Landlord and tenant — Section 32 of Housing Act 1961 — Implied liability to keep in repair the structure and exterior of the dwelling-house — Appeal by local authority landlords from county court decision in favour of tenant — Case of importance on scope of liability — Tenant’s claims were under headings of condensation and water penetration, but appeal related only to the former, the landlords accepting the judge’s findings and decision on the latter — It was not disputed that, in respect of section 32 of the 1961 Act, a local authority was in the same position as a private landlord — The windows in the house in question were single-glazed with metal frames set in wooden window surrounds and concrete lintels above the windows with no facing of insulating material — There was a central-heating system based on warm-air ducts — There was evidence of very severe condensation due to the warm air of the rooms reaching the cold surfaces of the building — By modern standards the house in the winter, when the condensation was most severe, was virtually unsuitable for human habitation — Furniture and fabrics had become rotten and tenant and wife hardly used the living-room, where a three-piece suite had been ruined by damp and had to be jettisoned — However, evidence of physical damage to the structure was confined to rot in the wooden surrounds of some windows and the perishing of plaster in a bedroom — The county court judge held that the landlords were in breach of section 32 in respect of the condensation, awarded damages and made an order for the specific performance of the repairing covenant, requiring the landlords to replace the metal frame windows with warmer material, such as timber or PVC, and face the lintels with insulating material — The judge accepted a broad principle that anything defective or inherently inefficient for living in or incapable of providing the conditions of ordinary habitation was in disrepair — Held, after reviewing the authorities, that this principle went beyond the scope of section 32 of the 1961 Act, which was confined to disrepair in relation to physical condition — There must be some damage to structure which had to be made good — In some cases this could involve curing an inherent defect, thus improving the property to some extent, if that was the only way to make good the damage to the subject-matter of the implied covenant — But in the present case the repair work to the wooden surrounds and the replacement of plaster did not require in any realistic sense the replacement of the metal windows by wooden-framed windows or windows with PVC frames — Appeal allowed and case remitted to reassess the damages in the light of the judgments — As the tenant had been rehoused, there had in any case been no issue as to specific performance
This was an
appeal by the landlords, Taff-Ely Borough Council, from a decision by Judge
Francis at Pontypridd County Court in so
of the Housing Act 1961, in respect of damage caused by condensation affecting
his house at 8 Shakespear Rise, Rhydyfelin.
N T Hague QC
and Keith Bush (instructed by Phillips & Buck, of Cardiff) appeared on
behalf of the appellants; L J Blom-Cooper QC and J W Gaskell (instructed by
Spicketts, of Pontypridd) represented the respondent.
Giving the
first judgment at the invitation of Lawton LJ, DILLON LJ said: This appeal,
from a decision given by His Honour Judge Francis in the Pontypridd County
Court on November 2 1984 raises, at any rate if His Honour was right in his
decision, issues of very considerable importance to local authorities and to
all others who are concerned with the extent of liability under a repairing
covenant in a lease or tenancy agreement relating to a dwelling-house.
The
appellants, who were the defendants in the action, are the Taff-Ely Borough
Council. They own various housing estates, including one at Rhydyfelin, the
houses on which were constructed at the beginning of the 1970s in accordance
with the standards of those times. One of those houses, known as 8 Shakespear
Rise, Rhydyfelin, was let by the council in or about 1976 on a weekly tenancy
to the plaintiff in the action, respondent to this appeal, Mr Quick.
It is common
ground that, under section 32(1) of the Housing Act 1961, there is to be
implied in the tenancy agreement a covenant by the council as lessor to keep in
repair the structure and exterior of the dwelling-house. Moreover, it is
provided by subsection (3) of section 32 that, in determining the standard of
repair required by the lessor’s repairing covenant, regard is to be had to the
age, character and prospective life of the dwelling-house and the locality in
which it is situated.
By his
particulars of claim in the action the plaintiff claimed specific performance
of that repairing covenant and damages for past breaches. His claims fell under
two headings, condensation and water penetration. In this court we are
concerned only with the claim in respect of condensation. So far as the water
penetration is concerned, which came about because the frame at the head of the
front door was damaged and the front door sill was defective, and also because
there was a gap at sill level under the living-room window, the council accepts
the findings of the judge and does not dispute its liability.
To understand
the problem about condensation, it is necessary to say a bit more about the
house. It is a quite small terraced house, though, because of levels, the
terrace is stepped. On the ground floor the front door leads into a hall, with
stairs up to the first floor. To the left of the hall is the kitchen and at the
back of the hall and kitchen, across the full width of the house, is the
living-room. There is a wc to the right of the front door. Upstairs there are
three bedrooms and a bathroom. Most importantly, all the windows in the house
are single-glazed with metal frames set in wooden window surrounds, and the
lintels above the windows have no insulation material facing them; the lintels
are, in fact, of concrete, though thought at the trial to have been metal, but
nothing turns on any difference between metal and concrete. The house was
fitted with central heating by a warm-air ducted system.
The plaintiff
lived in the house with his wife and four daughters. It is his misfortune that
for the last five years he has been unemployed.
There is no
doubt at all that there has for years been very severe condensation in the
house, which has rendered the living conditions of the plaintiff and his family
appalling. The house was redecorated by the council shortly before the
plaintiff became tenant, but the effects of condensation soon became apparent.
There is uncontradicted evidence that the plaintiff complained again and again
to the council’s officials about the condition of the house, but all his
complaints were ignored and in the end he started this action.
The detailed
evidence about the condensation and its causes was given by the plaintiff’s
architect, Mr Pryce-Thomas of Pontypridd. He wrote two reports of January 24
1983 and December 22 1983 which were in evidence, and he also gave oral
evidence at the trial which confirmed his reports. The council called no
evidence and the judge found Mr Pryce-Thomas to be an impressive and
fair-minded expert witness whose evidence he accepted.
The evidence
shows that there was severe condensation on the walls, windows and metal
surfaces in all rooms of the house. Water had frequently to be wiped off the
walls; paper peeled off the walls and ceilings; woodwork rotted, particularly
inside and behind the fitted cupboards in the kitchen; fungus or mould growth
appeared in places; and particularly in the two back bedrooms there was a
persistent and an offensive smell of damp. Among the places where there was
mould growth were the wooden sills and surrounds of the windows in the
bedrooms, and some of these have become rotten. Additionally, in the bedrooms
condensation caused the nails used for fixing the ceiling plasterboard to sweat
and, though it is not mentioned in the judge’s judgment, there was some perishing
of the plaster due to excessive moisture.
The
condensation came about from the warm air of the environment in the rooms
reaching the cold surfaces of the building. The moisture of the condensation
was then absorbed by the atmosphere and transferred to bedding, clothes and
other fabrics, which became mildewed and rotten. There was evidence that
carpets and curtains had been ruined — but that in the living-room and hall
could well be attributable to the water penetration. There was evidence which
the judge accepted that a three-piece suite in the living-room was ruined by
damp so that it smelt and rotted and had to be thrown out. The evidence of the
plaintiff and his wife was that, because of the appearance and smell, they
hardly used the living-room, took visitors to the kitchen and sent the children
up to their parents’ bedroom to watch TV.
I would
conclude that, by modern standards, the house was in winter — when, of course,
the condensation was worst — virtually unfit for human habitation.
Mr
Pryce-Thomas said that the condensation was caused by:
(a) cold bridging from the window lintels
because there was no insulating material;
(b) sweating from the single-glazed metal
windows (and a wooden infill panel under the living-room window); and
(c) inadequate heating both in respect of the
system and by the occupier not maintaining a high enough thermostat setting.
He added that
the problem was aggravated by the plaintiff’s gas cooker and washing machine,
presumably because these, when in use, would be sources of heat.
He said in his
second report of December 1983 that, to ‘alleviate’ the problems the property
was experiencing, the existing metal windows should be replaced by windows with
frames of warm material, such as timber or UPVC window frames, and the lintels
over the windows should have insulation material facings. He added that, in his
opinion, a new radiator system to all rooms, designed to give the proper
standards to the various rooms, was necessary in place of the existing warm-air
system, which he regarded as ‘doubtful in being able to maintain normal
accepted heating standards’.
He made it
clear, however, in the course of his evidence that the house was built in
accordance with the regulations in force and standards accepted at the time it
was built. He said that, when these houses were built, no one realised the
problems of cold bridging nor the inadequacy of central-heating systems such as
that which was installed in the house. Condensation had become more and more of
a problem in recent years.
At the opening
of the trial the plaintiff’s counsel applied to amend the pleadings by claiming
that the central-heating system was defective, but the judge refused leave as
the application was made too late and would involve a new case which the council
had not come prepared to meet. Accepting the evidence of the plaintiff and his
wife and Mr Pryce-Thomas, however, he held that the council was in breach of
its repairing covenant in respect of the condensation as well as the damp
penetration. He therefore awarded the plaintiff a global sum for damages to
cover both heads and he made an order for specific performance of the repairing
covenant, which requires the council, so far as the condensation is concerned,
to replace the metal-frame windows and face the lintels as recommended by Mr
Pryce-Thomas.
In the event,
the order for specific performance is no longer required as the council has
rehoused the plaintiff and his family elsewhere since the trial. Mr Blom-Cooper
QC for the plaintiff has accordingly suggested that, on any view, the order for
specific performance should be discharged and be replaced by a declaration.
There remains, however, a lis between the parties because of the award of
damages. But the case is of an importance to the council which is far beyond
the award of damages because, as the judge surmised, his decision as to the
effect of the repairing covenant in relation to this house will affect very
many other houses on this and other council estates. We are told by counsel for
the council that the total cost in respect of the council’s other houses of
similarly replacing metal-framed windows with timber or UPVC framed
windows and of facing the lintels with insulation material has been estimated
as in the region of £9m.
The case turns
on the construction and effect of the repairing covenant in section 32 of the
1961 Act. Before I turn to that, however, I should mention one apparent oddity
in the legislation. There is in section 6 of the Housing Act 1957 a provision
that, in any contract for the letting of a house for human habitation at an
annual rent not exceeding £80 in the case of a house in London and £52 in the
case of a house elsewhere, there is to be implied a condition that the house is
at the commencement of the tenancy, and an undertaking that the house will be
kept by the landlord during the tenancy, fit for human habitation. That section
has legislative antecedents, albeit at lower rent levels, in the Housing Act
1936, and before that in the Housing Act 1925 and before that in an Act of
1909. It was amended in 1963 as a result of the creation of the Greater London
Council, but without altering the rent levels. It seems that the section as so
amended has remained on the statute book ever since, but — for whatever reason
— the rent levels have never been increased. Therefore, in view of inflation,
the section must now have remarkably little application. It is not available to
the plaintiff in the present case because his rent is too high, even though he
is an unemployed tenant of a small council house.
The learned
judge delivered a careful reserved judgment in which he reviewed many of the
more recent authorities on repairing covenants, starting with Pembery v Lamdin
[1940] 2 All ER 434. His ultimate reasoning seems to me to be on the following
lines viz: (1) Recent authorities such as Ravenseft Properties Ltd v Davstone
(Holdings) Ltd [1980] QB 12 and Elmcroft Developments Ltd v Tankersley-Sawyer
(1984) 270 EG 140, [1984] 1 EGLR 47 show that works of repair under a repairing
covenant, whether by a landlord or a tenant, may require the remedying of an
inherent defect in a building; (2) The authorities also show that it is a
question of degree whether works which remedy an inherent defect in a building
may not be so extensive as to amount to an improvement or renewal of the whole
which is beyond the concept of repair; (3) In the present case the replacement
of windows and the provision of insulation for the lintels does not amount to
such an improvement or renewal of the whole; (4) Therefore, the replacement of
the windows and provision of the insulation to alleviate an inherent defect is
a repair which the council is bound to carry out under the repairing covenant.
But, with
every respect to the learned judge, this reasoning begs the important question.
It assumes that any work to eradicate an inherent defect in a building must be
a work of repair, which the relevant party is bound to carry out if, as a
matter of degree, it does not amount to a renewal or improvement of the
building. In effect, it assumes the broad proposition urged on us by Mr
Blom-Cooper for the plaintiff that anything defective or inherently inefficient
for living in or ineffective to provide the conditions of ordinary habitation
is in disrepair. But that does not follow from the decisions in Ravenseft
and Elmcroft that works of repair may require the remedying of an
inherent defect.
Mr
Blom-Cooper’s proposition has very far-reaching implications indeed. The
covenant implied under section 32 is an ordinary repairing covenant. It does
not apply only to local authorities as landlords, and this court has held in Wainwright
v Leeds City Council (1984) 270 EG 1289, [1984] 1 EGLR 67 that the fact
that a landlord is a local authority which is discharging a social purpose in
providing housing for people who cannot afford it does not make the burden of
the covenant greater on that landlord than it would be on any other landlord.
The construction of the covenant must be the same whether it is implied as a
local authority’s covenant in a tenancy of a council house or is expressly
included as a tenant’s or landlord’s covenant in a private lease which is
outside section 32. A tenant under such a lease who had entered into such a
repairing covenant would, no doubt, realise, if he suffered from problems of
condensation in his house, that he could not compel the landlord to do anything
about those problems. But I apprehend that the tenant would be startled to be
told — as must follow from Judge Francis’ decision — that the landlord has the
right to compel him, the tenant, to put in new windows. If the reasoning is
valid, where is the process to stop? The
evidence of Mr Pryce-Thomas was that changing the windows and insulating the
lintels would ‘alleviate’ the problems, not that it would cure them. If there
was evidence that double-glazing would further alleviate the problems, would a
landlord, or tenant, under a repairing covenant be obliged to put in
double-glazing? Mr Pryce-Thomas said
that a radiator system of heating to all rooms in the place of the warm air
system was ‘necessary’; if the judge’s reasoning was correct, it would seem
that, if the point had been properly pleaded early enough, the plaintiff might
have compelled the council to put in a radiator system of heating.
In my judgment,
the key factor in the present case is that disrepair is related to the physical
condition of whatever has to be repaired and not to questions of lack of
amenity or inefficiency. I find helpful the observations of Atkin LJ in Anstruther-Gough-Calthorpe
v McOscar [1924] 1 KB 716 at 734 that repair ‘connotes the idea of
making good damage so as to leave the subject so far as possible as though it
had not been damaged’. Where decorative repair is in question one must look for
damage to the decorations, but where, as here, the obligation is merely to keep
the structure and exterior of the house in repair, the covenant will come into
operation only where there has been damage to the structure and exterior which
requires to be made good.
If there is
such damage caused by an unsuspected inherent defect, then it may be necessary
to cure the defect, and thus to some extent improve without wholly renewing the
property as the only practicable way of making good the damage to the
subject-matter of the repairing covenant. That, as I read the case, was the
basis of the decision in Ravenseft. There there was an inherent defect
when the building, a relatively new one, was built in that no expansion joints
had been included because it had not been realised that the different
coefficients of expansion of the stone of the cladding and the concrete of the
structure made it necessary to include such joints. There was, however, also
physical damage to the subject-matter of the covenant in that, because of the
differing coefficients of expansion, the stones of the cladding had become
bowed, detached from the structure, loose and in danger of falling. Forbes J in
a very valuable judgment rejected the argument that no liability arose under a
repairing covenant if it could be shown that the disrepair was due to an
inherent defect in the building. He allowed in the damages under the repairing
covenant the cost of putting in expansion joints, and in that respect improving
the building, because, as he put it, on the evidence ‘in no realistic sense . .
. could it be said that there was any other possible way of reinstating this
cladding than by providing the expansion joints which were in fact provided’.
The Elmcroft
case was very similar. There was physical damage from rising damp in the walls
of a flat in a fashionable area of London. That was due to an inherent defect
in that when the flat had been built in late-Victorian times as a high-class
residential flat, the slate damp-proof course had been put in too low and was
therefore ineffective. The remedial work necessary to eradicate the rising damp
was, on the evidence, the installation of a horizontal damp-proof course by
silicone injection and formation of vertical barriers by silicone injection.
This was held to be within the landlord’s repairing covenant. It was necessary
in order to repair the walls and, although it involved improvement over the
previous ineffective slate damp-proof course, it was held that, as a matter of
degree, having regard to the nature and locality of the property, this did not
involve giving the tenant a different thing from that which was demised. The
decision of this court in Smedley v Chumley & Hawke Ltd
(1981) 44 P&CR 50* is to the same effect; the damage to a recently
constructed restaurant built on a concrete raft on piles over a river could be
cured only by putting in further piles so that the structure of the walls and
roof of the restaurant were stable and safe upon foundations made structurally
stable.
*Editor’s
note: Also reported at (1981) 261 EG 775, [1982] 1 EGLR 47.
The only other
of the many cases cited to us which I would mention is Pembery v Lamdin
[1940] 2 All ER 434. There the property demised was a ground-floor shop and
basement, built 100 years or more before the demise. The landlord was liable to
repair the external part of the premises and there was physical damage to the
walls of the basement in that they were permeated with damp because there had
never been any damp-proof course. The works required by the tenant to
waterproof the basement were very extensive, involving cleaning and asphalting
the existing walls, building internal brick walls and laying a concrete floor.
This would have involved improvement to such an extent as to give the tenant a
different thing from what had been demised and it was therefore outside the
repairing covenant. But Slesser LJ appears to recognise at p 438 E-F that
repointing of existing basement walls where the mortar had partly perished
would have been within the repairing covenant.
In the present
case the liability of the council was to keep the structure and exterior of the
house in repair — not the decorations.
clothing and other fabrics, evidence of damage to the subject-matter of the
covenant, the structure and exterior of the house, is far to seek. Though the
condensation comes about from the effect of the warm atmosphere in the rooms on
the cold surfaces of the walls and windows, there is no evidence at all of
physical damage to the walls — as opposed to the decorations — or the windows.
There is
indeed evidence of physical damage in the way of rot in parts of the wooden
surrounds of some of the windows but (a) that can be sufficiently cured by
replacing the defective lengths of wood and (b) it was palpably not the rot in
the wooden surrounds which caused damage to the bedding, clothes and fabrics in
the house, and the rot in the wooden surrounds cannot have contributed very much
to the general inconvenience of living in the house for which the judge awarded
general damages.
There was
also, as I have mentioned, evidence of nails sweating in bedroom ceilings, and
of some plaster perishing in a bedroom. The judge mentions the sweating nails
in his judgment, but I have not found any mention of the perishing of plaster.
The judge did not ask himself — since on the overall view he took of the case
it was not necessary–whether these two elements of structural disrepair (since
the council accepts for the purposes of this case in this court that the
plaster was part of the structure of the house) were of themselves enough to
require the replacement of the windows etc. They seem, however, to have been
very minor elements indeed in the context of the case which the plaintiff was
putting forward, and, in my judgment, they do not warrant an order for a new
trial or a remission to the judge for further findings, save in respect of the
reassessment of damages as mentioned below.
As I have
already mentioned, Mr Pryce-Thomas used the word ‘alleviate’ to describe the
effect which the replacement of the windows and the facing of the lintels with
insulation materials would have on the problems of condensation. At one point
in his judgment the judge refers to ‘the work propounded by Mr Pryce-Thomas as
necessary to cure the condensation problems’. This must be a slip, because
alleviation prima facie falls short of cure. However, as the extent of
alleviation was not probed in the court below, it is inappropriate to make any
further comment.
It does appear
from Mr Pryce-Thomas’ report that the problems of condensation would have also
been alleviated if the plaintiff had kept the central heating on more
continuously and at higher temperatures. In that event the walls and windows
would have remained warm or warmer and condensation would have been reduced. As
to this, the judge appreciated that some people for financial reasons have to
be sparing in their use of central heating, and he found that there was no evidence
at all to suggest that the life-style of the plaintiff and his family was
likely to give rise to condensation problems because it was outside the
spectrum of life-styles which a local authority could reasonably expect its
tenants to follow. In my judgment, that finding answers the argument that it
would be anomalous or unreasonable that this house should be held to be in
disrepair because the plaintiff cannot afford to keep the heating on at a
high-enough temperature, whereas an identical adjoining house would not be in
disrepair because the tenant had a good job and so spent more on his heating.
If there is disrepair which the council is by its implied covenant bound to
make good, then it is no answer for the council to say that, if the tenant could
have afforded to spend more on his central heating, there would have been no
disrepair, or less disrepair.
But the crux
of the matter is whether there has been disrepair in relation to the structure
and exterior of the building and, for the reasons I have endeavoured to
explain, in my judgment there has not, quoad the case put forward by the
plaintiff on condensation as opposed to the case on water penetration.
I would
accordingly allow this appeal. I would consequently set aside the order of the
learned judge, save in respect of the award of costs and legal aid taxation,
and I would remit the case to the learned judge to reassess the damages (which,
as I have mentioned, he assessed globally to cover both heads of claim) in the
light of the judgments of this court.
Agreeing,
LAWTON LJ said: It is with regret that I have decided that this appeal on the
points taken in this court by the defendant council must be allowed. The case
will have to be remitted to the county court for His Honour Judge Francis to
reassess the damages, if they cannot be agreed, as I hope they will be.
When I read
the papers in this case I was surprised to find that the plaintiff had not
based his claim on an allegation that at all material times the house let to
him by the defendant council had not been fit for human habitation. The
uncontradicted evidence, accepted by the trial judge, showed that furniture,
furnishings and clothes had rotted because of damp and the sitting-room could
not be used because of the smell of damp. I was even more surprised to be told
by counsel that the provisions of the Housing Act 1957, as amended by the
London Government Act 1963, did not apply to the plaintiff’s house. By section
6 of the 1957 Act, on the letting of a house at a specified low rent, a covenant
is implied that the landlord will keep it in a condition fit for human
habitation. For most of the time the plaintiff was in occupation of the house
let to him by the defendant council it is arguable that it was not fit for
human habitation. Unfortunately, the figures which were fixed as being low
rents have not been changed for over 20 years. In 1965 a low rent outside
central Greater London was one not exceeding £52 per annum. The present-day
equivalent of that figure, when inflation is taken into account, is over £312.
The plaintiff’s rent of £6.75 per week in 1976 was well above the statutory
figure. This case would seem to indicate that a new definition of a low rent is
needed. It has to be approached in the same way as the letting of any house which
is outside the provisions of section 6 of the Housing Act 1957, as amended, in
respect of which there is a covenant by the landlord ‘to keep in repair the
structure or exterior . . .’. The standard of repair may depend on whether the
house is in a South Wales valley or in Grosvenor Square; but, wherever it is,
the landlord need not do anything until there exists a condition which calls
for repair. As a matter of the ordinary usage of English, that which requires
repair is in a condition worse than it was at some earlier time. This usage of
English is, in my judgment, the explanation for the many decisions on the
extent of a landlord or tenant’s obligation under covenants to keep houses in
repair. Broadly stated, they come to this: a tenant must take the house as he
finds it; neither a landlord nor a tenant is bound to provide the other with a
better house than there was to start with; but, because almost all repair work
requires some degree of renewal, problems of degree arise as to whether after
the repair there is a house which is different from that which was let. I do
not find it necessary to review the cases which were decided before 1980.
During the
last 20 years the way in which houses and other buildings have been constructed
has produced new problems. Traditional materials may not have been used: new
methods of construction may have been employed. The materials may fail; the
methods may prove to have been unsatisfactory, causing damage; the building may
have got into a worse condition than it was when the lease was granted. In such
cases there is need for repair. The landlord or the tenant may be under an
obligation to put right what has gone wrong; and, in putting right what has
gone wrong, it may be necessary to abandon the use of the defective materials
or to use a different and better method of construction.
When something
like this happens, does the landlord or the tenant have a better building? In one sense he does: he gets a building
without the design defect which caused the damage; but the repair could only
have been done in a sensible way by getting rid of the design defect. Forbes J
had to consider this problem in Ravenseft Properties Ltd v Davstone (Holdings)
Ltd [1980] QB 12. In that case the repair work could not be done
satisfactorily without getting rid of a design fault. He adjudged that doing so
did not amount to such a change in the character of the building as to take the
works out of the ambit of the covenant to repair: see pp 21G – 22A. This court
in Smedley v Chumley & Hawke Ltd (1981) 44 P&CR 50
approached the problem in the same way. The Ravenseft case does not seem
to have been cited. It was, however, cited to this court in Elmcroft
Developments Ltd v Tankersley-Sawyer (1984) 270 EG 140, [1984] 1
EGLR 47 and clearly approved. It was not cited to this court in Wainwright
v Leeds City Council (1984) 270 EG 1289. In the latter case counsel for
the tenant seems to have based his unsuccessful submissions on social rather
than legal grounds. I am satisfied that the approach of Forbes J in the Ravenseft
case was right.
It follows
that, on the evidence in this case, the trial judge should first have
identified the parts of the exterior and structure of the house which were out
of repair and then have gone on to decide whether, in order to remedy the
defects, it was reasonably necessary to replace the concrete lintels over the
windows, which caused ‘cold bridging’, and the single-glazed metal windows,
both of which were among the causes, probably the major causes, of excessive
condensation in the house. An argument along the following lines was put before
this court: the evidence established that some of the wooden frames into which
the single-glazed metal windows were inserted had rotted and that nearby
plaster had crumbled away. Mr Hague, for the purposes of this case, accepted
that the plaster was part of the structure. Repairing the wooden frames and the
plaster could be done sensibly only if the single-glazed metal windows and the
lintels were replaced by ones of better design. The defendant council should
have appreciated that this was so. A submission of this kind would have
required the trial judge to make the findings of the same kind as Forbes J
made. He made none, almost certainly because he was not asked to do so. He
referred to Forbes J’s judgment in these terms:
He held that
want of repair due to an inherent defect could fall within the ambit of a
repairing covenant and that it was a question of degree whether work could
properly be described as repair or whether it so changed the character of the
building as to involve giving back to the landlord a different building from
that demised.
He seems to
have overlooked the important fact in the Ravenseft case that the
cladding around the building was in disrepair and could be repaired in a
sensible way only if the design fault were put right. In my judgment, there
must be disrepair before any question arises as to whether it would be
reasonable to remedy a design fault when doing the repair. In this case, as the
trial judge found, there was no evidence that the single-glazed metal windows
were in any different state at the date of the trial from what they had been in
when the plaintiff first became a tenant. The same could have been said of the
lintels. The judge misdirected himself in finding that these windows required
repair.
I agree with
the order suggested by Dillon LJ.
Also agreeing,
NEILL LJ said: I, too, agree that this appeal should be allowed for the reasons
given by my lords.
The
plaintiff’s claim is based on the statutory covenant implied in his lease by
virtue of section 32(1) of the Housing Act 1961. That subsection provides inter
alia that in any lease of a dwelling-house for a term of less than seven
years there shall be implied a covenant by the lessor ‘to keep in repair the
structure and exterior of the dwelling-house (including drains, gutters and
external pipes)’.
It is,
therefore, necessary to inquire whether the council were in breach of that
implied covenant and, if so, in what respects. On the evidence it seems clear
that the council were in breach of the covenant, but only in respect of:
(a) some parts of the wooden surrounds of some
of the windows; and
(b) some plaster damage.
There was no
evidence, however, to indicate any damage to or want of repair in the metal
windows themselves or the concrete lintels or, indeed, any other part of the
‘structure and exterior’.
The
authorities to which we were referred established that, in some cases, the only
realistic way of effecting the relevant repairs is to carry out some additional
work which will go somewhat further than putting the property back into its
former condition and will indeed result in some improvement. But this case does
not fall into that category. The repair work consisting of the replacement of
the defective parts of the wooden surrounds and the replacement of the areas of
plaster did not require, as a realistic way of effecting those repairs, the
replacement of the metal windows by wooden-framed windows or windows with PVC
frames.
I have reached
this conclusion with regret, because the evidence as to the conditions in which
Mr Quick and his family had to live until they were recently rehoused is a
source of anxiety. But I see no escape from the conclusion which this court has
reached.
I would concur
in the order proposed by Dillon LJ.
The appeal
was allowed. No order was made as to costs save for legal aid taxation of the
respondent’s costs. Leave to appeal to the House of Lords was refused.
