Landlord and tenant — Repudiatory breach — Whether a repudiatory breach of a contract of letting is legally possible — Whether tenants accepted landlord’s breach of a repairing covenant as putting an end to the lease
granted the plaintiffs a three-year assured shorthold tenancy of a
dwelling-house from December 14 1989 subject to the covenant implied on the
part of the landlord by section 11 of the Landlord and Tenant Act 1985 — From
the commencement of the term, the plaintiffs made several complaints to the
defendant about the state of disrepair of the premises and, by March 1991, one
of the bedrooms had been made uninhabitable by a ceiling collapse — The
defendant refused to carry out these and other repairs — On March 18 1991 the
tenants returned the keys and vacated the premises — They brought the present
proceedings claiming a declaration that the defendant was in repudiatory breach
of the contract of letting and by returning the keys and giving up possession
they had accepted that repudiatory breach and the lease was at an end — The
plaintiffs also claimed damages for breach of covenant
covenant by the defendant — One breach in particular
can come to an end by repudiation — The breaches of the covenant implied by
section 11 of the 1985 Act were repudiatory — By vacating the house and
returning the keys, the plaintiffs had accepted the repudiatory conduct of the
defendant as putting an end to the contract of letting — The plaintiffs were
awarded general damages of £1,250 and £1,280 in respect of want of heating
The following
cases are referred to in this report.
Arden v Pullen (1842) 10 M&W 321
Bailey
(CH) Ltd v Memorial Enterprises Ltd [1974] 1
WLR 728; [1974] 1 All ER 1003; [1974] EGD 211; (1973) 229 EG 613, CA
Baker v Holtpzapffel (1811) 18 Ves 115; 4 Taunt 45; 128 ER 244; 34
ER 261
Calabar
Properties Ltd v Stitcher [1984] 1 WLR 287;
[1983] 3 All ER 759; [1983] EGD 578; (1983) 268 EG 697, [1983] 2 EGLR 46, CA
Collins v Barrow (1831) 1 M&Rob 112
Edwards v Etherington (1825) Ry & M 268
Hammersmith
and Fulham London Borough Council v Monk [1991]
3 WLR 1144; [1992] 1 EGLR 65; [1992] 09 EG 135, HL
Hart v Windsor (1843) 12 M&W 68; (1843-60) All ER Rep 681
Izon v Gorton (1839) 5 Bing NC 501
Killick v Roberts [1991] 1 WLR 1146; [1991] 4 All ER 289; [1991] 2
EGLR 100; [1991] 41 EG 133, CA
Liverpool
City Council v Irwin [1977] AC 239; [1976] 2
WLR 562; [1976] 2 All ER 39; (1976) 74 LGR 392; [1976] EGD 282; 238 EG 879,
[1976] 1 EGLR 53, HL
Lubren v Lambeth London Borough Council (1987) 20 HLR 165, CA
National
Carriers Ltd v Panalpina (Northern) Ltd [1981]
AC 675; [1981] 2 WLR 45; [1981] 1 All ER 161, HL
Newham
London Borough v Patel (1978) 13 HLR 77, CA
O’Brien v Robinson [1973] AC 912; [1973] 2 WLR 393; [1973] 1 All ER
583; (1973) 25 P&CR 239; [1973] EGD 296; 226 EG 297, HL
Quick v Taff-Ely Borough Council [1986] QB 809; [1985] 3 WLR 981;
[1985] 3 All ER 321; (1985) 84 LGR 498; [1985] 2 EGLR 50; 276 EG 452, CA
Smith v Marrable (1843) 11 M&W 5; 12 LJ Ex 223; 7 Jur 70; 63 RR
493
Staves v Leeds City Council [1992] 2 EGLR 37; [1992] 29 EG 119, CA
Total Oil
Great Britain Ltd v Thompson Garages (Biggin
Hill) Ltd [1972] 1 QB 318; [1971] 3 WLR 979; [1971] 3 All ER 1226, CA
United
Scientific Holdings Ltd v Burnley Borough
Council [1978] AC 904; [1977] 2 WLR 806; [1977] 2 All ER 62; (1977) 33
P&CR 220; [1977] EGD 195; 243 EG 43 & 127, HL, [1977] 2 EGLR 61
Walker v Hobbs & Co (1889) 23 QBD 458
Wilson v Finch-Hatton (1877) 2 ExD 336; 46 LJQB 489; 36 LT 473; 25
WR 537
Wycombe
Area Health Authority v Barnett (1982) 5 HLR
84
This was an
action for damages by the plaintiffs, Ibrahim Hussein, Kawther Hussein and
Malcolm Armstrong, in relation to a tenancy granted to them by the defendant,
Israel Ben Mehlman, in respect of 27 Kenneth Crescent, Brent, London NW2.
Alan Tunkel
(instructed by Hodders) appeared for the plaintiffs; Jonathan Russen
(instructed by Ivor Denfield & Co) represented the defendant.
The defendant
landlord granted the plaintiffs a three-year assured shorthold tenancy of 27
Kenneth Crescent, Brent, London NW2, at a monthly rent of £520 from December 14
1989 to December 13 1992. The tenancy was subject to a covenant on the part of
the landlord implied by section 11 of the Landlord and Tenant Act 1985. On the
evidence the assistant recorder found the landlord in breach of the implied
covenant in relation to the space heating installation, the plaster ceiling to
one of the rooms, the flat roof of a rear extension, the failure of the water
pipes and dampness in a hall wall. By the middle of March 1991 Miss Hussein’s
bedroom had been made uninhabitable by the collapse of its ceiling: cold and
dirt were being carried from there into the rest of the house; the sitting-room
was letting in rainwater and part of its ceiling was bulging dangerously; the
outside toilet was unusable and the hall wall was affected by damp. This
situation was not improved by the ill-fitting doors and windows and the effects
of the burst pipes. The landlord refused to carry out repairs. On March 18 1991
the plaintiff tenants returned the keys to the landlord’s agents and vacated
the property. Having found there had been a repudiatory breach by the landlord
of the implied covenants to repair, the assistant recorder considered whether a
repudiatory breach of contract of letting is legally possible.
Continuing his
judgment, STEPHEN SEDLEY QC said: However, everything hangs upon events
up to March 18 1991 and nothing of legal consequence now hangs on events after
that date. Although certain issues about the construction of the statutory
implied covenant have to be addressed, the single most important point in the
case is this: is it possible in law for a contract of letting to be terminated
by one party’s acceptance of the other’s repudiatory conduct? At the conclusion of the hearing, because
both parties needed to arrange their affairs without delay in accordance with
my decision, I gave my principal conclusions in open court, reserving my
reasons until the delivery of this judgment. These conclusions were:
(i) A repudiatory breach of a contract of letting
is legally possible.
(ii) There was in this case a repudiatory breach
by the defendant of the section 11 covenants.
(iii) The plaintiffs by vacating the property and
returning the keys on March 18 1991 had accepted the defendant’s breach as
putting an end to the lease.
Repudiation
of a lease
Although a
contract of letting, whether for a term of years certain or for a periodic
‘springing’ term, differs from other contracts in creating an estate in land,
it is nevertheless a contract: see United Scientific Holdings Ltd v Burnley
Borough Council [1978] AC 904*, at pp 929E, 935B, 944B, 947B-C, 956F-H,
962A and 963H-964B, approving C H Bailey Ltd v Memorial Enterprises
Ltd [1974] 1 WLR 728† ; and, most recently, Hammersmith and Fulham
London Borough Council v Monk [1991] 3 WLR 1144‡ , at pp 1147C, G,
and 1156C, G-H. Since, in the ordinary way, any contract may be brought to an
end by one party’s repudiatory conduct, the question to be answered is whether
a contract of letting is an exception to the rule.
*Editor’s
note: Also reported at (1977) 243 EG 43 & 127, [1977] 2 EGLR 61.
† Editor’s
note: Also reported at (1973) 229 EG 613.
‡ Editor’s
note: Also reported at [1992] 1 EGLR 65.
In C H
Bailey Ltd v Memorial Enterprises Ltd at p 732C, Lord Denning MR
said:
It is time to
get away from the medieval concept of rent. That appears from a passage in Holdsworth,
A History of English Law, vol. VII (1900), p 262 . . .: . . . in modern
law, rent is not conceived of as a thing, but rather as a payment which a
tenant is bound by his contract to make to his landlord for the use of the
land.
The time and
manner of the payment is to be ascertained according to the true construction
of the contract, and not by reference to out-dated relies of medieval law.
Sir Eric Sachs
at p 735E said:
. . .
Whatever the position last century, the word ‘rent’ today can often simply
refer to any contractual sum to which a landlord becomes entitled for the use
of his land.
He endorsed
the following passage in Foa, General Law of Landlord and Tenant (8th
ed, 1957) at p 101:
There has
been a considerable development from the medieval conception of rent as a
‘thing’ or proprietary interest to the modern conception of rent as a
contractual obligation to pay for the use of property let, and the notion that
‘rent’ must have the quality that it can be distrained for is more appropriate
to the medieval than the modern conception. Accordingly, the question in each
case is to determine what in substance is the subject-matter of the tenancy
granted to the tenant by the contract: prima facie rent is the monetary
compensation payable by the tenant in consideration for the grant, however it
be described or allocated . . .
It seems
clear, then, that, although the modern law of landlord and tenant has not made
obsolete the availability of distress for rent or the concept of an estate in
land arising out of the relationship, these are no longer the foundation of the
relationship but are its incidents: its foundation is the contract to pay money
or give other consideration in return for the exclusive right to occupy land.
(It may or may not be that the rent-free tenancy is an anomaly in this context,
but that rare species cannot swim very far against the tide of the general
law.)
The anchor by
which Mr Russen, in his able argument, seeks to secure his client’s boat
against this tide is the decision of the Court of Appeal in Total Oil Great
Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318. It
is important to see exactly what this case was about. The defendants held a
lease from the plaintiffs of a garage, the lease containing a solus-site
agreement, preventing the defendants from selling any petrol but the
plaintiffs’ and requiring the defendants to pay for petrol on delivery. The
defendants fell down on two payments and the plaintiffs in response demanded
payment in advance. Both sides were therefore in serious breach of the
contractual arrangements. The defendants found another supplier, whom they
continued to use even when the plaintiffs offered to resume cash on delivery.
When the plaintiffs sued for an injunction to enforce the solus-site agreement,
the defendants claimed that the plaintiffs had repudiated by demanding payment
in advance and that they had accepted the repudiation by going to other
suppliers. But — and this was the important thing in the case — the defendants
were trying to approbate and reprobate, because they were trying to keep the
lease but to get rid of the solus-site covenant. The case was not actually
about the repudiation of a lease, since neither party contended that this had
occurred.
Lord Denning
MR accepted that the plaintiffs’ demand for advance payment was repudiatory and
that the defendants ‘had a good deal of justification’ for finding another
supplier. But the question was whether this by itself had put an end to the
solus-site covenant by acceptance of repudiatory conduct or whether, when the
plaintiffs offered to go back to the contractual arrangement, they were still
in a position to put themselves in the right. The Court of Appeal held that
they were, at p 323D:
Mr Thompson
for the dealer says that the oil company have repudiated their contract by
insisting on the new stipulation of payment before delivery. He says that the
dealer accepted that repudiation. He treated the agreement as at an end and got
deliveries elsewhere. Seeing that the repudiation was accepted, the oil company
can no longer insist on the agreement being performed.
The difficulty
which faces Mr Thompson, however — and he faces it quite frankly — is this. The
agreement is contained in the lease. If the lease is at an end, as well as the
agreement, then the dealer is in a parlous position. He has got to go out. That
is the last thing he wants. He wants to keep the lease.
Lord Denning
held that the covenant was not severable from the rest of the lease and went on
at p 324A:
The second
point is: what is the effect of the repudiation by the oil company which was
accepted by the dealer? Does it put an
end to the lease? I think not. A lease
is a demise. It conveys an interest in land. It does not come to an end like an
ordinary contract on repudiation and acceptance. There is no authority on the
point, but there is one case which points that way. It is Leighton’s
Investment Trust Ltd v Cricklewood Property & Investment Trust Ltd [1943]
KB 493 . . . [1945] AC 221. Lord Russell of Killowen and Lord Goddard at pp 234
and 244 were both of opinion that frustration does not bring a lease to an end.
Nor I think does repudiation and acceptance.
Edmund Davies
LJ, concurring, put his own reasons on a narrower basis: the elements of the
lease were not severable and must stand or fall together. He said at p 325C:
Despite the
repudiation by the Plaintiffs of part of the lease and the defendants’
acceptance thereof, I cannot accept that, as to the latter’s occupancy during
the remainder of the 14-year term, they would be able to say, ‘We are entitled
to remain in possession without regard being paid to where we obtain our petrol
supplies.’
This reasoning
limits itself to the impossibility of approbating and reprobating at the same
time and fixes the defendants with their continuance in possession under the
lease. The third judgment, that of Stephenson LJ, agreed with both the previous
judgments and went on at p 325D:
This complex
of lease and trading agreement has not been repudiated . . .
not ‘cannot be
repudiated’.
The Total
Oil decision, at its fullest, is therefore to be found in the judgment of
Lord Denning. If it stood by itself it would, at this level, be binding
authority for the proposition that because of the special character of a demise
of land a lease is not terminable by frustration nor, therefore, by repudiation
and acceptance.
However, since
the Total Oil case was decided in 1971, both the major and the minor
premises upon which Lord Denning’s second holding was based appear to have been
destroyed by decisions of the House of Lords. As I have already indicated, the
major premise that a lease of land is in its essence different from other
contracts has been overset, in particular by the decision of the House of Lords
in United Scientific Holdings Ltd v Burnley Borough Council. The
minor premise that a lease cannot be determined by frustration has been overset
by the decision of the House of Lords in National Carriers Ltd v Panalpina
(Northern) Ltd [1981] AC 675, in which a demised warehouse became unusable
because of a street closure, and the tenants withheld rent, claiming that the
lease had been frustrated. The House of Lords (Lord Russell of Killowen
dissenting) held that the doctrine of frustration was in principle applicable
to leases but that it did not operate on the facts of the instant case. Their
lordships declined to follow the dicta in the Cricklewood case.
The Total Oil case was cited but was not referred to in the speeches.
Lord Hailsham, at p 690D, said:
I conclude
that the matter is not decided by authority and that the question is open to
your Lordships to decide on principle. In my view your Lordships ought now so
to decide it. Is there anything in principle which ought to prevent a lease
from ever being frustrated? I think
there is not. In favour of the opposite opinion, the difference in principle
between real and chattel property was strongly urged. But I find it difficult
to accept this, once it has been decided, as has long been the case, that time
and demise charters even of the largest ships and of considerable duration can
in principle be frustrated.
Lord
Wilberforce at p 694E said:
It was
pointed out, however, by Atkin LJ in Matthey v Curling [1922] 2
AC 180 200, in a passage later approved by Viscount Simon [1945] AC 221, 230
that as a lease can be determined, according to its terms, upon the happening
of certain specified events, there is nothing illogical in implying a term that
it should be determined on the happening of other events — namely, those which
in an ordinary contract work a frustration . . .
A man may
desire possession and use of land or buildings for, and only for, some purpose
in view and mutually contemplated. Why is it an answer, when he claims that
this purpose is ‘frustrated’, to say that he has an estate if that estate is
unusable and unsaleable? In such a case
the lease, or the conferring of an estate, is a subsidiary means to an end, not
an aim or end of itself.
He concluded
at p 696G:
It was not
until the Cricklewood case that the argument was put on principle and
fully explored. The governing decision (of the Court of Appeal) was summary,
unargued, and based upon previous cases which will not bear the weight of a
generalisation. I think that the movement of the law of contract is away from a
rigid theory of autonomy towards the discovery — or I do not hesitate to say
imposition — by the Courts of just solutions, which can be ascribed to
reasonable men in the position of the parties.
This
reasoning, it seems to me, not only takes away the minor premise of the Total
Oil judgment but has fundamental implications for its major premise: it
continues the process, to which I have referred, of assimilating leases to
other contracts. It follows, in my judgment, that unless some special exception
can be established for acts of repudiation, not only has Total Oil ceased
to be authority for the proposition that a lease cannot be repudiated: the
decisions which have rendered it obsolete point powerfully in the direction of
repudiation being a legitimate ground for termination of a lease. I bear in
mind, however, that the House of Lords was extremely cautious about the range
of situations in which it would allow the doctrine of frustration to operate on
a lease and that Lord Hailsham posed the choice, in the language of HMS
Pinafore, as lying only between ‘never’ and ‘hardly ever’, coming down in
favour of the latter.
Very recently
the Court of Appeal has held, apparently without argument to the contrary and
without any citation of authority, that a tenancy agreement which one party is induced
to enter into by the fraud of the other can be rescinded at the innocent
party’s election: Killick v Roberts [1991] 4 All ER 289*, at p
292d. This seems another step down the same road.
*Editor’s
note: Also reported at [1991] 2 EGLR 100; [1991] 41 EG 133.
It is perhaps
a relief that the Total Oil case is no longer good law, because it
appears to have silently overruled an important line of cases (not cited in
argument) in which, throughout the 19th century, the courts took it as
axiomatic that a contract of letting could be terminated by the innocent party
without notice if the other party failed to fulfil a fundamental term of the
contract. I will refer to them because they are of assistance in deciding the
next question, namely what breaches of a lessor’s covenant are of a
sufficiently fundamental character to amount to repudiation.
In Edwards v
Etherington (1825) Ry&M 268 an action for use and occupation failed
by the jury’s verdict. The defendant was tenant from year to year of a house,
the walls of which were so dilapidated that it became unsafe to live in. The
defendant vacated a few days after the rent day and returned the key to the
plaintiff. His defence to the action for rent was — very much as Mr Hussein’s
initially was — that there had been a surrender, but, if not, that the
plaintiff was not entitled to rent for ‘premises utterly useless to the
defendant’. The Chief Justice told the jury:
Slight
circumstances will not suffice but such serious reasons may exist, as will
justify a tenant in quitting at any time, and it is for you to say whether in
this case any such exist. . . . It is for you to say whether such serious
reasons for quitting, existed in this case, as will exempt the defendant from
this demand, on the ground of his having had no beneficial use and occupation
of these premises; and that, through no default of his own, but through the
fault of a person (the Plaintiff) who ought to have taken care, that the
premises should have been in such a state, as to continue useful to the
defendant.
In Collins v
Barrow (1831) 1 M&Rob 112 the defendant had a three-year lease with
a covenant to keep the premises in tenantable repair. He left without notice
after nine months and was sued for the rent accruing thereafter. His defence
was that the house had become uninhabitable for want of sufficient drainage.
Bayley B directed the jury:
In any case,
the tenant is bound to pay rent during the time for which he has contracted,
unless he satisfies the jury that, under the circumstances, he was justified in
quitting. I think however that in point of law he will be freed from his
obligation to reside on the premises, if he makes out, to the satisfaction of
the jury, that the premises were noxious and unwholesome to reside in, and that
this state arose from no default or neglect of his own, but from something over
which he had no control, or none, except at an extravagant and unreasonable
expense. Thus, he could not be bound to make a sewer; and if nothing else could
keep the house wholesome, I think he was justified in quitting. The expense of
making a sewer may be heavy; but if the Plaintiff would not make it, he cannot,
I think, call upon his tenant to continue in a house which requires it.
The issue of
fact, on which the jury gave a verdict for the plaintiff, was whether the
sewage could reasonably have been pumped away by the defendant without need of
a sewer. There was evidently no lessor’s covenant to repair.
In Izon v
Gorton (1839) 5 Bing NC 501 Tindal CJ held that the tenant continued to
be liable for rent where the premises were destroyed by an accidental fire. The
court was bound by authority to that effect (Baker v Holtpzapffel (1811)
4 Taunt 45) on this point, but the Chief Justice also said at p 507:
The cases
referred to in the argument, in which the tenant has been allowed to withdraw
himself from the tenancy, and to refuse payment of rent, will be found to be
cases where there has been either error or fraudulent misdescription of the
premises which were the subject of the letting, or where the premises have been
found to be uninhabitable by the wrongful act or default of the landlord
himself; neither of which circumstances occur in this case.
(Thus it seems
that Killick v Roberts, above, did have precedents.)
In Arden v
Pullen (1842) 10 M&W 321, the tenant had entered into a repairing
covenant but left the house because subsidence had caused it to become flooded.
The Court of Exchequer held him liable to pay rent notwithstanding. Lord Abinger
CB said:
I am of
opinion that, unless there has been some fraud or improper concealment on the
part of the Plaintiff, which is not suggested, the contract for letting this
house was perfectly good. The Defendant was, therefore, bound to perform it so
long as the Plaintiff performed her part of it . . .
Alderson B
said:
The rule laid
down by Tindal, CJ, in Izon v Gorton, is the correct one, that in
order to enable a tenant to avoid his lease, there must be a default on the
part of the landlord.
It was this
well-established line of authority that the Court of Exchequer followed in the
celebrated case of Smith v Marrable (1843) 11 M&W 5. The
defendant had taken a furnished house for his family, who found it infested
with bugs and left. On an action for the rent for the remainder of the term of
five weeks, Lord Abinger CB directed the jury that:
in point of
law every house must be taken to be let upon the implied condition that there
was nothing about it so noxious as to render it uninhabitable.
Parke B,
giving the leading judgment on a motion for a new trial, cited a number of the
authorities to which I have referred and concluded:
These
authorities appear to me fully to warrant the position, that if the demised
premises are incumbered with a nuisance of so serious a nature that no person
can reasonably be expected to live in them, the tenant is at liberty to throw
them up.
Lord Abinger
CB, sitting as was the custom on the appeal against his own direction to the
jury, expressed relief that authorities supported what he had taken to be a
proposition of common sense and concluded:
I entertain
no doubt whatever on the subject, and think the defendant was fully justified
in leaving these premises as he did: indeed, I only wonder that he remained so
long, and gave the landlord so much opportunity of remedying the evil.
It will be
seen that this case is authority not only for the proposition for which it is
known, that there is an implied covenant of fitness for habitation in a letting
of a furnished house, but also for the proposition that a contract of tenancy
may be repudiated by a breach of such a condition, and — incidentally — that it
is not to be held against the tenant that he has endured the breach for longer
than he needed to.
Although the
vocabulary of repudiation is not consistently used in these cases — the
earliest, for example, speaks of ‘exempting’ the defendant from the demand for
rent and others speak of the tenant being allowed to ‘throw up’ the letting or
‘to withdraw’, by 1842 Lord Abinger is using the phrase ‘the contract of
letting’ and Alderson B is speaking about the tenant ‘avoiding’ the lease for
the landlord’s default. When in 1877 the Exchequer division decided Wilson v
Finch-Hatton (1877) 2 Ex D 336 and followed Smith v Marrable,
all three barons used the language of repudiation and Pollock B sought to cut
away furnished lettings from the doctrine that rent issues out of the realty
and to hold instead that this was simply ‘a sum paid for the accommodation
afforded by the use of the house’. (The divergent patch which Parke B charted
in relation to demises of real property in Hart v Windsor (1843)
12 M&W 68, shortly after he decided Smith v Marrable, has
now, it appears, all but converged again with the path of contract, at least
since the decision in C H Bailey Ltd v Memorial Enterprises Ltd.)
It follows, if
the foregoing is right, that the passage at present to be found in chapter 17
of Woodfall’s Law of Landlord and Tenant, para 1-1836, which says, in
terms, that a lease or tenancy does not come to an end by repudiation, citing
the Total Oil case, is wrong. So is the final sentence of para 420 of
vol 27 of Halsbury’s Laws of England (4th ed), which advances the same
proposition in relation to leases, citing not only Total Oil but Panalpina
in the footnote, but treating the latter, apparently, as confined to the
doctrine of frustration.
I recognise
that the proposition that a contract of tenancy can be repudiated like any
other contract has a number of important implications, which it is not
appropriate to explore on the facts of this case. For example, if the
obligation to pay rent is as fundamental as the obligation to keep the house
habitable, it will follow that a default in rent payments is a repudiatory act
on the tenant’s part. That this may follow is not, however, a reason for going
back on what appears to me to be the inexorable effect of binding authority. It
will, however, have effect subject not only to all the statutory provisions
which now hedge the right to recover possession but also, I would think, to the
provisions contained in the contract of letting itself in relation to
forfeiture (where there is a term certain): in other words, the right to terminate
by acceptance of repudiatory conduct may itself be modified by further
contractual provisions which lay down conditions, supported by statute, for the
exercise of the right.
Section 11
covenant
Section 11 of
the Landlord and Tenant Act 1985 provides:
(1) In a lease to which this section applies . .
. there is implied a covenant by the lessor —
(a) to keep in repair the structure and exterior of
the dwelling-house (including drains, gutters and external pipes)
(b) to keep in repair and proper working order the
installations in the dwelling-house for the supply of water, gas and
electricity . . . and
(c) to keep in repair and proper working order the
installations in the dwelling-house for space heating and heating water.
. . .
(3) In determining the standard of repair
required by the lessor’s repairing covenant, regard shall be had to the age,
character and prospective life of the dwelling-house and the locality in which
it is situated.
It is common
ground that this is a lease to which section 11 applies. There is no issue that
the gas heaters were installations for space heating, nor that the incursion of
rainwater into the sitting-room and the damage to its ceiling were the result
of disrepair of the structure or exterior of the dwelling-house. It remains the
defendant’s contention, however, that the ceiling of the bedroom was not part
of the structure within the meaning of section 11(1)(a). Mr Russen has,
wisely, taken his stand on this proposition without seeking actively to defend
it. In my judgment it is untenable.
The object of
section 11(1)(a) is to place upon the lessor the obligation to maintain
the fabric of the building in a safe and habitable condition. A house — at
least a 1930s London suburban semi-detached house — without plaster on its ceiling
is not a complete house and is certainly not safe or habitable. In Staves v
Leeds City Council (Court of Appeal, October 4 1990, unreported*) Ewbank
J recorded:
It has been
conceded in this case, as in earlier cases, that the internal plasterwork is
part of the structure of the house.
*Editor’s
note: Also reported at [1992] 2 EGLR 37.
(Counsel for
the local authority was Mr John Stuart Colyer QC, whose experience in this
field of law was unrivalled.) Lloyd LJ
concluded his judgment:
Once it was
conceded, as it was, that the plaster was part of the structure it follows that
there was a breach of the condition implied by section 11(1)(a) of the
Landlord and Tenant Act 1985 . . .
As to the
precedent in Hill and Redman which Ivor Denfield & Co insisted gave
support to the defendant’s position, the following observations may be in
place. First, this is a page from the text of a draft form of a lease, not a
source of law at all. Second, the precedent defines ‘the interior’ as ‘the
systems and components . . . forming part of the building which are
enclosed by the exterior but are not part of the structure, including . . .
plaster or other surface material applied to and the internal skins, linings
and finishes of and to the structure and exterior; . . . ceiling systems . . .’
(emphasis supplied). Thus, it is perfectly plain that even this precedent,
while distinguishing for its own particular purposes between the structure and
the interior of the building, treats ceilings and their plaster as ‘part of the
building’.
I want to
express my concern at what seems to me the use of the authority which a
solicitor understandably enjoys in the community to make assertions of law
which fly in the face of common sense but are given a spurious authority by the
use of partial and misleading citations of this kind. It is one thing to
advance a client’s case vigorously; it is another to use ill-founded arguments
against lay persons who are trying conscientiously to ascertain their own and
their landlord’s true legal position.
While the
evidence of the environmental health officer, Mr Wallace, is helpful in
confirming the general state of the premises, the test which he had to apply
for his statutory purposes was different from the test of breach of the section
11 covenant. The environmental health officer was concerned under the Housing
Act 1985 about fitness for human habitation. This is tested by section 604(1)
by deeming premises to be unfit if they are so far defective in one or more of
10 broad factors, including repair and freedom from damp, that they are not
reasonably suitable for occupation in that condition. It is plain, however,
that section 189, which compels a local authority to serve a repair notice
wherever they are satisfied that a house is unfit within the meaning of section
604, unless the house is beyond repair, may result in the lawful service of
notices in relation to defects which fall short of breaches of the section 11
covenant: see Newham London Borough v Patel (1978) 13 HLR 77. I
do not therefore place reliance upon the notice or the grounds upon which it
was given in deciding whether there was a breach of the section 11 covenant. I
do, however, give weight to the fact that the defendant’s notice of appeal,
which dropped his original ground that the works required were unnecessary and
instead sought to place some or all of the liability to repair on the tenants,
was not pursued to a hearing but served an evident purpose in deferring any
action which would have resulted in compliance, among other things, with the
section 11 covenant.
Breaches
of covenant
The initial
breach of the covenant contained in section 11(1)(c) was eventually cured, but
it did not, in my judgment, cease to have a bearing. It had taken the whole of
the first winter, over Mr Mehlman’s strident attempts to evade compliance, to
get three working gas heaters installed as they should have been at the start
of the letting. This not only sounds in damages: it colours the attitude which
it was reasonable for the tenants to take to the succeeding breaches. The same
is true of the burst pipes in February 1991. The plaintiffs themselves had them
fixed, but the defendant’s solicitors’ reaction, which was to tell the
plaintiffs to do it themselves, again colours the ongoing breaches. These, so
far as the present part of my judgment is concerned, were the collapsed bedroom
ceiling, which had been there since August 1990 and which the defendant was
expressly refusing to repair, and the collapsing and leaky sitting-room
ceiling, which the defendant had been admitting his liability to repair but by
March 1991 had still done nothing about.
In my
judgment, the defendant was making it as plain as was possible that he was not
going to comply with his covenant to keep the structure and exterior of the
premises in repair. His previous conduct in relation to other breaches amply
demonstrated that this was not due to a bona fide mistake of law or to
logistical difficulties with builders: it was due to the determination of the
defendant and his son to put not a penny back into the house and, if necessary,
to let the tenants suffer hardship in consequence. I find, too, that the two
plaintiffs who were living in the house did suffer real hardship, and that the breaches
deprived all three of the essential part of what they had contracted for — a
house in which all rooms were usable, in which ceilings were not either
collapsed or collapsing and into which rain, wind and cold did not penetrate
through the associated defects in the structure. In Walker v Hobbs
& Co (1889) 23 QBD 458 an action on the term implied by the Housing of
the Working Classes Act 1885, section 12, into contracts of letting that the
house should be reasonably fit for human habitation, Lord Coleridge CJ said:
It is
admitted that the ceilings were in a dangerous condition, and therefore that
the rooms were not, speaking in a broad sense, fit for human habitation.
I hold,
likewise, that the defects in the ceilings were such as to render the house as a
whole unfit to be lived in and that the defendant’s conduct, in the classic
language, evinced an intention not to be bound by the implied covenant to
repair. The breach, in my judgment, vitiated the central purpose of the
contract of letting.
Mr Tunkel has
also relied on the near-certainty that come the next freeze the pipes would
still be unlagged and the loft uninsulated and that there would consequently be
another flood. Had he been free to argue the point, and had I been free to
decide it, I would have held that this, too, represented a breach of the
covenant implied by section 11(1)(b) to keep in repair (which means put
and keep in repair: see Liverpool City Council v Irwin [1977]
AC 239*) and proper working order the installations in the dwelling-house for
the supply of water. But the Court of Appeal has held otherwise: see Wycombe
Area Health Authority v Barnett (1982) 5 HLR 84. The reasoning of
the Court of Appeal in that case leaves no room for Mr Tunkel’s contention that
a special duty arose under the covenant after the burst of February 1991. The
only duty that arose, given the authorities, was a duty to repair the bursts —
which, as I have held, the defendant made the plaintiffs discharge. It may well
be that in this already poorly heated house the collapse of the bedroom ceiling
was making it even harder to retain warmth in the building and so contributed
to the freezing of the pipes in the loft; but, if so, this was a function of
the section 11(1)(a) covenant to keep the structure in repair, not of
the section 11(1)(b) covenant.
*Editor’s
note: Also reported at (1976) 238 EG 879, [1976] 1 EGLR 53.
The plaintiffs
are, however, entitled to rely on the state of the doors, both that of the
outside toilet and those in the house, which did not fit their frames. By
themselves these defects, however long persisted in, could not have rendered
the house uninhabitable, but, given the major defects to which I have referred,
I consider that the state of the various doors amounted to a further series of
breaches of the section 11(1)(a) covenant which added to the
difficulties of continuing to live in the house.
The damp patch
in the hall made things no better, but on the evidence I cannot allocate it to
any breach of covenant on the lessor’s part.
As to the
problems with the windows and the ventilation of the house to which the
environmental health officer’s notice related in part, these seem to me to be
faults of design and construction related to the age of the house, and so
probably outside the statutory repairing covenant: see Quick v Taff-Ely
Borough Council [1985] 3 All ER 321† . But again, these deficiencies tended
to aggravate the misery caused by the breaches of covenant which I have found.
† Editor’s
note: Also reported at [1985] 2 EGLR 50.
Notice to
the lessor
It has been
established since the House of Lords’ decision in O’Brien v Robinson
[1973] AC 912§ that the liability of the
lessor to repair structural defects under section 32 of the Housing Act 1961
(the predecessor of section 11 of the 1985 Act) arises only when the lessor has
knowledge of the defect. It is worth observing in passing that O’Brien v
Robinson was a case of the collapse of a bedroom ceiling and, although
it went to the House of Lords on the question of knowledge, there appears to
have been no dispute at any stage, and no point taken by their lordships, as to
the ceiling’s being part of the structure of the house and so within the
covenant.
§ Editor’s
note: Also reported at (1973) 226 EG 297.
In the present
case I do not find any evidence that the defendant had knowledge of the risk
that the bedroom ceiling might collapse before it actually did so. His breach
of covenant in this regard is therefore limited to his deliberate failure to
repair once the collapse had occurred and been brought, as it promptly was, to
his notice.
The state of
the sitting-room ceiling was, however, perfectly visible and, I find, must have
been known to him before the letting was entered into. In my judgment, it is a
matter of common sense:
(a) that a bulging ceiling may collapse; and
(b) that such a bulge in a single-storey
extension is likely to be due to rain penetration.
Early in this
judgment I mentioned the surveyor’s report bespoken by Mr Mehlman in 1987 in
relation to repairing liabilities under the previous tenancy. It contained this
paragraph:
The
bituminous felt covering to the roof of the single-storey back addition is in
poor condition and needs to be stripped off and renewed with proper detailing
provided at the edges, particularly at the junction with the main rear wall.
Works of repair may also prove to be necessary to the underlying structure of
this roof due to defects resulting from water penetration.
It is clear
from the state of the extension ceiling in November 1989 that this advice was
ignored.
I do not
understand the decision in O’Brien v Robinson to require formal
notice: it reflects the common-sense proposition that a person cannot take
steps to remedy a defect of which he knows nothing. This in turn requires that
he should not be permitted to claim to be ignorant of things to which he has
shut his eyes where a prudent property owner would have taken notice. In
practice, however, little now hangs on this, since no real damage accrued until
the rain came through at Christmas 1990 and the defendant was put on express
notice shortly thereafter.
The question
of knowledge is important, however, in relation to the gas fires. Mr Mehlman
has denied any knowledge that the gas fires were defective until the latter
part of the winter of 1989 to 1990. I reject his denial. It is clear from the
documents that Mr Mehlman had had all the fires disconnected before the
commencement of the tenancy: on November 1 1989 he wrote to the gas board that
two fires had been disconnected and asking for the third to be disconnected.
This was the very time at which the house was on the market and the agents
taking up references on prospective tenants. I accept Mr Tunkel’s submission
that Mr Mehlman must have been told by the gas board, probably during October
1989, that the gas fires were not serviceable and that in consequence he not
only had the mains supply turned off but had the fires disconnected to stop the
tenants using them. I find, therefore, that the defendant, whether in person or
through his son, knew that the installations for space heating in the house
which were scheduled to the lease were not in working order from the start of
the tenancy.
Termination
of the lease
Accordingly, I
hold that when on March 18 1991 the plaintiffs vacated the house and returned
the keys they were accepting the repudiatory conduct of the defendant as putting
an end to the contract of letting. That they were entitled to do this at any
date, not merely on a rent day, and that their forbearance to do it sooner
should not count against them is established by the 19th-century authorities to
which I have referred. From that date, therefore, they were relieved of the
obligation to pay rent, and both parties were relieved of their other
obligations under the lease. The defendant was free to re-enter the premises.
Damages
Accordingly
the plaintiffs are entitled to damages for the following:
(a) The want of heating during the winter of 1989
to 1990 caused by the absence of working gas fires in the three rooms where
they should have been.
(b) The effects of the collapse of the bedroom
ceiling from the point of time at which the defendant had notice of it.
(c) The effects of rain penetration and the
bulging plaster in the sitting-room.
(d) The ill-fitting doors.
The damages
will be awarded to the plaintiffs jointly, since I am not asked to make an
apportionment; but it will be clear that some elements of them in fact fall to
be apportioned to an individual plaintiff, and I give liberty to the plaintiffs
to apply to this court if — unthinkably — they find themselves at odds about
the proper division of the award among themselves.
(a) Space heating
Judge
Rowntree, in the award which the defendant had set aside, awarded £300 for the
effects of the lack of heating. He did so after a brief hearing and, while I
treat his award with the greatest possible respect, it cannot bind me. I bear
in mind that the three gas fires were not enough to keep the house fully warmed
on any view, but they were, in my view, an irreducible minimum for enabling the
house to be properly warmed during the winter. The lack of them reduced the
occupancy of the house to a condition of misery. Because of it, only Miss
Hussein, who had nowhere else to go, lived in the house during this period,
although the attempts to get things remedied caused endless trouble, upset and
loss of working time to Mr Hussein as well.
I award £600
damages for Miss Hussein’s ordeal.
Because he was
not reasonably able to take up occupancy of the house, Mr Hussein stayed,
somewhat uncomfortably, in the flat of his newsagent partner Mr Williamson
above the shop at 90 St John’s Avenue. He paid him ‘about £30 per week’ from
November 14 1989 to April 2 1990, when the gas heaters were replaced. I accept
his evidence, but I allow for the fact that the approximation means that there
may have been weeks when he paid Mr Williamson less. The difference, I think,
sufficiently represents the quite serious trouble to which Mr Hussein was
constantly put in attending so far as he could to his sister’s needs and in
going to the house every time a builder, a gas fitter or some other workman had
to attend. (Miss Hussein and Mr Armstrong both had daily jobs to go to.) This was a period pleaded as 16 weeks (I make
it rather more) and I award £480 accordingly under this head.
To these
damages must be added a figure representing the net cost of substitute heating.
The Calor gas heater with two gas bottles cost £139, but the equipment will
have had some residual value apart from its use in the absence of working gas
fires. Equally, the cost of refills at £9.99 was in substitution for mains gas,
which would also have cost money. Each gas bottle was used only in the evenings
for a couple of hours (because without a ventilated flue it became unpleasant
after that point), but even so lasted no more than 10 days in use. Clearly this
was a cumbersome and expensive form of gas heating by comparison with a
properly fitted gas fire. Assuming, therefore, that something like £150 was
spent on bottled gas in addition to the cost of the equipment, and discounting
the sums spent for the reasons I have indicated, I awarded £200 for the
additional trouble and expense caused by having to introduce a Calor gas heater
into the house.
(b) The bedroom ceiling
From the
middle of August 1990 until the plaintiffs left, the rear-right bedroom was
uninhabitable because its ceiling had fallen down. The collapse left the laths
open to the uninsulated loft and wind constantly blew through the space,
carrying cold and dirt into the rest of the house past the badly fitting
bedroom door. Mr Armstrong, whose evidence I accept as truthful, described how
one could look through the hole in the ceiling and see daylight between the
tiles of the roof. He said:
This made it
necessary to clean up daily. The wind was carrying soot from the loft and other
debris through the house.
Grave
inconvenience was caused by this serious breach of covenant, which continued
for the last seven months of the plaintiffs’ occupancy, including the winters
of 1990 and 1991. The damages will be part of a single sum for breach of the
covenant to keep the structure in repair.
(c) The sitting-room
The incursion
of rain at and after Christmas 1990 made it dangerous to sit anywhere near the
bulging plaster. Contrary to what had been suggested to Mr Hussein when he was
cross-examined (and I do not doubt for a moment that Mr Russen did so on
instructions) the defendant’s surveyor, Mr Chapman, gave evidence that when he
went to the house Mr Hussein and his friends were gathered round the fire on
the party wall, at a point remote from the bulge in the ceiling. I accept the
evidence of Mr Hussein that the sitting-room could be used in this
extraordinary fashion throughout the latter part of the plaintiffs’ occupancy.
This disrepair, too, was a serious breach.
(d) I have described the poor state and fitting
of some of the doors.
General
damages for structural disrepair
There is no
‘tariff’ as there is in most personal injury cases, for awards of this kind,
but a line of recent cases has given some indication of the proper range. In
particular I have had regard to Lubren v Lambeth London Borough
Council (1987) 20 HLR 165, in which the Court of Appeal indicated broad
approval of a median figure of £1,000 a year for a five-year deterioration of
premises from habitable to ‘appalling’. But there is no principle, any more
than there is in false imprisonment cases, by which a single multiplier or
divisor can be applied to such a figure to reflect greater or lesser periods of
time. In general, the passage of time produces a ‘taper’ effect in damages and
I consider, therefore, that I am justified today, having in mind all the
circumstances and effects of the breaches of the lessor’s section 11(1)(a)
covenant, in awarding £1,250 general damages.
Other
special damage
For reasons
which I have given, the damage to furniture caused by the collapse of the
bedroom ceiling and by the burst pipes is not
plaintiffs since the date when they terminated the lease, except in so far as it
might have exceeded (as it has not done) what they would otherwise have been
paying to the defendant for the remainder of the original term.
There is also
a claim for storage charges and removal costs on and after March 18 1991.
These, it seems to me, are not shown to be consequent on the defendant’s
breaches of covenant: they are the consequences of the coming to an end of the
letting and I am not satisfied on the evidence that they are any greater than
they would have been had the term run its course and the plaintiffs then
vacated.
The plaintiffs
are, however, entitled to recover what they paid the plumber to repair the
burst pipes, namely £195.
Rent
thrown away
Para 6 of the
reamended particulars of claim concludes:
Further, or
alternatively, the Plaintiffs are entitled to a refund of the whole or part of
the rent paid or payable during the contractual term or damages representing
the same.
Head (2) of
the prayer as reamended reads:
A refund of
the whole or part of the rent and deposit of £750 paid to the Defendant or
which may be held to be payable to the Defendant.
Are the
plaintiffs entitled, in relation to the time before they put an end to the
lease, to extinguish or diminish the rent due because of the various failures
of consideration? It seems to me that
there are two problems. First, the doctrine that the covenant for the payment
of rent is independent of the performance of the other covenants is still, as I
understand it, the law.
Second, there
is a potential element of double-counting in awarding damages for breach and
then denying the lessor some or all of the payment due for the occupancy of the
premises. On balance, although the contrary is certainly arguable, I do not
think that the law permits me to award what is in effect a rebate on the rent
in the circumstances of a case like this. The proper approach is laid down by
the Court of Appeal in Calabar Properties v Stitcher [1983] 3 All
ER 759, especially at pp 766g, 769j-770b. Its effect is to limit damages in a
case like the present to the inconvenience of occupying a house in a condition
in which it would not have been but for the breach of covenant. The rent is
paid for the occupancy, the damages for the inconvenience. To them will be
added, of course, any recoverable special damages.
The
counterclaim
The defendant
is entitled to the rent remaining unpaid under the lease. By his ‘further
amended’ defence and counterclaim he seeks £2,280 rent arrears and rent at £520
per month from January 31 1991 until the date of trial and thereafter. I hold,
for the reasons which I have given, that the defendant’s entitlement to rent
came to an end on March 18 1991 and I give judgment on his counterclaim for
£2,834.20 accordingly.
Interest
Both parties
will have interest on their awards. I should welcome counsel’s help as to the
appropriate calculations.
Judgment for
the plaintiff with costs.
