court as a matter of principle.
I agree with
what my lord has said. I, too, would allow this appeal.
The appeal
was allowed with costs in the Court of Appeal and below, on Scale 1 at the
registrar’s discretion. Leave to appeal to the House of Lords was refused and
the Appellate Committee of the House of Lords has since also refused leave to
appeal.
