Landlord’s liability — Local authority — Tenant of terraced property using rear path for services — Easement acquired after 20-year user — Adjoining properties sold by local authority — No reservation in favour of tenant — Path falling into disrepair — Whether term to be implied into tenancy contract for duty to maintain — Whether passing of title in adjoining properties relevant to duty — Appeal by local authority dismissed
In 1967, the plaintiff and her husband became tenants of a house, one of a terrace of four, at 69 Forest Road, Piddington, owned by the defendant council. At the time there was access to the house at the front, side and rear and the plaintiff used the rear and side access paths regularly over the succeeding 20 years. Two of the houses were sold to the sitting tenants and no reservation was made of any right of way for the tenant of no 69 over the paths. The path at the rear deteriorated into a very poor condition and an expert’s report of its dangerous state was unchallenged. The council reconstructed the front path but not the rear and side paths, denying that they were under an obligation to repair. They also maintained that the ownership had, in any event, passed to the purchasers of the adjacent houses.
At first instance, the plaintiff sought a declaration that she had a right of way over the path and that the defendants were in breach of a duty to repair under the tenancy and the Defective Premises Act. The judge held that even if there was no express grant there was an implied grant of an easement (see Liverpool City Council v Irwin [1977] AC 239) and that it still existed. The defendants could not unilaterally remove or destroy the right. With regard to responsibility for repair, he held that, in looking at the tenancy agreement, while there was no express covenant to repair, it was clearly the responsibility of the council. Their failure to do so was a breach of the tenancy agreement and, further, as the path formed part of the exterior of the premises for the purpose of section 11 of the Landlord and Tenant Act 1985, the council were also in breach of the statutory covenant. The plaintiff was entitled to a mandatory injunction and to damages. The council appealed.
Held The appeal was dismissed.
1. The express terms of the tenancy agreement were not complete in that there was no obligation on the landlords at all; therefore their obligations had to be implied.
2. Under the general law there was no implied duty on a landlord to repair and keep clear retained land over which an easement had been granted: see Duke of Westminster v Guild [1985] QB 668. However, there were exceptions: in Liverpool City Council v Irwin (supra), the House of Lords held that there could be no doubt that where an easement for the tenants to use the common parts was to be implied, there was an implied obligation on the landlord to keep them in repair: see also Miller v Hancock [1893] 2 QB 177.
3. In the instant case, rear access was essential in view of the layout of the premises. The houses were designed to have both front and rear access (the latter being used for services such as rubbish clearance and coal deliveries). Therefore, an obligation to maintain was necessary.
4. The judge was also right that the path was part of the exterior of the premises, so that there was a breach of the statutory covenant under section 11 of the 1985 Act.
Julian Matthews (instructed by Smith Chamberlain, of Wellingborough) appeared for the plaintiff tenant; and Andrew Gordon-Saker (instructed by Shoosmiths & Harrison, of Northampton) appeared for the defendant council.
