Agricultural holding — Tenant’s repairing covenant — Agriculture (Maintenance, Repair and Insurance of Fixed Equipment) Regulations 1973 — Tenant’s covenant to repair included inter alia ‘electrical wiring’ — Whether distinction between repair and replacement
tenant of an agricultural holding issued an originating summons seeking the
court’s determination as to whether he was liable for the replacement of the
electrical wiring in the farmhouse — The work had been completed at a cost of
£1,908.75 — It had necessitated the replacement of the whole electrical
installation in the farmhouse — There was no fault on the part of the tenant,
the replacement was due simply to age — It was accepted that, although in
principle the Agriculture (Maintenance, Repair and Insurance of Fixed
Equipment) Regulations 1973 as amended applied to the tenancy, in fact the
terms of the relevant clauses in the tenancy agreement prevailed over the
‘model clauses’ in the 1973 regulations in regard to the particular matter in
issue in this case
Wiring’ was included in a clause in the agreement in which the tenant
covenanted to keep in good and substantial repair, order and condition the
farmhouse, cottages and farmbuildings together with fittings and fixtures and a
number of other specified items — In another clause the landlord covenanted to
execute all repairs and replacements to parts of the farmhouse, cottages and
farmbuildings, such as (with certain exclusions) main walls and exterior walls and
a number of other items bearing some resemblance to, but by no means identical
with, para 1 of the Schedule to the 1973 regulations mentioned above — The
tenant made a number of submissions with a view to displacing his prima facie
liability under the repairing covenant which mentioned ‘electrical wiring’
tenant submitted that ‘repair’ in the context of the agreement must be
interpreted as excluding replacement; that the total replacement of an
electrical installation could not be a repair; and that it was permissible to
look at the ‘model clauses’ in the regulations to see where they would put
liability for replacement
part of the general obligation to repair the farmhouse, cottages and
farmbuildings — In that context a long line of well-known authorities supported
the view that the replacement of the electrical installation in the farmhouse
fell within the tenant’s covenant to repair — The answer to the first question
in the summons, as to whether the cost of the electrical wiring fell on the
plaintiff tenant, must accordingly be answered in the affirmative and the other
questions did not arise
The following
case is referred to in this report.
Burden v Hannaford [1956] 1 QB 142; [1955] 3 WLR 606; [1955] 3 All
ER 401, CA
The plaintiff,
George Lawson Roper, tenant of the farm known as Lower House Farm, Tyberton,
Herefordshire, sought by this summons a declaration on the issue of his
liability for the cost of the electrical rewiring of the farmhouse. The
defendants to the summons were the landlords, Prudential Assurance Co Ltd.
Michael King
(instructed by Badhams) appeared on behalf of the
Assurance Co Ltd) represented the defendants.
Giving
judgment, MR EVANS-LOMBE QC said: The issue in this case is who must pay
the cost of rewiring the farmhouse comprised in the lease of Lower House Farm
to the plaintiff, Mr Roper, dated December 31 1963. The landlords, the
Prudential Assurance Co Ltd, are successors in title to the reversion on the
lease of the tenant, Mr Roper.
The work has
been completed at a total cost, inclusive of VAT, of £1,908.75. This is not a
large sum but it is said that this is a matter of some importance generally in
this field of the law. In the result, however, it seems to me that it is a
matter which turns on a simple construction of the terms of the lease in
question, the terms of which are somewhat idiosyncratic.
The farm in
question’s electrical installations may be described in the following way: they
are divided in two at a junction box from which a three-phase service of
electricity departs to the farmbuildings and the general area of the farm and
is used for the purpose of the farm operations. Also from the junction box
departs a one-phase service to the farmhouse. The work in question required the
entire installation at the farmhouse to be removed and replaced, leaving in
place only two sockets and the fixed central-heating pump and immersion heater.
It is not suggested that the work was necessary for any reasons caused by the
tenant, but simply because the installation was an old one and had to be
replaced in full.
It is accepted
that, notwithstanding their date, the Agriculture (Maintenance, Repair and
Insurance of Fixed Equipment) Regulations 1973, (SI 1973, no 1473) as amended
by regulations of 1988 in an immaterial respect, applied to this lease. Para 3
of those regulations provides as follows:
The
provisions set forth in the Schedule hereto relating to the maintenance, repair
and insurance of fixed equipment shall be deemed to be incorporated in every
contract of tenancy of an agricultural holding, whether made before or after
the commencement of the Agricultural Holdings Act 1948, except in so far as
they would impose on one of the parties to an agreement in writing a liability
which under the agreement is imposed on the other.
There then
follow provisions which do not concern this case.
It is
accepted, following on the case of Burden v Hannaford [1956] 1 QB
142, that the effect of that provision is that where there is a conflict
between the agreement and the regulation as to where liability lies, the
agreement prevails.
I now turn to
the provisions of the lease itself. The material provision is contained at
clause 4(iii)(a) and reads as follows, under the heading ‘Repairs’ and having
been preceded by the words ‘the tenant hereby agrees with the landlord as
follows’:
(a) To repair maintain and keep in good and
substantial repair order and condition throughout the tenancy using the best
and most suitable materials for the same (except in so far as the landlord is
responsible under clause 5(ii)(a) hereof) the farmhouse cottages and farm
buildings together with all fixtures and fittings including sash cords glass
locks and window fastening electrical wiring boilers ranges grates and fixed
inside ladders drains sewers including manholes and inspection chambers and
their covers and taps water supplies including all pipes above ground and
fittings taps tanks cisterns sanitary fittings drinking troughs and underground
pipes pumping equipment live and dead hedges gates field gates field walls
posts stiles bridges cattlegrids culverts ponds water courses ditches roads and
yards in or upon the holding or which during the tenancy may be erected or
provided thereon and to put and keep clean and in good working order all roof
valleys eaves-guttering and down-pipes gulleys and grease-traps septic tanks
cesspools including covers and tops filter beds and all sewerage disposal
apparatus and chimneys properly swept and also to use carefully so as to
protect from willful reckless or negligent damage all items for the repair of
which the landlord is responsible under clause 5(ii)(a) hereof and also to report
in writing immediately to the landlord any damage however caused to items for
repair of which the landlord is responsible.
That subclause
shows all the signs of a clause constructed from a number of re-draftings.
Clause
5(ii)(a), referred to in that subclause, provides, under the heading of
‘Agreements by the Landlord’, as follows:
The landlord
hereby agrees with the tenant as follows:
(ii)(a) To
execute all repairs and replacements to the undermentioned parts of the
farmhouse cottages and farm buildings . . .
The rest of
that clause should be read into this judgment*.
*Editor’s
note: The provision is reproduced at the end of this judgment.
It is accepted
by counsel for the plaintiff that if clause 4(iii)(a) stood alone it would
comprehend the work in question in this case, namely the wiring of the house so
as to place upon the tenant the obligation to pay for that rewiring. The
plaintiff, however, makes a number of submissions which I have produced under
five headings.
The first
submission is that in the context of this lease a special meaning must be given
to the word ‘repair’ in contradistinction to the word ‘replace’ and that this
is apparent from both the subclause in question and other provisions of the
lease. It is accepted that there is no special meaning to be applied to the
word ‘replace’ and it is also accepted that there is a special meaning, applied
by authority, to the word ‘repair’.
The second
submission is that clause 4(iii)(a) is to be construed so that each item
contained in it — and I have read those out and they are many and various — is
to be treated as a separate item capable, individually, of being repaired.
Accordingly, it is submitted, in construing this clause and applying it to the
facts of this case, the court should look at that which is being repaired — and
it is submitted the court should look simply at the words ‘electrical wiring’
on their own — and to say that because the electrical wiring was almost totally
replaced, following the authorities, that cannot be a repair but must be taken
to have been a replacement; accordingly the cost of the rewiring does not fall
within the provisions of the subclause.
The third
submission is, as I have just said, that on the facts of the case the work in
question involved replacement and not repair of the wiring for the reasons
which I have just summarised.
The fourth
submission is that, in consequence, the agreement contained no provisions
ascribing liability for replacement of the wiring as opposed to repairing it
and accordingly, there being no such provision, one is entitled to look at the
regulations to see where the regulations would place liability for the cost of
the rewiring.
The fifth
submission is that, looking at those regulations, the regulations place
responsibility for the cost of rewiring the farmhouse upon the landlord.
Reference is made, first, to para 1(3) of the Schedule to the regulations which
reads as follows:
Except as
provided by paragraph 8, to replace
— and this is
an obligation of the landlord —
anything
mentioned in paragraph 5(1) which has worn out or otherwise become incapable of
further repair unless the tenant is himself liable to replace it under
paragraph 6.
It is not
suggested that either para 6 or para 8 of these regulations impacts on the
facts of this case. Accordingly, if one looks at para 5(1) — and this is an
obligation upon the tenant — it reads:
To repair and
to keep and leave clean and in good tenantable repair, order and condition the
farmhouse, cottages and farm buildings together with all fixtures and fittings
boilers ranges and grates drains sewers gulleys grease-traps, manholes and
inspection chambers, electrical supply systems and fittings . . .
Then it goes on
to describe a number of other items. Those being matters for which the
regulations place the duty of repair upon the tenant by para 5(1), it is said
that by para (1)(3), where the item is incapable of repair and has worn out,
the obligation is then shifted to the landlord to replace it.
It is further
submitted that wiring of the farmhouse would be included in the words
‘electrical supply systems and fittings’ as one of those electrical supply
systems. It follows, so the submission goes, that the regulations place upon
the landlord the obligation to pay for work such as has taken place in this
case, namely the substantial replacement of that wiring.
In my
judgment, assuming the first and second submissions to be correct, it follows
that submissions three to five are also correct and Mr Brock only faintly
contended to the contrary. However, it is necessary to examine the first two
submissions in greater detail.
The first
submission was that a special meaning is to be given to the word ‘repair’ under
clause 4(iii)(a). The second submission was that, if such a special meaning can
be given to those words, the electrical wiring is a separate item in clause
4(iii)(a) which has to be repaired or replaced and, if it has to be replaced,
then the lease does not expressly deal with that circumstance and the
regulations step in and their provisions, as I have found, would place the
obligation to pay for that replacement upon the landlord.
I will deal
with the second submission first. It seems to me that clause 4(iii)(a) must be
read so that electrical wiring is treated as a fixture or fitting of the
farmhouse, cottages and farmbuildings which it is the duty of the tenant to
repair. Notwithstanding that the clause confusingly includes a number of items
such as ‘live and dead hedges’ and ‘ditches roads and yards’ — all items which
could not
clause or the earlier lines of the clause and the words immediately succeeding
the words ‘farmhouse cottages and farmbuildings’ together with all fixtures and
fittings including sash cords and various items down to electrical wiring, must
require to have notionally inserted a comma so that they are read as forming
part of the buildings and not forming part of the separate items the obligation
to repair which items the clause also disposed of. It seems to me that the
earliest place at which one could properly put that comma is in the [sixth]
line between the words ‘ladders’ and ‘drains’ but that the more likely place
where the comma should be placed is immediately before the words ‘drinking
troughs’ in the [eighth] line.
It follows
that, in my judgment, clause 4(iii) is to be construed so that electrical
wiring is to be treated as part of the farmhouse, cottages and farm-buildings
and the clause provides an obligation upon the tenant to repair the farmhouse,
cottages and buildings. It would follow from that that replacing the electrical
wiring would merely be, in my judgment, a part of the general obligation ‘to
repair maintain and keep in good and substantial repair’ those buildings and it
would follow that the word ‘repair’, the second word in clause 4(iii)(a), would
comprehend the work in question in this case. That is sufficient to decide the
issue between the parties and produces an answer in accordance with sentence
(a) of para 1 of the summons. However, I would also conclude that the
provisions of clause 4(iii)(a) and later provisions of the lease — and in
particular clause 4(iii)(b), (d) and (g) and clause 5(ii)(b) — do not require a
special meaning to be given to the word ‘repair’. When read in context and
notwithstanding that the word ‘replacement’ is used in those other subclauses
in at least apparent contradistinction to the word ‘repair’, those subclauses
do not require a conclusion that a special meaning, other than that ascribed by
a now long line of authorities, be given to the word ‘repair’ when viewed in
the context of this clause.
It follows
that I answer the question in para 1(a) of the summons in the affirmative, or
in accordance with sense (a), and the remainder of the summons therefore falls
away.
There must,
therefore, be judgment for the defendant.
Costs to be costs in the action.
Editor’s
note: The provision referred to on p 6 ante reads as follows:
(ii)(a) To
execute all repairs and replacements to the undermentioned parts of the
farmhouse cottages and farm buildings (except such farmhouse cottages and
buildings as are hereinafter specified in the Third Schedule hereto as
redundant to the proper requirements of the holding or as shall hereafter be
agreed between the parties hereto or decided by the award of an arbitrator
under Clause 6(vii) hereof to be redundant to the proper requirements of the
holding) namely: main walls and exterior walls excluding chimney stacks and
pots outside steps and staircases not built of timber walls of open and covered
yards and garden walls (whether constructed of brick stone timber or other
material but excluding the interior covering of all walls and ceilings save
where such interior covering is affected by structural defect in the wall)
roofs and roof timbers including eaves-guttering and downpipes (the Tenant
supplying straw and reed or thatch) and floors interior staircases floor joists
doors door frames windows window frames including skylights and their frames
(excepting sashcords glass locks and fastenings) but so that in the case of
repairs and replacements to floor boards interior staircases doors door frames
windows window frames including skylights and their frames outside timber built
ladders steps and staircases eaves-guttering and downpipes the Landlord shall
be entitled to recover one-half of the cost thereof from the Tenant.
