Award of arbitrator — Replacement of barn roof — Landlord’s liability — Tenant carrying out work — Tenant entitled to recover expenditure — Whether tenant’s claim limited by 1973 regulations — Whether claim limited to £500 or £500 per year — Landlord’s appeal allowed in part
The appellant is the landlord of an agricultural holding, Mount Pleasant Farm, near Ulverston, Cumbria, let to the respondent under a yearly tenancy agreement. By clause 2(3) the respondent tenant agreed to: “Duly and properly carry out at his expense all repairs of whatsoever nature to the buildings and other fixed equipment the intent being that the landlord shall not be responsible for any repairs at all”. By the Agriculture (Maintenance, Repair and Insurance of Fixed Equipment) Regulations 1973 (SI 1473) an obligation to repair roofs is placed on a landlord except where the parties have agreed that the obligation should be that of the tenant. Following a notice to repair served by the appellant landlord, an arbitrator by his award determined that the replacement of a barn roof was the appellant’s liability under the 1973 regulations. Upon the failure of the appellant to do the work, the respondent exercised his right under the regulations and carried out the replacement. In the Barrow-in-Furness County Court Mr Recorder Bulmer allowed (June 28 1989) the respondent’s claim that he was entitled to recover £7,992.50 in respect of the work.
In his appeal, the appellant relied on the proviso to para 12(2) of the Schedule to the 1973 regulations: “provided that the tenant shall not be entitled to recover in respect of the aggregate of the replacements so executed by him in any year of the tenancy any sum in excess of whichever is the smaller of the two following sums, that is to say, a sum equal offer. A term could not be implied that nay offer to the rent of the holding for that year or £500”, and contended that the respondent was entitled to recover only £500.
Held The appeal allowed in part.
1. The right to claim under the regulations was not an optional alternative to proceedings for damages for breach of the tenancy agreement; the respondent was entitled to recover only the sum under the regulations allowed by the proviso.
2. The proviso, as originally enacted in 1973, had to be read: “shall not be entitled to recover in respect of the aggregate of the replacements so executed by him any sum in any year of the tenancy in excess of …”, so that a liability for all replacements was spread at a maximum of £500 a year. Following an amendment in 1988 (SI 281), which was introduced after the pleadings without retrospective effect in the present case, the relevant part of the proviso (now in para 12(4)(a)) reads: “in relation to replacements executed in any year of the tenancy terminating on or before 24th March 1988, a sum equal to the rent of the holding for that year or £500, whichever is the smaller …”. This amendment could be considered as an aid to construction. Accordingly, the damages awarded to the respondent had to be reduced; the respondent was entitled only to £500 in the year of the tenancy when the replacement work was carried out, and £500 in successive years until the full sum was recovered.
Timothy Hirst (instructed by Scotts, of Leyburn) appeared for the appellant; and John Gregory (instructed by Boxall & Boxall, for W C Kendal & Fisher, of Dalton in Furness) appeared for the respondent.
