CPR Part 24 – Summary proceedings for specific performance of landlord’s covenant to repair “main structure” of block of flats – Disrepair affecting terrace enjoyed by rooftop flat above claimant’s flat – Claimant’s flat partly protected by roof afforded by terrace – Terrace largely consisting of concrete slab – Disrepair attributable to inadequate asphalt layer placed over slab – Whether layer part of structure – Whether issue capable of being resolved without full trial – Judgment for claimant tenant
In 1993 the claimant acquired, for £400,000, a long lease of a flat (flat 66) on the seventh floor of a newly-built, eight-floor block in London SW11. The greater part of flat 66 was positioned immediately below a rooftop flat that enjoyed the use of a wide rooftop terrace, which formed a canopy over the balcony belonging to flat 66 and also provided a roof over part of the claimant’s living accommodation. The terrace was an integral part of the roof of the block, which consisted of a concrete slab. The plastered underside of the slab formed the claimant’s ceiling. The slab was overlaid with various materials, including a 10mm layer of asphalt. The top surface of the terrace consisted of ceramic tiling.
The claimant’s lease contained a covenant by the defendant landlord to maintain and keep in good repair and condition “the main structure of the Building including the principal internal structures and the exterior walls and the foundations and the roof of the Building [with main water, drainage and other services not specifically demised] [and] all other parts of the Building not included… in this demise or the demise of any other flat”.
From about June 1997, water and damp penetrated into the bedrooms of flat 66, the undisputed cause being the inadequate thickness of the asphalt layer, which had caused the tiling to shift in response to changes in temperature. The claimant sought summary judgment, under Part 24 of the CPR, for specific performance of the defendant’s covenant. The defendant submitted, inter alia, that the defect had not affected the main structure of the building, contending that while the concrete slab formed part of the main structure, the layers above did not. The High Court master refused, for procedural reasons, to make the order sought. On an appeal to the judge, it was found, as a matter of fact and construction, that, with the exception of the tiling and the plaster underside, no part of the terrace had been the subject of a demise.
Held: The defendant was ordered to carry out the works necessary to repair the terrace.
1. There was nothing in the lease to support the defendant’s submission. The rooftop terrace could not be equated with the lower floors, as it had no roof cover and was, accordingly, of a different construction. It was proper to construe “main structure” as including whatever additional surfaces were created in order to make the otherwise bare concrete shell an effective structure for maintaining the flats within the development. To hold otherwise would produce the unlikely scenario of the responsibility for the repair of the exterior fabric being left to one of the lessees: Toff v McDowell (1995) 69 P&CR 535 distinguished.
2. The fact that the case raised difficult points of construction was no reason for not entertaining an application under Part 24, as supplemented by para 1.3 of the relevant practice direction. The course taken was consistent with the court’s duty to manage cases, including the summary determination of issues that did not call for a full trial: see r 1.4(2)(c).
Timothy Dutton (instructed by Kidd Rapinet) appeared for the claimant; Paul Letman (instructed by Julian Holy) appeared for the defendant.
Alan Cooklin, barrister
