Tenancy agreement — Respondent tenant awarded damages for breach of landlords’ covenant to keep facilities for refuse collection in repair and proper working order and to take reasonable steps to keep common parts tidy — Whether employment of contractors amounting to reasonable steps — Whether rubbish chute not in proper working order by reason of having become inadequate — Whether breach of covenant for quiet enjoyment — Appeal dismissed
The respondent was a secure tenant of a flat in a block in south-east London. Clause 18(4) of the tenancy agreement required the appellant local authority landlords to “take reasonable steps to keep the estate and common parts tidy”. Clause 22 provided that “facilities for the collection of refuse… shall be kept in repair and proper working order”.
The respondent’s flat was situated next to a cabin housing a large bin, into which ran a rubbish chute accessed by way of hoppers in the landing walls. Tenants were permitted to use the chute only during certain hours of the day, but this rule was largely ignored. The chute could not accommodate large bags, and the bin was often full. As a result, noise was caused by tenants attempting to force bags into the chute, and bags accumulated beside the bin. The respondent obtained a direction from an arbitration tribunal requiring the landlords to take steps to prevent the problem.
The problem persisted, and the respondent brought proceedings against the landlords for breach of the tenancy agreement and nuisance. The judge found that, in failing to take the steps required by the direction, the landlords had breached their duty under the tenancy agreement. He also held that the rubbish problem amounted to a nuisance, in which the landlords had acquiesced, and to a breach of the covenant of quiet enjoyment.
The landlords appealed, contending, inter alia, that: (i) they had taken reasonable steps, in compliance with clause 18(4) of the tenancy agreement, by instructing contractors and reminding the tenants of when they were permitted to use the chute; (ii) they had not adopted any rubbish-related nuisance, having taken active steps to stop it; and (iii) the covenant of quiet enjoyment did not place upon them a responsibility for the rubbish chute, which formed part of the structure of the block and had been in existence before the respondent took her tenancy.
Held: The appeal was dismissed.
1. The landlords’ duty to take reasonable steps to keep common parts clean and tidy had not been satisfied by employing contractors, in the absence of any adequate system for monitoring their performance. If the landlords were unaware that the contractors were not carrying out their duties, it was because they had failed to take steps to supervise them, which amounted to a failure to take reasonable steps for the purpose of clause 18(4).
2. Reminding tenants of the hours in which they were permitted to use the chute did not, of itself, amount to a reasonable step, since a large number of tenants could be expected to ignore the notice. The fact that the landlords provided low-cost public housing was relevant when interpreting clause 18(4). However, there was no room for compromise on basic standards of cleanliness, and that clause was not to be read as excusing the landlords, on the ground of inadequate funds, from taking steps that would otherwise be considered reasonable. Applying those principles, the judge had been entitled to find, on the facts, that the landlords had not taken reasonable steps.
3. The requirement to keep the refuse disposal facilities in repair and proper working order did not impose upon the landlords an obligation to install new facilities, or to modify the existing ones. The system had not been inadequate at the beginning of the tenancy, and there was no requirement to provide a system that was adequate in all circumstances as they existed from time to time. The landlords’ sole obligation under clause 22 was to keep the facilities they provided in proper repair and working order. That obligation was not breached where the facilities were working correctly and had no mechanical defect. The landlords could not have foreseen the events that had occurred since the start of the tenancy, and the chute could not be modified for a minor expenditure. The chute was still capable of disposing of rubbish. It was not a case of a facility having ceased to work: O’Connor v Old Etonian Housing Association Ltd [2002] EWCA Civ 150 [2002] 09 EG 221 (CS) distinguished.
4. There was sufficient material upon which the judge had been entitled to find that the landlords had failed to take reasonable steps to abate the nuisance caused by the rubbish.
5. The covenant for quiet enjoyment had not been breached. That covenant was not a warranty as to the fitness of the premises let. Design defects in the refuse disposal facilities did not entail any breach, and there could be no warranty implicit in the covenant as to the adequacy of such facilities: Mills v Southwark London Borough Council [1999] 3 EGLR 35 applied.
Ashley Underwood QC and Kerry Bretherton (instructed by the solicitor to Southwark London Borough Council) appeared for the appellants; Jan Luba QC and Bethan Harris (instructed by Evans & Co) appeared for the respondent.
Sally Dobson, barrister
