Council tenants are reminded that a design defect many not amount to disrepair
Newcomers to the law of dilapidations are frequently surprised to learn that, notwithstanding the discomfort experienced by the covenantee, a straightforward covenant to “repair” does not oblige the covenantor to rectify defects in construction and design that do not cause physical damage to the parts of the building identified in the covenant. A much-cited authority for this restrictive approach is Quick v Taff-Ely Borough Council [1985] 2 EGLR 50 (the rule).
While one might have thought that the rule should be confined to the interpretation of express covenants, this does not appear to be so: see Lee v Leeds City Council [2002] 1 EGLR 103, as applied in Dunn and another v Bradford Metropolitan District Council [2002] 32 EG 88 (CS). The rule was there held to be applicable, not only to the covenant implied by section 11(1)(a) of the Landlord and Tenant Act 1985 but also (in cases of personal injury or damage to personal property) to a landlord’s obligation “for the maintenance or repair of the premises”, as referred to in section 4 of the Defective Premises Act 1972.
However, it was accepted in Lee that, in severe cases, the rule would not stand in the way of a social housing complaint based upon Article 8 of the Human Rights Convention: see
As regards pleading and evidence, the rule lies at the base of the decision of Lightman J in Southwark London Borough Council v McIntosh [2002] 1 EGLR 25, which comes as a reminder that a party suing on a repairing covenant in a lease (or elsewhere for that matter) has to plead and establish that the matters complained of arose out of damage to a part of the building falling within the repairing covenant. It is no use inviting the court to infer the necessary connection from the severity of the alleged consequences – in that case, a thoroughly damp flat.
It is noteworthy that the report prepared by the claimant tenant’s expert was found to be suffering from the same deficiencies as the particulars of claim.
The rule can, of course, be displaced by the presence of additional words in the covenant, notably to keep in “good condition” or “working order”: see
Council tenants are reminded that a design defect many not amount to disrepair
Newcomers to the law of dilapidations are frequently surprised to learn that, notwithstanding the discomfort experienced by the covenantee, a straightforward covenant to “repair” does not oblige the covenantor to rectify defects in construction and design that do not cause physical damage to the parts of the building identified in the covenant. A much-cited authority for this restrictive approach is Quick v Taff-Ely Borough Council [1985] 2 EGLR 50 (the rule).
While one might have thought that the rule should be confined to the interpretation of express covenants, this does not appear to be so: see Lee v Leeds City Council [2002] 1 EGLR 103, as applied in Dunn and another v Bradford Metropolitan District Council [2002] 32 EG 88 (CS). The rule was there held to be applicable, not only to the covenant implied by section 11(1)(a) of the Landlord and Tenant Act 1985 but also (in cases of personal injury or damage to personal property) to a landlord’s obligation “for the maintenance or repair of the premises”, as referred to in section 4 of the Defective Premises Act 1972.
However, it was accepted in Lee that, in severe cases, the rule would not stand in the way of a social housing complaint based upon Article 8 of the Human Rights Convention: see Break with Convention Estates Gazette 18 May 2002, p222.
As regards pleading and evidence, the rule lies at the base of the decision of Lightman J in Southwark London Borough Council v McIntosh [2002] 1 EGLR 25, which comes as a reminder that a party suing on a repairing covenant in a lease (or elsewhere for that matter) has to plead and establish that the matters complained of arose out of damage to a part of the building falling within the repairing covenant. It is no use inviting the court to infer the necessary connection from the severity of the alleged consequences – in that case, a thoroughly damp flat.
It is noteworthy that the report prepared by the claimant tenant’s expert was found to be suffering from the same deficiencies as the particulars of claim.
The rule can, of course, be displaced by the presence of additional words in the covenant, notably to keep in “good condition” or “working order”: see PP 2002/93.
