Landlord’s duty of care — Damage to claimants’ flat caused by defect in flat above — Repair of defect responsibility of tenant under lease — Whether landlord having right of entry such as to give rise to duty of care — Section 4 of Defective Premises Act 1972 — Section 146 of Law of Property Act 1925 — Appeal dismissed
The claimants held a leasehold interest in a flat of which the defendant was the landlord. The flat suffered from water damage to the ceilings, which had been caused by leakage from the flat above arising from defective sealant around the bath. The claimants complained to the defendant, but the problem continued.
The claimants brought proceedings for damages against the defendant, alleging a breach of the landlord’s duty of care under section 4(1) of the Defective Premises Act 1972. They accepted that, under the terms of the lease of the upstairs flat, it was the tenant, and not the landlord, who was responsible for the repair of the sealant. However, the claimants relied upon section 4(4), which placed a landlord under a duty where premises were let under a tenancy that expressly or impliedly gave the landlord the right to enter the premises, to carry out any description of maintenance or repair of the premises.
They argued that such a right arose from two clauses in the lease of the upstairs flat: (i) impliedly from clause 2(5), which required the tenant to pay all costs, charges and expenses incurred by the lessor in abating a nuisance at the flat; and (ii) expressly from clause 2(13), which required the tenant to permit the landlord to enter the premises for various purposes including laying down, maintaining, repairing and testing various utilities including water pipes “and for similar purposes”. The claimants also contended that the landlord could have served a notice of forfeiture under section 146 of the Law of Property Act 1925. This would probably have led to a court order permitting the landlord to enter and repair had the tenant failed to do so, such right being deemed to be a power under the lease by virtue of section 4(5) of the 1972 Act. The judge dismissed the claim on an application for summary judgment made by the defendant. The claimants appealed.
Held: The appeal was dismissed.
The proper construction of clause 2(5) was that it merely gave a right to recover the cost of abating a nuisance by entering the flat where such a right to enter would arise at common law; it did not give a right to enter where the common law did not so provide. It did not give the defendant any implied right to enter to replace the defective sealant. Although it was likely that the leakage constituted a nuisance, the court would make no finding as to whether the law on abatement would have permitted the defendant to enter to deal with it.
In the context of clause 2(13), the purpose of repairing bath sealant was not a similar purpose to that of work to gas and water pipes and electric wires and cables, which provided services to the flat. Clause 2(13) did not therefore assist the claimants.
The claimants were correct in saying that section 4(5) of the 1972 Act had the effect that a statutory right to enter to carry out repairs was to be treated as given by the tenancy. However, section 146 did not give a right of entry to effect repairs. It followed that the defendant had no right of entry to carry out repairs to the sealant, and that no duty was imposed upon him in respect of that defect.
Gerald Wadsworth appeared in person for the claimants; Timothy Frith (instructed by Merriman White) appeared for the defendant.
Sally Dobson, barrister
