Landlord and tenant — Repairs — Landlords’ implied covenant under section 32 of Housing Act 1961 (now replaced by sections 11-16 of the Landlord and Tenant Act 1985) — Terraced house built in 1908, now somewhat run down, let on a weekly tenancy — Main issue was nature and extent of council landlords’ implied covenant to repair roof — History over a period of years of incidents of disrepair affecting roof which the landlords had, sooner or later, attended to — Tenant, plaintiff in the county court, alleged that the roof was seriously defective — Assistant recorder in county court found as a fact that at the material time the roof was capable of being repaired by periodical attention, such as renailing of slates, and had not yet reached the stage when the only practicable remedial action was the replacement of the roof as a whole — This finding was attacked by the tenant on appeal — Tenant submitted that, on the evidence, continued piecemeal repair had become a hopeless proposition — Sheldon v West Bromwich Corporation cited — Held that the evidence did not support the submission that piecemeal repair of the roof had become impracticable so that the time had come for complete replacement — The assistant recorder had correctly directed himself as to the relevant law and had made no error in his crucial finding of fact that the roof was capable of being repaired — Appeal dismissed
The following
case is referred to in this report.
Sheldon v West Bromwich Corporation (1973) 25 P&CR 360; 227 EG
325, CA
This was an
appeal by Thomas Murray, the plaintiff in an action before Mr Assistant
Recorder Brunning, at Birmingham County Court, against his landlords,
Birmingham City Council. The dispute concerned a house, 492 Warwick Road,
Greet, let by the defendants (the present respondents) to the appellant on a
weekly tenancy. The appellant challenged the assistant recorder’s decision that
the landlords’ implied covenant under section 32 of the Housing Act 1961 did
not require the respondents to replace the roof of the house.
Miss Rachel
Brand (instructed by Needham & James, of Birmingham) appeared on behalf of
the appellant; Paul Bleasdale (instructed by G W T Pitt, City Solicitor,
Birmingham) represented the respondents.
Giving
judgment, SLADE LJ said: This is an appeal by the plaintiff in an action, Mr
Murray, from part of a judgment of Mr Assistant Recorder Brunning delivered at
the trial of the action in the Birmingham County Court on October 10 1986. The
defendants to the action and respondents to this appeal are the Birmingham City
Council.
The dispute
arises out of a tenancy of a residential house known as 492 Warwick Road,
Greet, in the City of Birmingham, which was let by the defendant council to the
plaintiff from 1974 to 1982 on the basis of a weekly tenancy. It is common
ground that the implied covenants imported by section 32 of the Housing Act
1961 (now replaced by the Landlord and Tenant Act 1985) applied to that
tenancy. Section 32(1)(a) of that Act provides:
(1) In any lease of a dwelling-house, being a
lease to which this section applies, there shall be 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); . . .
Section 32(3)
provides:
(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.
The assistant
recorder made certain findings in regard to the age, character, prospective
life and locality of this dwelling-house to which I should briefly refer. He
said (at p 2 of the notes of his judgment):
The house . .
. was built in 1908. It is a terraced house with an extension at the rear,
which gives a kitchen and a small bedroom on the first floor. There is mention
of a bathroom at the rear of upstairs . . .
He said a
little later on:
It was
purchased some years ago by the council and was given a cosmetic facelift to
the interior in 1973, before the plaintiff moved in in 1974. Like many houses
of that age, it was showing signs of its years and in an ideal world it needs
extensive and expensive decoration to restore it to its former glory.
Then (at p 4)
he said:
It is (rather)
run down and undoubtedly in need of the type of improvement set out by Collins
Son & Harvey, in order to comply with section 90 of the 1974 Housing Act.
It is, and so I find, a house at the lowest end of the scale of quality of
accommodation, which this Authority . . . provides.
The
locality It is one of a number of properties of a
similar kind. Mr Herdman said, and I accept his evidence, ‘It has a run down
appearance in its present form and in time something more substantial will be
required.’
At the trial
the plaintiff made a large number of allegations of disrepair of the premises.
The assistant recorder found a number of them not proved. He did, however, find
proved allegations relating to the disrepair of a kitchen floor and handrail in
the property and awarded the plaintiff £150 damages in respect of those
breaches. However, he did not find proved allegations of failure to perform the
council’s statutory allegations in respect of the repair of the roof. It is in
regard to this roof that the issues on this appeal are centred. They concern
the extent and the nature of the council’s implied covenant to repair the roof
which, it is obvious on the evidence, has at all material times given some
trouble owing to defects in repair from time to time.
The plaintiff
in his re-reamended particulars of claim alleged a defective condition of the
roof constituting a public health nuisance and penetrating damp, the collapse
of ceilings on two occasions leading to flooding, ruining decoration and
destroying furniture, and all because there was no regular maintenance or
because from time to time work had not been done in time and requests to do so
had been ignored. The defence was in effect that repairs had been done where
possible and, where not done, this was because the plaintiff had obstructed the
doing of them, by preventing access to the premises. Reliance was also placed
in argument on the age and type of the property.
The assistant
recorder made a number of findings in relation to the history of the roof,
which are to be found at pp 9 et seq of the notes of his judgment. From
these findings it appears that there had been over the years a number of
incidents in relation to the roof. In 1976 there was storm damage and slates
from the roof were missing. A request for repair was made by the plaintiff, and
the assistant recorder was satisfied that the request was duly dealt with.
Later in that same year there was some damage to the roof. It required
attention and in early 1977 the ceiling of the middle room upstairs was
replaced. There was, however, no evidence as to the cause of the collapse of
the ceiling or indeed of the need to replace it. The assistant recorder further
found that in July 1980 there was present damage to some ceilings (though no
collapse) as a result of defective slates. Also work was necessary to the rear
part of the roof. It was carried out by December 22 1980. The reason why it was
not carried out before, as he found (at p 11), was for the greater part because
there was a breakdown in relations between the plaintiff and the council during
July to October 1980 and access to the premises during this time was prevented
by the plaintiff. In October 1981, as the assistant recorder found, there was
some further slippage of slates though, as he found, it was not extensive and
the defective part of the roof was duly repaired, though not for some months,
again because of considerable obstruction from the plaintiff. Finally, the
assistant recorder found that in late 1981 and early 1982 there was further
trouble with the roof. In January 1982 daylight was visible through a hole
which appeared in the bathroom ceiling. This trouble appears to have been dealt
with quickly by the council. The plaintiff alleged that on that occasion there
was some damage to some furniture in the rear bedroom. The assistant recorder
found that some damage to some old furniture in a back room of the house had
occurred, but it was not established to his satisfaction that it was as a
result of any breach of covenant on the part of the defendant council. He did
not find that there had been extensive flooding of the property as alleged in
the plaintiff’s pleading.
Thus, on the
facts, there had been a number of incidents of disrepair to the roof proved to
the assistant recorder’s satisfaction, all of which the council had sooner or
later dealt with. However, no damage to property inside the premises resulting
from such disrepair was proved, except to the extent which I have just
mentioned; so it would not appear that the damage to the roof can at any one
time have been very extensive.
In regard to
that evidence and those findings the assistant recorder directed himself on the
law as follows and made the crucial findings of fact which are to be found at
the end of this passage:
Under the Act,
the Local Authority, as the Landlord, is required to ensure it is kept in
repair. The point has arisen as to what ‘repair’ means. There is a point beyond
which repair becomes improvement and that is beyond the ambit of the covenant.
Where that point lies is a matter of fact and degree. In the case of Sheldon
v West Bromwich Council — the Court found that the water tank required
to be replaced in order to keep it in repair. Mr Clough argues that the duty
upon the Local Authority under the implied covenant, as far as the roof is concerned,
is that by 1977, and unmistakably by 1980, required it to reroof the property
at the rear. It was to take it off, renew and put the slates back.
I take the
view, bearing in mind the principles in Sheldon and those in Quick
v Taff-Ely Borough Council, what has to be looked at is the
circumstances which prevail, the nature of the matter to be kept in repair,
and, I think, whether repair can be carried out by the kind of activity carried
on in replacing slates from time to time or whether it was something more that
was required. There is a distinction between a tank and a roof; there comes a
point where the roof is in such a condition that nothing can be done except
replace it to conform with the requirements of the law. I do not think this
roof was at that stage. I find that at material times, the roof was capable of
being repaired and the covenant carried out by replacing the slates which had
slipped by renailing them.
The emphasis
is mine.
The covenant
did not require the Council to replace the roof as the Plaintiff contends.
Miss Brand,
who has appeared for the plaintiff in this court, did not, as I understood her
argument, suggest that the assistant recorder in this passage had misdirected
himself as to the relevant law. What she did submit, and submit strongly, was
that he erred in his finding of fact that the roof had not reached the stage
where the only thing that could be done with it, in order to conform with the
requirements of the implied repairing covenant, was to replace it. She
submitted that, on the findings of the assistant recorder, the repair of a
piecemeal nature such as the council had carried out had, at least by 1982,
become a hopeless proposition. The frequency with which the repairs were
necessary, coupled with certain findings that water was penetrating (to which I
will refer a little later in this judgment) in her submission showed that the
roof had reached a condition that nothing could be done with it except to
replace it. She submitted that the relevant test was really this: was the roof
in such a state that, if the council carried out one temporary repair, another
would be needed in such a short time that the only effective and sensible way
to deal with the matter was to effect its complete replacement? There had, she said, been such a catalogue of
water penetration over the preceding years that the facts really spoke for
themselves.
She relied
particularly on the decision of this court in Sheldon v West Bromwich
Corporation (1973) 25 P&CR 360. In that case the defendant council,
while investigating complaints by a tenant of a council house of conditions of
disrepair of water pipes, discovered that the water tank was discoloured. They
did nothing by way of repair or replacement, and later the tank burst, doing
damage. The tenant brought an action against the corporation, alleging breach
of their implied covenant under section 32(1) of the Act of 1961 to keep the
water supply installation in repair. The county court judge held that the
discovery of the tank had not, in the absence of ‘weeping’, indicated that
immediate repair was required, and he dismissed the tenant’s action. This court
held, allowing the appeal, that, in view of the time for which the
discoloration had existed in the old tank, the corporation should have repaired
it or replaced it as soon as they had notice of the state of discoloration in
the metal of the tank which they had seen at the time of their inspection.
However, it
does not seem to me that this case assists the plaintiff. The primary point at
issue in Sheldon, as I understand it, was the time at which the
obligation to repair first fell upon the landlords. The decision was that the
landlords were under an obligation to repair as soon as they had knowledge of
the state of discoloration of the tank in question (see p 364 per
Stephenson LJ). Stephenson LJ, however, then went on to say (on the same page):
. . . in all
the circumstances, it does not seem to me to be putting a strained construction
upon the statutory covenant or too heavy a burden on the landlords, on the
admitted facts of this case, to say that they were bound to take action
although there was no weeping and to put this tank in repair, either by
re-lining it or by replacing it — there was no evidence about what would be
required but I suspect that it would have required a new tank — once it had
reached the state in which, on the evidence, it was by May 28.
Accordingly,
this court in Sheldon did not purport to decide whether the only way of
complying with the covenant to repair in question was by replacing the tank.
That point was left open.
I accept that
in any case where a landlord, or a tenant for that matter, is under an
obligation to keep in repair an old roof, the stage may come where the only
practicable way of performing that covenant is to replace the roof altogether.
The difficulty, to my mind insuperable difficulty, with which the plaintiff
finds himself faced on this present appeal is that there is no evidence to
support the submission, ably put forward by Miss Brand, that that stage had
ever been reached on the present facts before the plaintiff left the premises
in 1982. We have been referred to no evidence put before the court below as to
the general condition of the roof, no evidence as to the condition of the
battens or joists, no evidence as to how the slates were fixed, no evidence to
suggest that a piecemeal repair of the roof in 1976 right up to 1982 was not a
perfectly practicable proposition.
I, for my
part, am quite unable to accept the submission that, merely because there had
been some half a dozen, no doubt troublesome, incidents of disrepair occurring
during those six years, it necessarily followed from that that the roof was
incapable of repair by any way other than replacement. At the end of the day,
it seemed to me that Miss Brand was more or less driven into the position of
submitting that this was a case of res ipsa loquitur. That I, for my
part, cannot accept. It seems to me that, if the plaintiff was to submit that
replacement was the only practicable method of repair, it was imperative that
more evidence should have been adduced to support the submission that the mere
evidence of incidents of disrepair which was adduced.
This deals
with the main issue that falls to be dealt with on this appeal. However, I
should refer to a particular point to which Miss Brand attached some reliance.
At p 10 of his judgment the learned assistant recorder said:
In the middle
room upstairs, there was not, at the material times, sign of water ingress.
I accept that
there was some damage to the ceiling in the rear bedroom, and the evidence
suggests it was apparent in late 1981 and April and May 1982. It did not extend
to the whole of the ceilings. It was to just a foot and half square of the
ceiling, and the plaster had fallen down. I am prepared to accept, and do, that
it had happened as a result of water ingress at some stage.
He went on to
say that he did not find that there had been extensive flooding of the property
as alleged in the particulars of claim. Then (at p 13 of his judgment) he said:
So far as the
roof is concerned, if water was in for longer periods than reasonable periods —
and I am satisfied that it was not in the middle and front bedrooms — and so
far as the back is concerned, there was minimal penetration, causing perhaps
one area of damage, what damage did he suffer?
Then (on p 14)
the assistant recorder referred to the evidence of a Mr Bagshaw that there was
no substantial loose plaster and there was no evidence of water penetration. He
said he found the evidence of Mr Murray, and Mr Murray’s daughter, unpersuasive
in the light of that evidence from Mr Bagshaw.
Miss Brand
submitted that there was an inconsistency in these passages, on the one hand,
between the assistant recorder’s apparent acceptance of the evidence of Mr
Bagshaw (when he said that there was no evidence of water penetration) and in
his findings of some penetration of water, made in the earlier passages of his
judgment to which I have referred. However, I think that there is a ready
explanation for this. The visits by Mr Bagshaw to the premises appear to have
taken place in July 1980 and July 1981, while the findings of water ingress
referred to in the two earlier passages in the judgment seem to me to have
related to a much later date.
In the end,
this seems to me to be the case, where the learned assistant recorder, on the
issues which are material to this appeal, rightly directed himself as to the
relevant law. Bearing in mind the guidelines contained in section 32(3) of the
1961 Act, I am not persuaded that, having so directed himself, he made any
error in his crucial finding of fact to which I have already referred, but
which is to be found at p 5 of his judgment, namely that at the material times
the roof was capable of being repaired and the covenant carried out by
replacing the slates which had slipped, by renailing them. For these reasons I
think he reached the right conclusion and I, for my part, would dismiss this
appeal.
Agreeing,
STOCKER LJ said: I add a few words of my own solely in deference to Miss
Brand’s argument.
The basis of
her appeal is clearly set out in the first few grounds of the notice of appeal.
They are in substance that the learned judge was wrong in his finding that all
that was required of the defendants in order to comply with section 32 of the
Housing Act 1961 was that the defendants should periodically renail the slates
as and when they became loose; and, second, the converse of that first
proposition, that the learned judge was wrong in failing to hold as a matter of
law that the section of the Act required the defendants to effect permanent
repair of the property. She supports her submissions that the learned judge was
wrong in those two converse respects by reference to 13 matters listed in the
schedule to the notice of appeal and numbered A to M.
In my view,
the learned judge correctly and succinctly summed up the relevant law and his
findings of fact relevant to that law in the passages at pp 4 to 5 of his
judgment which have been referred to by Slade LJ. In particular, I would refer
to the passages between B and C on p 5, where the learned judge poses the
question in this way:
. . . what
has to be looked at is the circumstances which prevail, the nature of the
matter to be kept in repair, and, I think, whether repair can be carried out by
the kind of activity carried on in replacing slates from time to time or
whether it was something more that was required.
It seems to me
that that summarises in a sentence the submission made by Miss Brand, but it is
the conclusion that she disputes. The learned judge continued:
. . . there
comes a point where the roof is in such a condition that nothing can be done
except replace it to conform with the requirements of the law.
Again, Miss
Brand would, I think, accept that as accurately summarising the correct
position that the judge had to consider when considering the application on
section 32 of the Act. But the judge continues, and this is a finding of fact:
I do not think
this roof was at that stage. I find that at material times, the roof was
capable of being repaired and the covenant carried out by replacing the slates
which had slipped by renailing them.
The covenant
did not require the council to replace the roof as the plaintiff contends.
It seems to me
that the fundamental difficulty which confronts Miss Brand and which has been
emphasised by Slade LJ is that the proposition that the only way to repair the
roof and thus comply with the covenant is by replacing the whole roof is not
established by reference to any of the matters A to M scheduled to her notice
of appeal. It seems to me that in order to establish even prima facie a
proposition that repairs carried out by replacing missing or defective slates
are inadequate and that the only effective and therefore proper course to
comply with the covenant is to replace the whole roof at least requires some
evidence as to the reason why the mere replacement of slates is inadequate. It
may be that evidence in an appropriate case would establish that there was
something fundamentally wrong with the construction of the roof, perhaps owing
to the passage of time or the effect of weather, such as the inadequacy of the
supporting joists or of the battens themselves upon which the slates were
attached, if that be the construction of this particular roof. There is no
evidence in this case as to what the construction of the roof was. Accordingly
it seems to me that the learned judge’s finding that the roof was capable of
being repaired and the covenant carried out by replacing the slates is not
capable of being challenged in this court without some demonstration to
establish, at least prima facie, that the mere replacement of the slates
was not an effective repair. In my view, and for the reasons my Lord has given,
there is no evidence which comes anywhere near providing such necessary
evidence.
Accordingly, I
agree with Slade LJ that the learned judge was entirely correct in his finding
and, accordingly, that this appeal should be dismissed.
The appeal
was dismissed. No order was made for costs save legal aid taxation of the
appellant’s costs.
