Lease – Flat – Defect in light wells – Water leaking into flat – Claimant tenant seeking damages from defendant landlord – Whether repairing covenant effective – Whether defendant liable in nuisance – Claim dismissed
The claimant was the tenant of a basement flat under a 125-year lease that the defendant’s predecessor had granted in September 1996. The defendant company became the assignee of the reversion in 1997. Under clause 3(b) of the lease, the claimant covenanted to pay 8.333% of the cost of fulfilling the landlord’s obligations under the fifth schedule and its reasonable administrative costs in complying with those obligations. Under para 2 of the fifth schedule, the lessor covenanted, inter alia, “at all times during the term well and substantially to repair… and maintain… the exterior of the estate… and the entrance ways paths and staircases main walls party walls roof foundations and all structural parts thereof… with all necessary reparations and amendments whatsoever”.
Between 1997 and 2002, water had entered into the flat as a result of a defect in the concrete light wells adjoining the flat. The light wells were not within the claimant’s demise but came under the defendant’s control. The claimant carried out works to the flat at cost of £5,547.13 and suffered inconvenience and/or a diminution in the value of the flat, which he assessed at £3,900. He sought to recover those sums from the defendant.
The claimant did not suggest that the repairing covenant had been breached per se, but argued that its wording went beyond a mere covenant to repair. Further, he contended that there was a continuing nuisance on the part of the defendant, which was liable for failing to take reasonable steps to abate it.
The defendant accepted that the defect giving rise to the ingress of water might amount to a nuisance but denied that it did so in this case. It argued that, since the defect in the concrete had been present prior to the grant of the lease, the principle of caveat lessee applied so that the original landlord would not have been liable to the claimant. In those circumstances, no liability for a continuing nuisance could have been created on the assignment to the defendant in 1997.
Held: The claim was dismissed.
In the absence of an effective covenant to repair in the lease, the claimant could not rely upon the law of nuisance to impose an obligation to rectify faulty construction work by the defendant’s predecessor in title.
Since, on the evidence, the premises demised were at all times in the same physical condition for present purposes as they were when constructed, no want of repair had been proved for which the defendant could be liable under the repairing covenant. On the proper construction of the covenant, it was not possible to hold that the wording went beyond a mere covenant to repair: Quick v Taff-Ely Borough Council [1985] 2 EGLR 50; (1985) 276 EG 452 and Post Office v Aquarius Properties Ltd [1987] 1 EGLR 40; (1987) 281 EG 798 considered; Crédit Suisse v Beegas Nominees Ltd [1994] 1 EGLR 76; [1994] 11 EG 151 and [1994] 12 EG 189 distinguished.
The principle of caveat lessee applied to a nuisance involving interference with the physical enjoyment of land and damage resulting from defective premises. In the absence of statutory intervention, parties were free to let and to take a lease of poorly constructed premises and allocate the rectification costs as they saw fit. The principle applied whether the complaint related to the state and condition of the demised premises or of other parts of the building in which the demised premises were located: Cavalier v Pope [1906] AC 428, Cheater v Cater [1918] 1 KB 247 and Southwark London Borough Council v Mills [1999] 3 EGLR 35; [1999] 45 EG 179 (HL); [1998] 3 EGLR 46; [1998] 45 EG 151 (CA) considered.
The claimant appeared in person; Peter Petts (instructed by Last Cawthra Feather, of Bradford) appeared for the defendant.
Eileen O’Grady, barrister
