Landlord and tenant –– Covenants –– Right of entry –– Landlord entitled to enter to carry out works –– Whether landlord entitled to carry out improvements –– Whether entry limited to remedying breaches of landlord or tenant covenants
The appellant landlord was the owner of a flat let under a statutory tenancy to the respondent tenant. The tenancy agreement contained covenants on the part of the tenant to repair and maintain the interior, and to allow the landlord entry “to execute any repairs or work to the inside or outside of the flat”. The landlord served notice that it wished to enter the flat in order to carry out works, to recover possession for a temporary period for that purpose, and, if those works constituted improvements, to seek an increase in rent under the Rent Act 1977. The county court judge decided that the right of entry was restricted to a right to enter to remedy repairs or other works that the tenant was obliged, but had failed, to do, or that the landlord wished to do. The landlord appealed.
Held: The appeal was dismissed. The landlord was not entitled to enter to carry out improvements. The entry clause had to be construed consistently with the covenant for quiet enjoyment; the tenant was not obliged to submit to works of improvement or be dispossessed while the work was carried out. It was not an express part of the bargain contained in the tenancy agreement that the landlord could make any improvements that it chose. There had to be some qualification on the apparently wide words of the entry clause. Other parts of the tenancy agreement, concerning alterations to the building, were also relevant in restricting the effect of the wide wording of the entry clause.
The following cases are referred to in this report.
Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191; [1984] 3 WLR 592; [1984] 3 All ER 229; [1984] 2 Lloyd’s Rep 235, HL
Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1); Investors Compensation Scheme Ltd v Hopkin & Sons; Alford v West Bromwich Building Society; Armitage v West Bromwich Building Society [1998] 1 WLR 896; [1998] 1 All ER 98, HL
Warren v Keen [1954] 1 QB 15; [1953] 3 WLR 702; [1953] 2 All ER 1118, CA
This was an appeal by the landlord, Yeoman’s Row Management Ltd, from a decision of Pumfrey J, dismissing its appeal from a decision of Judge Cowell, sitting in West London County Court, in proceedings against the tenant, Mrs Karen Bodentien-Meyrick.
The appellant was represented by its director, Mrs Zipporah Mainwaring; Gillian Carrington (instructed by Meyrick Mills) represented the respondent.
PETER GIBSON LJ said:
1. Longmore LJ will give the first judgment.
Giving the first judgment, LONGMORE LJ said:
2. Yeoman’s Row, London SW3, runs south from Old Brompton Road, not far from Harrods. In 1954, the trustees of Henry Smith’s Charity constructed a new building to replace nine Victorian houses that had fallen into disrepair. The replacement building was modest in character, and is now said to be notably poor in the provision of heating and in heat and sound insulation; in 1954, building restrictions were in force and building materials limited. The local authority rehoused the
3. The scheme of the tenancy agreement made on 26 September 1958 is that the tenant’s covenants are set out in clause 2. The relevant repairing covenants of the tenant are subclauses (3) and (4). They provide as follows:
(3) DURING the said term to keep the interior of the said flat and all the fixtures and fittings therein including sash lines window fastenings door furniture and fastenings and all glass in the windows and doors thereof and water taps and water waste preventers ball cocks and pipes gas pipes and electric wires in good and tenantable repair and condition.
(4) DURING the said term to keep all the windows cisterns flues and chimneys of the said flat properly cleaned and in particular to clean all the windows once at least in every month and all cisterns and chimneys twice at least in every year.
4. Apart from these covenants, there is no wider liability to repair, and Mrs Mainwaring drew our attention to the dicta of Denning LJ in Warren v Keen [1954] 1 QB 15, at p20, in relation to a weekly tenancy with no covenant to repair:
The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently.
5. There is no decorating covenant on the part of the tenant, and the tenant also covenants, at subclause (6):
NOT to make any alteration in the said flat or remove any partitions doors or cupboards or other fixtures therein nor cut or injure any of the walls floors or timbers thereof.
6. There are then further covenants, two of which are at the heart of the case, in subclauses (19) and (20). They provide:
(19) TO permit the Landlords and their Agent and all persons authorised by them respectively at all reasonable times to view the state and condition of the said flat and within one month after the Landlords or their Agent shall have given to the Tenant or left on the said flat notice in writing of any wants or reparation cleansing and amendment required to the interior of the said flat for which the Tenant is responsible hereunder well and substantially repair cleanse and amend the same accordingly.
(20) TO permit the Landlords and their Agent and all persons authorised by them at all reasonable times to take inventories of the fixtures in the said flat and to execute any repairs or work to the inside or outside of the said flat and also for the purpose of executing any repairs or work to or in connection with any flats above or below or adjoining the said flat to enter upon the said flat or any part thereof with or without any necessary tools or appliances.
7. Last, at subclause (25), there is the obligation to yield up the flat and the landlord’s fixtures and fittings “clean and in good tenantable repair” at the end of the tenancy.
8. Clause 3 contains the landlord’s covenants, including, at subclause (1), that the tenant “shall quietly enjoy the said flat during the said term without the interruption by the Landlords”.
9. Clause 4 then contains various provisions, including proviso 4:
THE Tenant shall not be entitled to make any objection to or be entitled to any compensation from the Landlords by reason of any noise or disturbance occasioned by the making of any structural or other alteration to the building of which the said flat forms part or by the making of any additions thereto or for any interference by the Landlords to access of light and air to the said flat or any part thereof and that the Landlords shall not be liable to the Tenant for any loss damage or inconvenience which may be caused to the Tenant by reason of any defects in the building or the failure at any time or times during the said tenancy of the water gas or electricity supply to the said flat or by reason of the bursting stoppage leaking defect or damage of any main service or other pipes or electric wires or cables or by reason of the breakdown…
10. The landlord has now served notice that it wishes to do work on the flat in 16 separate respects, and it claims that it is entitled to possession of the flat for that purpose, accommodating the tenant elsewhere for the duration of such works. For this purpose, it relies upon clause 2(20) with its provision, which I have read, that the tenant is to “permit the Landlords to execute any repairs or work to the inside or outside of the said flat”.
11. Mrs Mainwaring submits that these are wide words, which entitle the landlord to do any work it wishes, and, indeed, if such work constitutes an improvement, to seek an increase in the rent accordingly. She does accept that there must be some restriction on the apparent width of the words, to the effect that the landlord should have a bona fide belief that such work must be beneficial to the flat and the building as a whole, and also must not derogate from the landlord’s grant. In order to demonstrate such bona fides, she put before the circuit judge a surveyor’s report indicating that the proposal was, in fact, for the benefit of the flat and the building.
12. Judge Peter Cowell, before whom the matter came in West London County Court, decided that the word “repairs” in subclause (20) was the governing word. He held that such repairs included repairs that the tenant was obliged to do, but had failed to do, and also repairs that the landlord wished to do. He held that the word “work” was additional to “repair”, and that one reason for including the word “work” was that there might be matters that the tenant had failed to do, or the landlord wished to do, that could not be construed as repairs. He instanced the tenant’s obligation to sweep the chimney, which on no view could be regarded as “repairs”. Another example was tying in a wall that had a tendency to lean outward. Other work that might be included was work required to be done by a local authority. He concluded this part of his judgment by saying this:
It seems to me that the words “or work” are apt to include matters which the landlord may be required by law to do or works that he may wish to do which might not ordinarily be termed “repairs” in order to maintain the integrity of the building, but are akin to works of repair.
It seems to me that for the claimant to enter simply to do improvements, which are in no way akin to a repair and not required to be done in any way, really does infringe the covenant for quiet enjoyment…
13. Pumfrey J has upheld the decision of Judge Cowell, but Mummery LJ gave permission to appeal on the basis, as he put it, that it was a point of importance to know how such a provision as clause 2(20), in its context in the tenancy agreement, should be construed.
14. Mrs Mainwaring, in a forceful argument, has attacked the conclusions reached by Judge Cowell and Pumfrey J. She has submitted that the words in clause 2(20) are, on the face of them, clear and general words. Second, she has submitted that the second phrase of subclause (20) must have a wide interpretation. She emphasises the words “for the purpose of executing any repairs or work to or in connection with any flats above or below or adjoining the said flat”, and she submits that the words in that phrase must equally, and even more clearly, be given a
15. I have come to the conclusion, despite Mrs Mainwaring’s able submissions on the point, that I agree with the judge. I say that for four main reasons:
(1) As Judge Cowell pointed out, subclause (20) of clause 2 must be construed with the covenant of quiet enjoyment granted in clause 3(1). It would be an invasion of that covenant of quiet enjoyment of the flat if the tenant could be required to submit to works of improvement being done, and, still more, if she can, or has to, be dispossessed while that work is done. There is no suggestion that there should be any particular restriction upon the length of time such works would take.
(2) It is not an express part of the bargain contained in the tenancy agreement that the landlord can do any improvement that it chooses. If it was the intention that the landlord should be able to deprive the tenants of quiet enjoyment to that extent, one would expect a much clearer indication to that effect in the lease.
(3) Mrs Mainwaring accepts, as she has to, that there must be some qualification read into the width of the words. The only question, therefore, is the extent of the qualification that has to be read in. For my part, it seems to me that the necessary qualification comes from the terms of the covenant of quiet enjoyment in clause 3 of the tenancy agreement. The qualification suggested by Mrs Mainwaring is itself a very small qualification. She asserts the right to carry out any work provided that the landlord bona fide believes it to be beneficial for the flat and the building and does not derogate from the grant. That would mean that, even if the works that the landlord wished to do were, in fact, excessive, or unreasonable, or lengthy, the landlord would still be entitled to do them, provided that it had a bona fide belief that such works were for the benefit of the flat and the building. I cannot believe that that would be the right construction of this tenancy agreement.
(4) For my part, like Judge Cowell, I attach some significance to the fourth proviso that I have read. That provides that the tenant cannot object to disturbance “occasioned by the making of any structural or other alteration to the building of which the said flat forms part”. In my judgment, the implication of that is that the tenant can object to any structural or other alteration to the flat itself, because the flat itself is something that is not the same as the building of which the said flat forms part. Mrs Mainwaring submitted that the building is only a component of the number of flats, whatever the position might be in relation to the question as to whether other flats not covered by this tenancy agreement would come within the phrase “the building of which the said flat form part”. It seems to me that the flat that is the subject of the tenancy agreement does not form part of that phrase.
16. I therefore find myself in accordance with the judgments of both Judge Cowell and Pumfrey J, and would dismiss this appeal.
17. Agreeing, JONATHAN PARKER LJ said:
18. I would only add that I do not consider that the issue on this appeal raises any point of principle. It is, as I see it, simply an issue as to the true construction of the particular tenancy agreement. As to that, I agree with my lord, for the reasons he has given, that Judge Cowell and Pumfrey J reached the right conclusion, and so I too would dismiss this appeal.
19. PETER GIBSON LJ agreed and did not add anything.
Appeal dismissed.
