Preliminary issue — Commercial sublease — Exterior brickwork in disrepair — Remedial works undertaken after lapse of approximately 18 months — Landlord under obligation “to keep” building in repair — Whether obligation to keep building in repair at all times — Whether repairs in reasonable period fulfills obligation — Judgment for tenant
The plaintiff tenant leased three parts of Randolph House, Wellesley Road, Croydon, under three subleases in 1969, 1973 and 1976. The landlord held an underlease whereby the land and whole building was let to it for a term expiring in June 2091. In the summer of 1986 a bulge appeared in the brick-cladding forming part of the external walls and main structure of building so that the exterior of the building at fifth-floor level became out of repair due to the poor fixing of the cladding to the inner wall. The defendant put in hand works to carry out necessary remedial work, which was commenced in February 1988.
At the time that the defect appeared, the plaintiff was in the process of disposing of the leases and it agreed to indemnify the assignees if the defects had not been remedied by September 1987. It claimed damages for the payments it made under the indemnities. The plaintiff relied on clause 5(b) in the sublease whereby the defendant covenanted “to perform the tenant’s covenants contained in the lease under which it holds the building …”. Its covenant in that lease was “to keep in good and substantial repair the demised premises …”. The tenant argued that that was an obligation which was broken as soon as the premises were out of repair. It was accepted that if the tenant succeeded on the 1976 lease, it would succeed on the other two leases in that they contained similar clauses in all material respects. The landlord argued, inter alia, that there was no breach until a reasonable time to carry out repairs had expired, calculated from the date at which the defect first arose.
Held Judgment for the tenant.
1. The covenant was at all times to keep the premises in repair and the obligation arose when the defect became evident.
2. The purpose of that covenant was not only to set out the landlord’s obligation, but to establish where the liability resided if the premises fell into disrepair.
3. That view was supported by a long line of authority dating back to 1818: see Luxmore v Robson (1818) 1 B & Ald 584 and Lurcott v Wakely and Wheeler [1911] 1 KB 905.
4. In Loria v Hammer [1989] 2 EGLR 249 it was accepted that a landlord’s covenant to keep in repair created an obligation to keep in repair at all times. Further, a disrepair amounted to a breach of covenant even if it was quite fortuitous: see Bishop v Consolidated Properties Ltd (1933) 102 LJ (KB) 257. The court, with respect to that judgment, accepted everything stated therein both with regard to the actual covenant that fell to be construed in the particular case and to the law. A covenant to “keep in good repair” required just that, ie that the premises should not be allowed to fall into disrepair.
5. Further, the argument that there could be no business efficacy to impose an absolute liability on the landlord as opposed to making him only liable to carry out repairs within reasonable time could not be accepted. By ensuring the duty to repair and settling liability in the event of disrepair, such a covenant gave business efficacy to the parties’ agreement.
Christopher Nugee (instructed by Ashurst Morris Crisp) appeared for the plaintiff tenant; Wayne Clark (instructed by Church Adams Tatham & Co) appeared for the defendant landlords.
