Landlord and tenant — Implied term — Whether implied term that landlord liable to repair access path to demised premises — Whether implied term necessary to fulfil the purpose of the demise — Appeal by defendant landlord dismissed
the plaintiff has been the weekly tenant of a house owned by the defendant
council — There was no written tenancy agreement between the parties, and the
council’s standard conditions of tenancy impose no obligations upon the
landlord — The premises have both a front and a rear access, the rear access
from a footpath — The plaintiff, who for the past five years has used a
wheelchair, has had to use the footpath as her principal means of access to the
premises — She claimed a right of way over it and asserted that it was in a bad
state of repair — In her action she claimed ‘a mandatory injunction and damages
for pain, suffering, inconvenience and distress’ — In the court below the judge
found that the plaintiff had a right of way over the footpath — That it was an
implied term of the tenancy, or a term implied by section 11 of the Landlord
and Tenant Act 1985, that the council would repair the path — There had been a
breach of those implied terms — The council appealed, contending that the judge
was wrong in holding that they were under an obligation to repair the path
the houses could not be enjoyed or function in accord with their design without
the rear-footpath access — In that circumstance there was an implication of an
obligation to maintain the rear-footpath access to fulfil the purpose of the
demise — The demise being of a dwelling-house designed to function with the
mechanism of rear service — The demise was not efficacious unless the
rear-footpath surface was adequately maintained — Although it is a question of
fact and degree as to what is included in the exterior of the dwelling-house
for the purposes of section 11 of the Landlord and Tenant Act 1985, it would be
an extravagant and unsupportable conclusion to say that the footpath was as a
matter of fact and degree part of the exterior of the demised house — Section
4(4) of the Defective Premises Act 1972 had no application because the footpath
was not part of the demise
The following
cases are referred to in this report.
Hopwood v Cannock Chase District Council [1975] 1 WLR 373; [1975] 1
All ER 796; (1974) 73 LGR 137, 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
Miller v Hancock [1893] 2 QB 177
Westminster
(Duke of) v Guild [1985] QB 688; [1984] 3
WLR 630; [1984] 3 All ER 144; (1983) 48 P&CR 42; [1983] EGD 541; 267 EG
762, [1983] 2 EGLR 37, CA
This was an
appeal by South Northamptonshire District Council from a decision of Judge
Wilson given in the Northampton County Court on October 4 1990. By his decision
the judge had ordered the council to repair the rear access path to 69 Forest
Road, Piddington, and to pay Mrs Irene King, the weekly tenant of the
dwelling-house, £750 as general damages.
Andrew
Gordon-Saker (instructed by Shoosmiths & Harrison, of Northampton) appeared
for the appellants; and Julian Matthews (instructed by Smith Chamberlain, of
Wellingborough) represented the respondent.
Giving
judgment, MANN LJ said: This is an appeal against a decision of Judge
Wilson given in the Northampton County Court on October 4 1990. The appellants
are South Northamptonshire District Council, who were the defendants in an
action brought against them by the respondent, who is Mrs Irene King. By his
decision the judge ordered the appellants to repair a certain rear access path
and to pay to the respondent £750 as general damages for breach of covenant to
repair that path. He also made a consequent order as to costs.
There is no
dispute as to the primary facts. Mrs King has since 1967 been the weekly tenant
of a house at 69 Forest Road, Piddington. That house is owned by the appellants
in their capacity as housing authority. As is commonplace with council lettings
there is no written tenancy agreement, but both parties have assumed, and
rightly so in my judgment, that the council’s standard conditions of tenancy
apply. Those conditions, again as is commonplace in relation to council lettings,
impose no obligations upon the landlord, but they do impose obligations upon
the tenant. However, there is not among those imposed obligations any repairing
covenant by the tenant. The tenant does, however, covenant to provide access to
the landlord for the purpose of repair.
The house is
upon an estate. That estate is laid out in terraces of two and four houses. No
69, when viewed from the front, is the third house in a terrace of four,
numbered 65 to 71. No 69 has, as do the others, a rear door. A path, which can
be reached from the rear door, runs from the rear of no 69 across the rear of
no 71, to join at right-angles a path to Forest Road running between nos 71 and
73, which is the first house in the next terrace.
Nos 71 and 73
were sold by the council to the sitting tenants in 1981, no doubt under the
right-to-buy legislation. Under the transfers, the ownership of the path across
the rear of no 71 passed to the new owner and the ownership of the path between
nos 71 and 73 was divided laterally between the two new owners, each enjoying a
right of way over the half not in his ownership.
Mrs King in
her action claimed a right of way over the paths, which she said she had used
since 1967. I should say, although I do not think it of significance in law,
that the path and its condition have become of importance to Mrs King because
she has had the misfortune to become a victim of rheumatoid arthritis and for
the past five years has had to use a wheelchair. This is difficult to use
through the front door of no 69, partly because of the internal arrangement of
the house and partly because of an installed stair lift. Accordingly, she has
had to use the rear access to reach Forest Road by means of the path. The path,
in so far as it comprises the length running between nos 71 and 73, is in a bad
state of repair and the plaintiff has found that to use that path in her
wheelchair is both painful and dangerous.
In her action,
Mrs King claimed a mandatory injunction and damages for pain, suffering,
inconvenience and distress. The learned judge found that there was granted to
her upon the grant of the tenancy a right of way over the path. He based his
conclusion upon section 62 of the Law of Property Act 1925, which provides that
on a demise there shall pass appurtenant rights and easements. The judge also
found that it was an implied term of the tenancy that the council would repair
the path, that they were in breach of that implied term and that they were also
in breach of a term implied by statute. The statutory term is the term now
contained in section 11 of the Landlord and Tenant Act 1985, which re-enacts
section 32(1) of the Housing Act 1961. The judge made no finding on an
alternative claim by reference to section 4(4) of the Defective Premises Act
1972. In regard to that there is no respondent’s notice, but I shall comment
upon it later.
The judge’s
conclusion that a right of way over the path passed with the demise to the
plaintiff in 1967 is not now challenged. Nor is it challenged that the path is
out of repair. The issue on this appeal is, narrowly, as to whether the judge
was right in holding that the appellants were under an obligation to repair the
path. The appellants’ case is that they were not. They say that it was wrong to
imply a covenant for repair in principle and that there is no applicable
exception to that principle. They say, further, that there was no breach of the
statutory covenant because the circumstances in which that covenant can be
broken did not here arise.
I approach the
problem from the basis that the expressed terms of the tenancy, as derived from
the conditions of tenancy, were incomplete. They were incomplete because they
lacked any obligation upon the landlord at all. In order to give the
arrangement a necessary bilateral character, the landlord’s obligations have to
be
purpose of completing an agreement as of 1967. It is in regard to affairs as
they then stood that one must look. What has happened since that time, whether
it be the alienation of the path or the misfortune which has befallen the
plaintiff, is of no materiality.
As a matter of
general law, it is not to be implied that there is an obligation upon a
landlord to maintain retained land over which a right has been granted to the
tenant. That is not in dispute. To that general proposition there is an
exception, the germ of which can be found for present purposes in the decision
of this court in Miller v Hancock [1893] 2 QB 177, in particular
in the judgment of Lord Esher MR at p 179. I do not find it necessary to
rehearse what the Master of the Rolls there said, and find it sufficient to go
straight to the decision of the House of Lords in Liverpool City Council
v Irwin [1977] AC 239*. The headnote, so far as is material, states:
The tenants
of a council maisonette on the ninth and tenth floors of a 15 storey tower
block withheld their rent as a protest against conditions in the building and
in their maisonette. In an action by the council for possession the tenants
counterclaimed nominal damages, alleging, inter alia, that the council were
in breach of their duty to repair and maintain the common parts of the building
of which they retained control, including lifts, staircases, rubbish chutes and
passages, and were also, in relation to the demised maisonette, in breach of
their covenant for quiet enjoyment and of the implied covenant under section
32(1) of the Housing Act 1961. . .
*Editor’s
note: Also reported at (1976) 238 EG 879, [1976] 1 EGLR 53.
The terms of
the tenancy were in that case incomplete, as were the terms of the instant
tenancy. The question thus was, was there to be implied an obligation upon the
landlord to repair the lifts and the rubbish chute? Lord Wilberforce at p 254D said:
There can be
no doubt that there must be implied (i) an easement for the tenants and their
licensees to use the stairs, (ii) a right in the nature of an easement to use
the lifts, (iii) an easement to use rubbish chutes.
But are these
easements to be accompanied by any obligation upon the landlord, and what
obligation? There seem to be two
alternatives. The first, for which the council contends, is for an easement
coupled with no legal obligation, except such as may arise under the Occupiers’
Liability Act 1957 as regards the safety of those using the facilities, and
possibly such other liability as might exist under the ordinary law of tort.
The alternative is for easements coupled with some obligation on the part of
the landlords as regards the maintenance of the subject of them, so that they
are available for use.
My Lords, in
order to be able to choose between these, it is necessary to define what test
is to be applied, and I do not find this difficult. In my opinion such
obligation should be read into the contract as the nature of the contract
itself implicitly requires, no more, no less: a test, in other words, of
necessity. The relationship accepted by the corporation is that of landlord and
tenant: the tenant accepts obligations accordingly, in relation inter alia
to the stairs, the lifts and the chutes. All these are not just facilities, or
conveniences provided at discretion: they are essentials of the tenancy without
which life in the dwellings, as a tenant, is not possible.
Lord Salmon at
p 263A said:
I find it
difficult to think of any term which it could be more necessary to imply than
one without which the whole transaction would become futile, inefficacious and
absurd as it would do if in a 15 storey block of flats or maisonettes, such as
the present, the landlords were under no legal duty to take reasonable care to
keep the lifts in working order and the staircases lit.
The speeches
of their lordships were considered in this court in the Duke of Westminster
v Guild [1985] QB 688† , where at p 699C Slade LJ was at pains to point
out that Irwin was a case where ‘the essential means of access to the
unit are retained in the landlord’s occupation’.
+Editor’s
note: Also reported at (1983) 267 EG 762, [1983] 2 EGLR 37.
Mr Gordon-Saker,
in his argument for the appellants, emphasised the use of the word ‘necessary’,
the use of the word ‘essential’ and the use of the word ‘solely’, all of which
are to be found in the authorities to which I have referred or in others which
are referred to in those cases. Here, he said, there was a front door and in
that circumstance the rear access was not essential or necessary. Accordingly,
the implication of an obligation is not the implication of a necessary
obligation. It was at this point that the difference between the parties
occurred.
The argument
of Mr Matthews for the respondent was that the rear access was essential. He
pointed out that in the Irwin case there were, in addition to the lift,
stairs. That the stairs in Irwin presented difficulties to those on the
higher floors was only a difference in degree, said Mr Matthews, and not in
kind, from the difficulty of receiving coal and depositing household refuse
through the front door of the house.
In my
judgment, it is important, in resolving the dispute between the appellants and
the respondent, to bear in mind the layout of this estate and of the terraces
within it. The houses within the terrace were designed with front and rear
access. The rear access was plainly for the removal of refuse and the delivery
of coal and the like, uses to which this rear access was in fact put. The
houses could not be enjoyed or function in accord with their design without the
rear access. In that circumstance, I, for my part, find no difficulty in
concluding that the implication of an obligation to maintain the rear access is
a necessary one to fulfil the purpose of the demise. The demise is of a
dwelling-house, which is designed to function as such with the mechanism of
rear service. In my judgment, the demise of a house which is designed to
function in that way is not efficacious unless the rear surface is adequately
maintained.
I think that
the judge was right, in the particular circumstances of this design and layout,
to conclude as he did, that is to say that there was here by law to be implied
an obligation to maintain the path. I observe, but do not rely upon, first,
that the council did until some 14 or 15 years ago in fact maintain the path
and, second, that in a book published in 1982 by the appellants’ housing
department it is at least a matter of inference that ‘paths are maintained by
the Council’.
The other two
ways in which the matter had been put I can deal with shortly. The judge
himself had dealt very shortly with the breach of statutory covenant. After his
careful analysis of the major point, he added:
I am also of
the view that the path forms part of the exterior of the premises for the
purposes of section 11 of the Landlord and Tenant Act 1985, and therefore there
is a breach also of the statutory covenant.
Section 11,
which would have been section 32(1) of the 1961 Act at the time of this demise,
provides:
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.
The lease of
no 69 is a lease to which the section applies, but I for my part do not see how
the path running between nos 71 and 73 could be said to be the exterior of no
69. No doubt, as decisions such as Hopwood v Cannock Chase District
Council [1975] 1 WLR 373 show, it is a question of fact and degree as to
what is included in the exterior of the dwelling-house. However, in my
judgment, it would be an extravagant and unsupportable conclusion to say that
the path was as a matter of fact and degree part of the exterior of no 69.
The final way
in which the matter was put, although on it the judge expressed no conclusion,
is with reference to section 4(4) of the Defective Premises Act 1972, which
provides that:
Where premises
are let under a tenancy which expressly or impliedly gives the landlord the
right to enter the premises to carry out any description of maintenance or
repair of the premises, then, as from
— a certain
time —
the landlord
shall be treated for the purposes of subsections (1) to (3) above (but for no
other purpose) as if he were under an obligation to the tenant for that
description of maintenance or repair of the premises.
The difficulty
confronted by the plaintiff in relation to that subsection is that the premises
must mean the premises which are let and let the path was not. Accordingly, I
think there was nothing in the point under the statute, and in fairness to Mr
Matthews I must record that he canvassed it with a degree of diffidence.
However, for the reasons which I have given I would dismiss this appeal.
SIR GEORGE
WALLER agreed and did not add anything.
Appeal
dismissed with costs.
