Repair & Insurance
Cases
Jimenez v Morrissey,
unreported, O’Neill J., July 18, 2005; [2005] I.E.H.C. 252
The plaintiff is the owner and operator of a restaurant known as Da Pinos. He operates this restaurant at the junction of Parliament St. and Cork Hill in the city of Dublin which he holds the premises on foot a lease made on the 11th December, 1993, from the first named defendant. The lease in question demised to the plaintiff the premises known as Units 1 and 2 and the Basement area thereof as described and delineated on the plans annexed to the lease and edged in red being part of the premises described in the second part of the first schedule of the lease. The term of the lease was for a period of 33 years from 9th December, 1993, at the then rent of £40,000 per annum which has since risen to approximately €120,00 per annum.
The first named defendant acquired his interest in these premises from the second, third and fourth defendants under an indenture of lease dated the 24th June, 1992, whereby the second, third and fourth defendants demised to the first defendant, in consideration of the payment of a sum of £395,000, the aforesaid Units 1 and 2 for a term of 999 years subject to a yearly rent of £1.00.
For some seven to eight years the plaintiff has complained of a leak in the flat roof at the rear of the premises demised to him. This leek has been permitting rainwater to enter the kitchen area of the premises causing leakage on to the walls and the floor of same.
In July, 2002, when an adjoining property owner was carrying out works, remedial work was carried out to this flat roof but it would appear that it failed to rectify the leak.
The first issue which arises in this litigation is whether any of the defendants are liable to the plaintiff in respect of the repair of the flat roof in question, and hence liable for the prevention of the leak and/or damages in respect of it.
Mr. O’Dwyer S.C. for the plaintiff submits that the first named defendant by virtue of his covenant to repair in his lease with the plaintiff is liable. He concedes that although the lease from the first named defendant to the plaintiffs does demise the roof in question to the plaintiff, because the lease from the McGraths to the first named defendant did not demise the roof to him, he could not in turn give it to the plaintiff. That notwithstanding Mr. Dwyer submits that he is liable under the covenant to repair and he is entitled under the repairing covenant in his lease with the McGraths to call upon the second, third or fourth defendants to carry out the necessary repairs or alternatively if he does not wish to do that, to suffer damages, accordingly, in respect of the cost of repairs and the plaintiff’s consequential losses.
He further submits that the continuance of the leak is a breach of the covenant for quite and peaceful enjoyment contained in the lease from the first defendant to the plaintiff. In this regard he contends that the quite and peaceful enjoyment of the premises has been interrupted, insofar as an essential part of the operation of a restaurant, namely its kitchen and wash up area is interfered with when rain water leaks into the premises and furthermore for the duration of the period of repair it is apprehended the restaurant will have to be closed down.
Mr. Gardiner S.C. who appeared for all defendants submitted that notwithstanding the covenant to repair the first named defendant did not covenant to repair the roof because this was not demised to him by the McGraths and hence he could not repair that which he did not have. Similarly if the lease from the first named defendant to the plaintiff had demised the roof to the plaintiff he would not have covenant to repair it. He submitted that his covenant to repair did not include those parts of the estate, not demised. As the roof remained part of the estate not having demised to the first named defendant he submitted that it remained outside the obligation of repair of the first named defendant.
He further submitted that the second, third and fourth named defendants had transferred their interest in the property in 2001 to a company known as Cork Hill Management Ltd. and hence the second, third and fourth named defendant had no liability in respect of the complaints now made by the plaintiff and it was a matter for the plaintiff to sue the correct parties which he had not done.
He further submitted that the plaintiff was not entitled to avail of the covenant for a quite and peaceful enjoyment in the lease because he himself was in breach of his obligations under the lease in that he had failed over several years to pay the service charges due.
Before embarking upon a consideration of the issues raised in this case it is necessary to set out the relevant portions of the lease from the McGraths to the first named defendant of June, 1992 and the lease from the first named defendant to the plaintiff of the 11th December, 1993.
THE LEASE OF THE 11TH NOVEMBER, 1993:
“4.2 To pay the rent or increased rent hereby reserved or any sums hereby payable hereunder on the days and in the manner herein prescribed without any deduction.
4.3 To pay to the Landlord from time to time on demand without any deduction or abatement the amount or amounts payable by the Landlord on foot of paragraphs 9, 43, 44, 45 and 46 of the Sixth Schedule of the Superior Lease.
…
4.10 To keep clean and tidy and to repair and keep in good order repair and condition from time to time and at all times during the term hereby created the interior of the demised premises and without derogating from the generality of the foregoing the doors locks plate glass and other windows fixtures fittings fastenings internal wires waste water drains and other pipes and sanitary and water apparatus and central heating plant apparatus and installations therein and painting papering and decoration thereof (damage by any of the Insured Risks as hereinafter defined in Clause 5.1 hereof excepted).
4.11 To keep in good and sufficient repair and condition the portions appropriate to the demised premises of the party structures common to the premises and other part or parts of the estate or adjoining premises and where necessary to join with the Lesser or at its written request with the occupier of any other part or parts of the estate or of adjoining premises (as the case may be) in carrying out and completing any requisite repairs to any one or more of such party structures and on each such occasion duly to bear and pay one half or such other proportion as in any particular case may be appropriate to the total cost of properly carrying out and completing such repairs.
…
4.34 To comply with all the covenants (other than for payment of rent) conditions and provisions contained in the Superior Lease or Leases specified in the Second Schedule hereto ….
QUITE ENJOYMENT
5.3 That the Tenant paying the rents nearby reserved and observing and performing the covenants and agreements on the part of the Tenant hereinbefore contained shall and may peacefully hold and enjoy the demised premises during the said term without any interruption by the Landlord or any person or persons lawfully claiming under or in trust for it.
5.4 To keep in good repair order and condition all parts of the Estate not hereby demised including any common areas and the right of way, the roof, the exterior and all structural parts of the Estate to include the internal structural parts and party walls and to keep the right of way properly lit.
PROVIDED THAT THIS COVENANT
1. Shall apply only to those parts of the estate the poor order or condition of which would materially effect the carrying on of business in the demised premises.
2. This Covenant shall not apply to those parts of the estate which form part of the demised premises or premises demises or sold to other tenants or owners of parts of the estate.
3. This covenant shall not apply to those parts of the estate the repair and maintenance of which is the responsibility of the tenant or other tenants or owners of parts of the estate.
FIRST SCHEDULE
FIRST PART: The Demised Premises: ALL THAT the premises known as Unit 1 and 2 and the Basement area thereof more particularly delineated on the plans annexed hereto and thereon edged in red, being part of the Estate, including by way of demise where appropriate:
1. All walls, pillars, floors, roofs, and ceilings, window frames and shutters (if any), forming part thereof which are not party structures, that is to say, walls, structural floors, and structural ceilings separating and dividing the demised premises from adjoining premises.
2. One divided half part of the party structures.
3.
SECOND PART : The Estate : ALL THAT the premises known as 37/40 Parliament Street, Dublin 2 and 1 to 6 Cork Hill Upper Exchange Street Dublin as are more particularly delineated on the map attached hereto and thereon outlined in green….
SECOND SCHEDULE
SUPERIOR LEASE: (Clause 4.34) : Lease May 24th June, 1992 between P.J. McGrath, Mary McGrath, and Thomas McGrath of the one part of Daniel Morrissey of the other part.…”.
THE LEASE OF THE 24TH JUNE, 1992
“FIRST SCHEDULE ABOVE REFERRED TO
(The Estate)
ALL THAT the premises known as 37 to 40 inclusive Parliament Street, 1 to 6 inclusive Cork Hill Dublin 2 and more particularly delineated on the Plans and outlined in green.
SECOND SCHEDULE ABOVE REFERRED TO
(The Reserved Property)
ALL THOSE the main structural parts of the buildings forming part of the Estate including the roofs foundations and external parts thereof (but not the glass of the windows of the Units nor the interior faces of such of the external walls as bound the Units) and all cisterns tanks sewers drains pipes wires ducts and conduits not used solely for the purpose of one Unit. …
THIRD SCHEDULE ABOVE REFERRED TO
(The Demised Unit)
ALL THAT Unit forming part of the Estate and known as numbers 1 and 2 and the basement thereof ALL WHICH said Unit is for the purpose of identification only shown on the plans annexed hereto and thereon outlined in red TOGETHER with one half part in depth of the concrete between the ceilings of the said Unit and the floors of the Unit above it excepting in the case of the Units on the top floor of the Estate in which there is included the roof of the Estate so far as it constitutes the roof of the said Unit and one half part in depth of the concrete below the floors of the said Unit and the ceiling of the Unit below it AND TOGETHER with all cisterns tanks sewers drains pipes wires ducts and conduits used solely for the purposes of the said Unit but no others EXCEPT AND RESERVING from the demise the main structural parts of the building and which the said Unit forms part including the roof foundations and external parts thereof but not the glass of the windows of the said Unit nor the interior faces of such of the external walls as bound the said unit. ALL INTERNAL WALLS separating the demised unit from any other part of the Estate shall be partly walls and shall be used repaired and maintained as such….
SIXTH SCHEDULE ABOVE REFERRED TO
(Covenants By Lessee With Lessor)
…
3. To the satisfaction in all respects of the Lessor’s Surveyor to keep the Demised Unit and all parts thereof and all fixtures and fittings therein and all additions thereto in a good and tenantable state of repair decoration and condition throughout the continuance of this demise including the renewal and replacement of all worn or damaged parts and shall maintain and uphold and whenever reasonable rebuild reconstruct and replace the same and shall yield up the same at the determination of the demise in such good and tenantable state of repair decoration and condition and in accordance with the terms of this covenant in all respects.
…
43. To contribute and to keep the Lessor indemnified from and against the Proportionate Amount of all costs and expenses incurred by the Lessor in carrying out its obligations under and giving effect to the provisions of the Seventh Schedule hereto including Clauses 9 to 13 inclusive of that Schedule, after deducting interest, if any, received by the Lessor on cash in hand.
44. On the execution hereof and on each quarter day (being the first day of each successive period of three months after the date of commencement of the term hereby granted) during the continuance of this demise pay to the Lessor on account of the Lessee’s obligations under the last preceding clause an advance amounting:
(i) in the period ending on the 31st December, 1992 to £1,800.00 payable upon execution and
(ii) during the remainder of the term hereby granted to one quarter of the proportionate amount (as certified in accordance with Clause 12 of the Seventh Schedule) due from or paid by the Lessee to the Lessor for the accounting period to which the most recent notice under Clause 12 of the Seventh Schedule relates increased by 5%.
45. Within twenty-one days after the service by the Lessor on the Lessee of a notice in writing stating the Proportionate Amount (certified in accordance with Clause 12 of the Seventh Schedule) due from the Lessee to the Lessor pursuant to Clause 43 of this Schedule for the accounting period to which the notice relates to pay to the Lessor or be entitled to receive from the Lessor the balance by which that Proportionate Amount respectively exceeds or falls short of the total sums paid by the Lessee to the Lessor pursuant to the last preceding clause during that period….
SEVENTH SCHEDULE ABOVE REFERRED TO
(Covenants On The Part Of The Lessor)
…
4. To keep the Reserved Property and all fixtures and fittings therein and additions thereto in a good and tenantable state of repair decoration and condition including the renewal and replacement of all worn or damaged parts PROVIDED that nothing herein contained shall prejudiced the Lessor’s right to recover from the Lessee or any other person the amount or value of any loss or damage suffered by or caused to the Lessor of the Reserved Property by the negligence or other wrongful act or default of the Lessee or such other person. …”.
DECISION
It is clear and indeed there was very little argument about it, that the lease of the 24th June, 1992, did not transfer the roof to the first named defendant. That being so there was equally little argument but that the apparent demise of the roof in the lease of the 11th December, 1993, to the plaintiff was ineffective. What is also beyond argument is that Clause 5.4 of the lease of 11th December, 1993, imposes on the first named defendant an obligation to keep in good repair and condition inter alia, the roof. I am quite satisfied that the inclusion of “roofs” in the description of the demised premises as contained in the first schedule to the lease of the 11th December, 1993, was an error and that having regard to the fact that the roof was not demised under the lease of the 24th June, 1992, and also the fact that there is an express covenant on the part of the first named defendant to repair the roof in the lease of the 11th December, 1993, it was never intended that the roof would form part of the demise to the plaintiff.
Notwithstanding the fact that the roof was not demised to the first named defendant under the lease of the 24th June, 1992, there is nevertheless an express covenant to repair it, in Clause 5.4 and the first named defendant is bound by this and would have to call upon the Lessors in the lease of the 24th June, 1992, to honour its obligation to repair the roof or otherwise be liable in damages to the plaintiff, unless, as is submitted by Mr. Gardiner Clause 5.4.3 has the effect of excluding any obligation to the plaintiff on the part of the first named defendant to the plaintiff, to repair the roof. In this regard Mr. Gardiner relies heavily on the final phrase in Clause 5.4.3 which reads “or owners of parts of the estate.” He contends that as the second, third and fourth defendants and their successors in title Cork Hill Management Limited were and are “owners of parts of the estate” i.e. the roof and were responsible under that lease for its repair and maintenance.
It is not easy to reconcile Mr. Gardiner’s submission with the general scheme of these two leases. If Mr. Gardiner is right the net effect would be that Clause 5.4 would appear to be rendered nugatory, insofar as the “main structural parts of the building and which the said unit forms part including the roof, foundations, and external parts thereof…and all cisterns tanks sewers drains pipes wires ducts and conduits not used solely for the purpose of one unit.” as reserved in the lease, of the 24th June, 1992 to the Lessor in that lease who on Mr. Gardiner’s submission would be an “owner of parts of the estate”, as envisaged in Clause 5.4.3 of the lease of the 11th December, 1993.
It would seem to me that such an interpretation of Clause 5.4.3 would rob the first named defendants covenant to repair of any real meaning or substance and in my view that cannot have been intended.
It is quite clear that in the lease of the 24th June, 1992, the Lessor had by virtue of Clause 4 of the Seventh Schedule to that lease a clear obligation to keep the reserved property in a good and tenantable state of repair decoration and condition. The first named defendant enjoys the benefit of that covenant.
I am quite satisfied that it was not intended that the lease of the 11th December, 1993, should operate in such a way as to exclude any meaningful obligation to repair on the part of the first named defendant in respect of the reserved estate and thus to leave the plaintiff with no redress or recourse in respect of disrepair of the reserved estate, bearing in mind that he would have had no right or entitlement to carry out repairs to the reserved estate without the permission of its owners and he does not enjoy privity with the Lessors under the lease of the 24th June, 1992.
I have therefore come to the conclusion that Clause 5.4.3 does not have the effect as contended for by Mr. Gardiner of excluding any obligation on the part of the first named defendant to repair this roof, and he remains liable to the plaintiff under Clause 5.4 of the lease of the 11th December, 1993, in respect of its disrepair. It is a matter for the first named defendant whether he elects to call upon the Lessors under the lease of the 24th June, 1992, to effect repairs or is content to suffer damages in respect of the claims made by the plaintiff.
In the light of the foregoing conclusion it is unnecessary for me to express any opinion on the second submission by the plaintiff, which was that his entitlement to a quite and peaceful enjoyment of the demised premises pursuant to Clause 5.3 of the lease of the 24th June, 1992, has been breached. However for the sake of completeness, in the light of the submissions made and the evidence given by the first named defendant, I should express an opinion on that topic.
Although the authorities dealing with quite enjoyment do not in any kind of specific way define, that, which can constitute a disruption of quite enjoyment it would appear to me to be beyond doubt that for there to be a breach of a covenant in respect of a quite and peaceful enjoyment there has to be an interference with the enjoyment by the lessee of his demise which is of a very substantial nature, indeed many of the cases involved a total disruption of possession.
In this case no evidence at all has been given as to the extent of the interference caused by this leak, but taking it to be, as described, by Mr. O’Dwyer in his opening, namely a leak into the kitchen and cleaning portion of the restaurant which occurs when there is inclement weather, causing rainwater to come down the walls and onto the floor, I would be inclined to the view that such an interference falls significantly short of the threshold of substance that would be required to give rise to a beach of a right to quite enjoyment. It was said by Mr. O’Dwyer that at no stage, so far, has the business of the restaurant been interrupted and indeed in a busy kitchen and cleaning area, it is hard to see how an episodic leak of the kind complained of would add materially to the overall presence of liquids and vapours that one would expect to find in a busy restaurant kitchen.
It would seem to me that the leak as described falls more, into the category of an annoying irritation rather than a breach of the right to quite and peaceful enjoyment. It has been said that for the purposes of carrying out repairs it may be necessary to close down the kitchen and therefore the restaurant for a short period. Even if that is so, the temporary interruption of a business for a short duration in order to carry out essential repairs would not in my view be normally regarded as amounting to a breach of the right to quite and peaceful enjoyment.
I am of the opinion therefore that the complaints made by the plaintiff as described by Mr. O’Dwyer do not amount to a breach of the applicant’s right to quite enjoyment under Clause 5.3 of his lease.
Apart from the foregoing the evidence of the first named defendant as to the non-payment by the plaintiff of service charges including charges in respect of insurance was not challenged as to the fact of such non-payment but was challenged on the basis that all of the procedures set out in the lease of the 24th June, 1992, had not been complied with and therefore a valid demand not made of the plaintiff for these charges.
The plaintiff has an obligation under his lease to pay that which is due by the first named defendant to his Lessor. The plaintiff is not a party to the lease of the 24th June, 1992, and is not entitled to insist on a punctilious observance of the elaborate accounting procedures set out in that lease for determining the amount of the service charges.
The plaintiff’s obligation is to pay that which is due by the first named defendant. I am quite satisfied on the evidence that the first named defendant was legally bound to pay these charges to his Lessor and indeed the evidence established that he was sued in the Circuit Court for a substantial portion of these service charges and was obliged to submit to the claim made by his Lessor.
I am satisfied that the plaintiff in failing to have met his obligation to pay these service charges has been for some considerable time in default of his obligations under the lease of the 11th December, 1993, and that being so he could not be regarded as “performing the covenants and agreements on the part of the tenant” and therefore is not entitled to the benefit of Clause 5.3 of his lease.
In conclusion therefore I am of the opinion that the first named defendant is liable to the plaintiff by virtue of Clause 5.4 of the lease of 11th December, 1993, in respect of the disrepair of the roof over the kitchen area of the plaintiffs demise and the plaintiff has failed to demonstrate there has been a breach of his right to quite and peaceful enjoyment of his demise and furthermore is not entitled to the benefit of Clause 5.3 of the lease of 11th December, 1993, because of the breach of his obligation to pay service charges due.
Approved: Iarflaith O’Neill
Údarás na Gaeltachta v Uisce Glan Teoranta
, High Court, O’Neill J., March 13, 2007; [2007] I.E.H.C. 95
Neutral Citation Number [2007] IEHC 95
THE HIGH COURT
[1996 No. 6285P]
BETWEEN
UDARAS NA GAELTACHTA
PLAINTIFF
AND
UISCE GLAN TEORANTA
DEFENDANTS
JUDGMENT of the Honourable Mr. Justice O’Neill delivered 13th day of March, 2007
In these proceedings the plaintiffs claim damages for negligence, breach of duty, breach of statutory duty, nuisance and breach of contract against the defendants arising out of damage to a factory premises let by the plaintiffs to the defendants. Although not specifically pleaded, in the trial the plaintiffs stated their claim for damages also, on the basis of a breach of the covenant to repair in the lease between the plaintiffs and the defendants.
The background to this matter is as follows. The plaintiffs by a lease of 25th February, 1985 let to the defendants ALL THAT part of the lands of Baile Liam in the Barony of Moycullen, County of Galway upon which stood portion of a factory premises and storage tanks for a term of 35 years from the 1st January, 1985 subject to the rent reserved and the covenants on the part of the defendants and the conditions contained in the lease. A further lease of the 3rd October, 1987 was made between the same parties for an additional part of these factory premises. That lease was for a term of 32 years and 8 months from the 30th April, 1987.
The defendants engaged in the business of manufacturing a substance known as aluminium sulphate better known as alum. This substance was used for the purification of water. For the purposes of the manufacture of this substance large quantities of sulphuric acid were used. The defendants stored large quantities of this acid in storage tanks on the leased premises. In 1987 as a result of complaints about leakages or discharges from the defendants premises the defendants requested the plaintiff to install a new a drainage system in the yard attached to the factory premises. The plaintiff’s applied for planning permission for this, which they obtained, and they then proceeded to carry out the works in accordance with the planning permission. This involved removing the existing drainage system in the yard and installing a single drain for the purpose of draining spillages in the yard into a sump. The yard was re-slabbed with a concrete slab and the sulphuric acid storage tanks were surrounded by what is known as a “bund”. In addition the yard itself was bunded. The purpose of these changes was to ensure that any spillages of sulphuric acid which might occur would be either safely contained within the bund or quickly discharged into the drain which went into the sump. From time to time the material in the sump was analysed and, if safe, was discharged into the normal drainage system.
Until 1993 the sulphuric acid in the storage tanks was pumped into the factory, into a reactor vessel by means of an automated pumping system which was controlled from within the factory. The acid passed through a pipe which was under the yard and when it reached the factory wall the pipe rose above ground, travelled up the inside of the outside factory wall and then travelled over ceiling height into the reactor vessel which was known as a “kettle”.
Within the factor premises itself there was a large storage area for finished product. This was largely covered by a tiled floor, which the evidence established, to my satisfaction, was at all times during the occupation of the defendants in relatively poor condition. In particular there was never any grouting between the tiles.
Because of the nature of the operation carried on, significant quantities of finished dry alum would end up on the floor. This was cleaned away, initially by sweeping, and then by washing down and all of this cleaning was directed towards a sump installed for that purpose. The material accumulated in this sump was then recycled into the production process.
Towards the end of 1992, probably in October or early November, there occurred the events which gave rise to these proceedings.
In or about that time employees of the defendants noticed cracking developing in the walls in the factory and this process accelerated through November, December and into January, 1993, to such an extent that a concrete cross beam lifted off its supporting pillar. In addition it became apparent that the ground in a portion of the yard had risen. The speed of occurrence and the extent of the damage occasioned by this event, needless to say, caused alarm in the defendants and indeed the plaintiffs when brought to their attention.
In the spring of 1993 experts were brought on the scene and whilst initially some thought the problem was subsidence, it very quickly became clear that it was the very opposite was the problem, namely, the very rare occurrence known as “ground heave”. Both plaintiffs and defendants engaged engineering architectural and scientific expertise to investigate and explain this occurrence and to prescribe remedial work. The plaintiffs in April of 1993 wrote to the defendants holding them liable for the damage that had occurred.
In due course it emerged that the essence of the plaintiffs complaint against the defendants is that the defendants had caused or permitted sulphuric acid to escape into the ground underneath the factory specifically in the area where the ground heave had occurred and this sulphuric acid had reacted with materials in the ground to form a compound known as calcium sulphate or otherwise known as gypsum, which they said was an expansionary substance and it was the expansion caused by this substance which gave rise to the “ground heave” which in turn pushed upwards a portion of the building causing the cracking and other damage.
The defendants through their experts vehemently contested the scientific basis of the plaintiffs explanation of the occurrence, contending that there was no discharge or leakage of sulphuric acid into the ground, that the presence of sulphates in the ground did not indicate a discharge of sulphuric acid but rather the presence of sulphate from the process of manufacture and some sulphuric acid in a very dilute form as a result of the reaction of sulphate from the manufacturing process with water in the ground. In either event it was contended that the levels of dilute sulphuric acid and any formation of gypsum could not have caused the damage which has occurred because it could not have, having regard to the nature of that substance, generated a kind of pressure which would have been necessary to cause the heave that had occurred. It was further contended that a potential explanation of the occurrence was water pressure resulting from a very high water table, very wet weather at the time, and the discharge into the site through an ESB ducting pipe of water from higher ground. In this regard it was contended that the site had been carved out of granite and had a bowl configuration, so that it naturally tended to retain water.
The first issue to be confronted is whether or not the evidence establishes the probability of discharge of sulphuric acid by the defendants into the ground.
The evidence which was not contradicted was that the defendants stored large quantities of sulphuric acid in storage tanks and that from 1987 onwards these tanks were surrounded by “bunds” which were designed to confine any spillage or leakage from these tanks within the bunds. There was also evidence of the use of a stainless steal tank to catch any leakages during the process of delivery of sulphuric acid. From 1987 onwards the drainage in the yard was reconfigured so as to drain any spillages into a single drain and from there to a sump. All of the expert evidence was that this drain was intact and functioning properly.
The pipe which carried the acid underground across the yard to the factory building was excavated, when this problem arose in 1993, and it was agreed that the pipe was in good condition and with no signs of any leaks from it. There was no evidence of any leakages from the continuance of this pipe inside the building. I am satisfied on the evidence that this did pipe did rise vertically inside the building, travelling up the inside of the outer wall and across above ceiling height to the reactor vessel. Thus it was plainly visible at all times. There was no evidence of any leakages of sulphuric acid in the area of the reactor vessel inside the factory.
I am satisfied from the evidence that it is highly unlikely that there was any significant discharge or leakage of sulphuric acid into the ground. That being so I am of opinion that as a matter of probability the explanation of the defendants experts and in particular Mr. O’Flaherty, namely that the low ph was associated with the presence of sulphates in the grounds and specifically a reaction between the sulphates and the water in the ground causing the formation of sulphuric acid in a dilute form, is more likely to be correct. I am also of the view that such formation of gypsum, that might have occurred, having regard to the very high water table in the area as evidence by the photographs put in evidence, and that the reaction of this compound with water, would be very unlikely to have generated the kind of pressure needed to create the ground heave that occurred.
The presence of sulphates in the soil is in my view convincingly explained as an inevitable consequence of the process of manufacturing carried on by the defendants, where large quantities of aluminium sulphate were manufactured. I accept the evidence that this substance is essentially inert and harmless save to the extent that in water it reacts to form a dilute form of sulphuric acid.
As a matter of probability in my view the alum got in to the ground by a gradual process of percolation down through the floor in the storage area, having regard to the poor condition of this floor.
Having considered all of the evidence offered in this case by the experts called on both sides, it is my view that this evidence falls short of explaining the ground heave on the basis of a balance of probability.
I am quite satisfied that the plaintiffs theory to the effect that it was caused by sulphuric acid discharged by the defendants into the ground has not been proven on the balance of probabilities and I am also satisfied that the alternative theory of water pressure likewise has not been established to that standard either.
As mentioned earlier the plaintiff’s claim damages in respect of a variety of causes of action.
The first of these is negligence and the basis of the claim here is that in essence the defendants caused or permitted this dangerous substance to be discharged into the ground or failed to take adequate precautions to ensure that this did not happen. Having concluded that in fact this did not happen I am satisfied that there was no negligence on the part of the defendants in this regard.
The plaintiffs also claim damages in nuisance and rely upon the rule in the case of Rylands v. Fletcher, claiming that the defendants permitted the escape of a dangerous substance. In the first place I am satisfied that the defendants did not cause or permit the escape of a dangerous substance i.e. sulphuric acid but in any event the evidence clearly established that there was no escape beyond the boundaries of the leased premises and hence in my view for that reason alone the cause of action in nuisance fails and the reliance upon the rule in Rylands v. Fletcher is misplaced.
Finally the plaintiff’s claim damages for breach of contract. In the course of the hearing this was explicitly fleshed out to be damages for breach of the covenant to repair and indeed other covenants in the lease.
The relevant covenants relied upon where as follow;
“2(3) To repair and keep in good and substantial repair and condition using suitable materials of good quality the whole of the demised premises and every part thereof and the lessor fixtures therein and such parts of the drains, pipes, wires and sanitary apparatus serving the demised premises as are situated within same and from time to time as required and in any event in every fifth year of the term and in the last year thereof to paint in colour all of the outside and inside parts of the demised premises as are usually painted and coloured and all additions thereto in proper and workman like manner and with suitable materials of their several kinds…
2(10) Not to use the demised premises or suffer or permit the same to be used for any offensive noisy or dangerous trade, business manufacture occupation or for any purpose or in manner which may be a nuisance to the lessor or the owners or occupiers of neighbouring adjacent premises provided that the carrying on in a proper manner and in such way as to cause as little nuisance to the lessor or the owners or occupiers of neighbouring or adjacent premises as is reasonably possible of the trade or business as in herein before in sub paragraph (9) of this clause provided for, shall not be deemed to be in breach of this covenant…
2(12) To take such measure as may be necessary to ensure that any effluent discharged into the drains or sewers which belong to or are used for the demised premises in common with other premises will not be corrosive or in any way harmful to the said drains or sewers or cause any obstruction or deposit therein and to obtain such licences, authorisations and consents as may be required by law for the discharge and disposal of such effluence.”
I am quite satisfied that there was no evidence of any breach of covenants 2(10) and 2(12). There was no evidence whatever that the carrying on by the defendants of their trade in these premises was a source of nuisance to the plaintiffs or occupiers of adjacent premises which could have been avoided by the defendants. Likewise there was no evidence of any injury or damage to drains by corrosive substances discharged by the defendants into these drains or sewers.
The plaintiff based its claim for breach of covenant 2(3) on two bases. The first of these was the escape of alum through the floor in the storage area resulting in a build up sulphate in the soil. It was submitted that the defendants breached their obligation to repair in failing to have repaired the floor of this storage area so as to prevent this escape.
I am satisfied from the evidence that the floor in this area was in a poor conditions when the defendants went into occupation of these premises. They were not in my view obliged under the covenant to repair, to carry out work to in fact improve the floor. These cases of Lister v. Lane and Neshan [1893] 2 QB 212, and Norah Whelan and Others v. Patrick Madigan [1978] I.L.R.M. 136, Chaloner v. Broughton Irish Jurist Vol XI [1865/6] and Sotheby v. Grundy, [1947] 2 A.E.R. 761 in my view established the principle that a lessee under a covenant to repair does not have to rebuild or carry out works to improve the premises beyond the state of repair of the premises upon the demise.
That being so in my view the defendants were not obliged to have carried out work to this floor so have to rendered it non-porous thereby prevent the percolation of alum through the floor into the ground beneath and surrounding areas.
In any event I am satisfied that the percolation of this material into the ground was not the probable cause of the ground heave and hence the damages claimed for breach of covenant.
The second basis upon which the plaintiff claims that there has been breach of the covenant to repair is that notwithstanding the cause of the ground heave, that the mere occurrence of this ground heave and the damage which it caused to the demise premises, was sufficient to impose a liability on the defendants, under the covenant to repair.
I am quite satisfied that this submission is ill founded. The right to recover damages for a breach of the covenant repair arises out of a breach of that covenant. The occurrence of the ground heave and the ensuing damage in my view was not caused by any breach of the covenant to repair, in the sense of a failure on the part of the defendants to have kept the demised premises in good repair. Thus in my opinion the damage occasioned by the ground heave not having been caused by any failure to repair on the part of the defendant is outside the ambit of covenant 2(3) and the plaintiff is not entitled to recover damages for any breach of it.
I have come to the conclusion that the plaintiff has failed to establish any of the several causes of action advanced and accordingly I must dismiss the plaintiffs claim
Hemani v Ulster Bank (Ireland) Ltd
[2015] IEHC 292
JUDGMENT delivered by Mr. Justice Michael White on the 14th day of May, 2015
1. This is an Appeal from an Order of the Circuit Court of the 15th March, 2013, at Sligo Circuit Court, when the terms of the Plaintiff’s tenancy at 52 O’Connell Street, Sligo being part of the building on the 2nd Floor at the corner of O’Connell and Grattan Street were fixed at the rent of €6,100 per year, together with a direction on covenants to repair. The Plaintiff was granted 50% of his costs.
2. The Plaintiff’s Grounds of Appeal of the 25th March, 2013, take issue with
(1) The valuation of the open market rental upon the tenancy of the subject premises.
(2) The terms and conditions regarding the repair and maintenance covenants referable to the aforesaid Lease of the subject premises.
(3) The issue of costs as between the Plaintiff and the Defendant.
3. On the 14th of November, 2014, the action was transferred to the High Court in Dublin.
4. The Plaintiff while represented by solicitor and counsel in the Circuit Court represents himself on appeal.
5. The Plaintiff was granted an oral tenancy of the 2nd Floor of the premises in May 1978. There are no written terms, or any documentation to assist the Court in it’s interpretation. The Plaintiff has always maintained that both external and internal repairs were the responsibility of the Landlord. The original Landlady was Peggy Fitzgerald. In or around 1982/1983 Ms. Fitzgerald sold the property to First Active plc. The building was refurbished in 1983. The rent at the date of service of the Notice To Quit was €220 per month. The present Defendant took over First Active plc in or around 1990. The first Notice to Quit was served in 2003. From 2003 there has been a difficult relationship between the Plaintiff and Defendant. The Plaintiff alleges a failure by the Defendant to carry out essential repairs to the property. The Defendant alleges that the Plaintiff has acted unreasonably in preventing access to the property, frustrated repairs, and delayed the legal proceedings.
6. There has been a difficult history to these proceedings.
7. The Notice to Quit was served on the 28th March, 2006. An Ejectment Civil Bill for Overholding was issued on the 1st August, 2006.
8. The Plaintiff then served a Notice of Intention to Claim Relief on the 27th November, 2006, and issued a Landlord and Tenant Civil Bill on the 5th December, 2006.
9. The action was not heard in the Circuit Court in Sligo for 6 years, when it was ultimately decided on the 15th March, 2013.
10. Subsequent to the Plaintiff’s Notice of Appeal of the 25th March, 2013, a Fire Safety Notice was served on the Defendant on the 4th July, 2013, directing the owners of the property to carry out essential repairs.
11. There was further difficulty between the Plaintiff and the Defendant about the execution of these repairs.
12. The matter came before the High Court in Sligo on the 9th May, 2014, when Mr. Justice Barry White gave the following directions:-
“It would seem to me that if there is to be an adjournment of this matter until the July sessions there would be in the first instance a Direction from me that the matter be marked peremptory in capital red letters as against Mr. Hemani but it would seem to me that also if it is to be adjourned, where there are obviously works that are required and there are requirements of the Fire Officer from the point of view of health and safety, that some form of undertaking should be given by the Landlord in relation to the carrying out of the works, that they … were to be commenced by a particular date and that the estimated duration of the work is x number of weeks, obviously if matters unfold in the course of that work that require the works to be continued on, then that would obviously have to be provided for, and there should be an undertaking by Mr. Hemani to move out of the premises while the works are carried out, that there would be an undertaking from the Landlord that Mr. Hemani would be permitted to return to the premises when the works have been carried out and there would be an undertaking from the Landlord that his moving out would not in any way prejudice his rights in relation to a tenancy and that there would be an undertaking on the part of the Landlord to discharge his reasonable costs of moving out of the premises for the period in question and something along those lines, Mr. Fogarty I think would meet the equity of the situation. ”
13. An undertaking was provided to the Court by the Defendant.
14. The essence of the undertaking was that the Defendant would carry out essential structural repairs, that the Plaintiff would move out of the premises but certain pieces of large equipment would be stored safely in the premises during the construction phase of the work and that any rental due during the construction phase would be suspended. The Plaintiff was to be paid compensation during his time out of the premises and certain other removal and advertising costs.
15. The Plaintiff moved out and substantial works have been carried out to the premises. There is now a dispute between the parties as to when they were ready for occupation and a dispute about damage to equipment stored in the premises during the refurbishment work.
16. The Plaintiff has claimed €86,999 for reimbursement of cost of replacement of damaged equipment and loss of income from customers due to a poor working environment.
17. The Plaintiff issued a Notice of Motion alleging that the Defendant has been in contempt of Court as a result of non compliance with the undertakings given by the Defendant on the 9th May, 2014, to the Honourable Mr. Justice Barry White at the High Court on Circuit hearing in Sligo and seeking all necessary and consequential Orders and providing for the costs of the Motion.
18. This Court does not have jurisdiction to consider the loss of income claim for a period of three years by the Plaintiff totalling the sum of €61,128.
19. The Court has jurisdiction to consider the claim for the damage to the equipment which was supposed to be stored safely.
20. The matters the Court has to address are:-
(1) The appropriate rent.
(2) The commencement of the Lease.
(3) The terms of the Lease.
(4) The date when the premises were ready for occupation after the refurbishment work.
(5) Does the Landlord have a responsibility to put in heating, and ancillary matters
(6) The Costs Order in the Circuit Court.
21. It is unfortunate that this matter has taken so long to resolve now 9 years since the date of service of the Notice to Quit.
22. Both parties have responsibility for this state of affairs.
23. The fact that substantial repairs had to be undertaken subsequent to the service of the Fire Safety Notice, indicates the Defendant did not properly observe implied covenants to repair under the Lease. There was a failure of the Defendants to address these issues over a period of years in a timely manner. The Defendant had acquired a sitting tenant with an oral tenancy and should have been more proactive to ensure that the fabric of the building was secured and that the building complied with relevant Fire Safety Regulations. The Defendant was confronted by a lot of unreasonable behaviour on the part of the Plaintiff, who was in occupation at a very reasonable rent, and was not proactive about addressing repairs. He may well be right that the original oral tenancy between himself and Ms. Fitzgerald developed the convention that the Landlady did all repairs which is not the normal covenant in a Commercial Lease whereby the tenant usually assumes responsibility for maintaining the premises internally. Those issues are now historical although they have some bearing on the Court’s decision in that after the service of the Fire Safety Notice, this Court is satisfied that the Defendants embarked on a programme of refurbishment, which in many ways went beyond their remit, and the Court is quite satisfied that the present condition of the premises is satisfactory.
24. There is no requirement on the Defendant to install any form of heating system, that is a matter for the Plaintiff. Likewise the issue of the phones, carpets and security meshes for windows are a matter for the Plaintiff.
25. The Court considers the e mail of 14th November 2014 from Conor McShane, Assistant Chief Fire Officer of Sligo Fire Service as sufficient indication that the premises were ready for occupation.
26. The Plaintiff although rightly concerned about the damage to his equipment had a duty to minimise his loss and take up possession as soon as he could. It is reasonable to give him some time to get reorganised and to decide what to do in respect of the equipment. I consider it appropriate to fix the 7th January, 2015, as a date for the Plaintiff to take up possession of the premises again and when the Defendant would no longer be liable for any compensatory payments to the Plaintiff.
27. The appropriate term is 17 years commencing on and including the 16th May, 2006.
28. It is appropriate that the Landlord be responsible for the repair and maintenance of the exterior of the building including the roof and the windows. The Plaintiff should be responsible for the internal repairs and maintenance of the demise. Due to the difficult history of this landlord and tenant relationship the clauses in the Draft Lease at 4.5 and 5.2 should be more strictly defined. I agree with the Order made by the Learned Circuit Court Judge on the 15th March, 2013, on repairing covenants.
29. The issue of costs in the Circuit Court was at the discretion of the Trial Judge and I will not interfere with that Order.
30. Due to the substantial delay in this matter being finalised the Court will deem that the rent review due in 2011 has taken place and that the next review will occur on the 16th May, 2016.
31. The Court in considering the evidence in respect of the rental of the property finds that an appropriate annual rent from the commencement of the Lease on the 16th May, 2006, up to the review on the 16th May, 2016, is the sum of €5,200 per year.
32. The only matters outstanding for the Court to consider are any outstanding terms in the Lease and to resolve any outstanding issues in respect of the damaged equipment, and any other matters outstanding in respect of the undertaking given to Mr. Justice Barry White on the 9th May, 2014. The court also has to deal with costs in this court.
Driscoll v Driscoll
Chancery Division.
22 January 1918
[1918] 52 I.L.T.R 111
O’Connor M.R.
O’Connor, M.R.
In this case there are two claims to be decided, the claim by Marmion against the assets of the deceased for damages for breach of covenant to repair and a claim by the London, Liverpool and Globe Insurance Co. to be subrogated to the right which Marmion may have against the assets. Marmion’s claim against the assets must be regarded quite apart from the insurance company’s, which does not arise at all until his claim against the assets is established and the amount of it ascertained. When Marmion’s claim against the assets is established and its amount ascertained, then the insurance company may have a claim upon it, but that is a matter not as between the company and the personal representative of the deceased, but between the company and Marmion. Marmion is entitled to damages for breach of covenant to repair, and a question arises as to the measure of damages, which depend on his rights under the lease. Under the lease he has the right to receive the rent during the term, to have the security for the rent maintained, and to have the premises delivered up at the end of the term in good repair, and the measure of damages depends on the loss caused by the infringement of these rights. The total destruction of leasehold premises may result in the loss of all the rent except the part of it which represents ground rent, the damage might then be fairly estimated as the capital value of the difference between the ground rent and the rent payable under the lease during the term. But this would not be the whole damage, because there is also the damage to the reversion; how is that damage to be ascertained? One way would be to ascertain the cost of rebuilding the premises at the end of the term, and to calculate the present value of that amount, or again the amount of damage might be measured by ascertaining what the saleable value of the lessor’s interest in the premises before they were destroyed, subtracting the one from the other. Other methods might be adopted of measuring the loss, but the question in every case must be: what damage did the lessor suffer? Metge v. Kavanagh, I. R. 11 C. L. 413. In the present case the only evidence of damage given for the lessor is that contained in an affidavit which states that £1,550 would be required to rebuild the premises. In some cases the cost of rebuilding would be a fair measure of damages, but not in this case where the site must be of some value. No doubt the cost of rebuilding may be a measure of the amount of damage done. The present value of the expenditure which it would be necessary to make at the end of the term in order to rebuild the premises, plus the capital loss of all or any part of the rent during the lease, might be the true measure, but these are not the materials for such a calculation. There is really no evidence on which I should be justified in assessing damages, and I will adjourn the claim for damages in order that the parties may have an opportunity of giving such further evidence as they may be advised. It has been contended that the regulations made under the Defence of the Realm Act make it impossible to perform the covenant to repair, and that there is therefore no actionable breach of contract. But there is no absolute prohibition of such work; it may be done under a licence from the Ministry of Munitions; and it is not pretended that such a licence has been sought. Under the Act, if the fulfilment of a contract is interfered with, there is a defence to a claim for in respect of the non-fulfilment of the contract, but there has been no interference in this case. The substance of the matter is that the financial position of the lessee’s estate prevents the performance of the contract. I must, therefore, hold that the Defence of the Realm Act and the Regulations made under it do not supply a defence to the claim for damages for breach of covenant. I now deal with the claim of the insurance company. That claim is based on the right of *112 subrogation, and the contention of the company is that whatever sum is received by the insured on foot of his policy must go to recoup the company whether or not the insured has been fully indemnified against loss. The insured contends that until he is indemnified he is not obliged to contribute anything to the company. I have no doubt that the latter contention is correct. A contract of fire insurance is a contract of an indemnity, and the foundation of the doctrine of subrogation is to be found in the principle that no man shall be compensated twice in respect of one loss. The corollary to this is that a contract of indemnity shall not have the effect of preventing the insured from being paid once. The law is well settled on this point; it is to be found in the leading text books, and is borne out by the decisions in Darrell v. Tibbetts, 5 Q. B. D. 605, and Castellain v. Preston, 11 Q. B. D. 380.
Foott v Benn
6 November 1884
[1884] 18 I.L.T.R 90
Palles C.B, Dowse B., Andrews J
Palles, C.B.
[Sweeny v. Sweeny was decided under the old common law, under which it was always an implied condition that parties should act reasonably. You are now arguing under a special statute and on the construction of one of its terms.]
The only definition of “lessee” in the Act is in section 14, sub-section 3, where it is enacted that “a lessee includes an original or derivative under-lessee, and the heirs, executors, administrators and assigns of a lessee.” The word “include” does not prevent the court from giving the term a more extended meaning, should it think fit. The defendant is estopped from denying that he is a lessee just as any executor de son tort would be: Rees v. Perrott, 4 C. & P. 230.
They also cited Jones v. Murphy, 2 J. & Sym. 323; Armstrong v. Loughnane, 2 Ir. C. L. R. 74; Nugent v. Lord Bantry, 2 H. & Br. 156.
O’Riordan, Q.C., and Moriarty, for the defendant, contra.—There is no similarity between this case and that of a notice to quit; so that Sweeny v. Sweeny does not apply. There was evidence also to go to the jury of a waiver by the landlord of the covenant to repair. Rent has been regularly received since the alleged breach, with knowledge of it.
Dowse, B.
[Is there not a section in Deasy’s Act that receipt of rent shall not be deemed a waiver of a covenant?]
Yes, section 43. But, the fact that the landlord continued to receive the rent without complaint strongly supports our contention that he had agreed to waive the covenant.
Palles, C.B.
[I have frequently considered, on civil bill appeals, whether the 43rd section of the Landlord and Tenant Act, 1860, does not apply merely to a waiver of the covenant generally, and that a receipt of rent after the breach, with knowledge of it, would still waive all rights of the landlord arising from that particular breach, although it would not amount to a dispensation of the covenant.]
Independently of the receipt of rent, there was ample evidence to go to the jury of an agreement by the landlord to allow the premises to be taken down, in which case the covenant would cease to have any operation.
Palles, C.B.—This case comes before us on an application to change the verdict into one for the defendant, or to order a new trial on the ground of misdirection. The action was one to recover possession of land on the ground of alleged breaches in certain covenants in the lease. The first covenant, which it is alleged has been broken, is one that the leasee should, within two years from the date of the lease, roof and cover in the house on the said lands and, raise the wall to the extent of at least four feet. The second covenant, of which a breach is alleged, is the ordinary one to repair—namely, that the lessee, his executors, administrators, and assigns should, during the continuance of the said demise, preserve, uphold, support, maintain, and keep the said demised premises and all buildings, &c., thereon, in good and. sufficient order, repair, and condition. There is a stringent covenant in the lease against alienation without the landlord’s consent, and a clause of re-entry for breach of covenants. Two breaches are alleged—first, of the covenant to roof and cover in the dwelling-house and to raise the wall thereof. The breach of that covenant, which it was admitted by the defendant took place, occurred in March, 1863. I say nothing as to the right of the plaintiff to recover on that breach, for it was not argued before us. It is suggested that the Statute of Limitations is a bar, but I say nothing as to whether the Statute of Limitations is applicable or not. The second breach alleged is that of the general covenant to repair. The plaintiff was examined at the trial and proved the death of the lessee, the payment of rent by the defendant after his death, and that he gave the defendant leave to take down the walls of the house, but that the defendant promised to rebuild it. The defendant was also examined, and swore that the plaintiff absolutely consented to the walls of the dwelling-house, which was in ruins, being removed, and that there was no promise by him to rebuild. I apprehend it is perfectly clear law that if there is a covenant to do something in regard to some subject-matter, and that by common consent of both parties that subject-matter ceases to exist, the covenant then ceases to operate, on the ground that there is nothing on which it can operate; and I think there was in this case evidence to go to the jury that the plaintiff consented to the walls of the house being taken down. If he did, he would not be entitled to a verdict, and therefore it is necessary that there should be a new trial. I am also of opinion that this ejectment cannot be maintained unless the defendant is proved to be the legal assignee of the lease, in consequence of the notice which the 14th section of the Conveyancing Act, 1881, requires to be served on the lessee—the word “lessee” including “assignee” by the words of the section itself. It is another matter, however, what is an assignee. On the death of Benn, the leseee, no representation was taken out, but the defendant entered into possession, claiming to hold as tenant under the lease, and paid the rent. In every respect he has claimed the rights of the tenant, and has represented himself as such. There being no legal personal representative and no possible assignee by deed, inter vivos, in consequence of the covenant against assignment, the question then is, whether it is competent for the defendant to say that he is not the legal assignee of the lease. I am of opinion that where a person is in possession of land, claiming to hold it under an existing lease, and that that person has a good title against every person except the true owner, and, in addition, that there is no person in existence in whom the legal interest is vested, he is entitled as against everybody. I think it follows logically from this that a landlord is entitled to treat the person in possession under such circumstances as the assignee of the lease. The cases of Rees v. Perrott (4 C. & P. 230), and Nugent v. Lord Bantry (2 H. & Br. 156), strongly support this view. The cases both turn on the facts that there was no person in existence who was the true owner of the term, and that the person in possession had the best right to it. I shall conclude by reading a passage from the judgment of my brother Dowse in Sweeny v. Sweeny, which I fully adopt, and which, I think, rightly states the law on this subject:—“No one, I apprehend, will dispute that if it were not for the letters of administration the defendant should succeed in this action. Since the decision of Rees v. Perrott it has been accepted as settled law that, on the death of a tenant from year to year, the landlord is not bound to raise a personal representative to the deceased tenant as a condition precedent to the determination of the tenancy by a notice to quit: he can, in the absence of a personal *91 representative, treat the party in possession as the tenant to all intents and purposes. The reason given for this by some is that any person holding the possession or assuming the ownership of the land may be treated as assignee of the tenant’s interest. Rees v. Perrott is recognised as law in many cases in England and Ireland. In Ireland notably in the cases of Jones v. Murphy and Armstrong v. Loughnane. We have been told that, in the absence of a personal representative, the person in possession must be presumed to have the tenancy vested in him. Before the statute enabling parties to a suit to be examined, possession was almost conclusive evidence of an assignment. I do not think that now-a-days a defendant would be allowed to defeat an ejectment by merely proving that there was no assignment in fact, and that, with the facts of Rees v. Perrott, its law was no longer applicable,” I think that a sounder ground still to rest the judgment upon is that, when a person has a title to land as against every existing person, he is bound to perform the obligations to which the legal assignee would be liable. I offer no opinion as to what would be the rights of the true representative of the original lessee in case representation were ever taken out. He is not a party to the action, and it is not necessary for the decision of the case to say what his rights would be. As, however, independently of this question, there was substantial evidence of a waiver by the landlord of the covenants in the lease, on which an issue should have been left to the jury, the conditional order for a new trial must be made absolute, with costs.
Dowse, B.
I am entirely of the same opinion, and I do not think it necessary to add anything to what the Lord Chief Baron has said.
Andrews, J., concurred.
O’Reilly v. East Coast Cinemas Ltd.
[1968] IR 58
Davitt P.
This is an action for damages for breach of covenants to repair. The premises in question are situated on the Quinsborough Road, Bray, in the County of Wicklow. They date, apparently, from about the middle of the last century and they appear to have been used at different times as assembly rooms, Turkish baths, and as a skating rink and cinema. Some time prior to the year 1936 they had been leased by the plaintiffs to a Mrs. McDermott, who used them as a cinema, and in that year she assigned her interest to Mr. Maurice Baum, who continued so to use them until August, 1947. Before certain work was done, with which I shall have to deal later, the premises consisted of a building in oriental style in brick and plaster containing a central portion which was a hall or auditorium with a gallery, a one-storey structure in front, and a one-storey return building at the rear. The hall had a maple-wood floor which had been laid on top of the original timber-board floor. It had a roof constructed of arched or curved wooden ribs which were sheeted with timber and covered with sheets of corrugated iron. The gallery was constructed entirely of timber and so was the staircase leading to it. In the centre was the operating box constructed of concrete blocks. The one-storey structure in front, which has been referred to as the vestibule, had two entrance doors leading to a kind of foyer in which was the box-office. It had five windows on either side of the entrance doors, and a flat roof which was lead covered. The return building at the rear contained lavatories and cloakrooms. It had an A-shaped slated roof with lead sheeted valley gutters. There were several windows in the clerestory of the central portion or auditorium.
In August, 1947, a fire occurred in the operating box and gallery. This did not do much damage but the cinema was closed pending the carrying out of certain alterations, which were required by the local authority. These involved the construction of a new operating box, thrust out from the back of the gallery, and the provision of separate exits from the box and the gallery. The thrust-out box would overhang the premises of the lessors, which were situated next door, and Mr. O’Reilly objected. In the result the alterations required were never carried out and the premises were never reopened as a cinema.
Mrs. McDermott’s lease had apparently expired in 1946 and in April, 1947, the plaintiffs granted a new lease to Mr. Baum for a term of 21 years from the 1st May, 1946. Some time in May, 1948, he assigned his lessee’s interest to the defendant company of which he was managing director.
In 1949 the defendants decided not to go ahead with the plans for reconstruction of the premises as a cinema, and instead they decided to reconstruct them as a repertory theatre. They instructed their architects, Messrs. Good & Siberry, to prepare plans accordingly. They prepared plans and specifications which were submitted to Mr. O’Reilly for his approval, and which secured his approval in January, 1949. They do not appear to have been submitted for approval to the local authority until the year 1951 when they were approved, subject to certain amendments. They provided for the construction of an entirely new roof to the main building. At this period, and up to the year 1952, it was necessary to obtain a licence from the Department of Industry and Commerce to carry out the reconstruction envisaged, and that licence was not forthcoming. All that could be obtained was a licence to do certain work if the cost did not exceed £500 in each year; and for a period of some four years the defendants carried out a considerable amount of demolition work. The balcony and operating box were taken away and also the box-office in the vestibule. The portion of the front wall between the two entrance doors was broken down to make way for one wide opening for a new entrance. Inner wall openings were built up and new ones made. Defective plaster was hacked off the walls. During this period the lead was stripped from the flat roof of the vestibule, and from the valley gutters of the return building.
When licences were no longer necessary, after 1952, the defendants had to consider raising the money required to finance the plans for reconstruction. Possible sources of finance were unwilling to make any advance because the term of the defendants’ lease was comparatively short. The defendants negotiated with Mr. O’Reilly for the surrender of their lease of 1947 and the grant of a new lease for a longer term; and on the 12th March, 1955, were granted a new lease for a term of 35 years from the 1st January, 1955. Notwithstanding the grant of the new lease, no reconstruction of the premises was ever carried out as the defendants did not obtain the necessary financial accommodation, and the premises were left unused since August, 1947.
Each of the leases contained a covenant by the lessee to keep the premises, with the exception of the main roof, in good and tenantable repair; and also a covenant by the lessors to keep the main roof in good and sufficient repair.
It is common case that the premises are now in a hopeless state of dilapidation and that it would not be an economic proposition to repair them. It is clear that the best thing to do would be to take them down completely and replace them with some structure or structures which could be profitably used. It would seem that, apart from some leaks in the main roof, the premises were in a reasonable state of repair up to the time of the fire in August, 1947, when they were being regularly used as a cinema. Most of the deterioration appears to have occurred in the ensuing eleven years. Mr. Alfred Murphy, the plaintiffs’ architect, examined them and reported the results in December, 1958. He found that the main roof was then in fair repair and staunch. It had been completely re-covered with corrugated-iron sheeting shortly before the new lease was granted. He reported that the premises generally were in a deplorable state of dilapidation. The entire main floor was completely infested with dry rot, which had affected practically all internal woodwork. All plastering, internal and external, was missing or falling off; all woodwork was decayed or broken, and all windows missing or letting in the weather. It is, perhaps, doubtful if anything could have been usefully done since 1958 to arrest the process of decay. In fact nothing was done and the premises have since been left completely derelict. The defendants eventually went into voluntary liquidation, and the liquidator surrendered possession of the premises to the plaintiffs in April, 1963.
The present proceedings were instituted in the year 1959. The main defences raised by the defendants are (a) that the plaintiffs waived any claim to damages for breach of the covenant to repair in the former lease by accepting the surrender of the lease of 1947 and by the grant of the new lease of 1955, and (b) a defence based upon s. 55 of the Landlord and Tenant Act, 1931.
As regards the first of these defences, I am quite satisfied that the plaintiffs did not waive their claim to damages. If the defendants had proceeded with their plans for the reconstruction of the premises as a repertory theatre according to the plans approved by Mr. O’Reilly, presumably no question would have arisen as to repairs. The mere acceptance of the surrender and the grant of a new lease is not sufficient to operate as a waiver; and the correspondence between the parties’ respective solicitors and the circumstances generally afford no evidence of a waiver otherwise.
As regards the second defence, it is clear that the plaintiffs cannot succeed unless they can establish that the want of repair of which they complain is wholly, or substantially, due to wilful damage or wilful waste committed by the defendants. I believe that the defendants intentionally and deliberately stood by and did nothing in the way of necessary repairs while these premises literally went to rack and ruin. This, however, does not amount to wilful waste within the meaning of s. 55 of the Act of 1931 as interpreted by the Supreme Court in Gilligan v. Silke (1). In that case Maguire J., with whom Lavery J. agreed, took the view that to constitute wilful waste there would have to be some act or acts committed by the lessee deliberately and intentionally directed towards the spoliation of the tenement. In the present case the defendants carried out the demolition work to which I have already referred but this was done with a view to the reconstruction of the premises as a repertory theatre, and was not directed towards their spoliation. In any event it seems to me that this demolition work was not the real cause of the dilapidated condition of the premises. This, in my opinion, is due to the failure to keep them weatherproof. No doubt the defects in the main roof for a number of years before its re-covering in 1954 or 1955 may have been a contributory cause to the appearance of dry rot, but I am not prepared to accept it as the main cause.
I incline to the view that the principal cause was the failure to make the roof of the return building at the rear staunch and weatherproof after the lead valley gutters had been stripped. Considerable damage must also have resulted from the failure to make the roof of the vestibule in front staunch and weatherproof after the lead had been stripped from it, and from the failure to plaster the walls again after the old plaster had been hacked off. In short, it was not the acts of demolition which caused the damage; it was the failure to secure the premises, temporarily at least, from the effects of the weather during and after the work of demolition. In my opinion the defendants are entitled to succeed in their defence based upon s. 55 of the Act of 1931.
The plaintiffs appealed to the Supreme court from the decision of Davitt P.
O’Dalaigh C.J.
This appeal, which is from a judgment of the former President, Davitt P., is concerned with the correct interpretation of s. 55(b)4 of the Landlord and Tenant Act, 1931. The meaning of this section was considered by this court in Gilliganv. Silke (1). The former President took the view that that case precluded him from finding in favour of the plaintiffs. He therefore dismissed the action with costs.
The judgment of Davitt P. sets out the facts and circumstances of the case at length. For the purpose of this appeal it will suffice to present a brief summary. The action is for damages for breach of covenant to repair. The premises in question are in Bray, Co. Wicklow. It would appear that they were erected about the middle of the last century, and at different times they have been used as assembly rooms, Turkish baths, a skating rink and latterly as a cinema User as a cinema commenced some time prior to the year 1936 and continued until August, 1947, when a fire occurred in the operating box in the gallery. The fire did not do much damage. It was necessary to close the cinema pending the carrying out of certain alterations required by the local authority. The premises have not been re-opened since then. The building consists of a hall or auditorium with an arched roof and two subsidiary structures. The first of these is a flat-roofed vestibule in the front of the building, and the second is a return building at the were containing toilets and cloakrooms. The roof of this latter building is A- shaped.
In the year 1936, Mr. Maurice Baum acquired the lessee’s interest from a Mrs. McDermott; the McDermott lease expired in 1946. On the 1st April, 1947, the plaintiffs as lessors granted a new lease to Mr. Baum for a period of 21 years from the 1st May, 1946, and in May, 1948, he assigned his interest under the lease to the defendant company of which he is a managing director.
The work required to be done by the local authority following the fire included a provision for a projection box which would be exterior to the premises of the lessees and would overhang the adjoining premises of the lessors. The lessors refused their consent to this structure and, in the result, the alterations were never carried out. In the year 1949 the defendants decided to abandon the idea of reconstructing the premises as a cinema and instead to re-plan them as a repertory theatre. Their architects, Messrs. Good & Siberry, prepared plans and specifications for submission to the lessors. The lessors’ approval was given in January, 1949, and subsequently in 1951, after certain modifications were agreed upon, the approval of the local authority was obtained.
Up to the year 1952 it was necessary to obtain a licence from the Department of Industry and Commerce to carry out the reconstruction work envisaged. The only licence which could be obtained was to do work for a cost not exceeding £500 in each year, and for a period of about 4 years the defendants carried out a considerable amount of demolition work. This demolition work may be summarised as follows. The balcony and operating box and the box-office in the vestibule were removed; the front wall between the two entrance doors was broken down to make way for a wider new entrance; the inner wall openings were built up and new ones made; and defective plaster was hacked off the walls. It also appears that during this period of 4 years lead was stripped from the flat roof of the vestibule and from the valley gutters of the return building, but no evidence was given as to how this occurred or who was responsible for it.
When, in 1952, a licence was no longer required for building work, the defendants were faced with raising money to carry through their plans. One of the difficulties was the comparatively short term of their lease. After negotiations with the plaintiffs, the lease of 1947 was surrendered and a new lease for a longer term granted. This is the lease of the 12th March, 1955, which granted the premises for a term of 35 years from the 1st January, 1955. Nothwithstanding the grant of a longer term, the defendants appear to have been unsuccessful in finding the necessary finance for the work involved and nothing more was done. The defendants eventually went into voluntary liquidation and in April, 1963, the liquidator surrendered possession of the premises to the plaintiffs. The present proceedings were instituted in 1959 but did not come for hearing until May, 1966.
Davitt P. held that the defendants, intentionally and deliberately, stood by and did nothing in the way of necessary repairs while the premises literally went to rack and ruin. The dilapidated state and condition of the premises was, however, in his view not due to the demolition work which the defendants had carried out. He found that the real cause of the dilapidation was the defendants’ failure to keep the premises weatherproof. While defects in the main roof (which the lessors covenanted to keep in repair) may have contributed to the appearance of dry rot, this was not the main cause. The principal cause, as found by Davitt P., was the failure to make the roof of the return building at the were staunch and weather-proof after the lead gutters had been stripped. In addition Davitt P. held that considerable damage must also have resulted from the failure to replaster the walls after the old plaster had been hacked off. He summarised his findings by saying: “In short, it was not the acts of demolition which caused the damage; it was the failure to secure the premises, temporarily at least, from the effects of the weather during and after the work of demolition.”
Although Davitt P. held that the defendants, intentionally and deliberately, stood by and did nothing in the way of necessary repairs while the premises literally went to rack and ruin, he nevertheless was of opinion that this did not amount to wilful waste within the meaning of s. 55(b) of the Act of 1931 as interpreted by this Court in Gilligan v. Silke (5). He said that in that case Maguire J. “took the view that to constitute wilful waste there would have to be some act or acts committed by the lessee deliberately and intentionally directed towards the spoliation of the tenement.” That had not been established in this case, and he therefore dismissed the plaintiffs action.
The evidence with regard to the stripping of gutters of the vestibule and return building can be disposed of shortly. The plaintiff, Mr. O’Reilly, was unable to say by whom the lead had been removed; he did not see the actual stripping. Mr. Baum, for the defendants, said that all they did was to put rubberoid on the return building and that no one, to his knowledge, had stripped the lead from either of these buildings. He added that he had not heard of lead being removed until the hearing in court that day. One may summarise the effect of this evidence by saying that the plaintiff did not establish that the stripping of lead from the roof of the vestibule and of the return building was part of the demolition work carried out by the defendant company. The position therefore appears to be that the condition of the roofs of these two buildings is not to be ascribed to any positive action upon the part of the defendants, but that it is due rather to wear or tear and to the action of some third party for whom the defendants are not responsible.
On the 19th November, 1951, the Town Engineer, Mr. Healy, wrote to Mr. Siberry, the defendants’ architect, calling his attention to the fact that the roofs of the annexes were leaking rather badly and would need considerable repairs. Notwithstanding this, no step whatever was taken by the defendants to make the roofs of these buildings weatherproof and, as Davitt P. has found, the defendants intentionally and deliberately abstained from doing the necessary repairs. It was this action on their part which he said was the principal cause of the dilapidated condition into which the premises later fell.
The defendants’ conduct amounted to wilful permissive waste, that is to say, being aware of the leaking state of the roofs of the annexes from, at latest, November, 1951, they took no steps, intentionally and deliberately, to prevent the premises falling into a dilapidated condition. Davitt P. clearly interpreted Gilligan v. Silke (6) as holding that wilful permissive waste was not wilful waste within the meaning of s. 55(b) of the Act of 1931.
Kingsmill Moore J., who delivered the first judgment in the under the heading of “wilful waste” and, as Davitt P. had not decided that question in Gilligan’s Case (8), he would have sent the case back for retrial on this point. At p. 20 of the report Kingsmill Moore J. defined “wilful” as meaning “conscious and deliberate” or, as he put it later, as “something deliberate and intentional, something which involves a choice of courses, something to which the mind and will is a party.”He was also of the view that “waste” was a term of legal art and, as such, was divided into “voluntary waste” and “permissive waste.” Moreover, he was clearly of the view that the verb “commit,” in the context of the phrase “wilful waste committed,” covered acts of omission as well as acts of commission and he cited old and well-established authority for this view. Both Maguire J. and Lavery J. were of opinion that Sheila Gilligan’s action should be dismissed. At the invitation of Lavery J., who presided, Maguire J. delivered his judgment before that of Lavery J. Lavery J. in his judgment agreed with Maguire J. In the course of his judgment expressing his agreement, Lavery J. stated (at p. 31 of the report) what he understood Maguire J. to have decided. Lavery J. said: “Mr. Justice Martin Maguire has also fully explained his view as to the meaning of the term [wilful waste] and is of opinion that mere ‘permissive waste’ cannot be considered ‘wilful waste’ and that what was done, or rather omitted to be done, here was permissive waste only.” Later, at p. 32 of the report, he pointed out that “wilful” qualified both “damage” and “waste” and said he thought the word must be given the same meaning in both cases.
I turn now to the judgment of Maguire J. At p. 27 of the report, in dealing with the terms “wilful damage” and”wilful waste” he said: “In their ordinary meaning they contemplate some acts that are deliberate and intentional. I find myself quite unable to accept the argument that they mean nothing more than spontaneous or accidental, or that they can be construed as implying merely permissive waste in the ordinary meaning attributed to that phrase.” He returned to the same idea at p. 28 of the report where he said that:”One might say that if the Legislature had meant by ‘wilful waste’ merely permissive waste it could readily have said permissive waste or, simply, waste, without introducing this new expression, ‘wilful waste.’ If knowledge of the existing law must be imputed to the draftsmen of this Act, then I think they went more than a little out of their way to introduce a provision new to the law to effect a departure from well established precedent. The onus of showing wilful damage or wilful waste committed by the tenant is thrown upon the landlord. ‘Waste’ must be construed as a term of art. But ‘wilful waste’ is a new term, found for the first time in this Act of the Irish Legislature.” Finally, at p. 29 of the report, he concluded with these words: “In this case there is no evidence of wilful waste, no evidence of any act committed by the defendants deliberately and intentionally directed towards the spoliation of the tenement.”
It was in these last words that Davitt P. in the present case saw the gist of the decision of the majority of the Supreme Court in Gilligan’s Case (9). From the earlier citations from the judgment of Maguire J. it is clear that he is insisting that wilful waste is not permissive waste merely, that the term”wilful” adds something to “waste” and that “waste”must be construed as a term of legal art. As such, it includes”permissive” as well as “voluntary” waste. He never receded from this view. The words, in the judgment of Maguire J. in Gilligan’s Case (10), which led Davitt P. in this case to think that Maguire J. was excluding from the term “wilful waste” wilful permissive waste are the words: ” . . . act committed by the defendants deliberately and intentionally directed towards the spoliation of the tenement.” If by these words Maguire J. meant to convey that there must be a positive acton the part of the lessee (i.e., committed by the lessee), then what he was saying was wholly inconsistent with the nature of permissive waste as accepted by him earlier in his judgment, not alone this, but he was overlooking, as Kingsmill Moore J. pointed out in his judgment, that, while the verb “commit”ordinarily applies to something done actively, it is common to talk of committing an error, fault, or sin, and that the error, fault, or sin may be one of omission. Moreover, and more significant, words like do or make waste (firmarii vastum non facient in the Statute of Marlbridge or que aver fait vastumin the Statute of Gloucester) have long since been understood to cover passive as well as active waste. I see in the words “directed towards the spoliation of the tenement” in the judgment of Maguire J. nothing additional to what is contained in the words “deliberate and intentional,” that is to say, that the lessee is conscious and well aware of the likely result of his omission. It should, moreover, be pointed out that, having reached the view that the acts of waste alleged against the lessee in Gilligan’s Case (11) were merely permissive waste, the additional words of Maguire J., which misled Davitt P. in this case, were obiter.
I cannot construe the judgment of Lavery J. in Gilligan’s Case (12) as rejecting the concept of wilful permissive waste. If the judgment of Maguire J. can be construed as doing so, it is at variance with the views of the other two members of the Court in that case and, as I have indicated, it is quite at variance with the long-established meaning of the term”waste.” Lavery J., as I have pointed out, was at pains to underline that the argument which was being rejected was that “wilful” added nothing to mere permissive waste; and, further, that the acts alleged against the lessee in Gilligan’s Case (13) were in the view of Maguire J., and also in his view, permissive waste only.
The result of this analysis is to show that Davitt P. was in error in this case in the view that Gilligan’s Case (14) had laid down that “wilful waste” in s. 55 of the Act of 1931 did not extend to wilful permissive waste. On a careful reading of that case it appears that the Court (or at least two of its members) accepted the contrary view; that is to say, that”waste” as a term of legal art necessarily included permissive as well as voluntary waste. In the result this appeal should be allowed, and judgment should be entered for the plaintiffs and the matter remitted to the High Court to fix damages.
HAUGH J. :I agree.
WALSH J. :I agree.
BUDD J. :I agree.
FITZGERALD J. :I agree
Ellis v. Dublin Corporation.
Supreme Court.
[1940] IR 288
SULLIVAN C.J. :
The appellants in this appeal are the defendants in the action brought by the respondent claiming damages for waste alleged to have been committed on her lands by the appellants, their servants and agents. The action was tried by Hanna J. without a jury and resulted in judgment for the respondent for £310 damages. The grounds of appeal relied upon on the hearing of the appeal were that the learned Judge misdirected himself in holding that the acts in respect of which damages were claimed were actionable waste, and in measuring the damages, and that the damages awarded were excessive.
By indenture of lease, dated the 15th March, 1933, the respondent demised to the appellants, for the purpose of the Acquisition of Lands (Allotments) Act, 1926, part of the lands of Ballygall, containing 20 acres 2 roods, statute measure, situate at Santry, County Dublin, for the term of five years from the 1st February, 1933, at the yearly rent of £153 10s. 0d. The lease contained covenants by the appellants to pay all rates, taxes and charges charged upon the premises or on the owner or occupier thereof, not to erect upon the premises any building, structure or erection whatsoever except a small number of small wooden sheds for the purpose of storing tools, to keep all fences, ditches, hedges, gates, and trees on or bounding the demised premises in as good a state of repair as they were at the date of the lease, and not to cut down or injure any of them, not to use or suffer to be used any part of the premises for any other purpose than allotments for cultivation, and at the expiration of the term to deliver up to the respondent the said premises in such state and condition in all respects as should be consistent with a due and reasonable performance of the covenants therein contained.
Upon the lands so acquired by them the appellants allocated plots to 192 persons, and these persons entered into possession of their respective plots in the month of February, 1933, and remained in possession until the lease expired on the 31st January, 1938. On that day the respondent took up possession, and, being dissatisfied with the condition in which the lands had been left, she made complaints to the appellants, and subsequently consulted her solicitor, who instituted this action on the 9th July, 1938.
The action was heard by Hanna J. on the 27th and 28th February, 1939. The learned Judge found:
1. That at the date of the lease the lands were good grazing lands, and that the fences were not defective and were in a reasonably good condition.
2. That on the expiration of the lease the lands were given up in a very dilapidated condition, impossible to till at a reasonable date and impracticable for tillage without the expenditure of a considerable sum of money.
3. That about 70 huts, some of substantial character, were left on the lands until May, 1938.
4. That water holes were dug here and there, one being 4 feet deep.
5. That the lands were covered with impedimenta, scrap iron and barrels driven into the soil here and there.
6. That some of the trees were cut down.
7. That the banks of a stream were pushed down into the stream.
8. That the fences were left in a very bad condition, with gaps here and there.
9. That the lands were on a slope and that some of the plotholders had raised one end of their plots so as to have them level. That this rendered the lands useless for any agricultural purpose.
10. That large stones removed from the plots had been used to pave the pathways between the plots and had been beaten into the ground, leaving borders and ridges between nine inches and one foot high.
11. That the lands could not be ploughed in the condition in which they were left.
On these findings the learned Judge held that “a certain amount of waste” had been committed, for which the appellants were responsible in damages, and he gave judgment accordingly for the respondent for damages, which he measured at the sum of £310.
The notice of appeal does not allege that the evidence given at the trial was insufficient to support any of the findings of fact at which the learned Judge arrived and upon which his judgment was based, and it is therefore unnecessary for me to refer to the evidence in support of them.
It was, however, contended on behalf of the appellants that the learned Judge misdirected himself in holding that the acts complained of constituted actionable waste, having regard in particular to the statutory purposes for which the lands were let and to the covenants in the lease. In support of their argument on this branch of the case counsel for the appellants advanced two propositions: 1, that acts do not constitute waste unless they are such as to cause permanent damage to the reversion; 2, that an act is not waste if it is reasonable and proper having regard to the character of the lands demised and the purposes for which they were let. Neither of these propositions was disputed by counsel for the respondent.
Accepting the facts as found by the trial Judge, and leaving out of consideration for the moment the object for which the lands were let and the terms and conditions of the lease, I am of opinion that the learned Judge was right in holding that waste had been committed on the lands. It is not necessary to decide that all of the acts enumerated in his findings of fact were waste, some I think clearly werecutting trees, digging holes, breaking down fences, driving large stones into the earth in order to pave the pathways, altering the level of the landswhen the combined effect of these acts was that the lands could not be ploughed and were useless for any agricultural purpose.
If I am right in that, then is it reasonable to say that these acts, which were prima facie waste, should not be regarded as such in view of the object for which the lands were let and the provisions contained in the lease? I do not think that it is. I agree with a great deal of what was said by the appellants’ counsel as to the probable consequence of the occupation of the land by 192 plotholders,
and of their unskilled efforts to cultivate it, and I would not interpret too strictly the covenant to deliver up the land to the lessor “in such state and condition in all respects as shall be consistent with a due and reasonable performance of the covenants in the lease.” But I cannot hold that the respondent should reasonably have contemplated, or that it was consistent with the Reasonable observance of the covenants in the lease, that the acts which I have characterised as waste would be committed, and that the land would be delivered up in the condition described by the learned Judge, and it follows that in my opinion those acts cannot be justified or excused under the provisions of the lease.
There remains for consideration the question of damages. It was contended on behalf of the appellants that the learned Judge misdirected himself as to the measure of damages, and that the damages awarded were excessive. The principle upon which the learned Judge measured the damages appears from the following passages in his Judgment:
“The measure of damages to be applied may be such a sum as will enable the lessor to restore the land to its previous condition, or it may be the extent to which the market value of the land in reversion has deteriorated. One test is to be applied for some items, the other for others . . . I must have some regard to the condition in which the ground was left, and to the impossibility of making a fair use of the land within a reasonable period. I have to give some consideration also to the measure of damages as represented by what it would cost to repair the fences and drains and to clear up the rubbish.”
Taking those matters into account the learned Judge was satisfied on the evidence that for two years the respondent would be deprived of the profitable use and enjoyment of the lands, and that £6 an acre per year was a reasonable estimate of such profit and accordingly he measured the damages for the injury to the lands at £240. He allowed a further sum of £60 as damages to cover the cost of repairing the fences and drains and of clearing off the waste material left on the lands. The entire damages therefore amounted to £310, for which sum he gave judgment for the respondent.
On the hearing of this appeal counsel on behalf of the appellants contended that the true measure of damages in this case was the diminution in the saleable value of the respondent’s land caused by the waste committed upon it, and that, in the absence of any evidence as to the amount of that diminution, the learned Judge had no materials upon which he could properly assess damages. In support of that argument they cited several cases: Hoskings v. Phillips (1); Whitham v. Kershaw (2); Espirv. Basil Street Hotel, Ltd. (3)as authorities for the proposition that the true measure of damages in an action for waste is the diminution in value of the reversion less a discount for immediate payment. In each of these cases the action was brought during the currency of the lease and I do not question that in such cases the proposition for which the appellants contend applies. But in the present case the action was brought when the lease to the appellants had expired and the respondent had resumed possession of the lands, and no authority has been cited that in such a case the sole and exclusive measure of damages is the diminution in selling value of the lessor’s interest in the lands. The only case that I have been able to find in which the plaintiff’s interest in the land at the time the action was brought was an estate in possession is Woodhouse v. Walker (4). In that case the devisee in fee of certain premises sued the executor of the devisee for life to recover damages for waste committed by the tenant for life. The Court of Queen’s Bench in England Lush and Field JJ.held that the proper measure of damages was the sum that was reasonably necessary to put the premises in the state of repair in which the tenant for life ought to have left them.
An action for waste is an action to recover damages for tort and the general rule is that the damages awarded for tort are to be such as are a fair measure of compensation to the plaintiff, the amount being, as near as can be estimated, that by which he is the worse for the defendant’s wrongdoing: Pollock on Torts, 13th Ed., p. 191. When an action for waste is brought by a reversioner he cannot recover any damages unless he can prove that the injury to the land is of a permanent character and will be injurious to the land when his estate comes into possession. It is quite intelligible that in such a case the true measure of damages should be the diminution in the selling value of the reversion less a discount for immediate payment, as the reversioner would not be damnified by acts which interfered with the use and enjoyment of the lands only during the continuance of the term. But where, as in the present case, the term has expired before the action is brought and the plaintiff is in possession, I do not think that the only measure of his damages is the diminution in the selling value of the lands. If he can establish that, as the direct result of acts of waste, he has been deprived of the profitable use and enjoyment of his lands, and can prove the monetary loss that he has suffered thereby, I can see no reason why the damages should not be measured on that basis. Those matters have been proved in this case to the satisfaction of the trial Judge, and he measured the damages in respect of the injury to the lands on that basis. He allowed a further sum to cover the cost of repairing the fences and drains and of clearing away waste materials. I am not satisfied that leaving waste materials on the land, even to the extent proved, was waste, but as I am satisfied on the evidence that the sum awarded would be justified in respect of the cost of repairing the fences and drains alone I do not think that the award of damages should be set aside.
For these reasons I am of opinion that this appeal fails and should be dismissed.
MURNAGHAN J. :
I am in complete agreement with the judgment of the Chief Justice, and have nothing to add.
MEREDITH J. :
The plaintiff’s claim is definitely restricted to one for acts of waste.
To be an act of waste the act must be committed by a person who is in lawful possession of land, and it must be an injury to the land and wrongful at the time it is done. An act which is not an act of waste at the time it is done cannot subsequently become an act of waste because of something not done when the person who did the act has ceased to have any right in respect of the land. Acts done by a lessee that were in the contemplation of the parties to the lease, and for which there is, therefore, an implied licence, cannot on the determination of the lease become acts of waste.
In the present case there was nothing wrongful in the erection of the huts on the lands, or in the leaving them on the lands during the continuance of the lease. Leaving them there after the expiration of the lease might give rise to an action for trespass, or, if the covenants had been adequate, to an action on the covenants, but not to an action for waste.
Counsel for the appellants put forward two propositions, viz., 1, that acts do not constitute waste unless they aresuch as to cause permanent damage to the reversion; 2, that an act is not waste if it is reasonable and proper, having regard to the character of the lands demised, and the purposes for which they were let. These propositions were not disputed. It is not necessary for me to refer to any of the authorities cited in the judgment of Mr. Justice Johnston, which I have had the advantage of reading.
Some of the acts relied upon by the plaintiff certainly were not acts of waste, e.g., the non-removal of the huts, and the alleged insufficient manuring of the land. As to the others, the question is largely one of degree, and this depended on the credibility of witnesses, according to some of whom, in effect, the whole configuration of the land was changed and extensive excavations made.
But it is not clear to me that Hanna J. awarded the £310 in respect of any acts which were not acts of waste. The ideal procedure would have been to have given a separate finding as to each act of waste and a separate award in respect of each, and to have aggregated. The cases on the measure of damages suggest to me that one method is the better in some cases and the other the better in other cases. But the plaintiff in this case brought forward inadequate material for separate assessments. Under those circumstances the learned Judge adopted a rough-and-ready method of assessment, and made the best use he could of the material before him. His method may be open to theoretical criticisms, and the sum of £310 may, as he himself thought, have been on the generous side; but I could not see my way to expressing the opinion that there must be a new trial. The award of £60 in respect of the damage to the fences and to the drains is, of course, open to no objection.
Accordingly I am in agreement with the judgment of the Chief Justice, which I have had the advantage of reading.
GEOGHEGAN J. :
The Chief Justice has allowed me to read his judgment in this case, I am in agreement with it, and have nothing to add.
JOHNSTON J. :
The principal difficulty in this case arises from the fact that Miss Ellis and her advisers failed so utterly to understand the nature of the use to which her land was to be put and the implications which were involved in that use.
The land was not let to a professional “farmer” for tillage or pasture in the ordinary waya person who would use it according to the methods of good husbandry and hand it over to the lessor at the end of the term in accordance with the requirements in general of the statute and the common law. She let it to a Corporation for the purpose of being broken up into an unlimited number of allotments so far as the contract is concerned the field might have been broken up into hundreds of allotmentswhich were to be assigned to an equivalent number of amateurs in tillage and unemployed persons for a purpose which was not farming in the ordinary sense.
The definition of an “allotment” in the Act is “a piece of land . . . let or intended to be let for cultivation by an individual for the production of vegetables mainly for consumption by himself and his family,” and the provision of allotments is to be made by a “local authority” (as defined in the Act). The land to be provided for this purpose is ordinarily to be provided “by agreement”and in accordance with “a scheme,” which is to be approved of by the Minister for Local Government. The business of a local authority in providing allotments under this Act is not of an ordinary industrial character, but is more in the nature of an eleemosynary or charitable undertaking for the relief of “the inhabitants of the area of such local authority.”
Miss Ellis, however, without taking these matters into consideration, entered into an agreement with the Dublin Corporation for the letting of a twenty acre field at the back of her private dwellinghouse and adjoining the shrubbery, giving the Corporation the right of admitting an unlimited number of plotholders and their families to the field, with the right of access through her private avenue. The field was mapped out to be used by a body of one hundred and ninety-two persons to whom plots were assigned by the Corporation. The plotholders were expressly given the right of erecting huts for the storage of their tools, and (as provided by the Act) the Corporation was entitled to “execute” on the land acquired “all works necessary to render the land suitable for use as allotments.”I think that if those works were not executed by the defendants, the plotholders themselves were entitled to execute them. This would include the provision of little paths by which each plotholder would reach his own plot, the arrangement of the plots in such a way as would best promote the growth of vegetables, suitable provision for the watering of the plots, and proper facilities to enableeach plotholder to bring to his plot the manure with which he was to be supplied. When these “works” were executed and the plotholders and their families had begun their gardening activitiesfor that really was what it amounted tothe field must have resembled a village, or a small town, rather than an agricultural field. The rent paid for the field was a sum of £153 10s. 0d. yearly and the poor rates and taking £25 yearly as the average amount of the rates, the total rent would amount to £178 10s. 0d., nearly £9 per acre. That was a substantial rent.
The case is one of considerable importance, because it involves some difficult questions as to the nature and contents of the agreement of letting which has been entered into, as well as of the policy and provisions of the Acquisition of Land (Allotments) Act, 1926 (No. 8 of 1926); and I understand that the Corporation intends to seek to make the trustees for the plotholders liable for the amount, if any, that they (the Corporation) may be called upon to pay. If further litigation takes place, that may give rise to a fresh consideration of the matters that now confront this Court.
Miss Ellis and her advisers take a very strong view of the lady’s rights, seeing that a sum of £862 10s. 0d. is claimed in the action. The action is based entirely on waste and nothing more, and what is claimed is damages for such waste, “committed” by the defendants and their agents.
The writ of waste was not in early times available at all by a reversioner as against his termor, and it was not until the Statute of Marlbridge (52 H. 3) that the remedy by way of waste became available at all as against a tenant for a term of years. It was definitely decided in the case of Defries v. Milne (1) that the action of waste is an action of tort and that, in such an action, if a plaintiff finds that he cannot succeed in tort, he cannot fall back upon a claim based upon covenant or contract, either express or implied. Farwell L.J. said:”I think it is clear that the action for waste, and the action on the case in the nature of waste, are both actions for tort, and there is no question of contract at all in waste, in respect of either cause of action.”
Now, in the present case I can find nothing in the pleadings or in the evidence that would entitle the plaintiff to succeed in an action in respect of legal waste, and, indeed, the plaintiff’s answer to the notice for particulars suggests an allegation in the nature of an implied contract rather than a claim in tort.
In 1837, in the case of Hunt v. Browne (1) Sir Michael O’Loghlen, defining waste, said (p. 191):”At law, tenants cannot change the nature of the thing demised.” In the case of Meux v. Cobley (2) it was held that the tenant under an agricultural lease of both tillage and pasture lands near London had not committed waste by erecting hot-houses on a portion of the lands and converting that portion into a market garden. That case is particularly apposite here. In that case, as here, the contract of letting had to be construed in the light of statutory provisions, and Kekewich J. laid particular stress on that point. The Judge comments on the fact that the land was in the neighbourhood of a great city and adds:”The land, which might have been, if in a remote district, more properly devoted to turnips and other crops, finds itself covered with savoys and things of that kind.” He concludes: “A man cannot commit waste, even technically, if he is doing that which he is entitled to do by contract that is to say, he cannot commit waste as against his landlord if his landlord has entered into a special contract enabling him to do it.” It is well settled that the mere allowing land to deteriorate is not waste but bad husbandry. (See the second volume of Rolle’s Abridgement at p. 314, and the case of Hutton and Warren (3).)
If, therefore, the case rested on the pleadings it would appear to me that the action would have had to be dismissed outright. I am willing however, to assume that the pleadings were amended to enable a case founded upon contract to be made. The lands were taken under the Act “by agreement,” and I think that that agreement represents the high-water mark of Miss Ellis’s rights; but the agreement falls very far short of what the plaintiff requires in order to succeed. During the course of the arguments, I mentioned the case of Hopley v. Tarvin Parish Council (4),a case in which the covenants that ought to be inserted in leases of land, taken by a statutory body, to be used as small holdings, were indicated. In that particular case there was a covenant to keep and maintain the field in question in good condition and clean and free from thistles and noxious weeds. Nothing of that kind is to be found in Miss Ellis’s lease. In Key and Elphinstone’s Precedents of Conveyancing (edit. of 1923, Vol. I, pp. 1006, 1009), a form of covenant is set out, providing for the mode of cultivation of land in the case of an agricultural lease that is to say, that the outgoing tenant “will leave at the end of the tenancy two-sevenths parts of the arable land in a fit state and proper tilth for a wheat season.” This is the very crop that Miss Ellis wished to put in, but she made no stipulation to that effect in her lease. The lease might also have contained a covenant that the outgoing tenant “will allow the incoming tenant, after the harvest in the last year of the tenancy, to enter the stubbles and plough the same in case the outgoing tenant is unable or unwilling to perform the work required to be done by the new tenant.” At p. 1022 a model form of lease to a County Council for small holdings under the Small Holdings Act, 1908, is set out, containing suitable covenants to protect the owner of the land, including, inter alia, one that the tenant “will keep and maintain the said field at all times in good condition, and clean and free from thistles and noxious weeds, and well and suitably cultivated, cropped and mended.”
I do not think, however, that any of these negative considerations are of very much importance. There is only one covenant in the lease upon which the plaintiff could rely if this were an action of covenant, and I shall refer to that in a moment. It may be suggested that Miss Ellis cannot rely upon the implied condition of good husbandry that sometimes arises in the case of ordinary agricultural lettings. This was a letting for a very special statutory purposenamely, the purpose of letting the land in allotments to a large body of persons for the growth of vegetables, some of those persons having experience in market gardening, but the majority of them probably being mere amateurs, with no experience; and it seems to me that under such circumstances an implied contract of good husbandry could not possibly arise. Apart, however, from that consideration, there is no evidence that the plotholders did not in fact follow the methods of good husbandry. It can scarcely be doubted that they did so to the best of their ability and in accordance with their limited knowledge. In Lord Blackburn’s well-known judgment in Westrop v. Elligott (1)one of the earliest cases upon the Irish land codethat great lawyer said:”When real property is let for a rent, the terms on which both parties contract regulate the way in which the real property is to be dealt with.”
I should like to point out that the one covenant in the lease upon which it is possible for the plaintiff to rely is the covenant for the keeping of the fences in good repair.
In regard to this matter, I think that there was exaggeration on the part of some of the witnesses who were called on behalf of Miss Ellis, and I am inclined to think that the learned Judge did not place much reliance on a great deal of that evidence. He says:”There were gaps in the fences here and there. There may have been some trouble with people going across them to the football field.” I think that the plotholders were just as much concerned with the proper upkeep of the fences for the protection of their little plots of potatoes and cabbages as was the plaintiff for the protection of her grass field; but I accept Mr. Justice Hanna’s finding of fact as to that matter. There was a certain amount of miscellaneous rubbish left upon the field when the plotholders left it; but as the field was let for the purpose of being broken up into allotments, for the use of a horde of plotholders and their families for five years, the accumulation of extraneous articles upon the field was inevitable, and the lessees had not rendered themselves contractually liable to clear up the field at the end of the term. However, the removal of these extraneous articles was a small matter, as Hanna J. finds as a fact. He says:”They could have been removed by the Corporation’s servants or the unemployed men with little trouble.”
It seems to me that the decision of the Irish Exchequer which Mr. Kelly cited in his very moderately phrased argument is of considerable importancethe case of Powerv. Poor Law Commissioners (1). A lease for twenty-one years of a house and premises was taken by a statutory body for the express purpose of their being used as a workhouse, and the lease contained a covenant to repair and to yield up the premises in repair. There was a proviso enabling the lessees at any time during the term to surrender the premises on giving twelve months previous notice and paying the rent to date. The defendants, for the statutory purpose of converting the premises into a workhouse, made certain alterations in them, including the removal of a corn kiln, some shutters, a rack and manger, and a pump, for which a tank was substituted. The defendants decided to surrender the premises and gave the necessary notice and offered to pay the rent to date. The plaintiff refused to accept the surrender unless the premises were restored to their original state, and he sued for the rent. It was held that the condition that the plaintiff sought to annex to the acceptance of the rent was not warranted by the lease, and that the refusal to accept the surrender was not justified. Pennefather B., in delivering the judgment of the Court of Exchequer, said:”It would appear that the premises were contracted for to be used as a workhouse, and therefore every alteration necessary for the accommodation of the paupers was warranted by the contract”; and it was held that, in the absence of agreement, the plaintiff could not insist upon the restoration of the premises to their original state as a condition to be annexed to the acceptance of the surrender.
Something of the same kind seems to be suggested in the legislation with reference to the acquiring of land for allotments. Sec. 9 of the Act of 1926 provides that whenever the interest of a local authority in any land taken for the purpose of allotments comes to an end, and that”on such termination such land is in the opinion of the Minister for Lands and Agriculture in a condition substantially less suitable for agriculture or pasture . . . than when it was acquired by such local authority, such local authority shall pay compensation for such deterioration in the condition of the land.” The amount of such compensation is to be determined by the Minister, “whose decision shall be final.” Now, this provision seems to be reasonable enough in the case of land taken compulsorily; but when land is taken “by agreement” for allotment purposes the same reasoning does not apply. Accordingly s. 9 of the Act of 1926 was repealed by the Act of 1934 in respect of land taken “by agreement,” and that repeal applies to land acquired either before or after the passing of the Act of 1934. It seems to me that that repeal is entirely in accordance with the principle involved in Power v. Poor Law Commissioners (1).
Mr. Justice Hanna thought that a sum of £60 for the repairing of fences and drains and for clearing up the waste material was enough; but how Miss Ellis can get more than that I find it difficult to see. The use by the plotholders of the stones that they found in the field cannot, in my opinion, be taken into account. The stones in a field are part of the soil, and it would have been waste on the part of the plotholders, if they had removed them from the field. The arrangement of the field into convenient and suitably arranged plots, with facilities for access to each plot, was a necessary consequence of the letting for the purpose of the field being used for allotments, and the plaintiff neglected to make contractual stipulation
as to this matter. On the contrary, she was content to get from the Corporation a rent which was higher than the rent that would have been paid for the field for ordinary agricultural purposes. As the defendants stated in their letter of March 2nd, 1938, the rent payable “was based on a figure which included the normal rent payable, plus an allowance for deterioration of the land.” Further, I cannot close my eyes to the fact that during the five years’ tenancy the plaintiff had the great advantage of getting her land highly manured by the plotholders.
Brew Brothers v Snax (Ros) Ltd
Sachs L.J.: The question whether extensive work involving the rebuilding of walls in whole or in part, of reconstructing foundations, and of underpinning, does or does not on the particular facts of an individual case fall within a repairing covenant, has provided much material for the books. In the course of argument we were appropri ately and carefully referred to the plethora of authorities from Lister v. Lane & Nesham [1893] 2 Q.B. 212 (with the much-cited judgment of Lord Esher M.A. at pp. 216-217, that “however large the words of the covenant to repair may be it is not a covenant to give a different thing from that which the tenant took when he entered into the covenanf); through Lurcott v. Wakely & Wheeler [1911] 1 K.B. 905, to Collins v. Flyn [1963] 2 All E.A. 1068, with its helpful review of many of the decisions. In the course of their submissions counsel referred to a number of varying phrases which had been used by judges in an endeavour to express the distinction between the end-product of work which constituted repair and that of work which did not. They included “improvement,” “important improvement,” “different in kind,” “different in character,” “different in substance,” “different in nature,” “a new and different thing,” and just “something different.” They likewise referred to another set of phrases seeking to define the distinctive quality of the fault to be rectified, such as “inherent nature” (frequently used since Lister v. Lane & Nesham [1893] 2 Q.B. 212), “radical defect in the structure,” “inherent defect” and “inherent vice.” Each of these two sets of phrases in turn was discussed in what tended to become an exercise in semantics.
Moreover, it is really not much use looking at individual phrases which necessarily deal with only one of the infinitely variable sets of circumstances that can arise.
For my part I doubt whether there is any definition – certainly not any general definition – which satisfactorily covers the above distinctions: nor will I attempt to provide one. Things which can be easily recognised are not always susceptible of simple definition. Indeed the only observation I need offer is to reject the submission that if “inherent nature” or “inherent defects” have to be considered, they are confined toa state of affairs due to the age of the premises or to defects that originated when the building was erected.
It seems to me that the correct approach is to look at the particular building, to look
at the state which it is in at the date of the lease, to look at the precise terms of the lease, and then come toa conclusion as to whether, on a fair interpretation of those terms in relation to that state, the requisite work can fairly be termed repair. However large the covenant it must not be looked at in vacuo.
Quite clearly this approach involves in every instancea question of degree, as indeed Mr Blundell was constrained to agree was the correct approach, andI would in this behalf echo the words of Lord Evershed M.A. in Wates v. Rowland [1952]2 Q.B. 12, 23, when dealing with an analogous problem relating to repairs. After setting out two plain examples, he said:
Between the two extremes, it seems to me to be largely a matter of degree, which in the ordinary case the county court judge could decide as a matter of fact, applyinga common-
sense man-of-the-world view.
This is the approach which seems to have been adopted by that very wise and experienced judge Lynskey J. in Sotheby v. Grundy [1947]2 All E.A. 761. There in an underpinning case he found in favour of a tenant who was being called upon to turn “a building which, as originally constructed, would not last more than some 80 odd years intoa building that would last for probably another 100 years” and said at
p. 762 that “in my view that does not come within the purview of the repairing covenant here.”
In the upshot “it is the ‘good sense of the agreement’ that has to be ascertained”
– a phrase conveniently quoted from the 1842 judgment of Tindal C.J. (White v. Nicholson (1842)4 Man. & G. 95, 98} in Woodfa/1 on Landlord and Tenant, 27th edn (1968), p. 634, para. 1458, in relation to a different aspect of repairing covenants.
Having thus stated what seems to me the appropriate approach to the problem, having had the advantage of reading the judgment of Phillimore L.J. on this issue, and being in agreement with what he is about to say, it suffices for me to record that to my mind the trial judge properly approached the question as being one of degree and reached the correct conclusion. I also agree with the view of Phillimore L.J. that the court must look at the work required as a whole and not seek to look at compo nent parts of that work on the doomed premises individually. Any detailed examina-
tion of the work reinforces this view.
Phillimore L.J.: I do not think that it is right to look at each component part of the claim and to say in regard to each item whether it is properly to be called repair or otherwise. The essence of the tenants’ case here is that these landlords less than 18 months after letting the premises were requiring work to remedy defects which existed at the date of the lease at a cost which would be about equal to that of re building the premises as new. After all, the judge had found that the estimate of just under £8,000 to make the premises safe was acceptable but had added that he was satisfied that the flank wall would have to be pulled down and rebuilt on new founda tions. This must surely have added largely to the £8,000 figure.
Megaw J. had of course specifically held that with the exception of the foundation
to the flank wall the underpinning of the other two main walls of the premises would be necessary to render the building safe in accordance with the Pynford report and
the notice of dilapidations served by the landlords.
I agree with the judge, who concluded after reviewing the authorities and particularly the observations of Lord Esher M.A. in Lister v. Lane& Nesham [1893] 2 Q.B. 212,216 and those of Buckley L.J. in Lurcott v. Wakely & Wheeler[1911] 1 K.B. 905, 924 that the vital question in each case is whether the total work to be done can properly be described as repair since it involves no more than renewal or replacement of defective parts, or whether it is in effect renewal or replacement of substantially the whole. It is, as Megaw J. held, a question of degree in each case. It is well established thata tenant is not liable to producea different thing from that which he took when he entered into the lease or to remedy the results of bad design. On what basis, then, where a house is doomed at the time he leases it, is he to be required substantially to rebuild it so as to hand back to his landlord something which is in fact quite different from what he took? Does it matter whether it is falling down because of old age, bad design, or past neglect, and, if so, why?
In my judgment, the work which these tenants were required to perform and to pay for went far beyond what any reasonable person would have contemplated under the word “repair.” This was well on the renewal side of the line. If I had to decide this case on the basis that the tenants had only to perform the work which has been baectyuoanlldy rpeeprafoirr!med by the landlords I would have taken the same view- this went
Suppose some busybody had said to these parties when signing the contract: “You realise, of course, that it might be necessary within 18 months to spend between £8,000 and £9,000 to render this building safe. If that happened, would you
both regard that as repair?” I suspect that even a landlord (unless utterly unreason able) would have replied: “Of course not.”
Ravenseft Properties Ltd v Davstone (Holdings) Limited
RAVENSEFT PROPERTIES LTD V. DAVSTONE (HOLDINGS) LTD
[1980] Q.B. 12; [1979]2 W.L.R. 898; [1979] 1 All E.R. 929; (1978) 249 E.G. 51;
(1978) 37 P.& C.R. 502
Forbes J.: The tenants’ defence is two-fold. Mr Colyer says first, there is, in that branch of landlord and tenant law concerned with repairing covenants, a doctrine of Inherent defect which is applicable to such covenants to repair. This is that where wants of reparation arise which are caused by some inherent defect in the premises demised, the results of the inherent defect can never fall within the ambit of a cov enant to repair. Secondly, he says, if that proposition is wrong the covenantor is still not bound to pay for any works which, in fact, remedy the inherent defect.
The landlords answer that broadly in this way. Mr Bernstein says that there is no such thing as a doctrine of inherent defect. The question is simply: “Is what the tenant is asked to do fairly represented by the word ‘repair’?” and this question is to be judged as a matter of degree in each case.
The leading cases on the matter have been referred to by both counsel and I need only, I think, list them at this stage and then consider at any rate some of them in a little more detail later. They are Proudfoot v. Hart (1890) 25 Q.B.D. 42; Lister v. Lane [1893] 2 Q.8. 212; Wright v. Lawson (1903) 19 T.L.R. 510; Lurcott v. Wakely [1911] 1
K.B. 905; Anstruther-Gough-Calthorpe v. McOscar [1924] 1 K.B. 716; Pembury v. Lamdin [1940] 2 All E.R. 434; Sothebyv. Grundy[1947] 2 All E.R. 761; Collins v. Flynn (1963] 2 All E.R. 1068 and Brew Brothers Ltd v. Snax (Ross) Ltd [1970] 1 Q.B. 612.
All these cases are, I think, very well known and I do not intend to recite the facts or the judgments in detail, though there are one or two matters which will have to be considered more carefully. Of these cases it seems that it is unnecessary to consider further Proudfoot v. Hart and Anstruther-Gough-Calthorpe v. McOscar. They are concerned with questions of the standard of repair required under a repairing covenant rather than what is included in the term “repair.”
One should start with Lister v. Lane [1893] 2 Q.B. 212, and the frequently quoted passage from the judgment of Lord Esher M.R., at pp. 216-217:
… if a tenant takes a house which is of such a kind that by its own inherent nature it will in course of time fall into a particular condition, the effects of that result are not within the tenant’s covenant to repair. However large the words of the covenant may be, a covenant to repair a house is not a covenant to give a different thing from that which the tenant took when he entered into the covenant. He has to repair that thing which he took; he is not obliged to make a new and different thing, and, moreover, the result of the nature and con dition of the house itself, the result of time upon that state of things, is not a breach of the covenant to repair.
From this passage and the case in general, Mr Colyer derives this proposition. If it can be shown that any want of reparation has been caused by an inherent defect, then that want of reparation is not within the ambit of a covenant to repair. Inherent defect he defines as an omission of something in the original design. A defect in the quality of workmanship or materials is not, he says, an inherent defect. The want of
reparation, Mr Colyer says, was the failure to reconstruct the wall, in that case, by providing the whole house with under-pinned foundations, and that want of repara tion was directly due to the omission of proper foundations in the original construction. I started with Lister and the well known passage from Lord Esher M.R.’s judgment, but Mr Colyer says that Lister’s case itself was founded on Soward v. Leggatt (1836) 7 C. & P. 613, and it is necessary to look briefly at that case. There the floor joists were repaired by laying them on bricks rather than on mud, as the original floor joists had been laid, and Mr Colyer seeks to found an argument from that, that any work to a building which involves a different method of construction must be regarded as giving to the landlord a different thing from that which the tenant took. But such a broad proposition cannot, I think, survive close consideration of the later case of Lurcott v. Wakely [1911] 1 K.B. 905. It should be remembered that in that case the court was dealing with the rebuilding of the eastern external wall of a house in Hatton Garden and that what had happened was that the premises had been certified as being in a dangerous state by the district surveyor and that later in compliance with a demolition order, under the London Building Acts, the plaintiff had taken down the wall to the level of the ground floor, and then in compliance with a further notice by the district surveyor, had pulled down the remaining wall and rebuilt it with concrete foundations and damp courses in accordance with the requirements of the Act. The question was whether the tenant was: liable under the repairing covenant for this work and it is clear that the wall originally lacked concrete foundations and damp courses, and that the insertion of these features in the rebuilt wall was the result of statutory notices by the local authority. Both Sir Herbert Cozens-Hardy M.A. and Buckley L.J. regarded the matter as a question of degree rather than as one of method of construction, and clearly the method of construction was wholly different. In any event, Mr Colyer’s first point depends on causation, and Soward v. Leggatt, 7 C. & P. 613 was not concerned with direct causation but turned on whether the work
was an improvement or not, which is Mr Colyer’s second rather than his first point.
Turning to Wright v. Lawson, 19 T.L.R. 510 Mr Colyer explains that in the same way as he explained Lister v. Lane [1893] 2 Q.8. 212. There, he says, the want of reparation complained of by the landlord was the failure to provide a bay window supported on pillars but this failure in turn was directly due to the absence of sufficient stability in the house to support a cantilever bay window. Mr Colyer accepts that the only case in which this doctrine was argued was Collins v. Flynn [1963] 2 All
E.R. 1068. It is necessary therefore to look at that case but before doing so one should, I think, look at Sotheby v. Grundy [1947] 2 All E.R. 761, because Sir Brett Cloutman V.C. in Collins v. Flynn deals with Lister’s case and Sotheby’s case in a sense together.
Now the facts in Sotheby’s case were not unimportant. The house which was the demised premises in that case was found in 1944 to have bulged and fractured walls and the house was condemned as a dangerous structure and demolished by the council. Expenses incurred by the council were recovered from the landlord who sought to recover them from the tenant as damages for breach of a repairing coven ant, so the case itself was not directly concerned with work of repair but with the cost of demolition due to failure to repair. The evidence showed that in fact the house was built, in defiance of the requirements of the Metropolitan Building Act 1855, entirely without footings, or in some places, on defective footings and in consequence, and because of the defective footings, there was every likelihood that the house would, in fact, fall into the dangerous state into which it did fall.
‘That very wise and experienced judge,” as Sachs L.J., in Brew Brothers Ltd v. Snax (Ross) Ltd [1970] 1 Q.B. 612, 640, called Lynskey J., found that the wants of reparation were caused by what he called “the inherent nature of the defect in the premises” [1947] 2 All E.R. 761, 762 but nevertheless felt it incumbent upon him to consider as a matter of degree whether the finding that the tenant was liable for the
works required would be asking the tenant to give the landlord something different in kind from that which had been demised. This is clearly to reject, or overlook, any argu ment thata want of reparation caused by inherent defect could not in any circum-
stances be within the ambit of the repairing covenant.
Now looking at Collins v. Flynn [1963] 2 All E.R. 1068, Sir Brett Cloutman deals with
these points at pp. 1073, 1074:
The last case that is really in point is Sotheby v. Grundy [1947]2 All E.R. 761. This was the case ofa condemned house, built in or about 1861, the main walls having been built either without footings or on defective footings. The foundation had settled, and this could have been avoided only by underpinning and substituting a new foundation. On the authority of Lord Esher M.R.’s judgment in Lister v. Lane [1893] 2 Q.B. 212, it was held that the tenant was not liable for the cost of demolition. The expenses were incurred because of the inherent nature of the defect in the premises, and, therefore, did not come within the terms of the repairing covenant. Plainly the doctrine of liability for the defects in the subsidiary part could have nothing to do with that case. The case, as it seems to me, was on all fours with
Lister v. Lane. Oddly enough, Lynskey J. does introduce it, in what I think is an obiter
passage. He said [1947]2 All E.R. 761, 762: ‘It may be that the inherent nature ofa building may result in its partial collapse. One can visualise the floor ofa building collapsing, owing to defective joists having been put in. I do not think Lister v. Lane would be applicable to sucha case. In those circumstances, in my opinion, the damage would fall within the ambit of the covenant to repair, but, asI say, it must be a question of degree in each particular case.’
and the official referee went on to talk about what he described as “obiter joists,” referred to also in Lister’s and Lurcott’s cases. Then, at p. 1074:
I now come to the crucial point. Do the words ‘repair’ and ‘renew’ importa liability to rebuild with newly designed foundations and footings the pier supporting the girder, which in turn carriesa great part of the rear wall and a part of the side wall in addition? This is manifestly a most important improvement, which, if executed by the tenant, would involve him in render ing up the premises in different condition from that in which they were demised, and on the authority of Lord Esher M.R. in Lister v. Lane, I do not think that the tenant is under any such obligation. Furthermore, although a suggestion of liability for removal of an inherent defect in a subsidiary part seems to have been touched on in Southeby v. Grundy,I do not think that the obiter remarks of Lynskey J. as to defective joists have any bearing on the present case.
In these passages it seems to me that Sir Brett mis-directs himself on the ratio of Sotheby’s case. The question of whether the inherent nature of the building might re sult in its partial collapse was not obiter at all. It was part of the ratio in this sense that, treating the question asa matter of degree, a partial collapse, in the view of Lynskey J., would have been ofa degree which brought it within the tenant’s covenant to re pair, whereasa total collapse would put it outside. As, therefore, it was nota matter of part only, but of putting in new foundations in the entire building, the judge found it was not within the ambit of the covenant. In so far as he appears to be mis-directing himself on the ratio of Sotheby’s case the persuasive authority of Sir Brett Clout man’s judgment in Collins v. Flynn [1963] 2 All E.R. 1068 must be considerably eroded. The only other cases in the list are Pembery v. Lamdin [1940] 2 All E.R. 434 and Brew Brothers Ltd v. Snax (Ross) Ltd [1970] 1 Q.B. 612. Now Pembery was clearly a case of inherent defect but the court did not there decide that the plaintiff failed
because there existeda doctrine such as that put forward by Mr Colyer. One can,I think, epitomise Slesser L.J.’s judgment in that case in this way. The plaintiff failed because her argument, if correct, would have involved ordering the defendant to give hera different thing from that which was demised. This is clearly, in my viewa decision arrived at by considering the question as one of degree. Brew Brothers Ltd
v. Snax (Ross) Ltd [1970] 1 Q.B. 612, though a case where the defect was not
inherent (see Harman L.J. arguendo at p. 622), was neverthelessa case where at any ratea doctrine of inherent defect such as that suggested by Mr Colyer was put forward in argument by the landlord (seep. 618G), and countered for the tenants (seep. 622B). But both Sachs L.J., at p. 640 and Phillimore L.J., at p. 646 appear to indicate that, whether or not the cause of any want of reparation is an inherent de fect, the question must still be regarded as one of degree in each case.
This necessarily brief review of authorities indicates quite clearly to my mind that apart from Collins v. Flynn [1963] 2 All E.R. 1068, which I consider of doubtful author ity, the explanation of the ratio in Lister v. Lane [1893] 2 Q.B. 212 as giving the tenant a complete defence, if the cause of the want of reparation is an inherent defect, has never been adopted by any court but on the contrary, in Pembery v. Lamdin [1940] 2 All E.R. 434 and Sotheby v. Grundy[1947] 2 All E.R. 761, the court, when dealing with wants of reparation caused by inherent defect, chose to treat the matter as one of degree, while in Brew Brothers Ltd v. Snax (Ross) Ltd [1970] 1 Q.B. 612 the court effectively said that every case, whatever the causation, must be treated as one of degree.
I find myself, therefore, unable to accept Mr Colyer’s contention that a doctrine such as he enunciates has any place in the law of landlord and tenant. The true test is, as the cases show, that it is always a question of degree whether that which the tenant is being asked to do can properly be described as repair, or whether on the contrary it would involve giving back to the landlord a wholly different thing from that which he demised.
In deciding this question, the proportion which the cost of the disputed work bears to the value or cost of the whole premises, may sometimes be helpful as a guide. In this case the figures have not been finally worked out in complete detail. I have, however, the evidence of Mr Clark, the contracts manager for the Stone Firms Ltd, the contractors who actually carried 01,.1t the work. He was not himself responsible for any of the work as he joined that company after the work was completed. He is, however, familiar with that company’s methods of charging and so on, and he has studied the drawings and the analysed quotations produced by the company. From these he has been able to give me, not a detailed and accurate costing, but a reli able, broad, estimate of the cost of that part of the remedial work relating solely to the insertion of expansion joints. It is, as he said, an indication of the order of magni tude of the cost. Although cross-examined by Mr Colyer, no rebutting evidence was called and I accept Mr Clark’s estimate that the cost would have been in the region of £5,000. The total cost of the remedial works was around £55,000, the balance of
£50,000 being for re-fixing the stones and other ancillary works which was not, as I find, necessary to cure any defect of design, but to remedy what was originally de fective workmanship. For comparison, the cost of building a structure of this kind in 1973 would have been in the region of £3 million, or rather more. I find myself wholly unable to accept that the cost of inserting these joints could possibly be regarded as a substantial part of the cost of the repairs, much less a substantial part of the value or cost of the building. Mr Colyer urges me not to consider cost and that may, per haps, in some circumstances, be right. He argues that the result of carrying out this improvement is to give back to the landlord a safe building instead of a dangerous one and this means the premises now are of a wholly different character. Further, he argues that because they are of a wholly different character, the work on expansion joints, the work necessary to cure the inherent defect, is an improvement of a character which transforms the nature of the premises demised, and, therefore, cannot fall within the ambit of the covenant to repair. I cannot accept this. The expan sion joints form but a trivial part of this whole building and looking at it as a question of degree, I do not consider that they amount to such a change in the character of the building as to take them out of the ambit of the covenant to repair.
I pass to Mr Colyer’s second point, namely, that the tenant is not liable under the repair covenant for that part of any work of repair necessary to remedy an inherent defect. Again it seems to me that this must be a question of degree.
In Lurcott v. Wakely [1911] 1 K.B. 905, the wall was defective in the sense that it had no proper footings or damp course. When it was rebuilt, concrete footings and damp course were provided. The court nevertheless found the tenant liable for the whole cost of the work including these improvements. Mr Colyer seeks to distinguish that case because he says in Lurcott’s case, the improvements were necessary to comply with the requirements of the statute. Here there was no such requirement and the expansion joints were included merely asa matter of moral duty.
It is quite clear to me from the evidence of both Mr Sculley and Dr Michael, the
two expert structural engineers who gave evidence, and the only evidenceI have on this point, that no competent professional engineer would have permitted the remedial work to be done without the inclusion of these expansion joints. By this time It was proper engineering practice to see that such expansion joints were included, end it would have been dangerous not to include them. In no realistic sense, there fore, 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. It seems to me to matter not whether that state of affairs is caused by the necessary sanction of statutory notices or by the realistic fact that asa matter of professional expertise no responsible engineer would have allowed a re-building which did not Include such expansion joints to be carried out. I find myself, therefore, bound to follow the guidance given by Sir Herbert Cozens-Hardy M.R., in Lurcott’s case [1911]
1 K.B. 905, 914-915.
It seems to me that we should be narrowing in a most dangerous way the limit and extent of these covenants if we did not hold that the defendants were liable under covenants framed as these are to make good the cost of repairing this wall in the only sense in which it can be repaired, namely, by rebuilding it according to the requirements of the county council.
Elite Investments Ltd v TI Bainbridge Silencers Limited
(1986) 280 E.G. 1001
H.H. Judge Paul Baker QC: Now I must come to the principal issue, which is, is the replacement of the roofa repair? This roof is a part of the building which, asI have found, has come to the end of its useful life. As a matter of language, it is directly within the repairing covenant (I am looking at one of the covenants): “At all times … well and substantially to repair, replace … the demised premises … and the walls, roof …” The painting covenant does not modify that, in my judgment, in any way. One cannot read the painting covenant, which is to applya rubberised roof coating, as in any way limiting the ambit of the repairing covenant. It is well settled that if you have two covenants and they to some extent overlap, then that does not excuse the covenantor from performing each of them. One will seea reference to that in the judgment of Harman LJ in the case of Brew Bros Ltd v. Snax (Ross) Ltd[1970] 1 QB 612 at p. 627G. The situation, in my judgment, would seem to be covered by the well-known leading case of Lurcott v. Wakely and Wheeler [1911] 1 KB 905, which has not been cited to me directly but is referred to in the judgment of Harman LJ that
I have mentioned, at pp. 632 and 633. I will deal with that first with the preface that Harman LJ’s judgment wasa dissenting judgment and, having dealt with Lurcott v. Wakely, I shall go on to Brew Bros. For my purpose the case is sufficiently set out pb.y6t3h2e);learned lord justice in the passage I have mentioned. ….
Brew Bros itself is a case which distinguished Lurcott v. Wakely and held that what w11 required there went beyond the covenant to repair. In that case a flank wall had become dangerous and threatened to collapse on a neighbour. It caused a shift in 1ome foundations which cracked some drains, which then began to seep water. That witness undermined the foundations of the wall and the whole situation was aggravated by the removal of a tree which, when it was there, soaked up a lot of this moisture. It was clear that the wall being dangerous was a nuisance to the plaintiff’s neighbours, but the real issue in the case was as between the landlord and tenant of the dilapidated premises: who was liable? The tenant had entered into a repairing covenant. The repair of the drains of itself would be manifestly insufficient. They would just crack again and would not cure the basic problem. The learned judge in the case below, Megaw J, held that the works required to remedy the defects were 10 substantial and costly that they would almost equal the cost of the new building. He was talking of a figure of some £8,000. That being so they did not constitute re pairs. The repairs required were to put in complete new foundations, to rebuild the wall and repair the drain. Between the hearing before Megaw J and the hearing in the Court of Appeal the landlord did the repairs and they came out at a cost of about
£5,000, which would be less than the value of rebuilding altogether. Harman LJ
would have held that it did come within the repairing covenant, and he dissented because he took each item, the drains, the wall, the foundations, on its own and said that, when considered singly, each one comes within the repairing covenant. The majority differed from him in that approach and said you must look at the works as a whole; when you do that it takes it outside the repairing covenant.
…
That case has a number of features which, in my judgment, distinguish it from the present one. There new foundations had to be put in. Second, the cost of the works was not very far off the cost of a new building. Phillimore LJ refers to that on p. 643 A: Megaw J:
made it clear that he accepted that the cost would be just under £8,000, subject to any additions found necessary, and that the cost of a new building would be about £9,000 to
£10,000, whereas the value of this building after the proposed work had been carried out would be between £7,500 and £9,500.
So that there was a correlation there between the cost of the works that were re quired to repair the old building, the cost of putting up a new building altogether, and the value of the building after the works had been done; they were all in the same area. So the third point which I would mention is that when you get a situation where the value is very much less than the cost of a new building it is the cost, not the value, which is relevant for determining whether one has gone beyond repairs. That is the case I have got here. The cost of putting this new building up has been estimated, I think, at about £30 a foot, so we are getting near to £1m to re-erect a completely new building, which is very much beyond the figure which I put on the value of it as re paired, ie £140,000. When assessing the size of repairs which are going to cost money, then what you look at, as a guide as to whether you are going over the top and you are really giving back to the landlord a complete new building, is what the new building will actually cost. The value of the resulting building has no bearing, in my judgment, on the construction of the covenant itself. Account is taken of that in the application of section 18 of the Landlord and Tenant Act 1927 and on that basis Brew Bros is quite distinguishable.
The next case that was mentioned was Ravenseft Properties Ltd v. Davstone (Holdings) Ltd (1980] QB 12. This case exploded the notion which had been current up to then that remedying an inherent defect could never be a repair; it is always a matter of degree. I am not really concerned with that aspect of the case in this present case, but there is a passage from the judgment of the late Forbes J at p. 21, which has been cited with approval in the Court of Appeal in a later case and is helpful. Forbes J says at letter B:
I find myself, therefore, unable to accept Mr Colyer’s contention that a doctrine such as he enunciates has any place in the law of landlord and tenant
that is the notion I have just mentioned.
The true test is, as the cases show, that it is always a question of degree whether that which the tenant is being asked to do can properly be described as repair, or whether on the contrary it would involve giving back to the landlord a wholly different thing from that he demised.
In deciding this question, the proportion which the cost of the disputed work bears to the value or cost of the whole premises, may sometimes be helpful as a guide.
This was a totally different case on the facts. The two points that I would call atten tion to are that the proposed test involved giving back to the landlord a wholly different thing from that which he demised and, then, in applying the test, it may be helpful to look at the proportion which the cost of the disputed work bears to the value or cost of the whole premises. Having regard to the remarks I have just made, I would stress the cost rather than the value if they are seriously divergent.
Then I was referred to a case called Halliard Property Co Ltd v. Nicholas Clarke
Investments Ltd, decided in 1983 by-French J, and it is reported at (1983) 269 EG 1257. This was a case where at the.back of a residential property there was some lean-to, or single-storey room which collapsed. There was very little left of it and it required replacement. Therefore in itself it would clearly be a renewal of the whole subject-matter. What gave some support for the landlord in that case was that it was only part of the whole demised premises, though it seemed to be a somewhat separ ate part. It was, I think, only about one-third of the whole of the demised premises. The learned judge held that it was on the renewal side and beyond the scope of the repairing covenant and he put it this way, at the end of the report:
Regarding, as I do, this matter as a borderline case, the conclusion that I come to is that the reinstatement or rebuilding of this utility room is not covered by the obligations imposed upon the defendants by the repairing covenant. In my judgment that which would be involved in rebuilding the utility room could not properly be described as a repair. While, of course, that which would be handed back on the expiry of the demise would include the intact “two thirds in area” on the front part of the premises, it would involve handing back to them, so far as the utility room was concerned, an edifice entirely different from the unstable and jerry-built structure of which the defendants took possession at the start of this lease.
So the basis on which the learned judge went is that it was a separate part of the demised premises which was renewable. This course was foreshadowed by a dic tum of the Master of the Rolls in Lurcott v. Wakely, which I have read, where he said that “the character of the subject-matter of the demise, or part of the demise, in ques tion has been changed.” French J’s statement seems a classic application of that part of the Master of the Rolls’ judgment. But of course here there is no question of the roof being an independent part of the demised premises; it is an integral part of the unit.
I did not get any real assistance from Elmcroft Developments Ltd v. Tankersley Sawyer (1984) 270 EG 140. That was clearly on the repair side of the line, supplying a liquid dampcourse at a relatively low cost. Although it was a distinct improvement, remedying an inherent defect in the property, it was a repair because of the insigni ficant cost of it.
Mr Brock placed the greatest emphasis on the cost; it is totally disproportionate, he said, to the value of the building in repair. I have already dealt with that going through the cases, and in my judgment that is a false point. What has to be com pared in this connection in determining whether you have got a repair or not, is not the value of the resulting building with the new roof but what it will cost you to do away with the building altogether and build a new one, or substantially builda new one. Then he said, having looked at the factors no reasonable landlord would do it. That again is not the test, if I may respectfully say so; it isa question of whether the tenants have undertaken to do what is done and what is the true meaning of the
covSeonamnty. conclusion on that, as is evident from now, is that this isa repair or replacement of part within the meaning of the covenant. It is nota different thing. It will simply be an industrial building with a new roof. The consequence is that I find that the case for damages in relation to Unit 1 in the sumI mentioned of £84,364 is
established.
Elmcroft Devleopments Ltdd v Tankersley-Sawyer
(Court of Appeal)
(1984) 270 E.’G. 140; (1984) 15 H.L.R. 63.
Ackner L.J.: These various well-known authorities were all viewed again by ForbesJ in the case of Ravenseft Properties Ltd v. Davstone (Holdings) Ltd [1980J 1 QB 12. The facts are quite irrelevant to this case, but he held- and this was in no way disputed by Mr Whitaker as being a wrong approach – that it wasa question of degree whether work carried out ona building was a repair or work that so changed the bcuhialdraincgtetrootfhathtedebmuiilsdeindg. as to involve giving back to the landlorda wholly different
In view of the learned judge’s findings of fact, I see no problem at all in deciding this matter as one of degree.I fully accept the learned judge’s findings, which were these:
This is nota case, therefore, where the dry condition of the premises can be achieved only by, for example, the reconstruction or renewal of the whole of the subject-matter of the covenant or by makinga substantial alteration in the design or structure of the building or
the main walls thereof. It does not involve the demolition and rebuilding of any wall nor does it involve any, or any major, structural alterations.
He went on to say that, as a matter of degree, the work which the appellants will be required to undertake is not such that will involve the plaintiffs in giving to the defendants a new or a wholly different thing from that demised. That work does not involvea change in the nature and character of the flats, nor do the flats under bgeoacamraedincaelffcehctaivnegebybybethineginbsriedrgtieodn. of a damp-proof course; one exists, albeit one which
Mr Whitaker’s sheet anchor is a case, Pembery v. Lamdin [1940]2 All ER 434. That wasa case in which there had been let premises known as 62 Blandford Street,Marylebone, consisting of a shop and premises on the ground floor, together with what Slesser LJ referred to as “a cellar for the most part built into the ground, without any precautions against damp oozing through the porous bricks into the cellar”. The remedial work necessary was extensive. It involved removing panelling from the walls, cleaning down, asphalting the walls, and building a 4½-inch wall inside to keep the asphalt in position, and laying a new concrete floor to prevent water coming under the walls. It was held that the landlord was not liable under his repairing oovenant because otherwise it would have involved ordering him to give the tenant a different thing from that which was demised.
I personally find this case of no assistance at all. It does not involve the letting of a flat. It involved letting of premises that contained this cellar in a building which was built some 100 years before the court considered the problems. That must be round about 1840. We are concerned with a letting a few years ago of what was built as a 11parate self-contained flat and a flat in a high-class fashionable residential area in the centre of London. I entirely agree with what Forbes J said in the Ravenseft case at p. 939, that this was a decision arrived at by considering the question as one of degree. That view was followed by the learned county court judge, and I consider that he was wholly right in so doing.
GLC v LB Tower Hamlets
GREATER LONDON COUNCIL V. LONDON BOROUGH OF TOWER HAMLETS
(Divisional Court) (1983) 15 H.L.R. 54
The Greater London Council (GLC) was the owner of a flat in the East End of London. There were signs of dampness in the kitchen wall adjacent to the lift shaft area and water was running down the kitchen walls and along the lino. There was mould growth on the walls. There were also signs of dampness and moisture under the carpets in the living room. There were traces of mould growth and dampness on the walls of one bedroom. In
a second bedroom, there was dampness and flaking paint on the ceiling. In the third bedroom, there was dampness and mould growth.
The flat waas corner flat on the ground floor of a block, but aat raised level, with three sides and the whole of its underneath open to the air, so that an exceptionally large part of the flat was exposed to the elements. When originally built, the flat had an open solid fuel fire in the living room. Subsequently, because the flues were found to be defective, they were blocked up, and the open fireplace was removed and replaced with an electric
heater. The result was that the advantages of a fire which would have been kept on for most of the day, and its considerable ventilating effect, were lost.
The GLC put in one storage heater, which was insufficient to combat the condensa tion that might be anticipated in a fiat of this construction, following the blocking up of the flues. Subsequently, this storage heater was removed by the GLC. Evidence was
,elven that the tenant used three oil fires and an electric fire, keeping the heating on all
or a major part of the time.
The GLC, as owners of the premises, were served with an abatement notice by the local authority (Tower Hamfets), requiring them to remedy the cause of the dampness. The magistrates found that the dampness was caused by condensation, resulting from lack of proper ventilation and insulation, and lack of heating, no adequate heating having been provided by the GLC. Accordingly, they made a nuisance order, against which the GLC appealed.
Held: (1) There was ample evidence before the magistrates to entitle them to come to the conclusion that the condition of the flat was prejudicial to the health of those living within it and, accordingly, the magistrates were entitled to find that there was a statu tory nuisance within the meaning of the Public Health Act 1936; (2) The cause of the dampness was the failure of the landlord to take necessary precautions, either by way of
t’t’ntilation or insulation, or bit providing any special form of heating, for a property which was wholly exceptionally vulnerable to condensation; if the construction of a building is so unusual that there has to be some special form of heating to combat con
densation, it is reasonable that the landlord should be expected to install items such as
. forage heaters to provide warmth; (3) A landlord is required to apply his mind to the m•cessity for ventilation and, if need be, to insulation and heating; the landlord must 11rovide a combination of these factors to make a house habitable for the tenant; once the landlord has provided the facilities, the tenant must use them; if the landlord has done
,•vcrything reasonable and the cause of the continuing condensation is that the tenant is unwilling to use the appliances or a reasonable alternative method of heating the flat, then the landlord cannot be held responsible for the ensuing state of the premises.
Griffiths L.J.: The first question on which the opinion of the High Court is sought is
as follows:
(1) Whether upon the evidence before the bench of magistrates a reasonable bench could find a case proved that the premises were in such a state as to be prejudicial to health or a nuisance.
I can deal shortly with that point. The evidence of those who saw this flat in winter revealed it to be in a shocking condition with dampness in many places, as evi denced by the magistrates’ findings of fact. The Greater London Council, for reasons I find difficult to understand – although the abatement notice was served on them in January – did not have an inspection of those premises until the following June. Naturally, the conditions were very different to the conditions seen during the winter. There can be no doubt that there was ample evidence before the magistrates to entitle them to come to the conclusion that the condition of that flat was prejudicial to the health of those living within it.
It is to be observed that under section 92 of the Public Health Act, subsection (1)
contains a definition of a statutory nuisance. Subsection 1(a) says:
Any premises in such a state as to be prejudicial to health …
I would answer the first question raised in this case by saying that there was evidence upon which the magistrates were entitled to find that these premises were in such a state as to be prejudicial to health and were, consequently, a statutory nuis ance within the meaning of the Public Health Act.
The second question raised by the magistrates was this:
Whether upon the evidence before the Bench of Magistrates a reasonable bench could find a case proved that the Greater London Council was the person by whose default the said alleged nuisance continued.
The submission made by the Greater London Council is that the only evidence of an expert nature that was called before the magistrates, which dealt with the causes of the dampness, was the evidence of two surveyors who were called by them. The prosecutors in the case were the London Borough of Tower Hamlets. They relied upon the evidence of a Mr Seal, who is an environmental health officer and who may well be qualified to speak on the threats to health from housing conditions. However, it was submitted that he is not an expert on the causes of dampness. The other witness was the lady who had the misfortune to live in this flat.
When one looks at the evidence, there is really very little dispute between the evidence of the experts and that given by Mr Seal. It is common ground that the cause of dampness in that flat was condensation. It is not suggested that the damp ness came from any other source such as, penetration, rising damp, etc. We are dealing with a condensation problem. The submission of the Greater London Council is that the sole cause of the condensation problem in the flat was due to the tenant failing to use sufficient artificial sources of heating during the winter months.
To a large extent, this submission has been founded upon the decision of this court in Dover District Council v. Farrar and Others, to which I will refer later. First, it is necessary to say a few words about the construction of the flat. We have been told that this was a building commonly d scribed as a system-built building. It is a fairly familiar kind of construction. The ground floor of the building is at a raised level. The flat with which we are concerned is a corner flat on the ground floor. The result of the construction is that three of the sides of the flat are open to the air and the whole of the underneath of the flat is open to. the air. By reason of this construction, one will see immediately that an exceptionally large part of the flat is exposed to the elements. When the flat was originally built, it was built with an open solid fuel fire in the living room. The report of one of the Greater London Council’s experts attributes the extraordinary condensation proolem encountered in this flat, to a large degree, to the decision to remove that open fire place to block up the flues and to replace the fire place with an electric heater. We have been told in the course of this case that the decision to make this modification to the flat was occasioned by the discovery that the flues were defective. According to the expert, the result was that one lost the advantage of a fire being made up that would have kept in for most of the day. One also lost the advantage of the very considerable ventilation effect of such a fire. According to the expert, this would have assisted in combatting condensation. That was a modification in design made by the landlord in a flat which, by virtue of the exposure of the whole of the bottom to the elements, was peculiarly susceptible to the cooling down of the walls, thereby creating condensation. Apparently the Greater London Council put in one storage heater. According to the evidence of one of the experts they called, he did not think the provision of one storage heater would be sufficient to combat the condensation that might be anticipated in a flat of this construction, after such a modification had been made. However, according to the evidence of the tenant – and this was not challenged – at some time, the Greater London Council came in and removed even that one storage heater.
The case of Dover District Council v. Farrar and Others, to which I now return, upon which the Greater London Council rely, was founded on very different facts. The facts in that case were that a number of houses had been built with a purpose-built electrical system installed for heating them. There was no dispute that if the system was used, the houses would not suffer condensation, and they would be habitable without any prejudice to health at all. As Ormrod LJ specifically found, the method of heating supplied by the Council was perfectly proper and perfectly adequate to maintain the houses in such a state that there would be no prejudice to health.
It is a very different state of affairs in this case. Initially, the heating system which had been installed, which, according to the Greater London Council’s expert, would have been effective in combatting condensation, had been removed. The flues had been blocked in. The ventilation provided had been withdrawn and in its place there had at first been installed one night storage heater, which the expert said would have been inadequate. That was then removed. There is all the difference in the world between the Dover case and this case. In the Dover case, the court went on to hold that the cause of the condensation was a failure by the tenant to use the heating system which had been provided. They found it expensive so they chose not to use It and they used some less expensive method of heating, which did not combat the condensation which then arose. It would not have arisen had they used the heating Installed for that design of house. It is understandable, in those circumstances, that the court felt that there was no evidence on which the magistrates could have found that the condensation was attributable to any fault on the part of the landlord.
I do not read Ormrod LJ as saying that if a landlord providesa property which,
because of the peculiar aspects of its construction, renders it wholly exceptionally vulnerable to condensation, he can escape any liability for danger to the health of those living within by asserting that the occupants should have used wholly abnormal
quaTnhteitiemsaogfisfturaetle. s came to the conclusion that the cause of the condensation was the failure of the landlord to take the necessary precautions, either by way of ventila tion or insulation, or by providing any special form of heating. If the construction ofa building is so unusual that there has to be some special form of heating to combat condensation, it is reasonable that the landlord should be expected to install items such as storage heaters to provide that warmth. Of course, if the tenant does not choose to use the facilities provided, he will have no cause for complaint if the result
is that condensation makes the place uninhabitable.
A landlord is required to apply his mind to the necessity of ventilation and, if need
be, to insulation and heating. The landlord must providea combination of these factors to makea house habitable for the tenant. However, once the landlord has provided the facilities, the tenant must use them. If it is shown in any further inquiry into condensation in this flat that the landlord has done everything reasonable and the cause of the continuing condensation is that the tenant is unwilling to use the appliances or any reasonable alternative means of heating the flat, then the landlord
cannot be held responsible for the ensuing state of the premises.
To return to the case, I, for my part, think that there was evidence upon which this
bench of magistrates could find that it was the fault of the Greater London Council that the statutory nuisance was continuing.
Colchester Estates (Cardiff) v Carlton Industires plc
COLCHESTER ESTATES (CARDIFF) V. CARLTON INDUSTRIES PLC
[1986] Ch. 80; [1984] 3 W.L.R. 693; (1984] 2 All E.R. 601; (1984) 271 E.G. 778
Nourse J.: This case is concerned with a provision in a lease which empowers the landlord to enter and make good at his own cost wants of repair for which the tenant is liable and then to claim repayment of the cost from the tenant. Provisions of that kind have commonly been included in leases since the early part of this century, if not before. The primary question here is whether, before the landlord can take proceedings for the recovery of the cost, the leave of the court is required pursuant to section 1(3) of the Leasehold Property (Repairs) Act 1938. The outcome of that question depends on whether the proceedings are properly to be regarded as pro ceedings for damages for breach of a covenant to repair, in which case leave is required, or as proceedings for recovery of a debt, in which case it is not.
The plaintiff is an unlimited company called Colchester Estates (Cardiff). The de fendant, Carlton Industries Pie, is the tenant of certain leasehold factory premises on the Colchester Trading Estate in Cardiff which it holds of the plaintiff under a lease dated 13 April 1964 made between the plaintiff of the first part, the defendant’s predecessor in title of the second part and a guarantor of the third part. That lease was for a term of 27 years from 1 December 1963 at a rent which is currently £25,000 per annum. The term will therefore expire at the end of 1990 and still has more than six years to run. The tenant’s covenants are contained in clause 2 of the lease. Sub-clauses (c) and (d) contain covenants to paint the exterior and the interior respectively of the demised premises. Sub-clause (f) contains a full repairing coven ant (damage by fire, storm or tempest excepted). Sub-clause (i), which contains the provision with which this case is concerned, is in these terms:
To permit the lessors or their agents at all reasonable and convenient times by appointment to enter the demised premises and examine the state of repair and condition thereof and to check and take inventories of the lessors’ fixtures therein and that the lessees will repair and make good all defects decays and wants of repair thereto of which notice in writing shall be given by the lessors to the lessees and for which the lessees may be liable hereunder within three months after the giving of such notice provided that in case of default by the lessees the lessors may make good such defects decays and wants of repair and the cost of the same shall be repayable by the lessees to the lessors on demand.
Sub-clause (s) contains a covenant to pay all reasonable and proper costs and charges and expenses incurred by the landlord in relation to any notice under section 146 of the Law of Property Act 1925.
The assignment of the lease to the defendant was made on 25 June 1980. Between October of that year and tl’ae summer of 1983 various notices under clause 2(i) or section 146 were given to thl3 defendant by the plaintiff in respect of alleged wants of repair. There were various meetings and negotiations which do not seem to have led to much work being done. In any event the plaintiff was not satisfied. Accordingly, on 19 August 1983, it served two further alternative notices, the first of which was intended to take effect under clause 2(i) of the lease if section 146 and the Act of 1938 do not apply, and the second of which was intended to take effect if they do. Those notices related to )Vhat the plaintiff says are wants of repair which have now become urgent and of which the aggregate cost is put at £173,000. On 1 September 1983 the defendant served a counter-notice under section 1(2) of the Act of 1938. By its originating summons issued on 22 December 1983 the plaintiff effectively seeks leave under section 1(3) to commence proceedings for the recovery of the cost of the work in accordance with clause 2(i) of the lease, but without prejudice to its claim that leave is not required. That claim has been raised by an amendment which seeks a declaration that the leave of the court
is not required by the plaintiff to commence proceedings for the recovery of the costs incurred by the plaintiff of making good defects, decays and wants of repair under clause 2(i) of the said lease.
On the primary question the plaintiff contends that leave to commence proceed ings for the recovery of the cost of the work is not required and the defendant contends that it is.
I turn therefore to the primary question, which is by no means free from authority. In Swallow Securities Ltd v. Brand (1981) 45 P. & C.R. 328 McNeil! J. held that a right conferred on a landlord by a provision comparable with clause 2(i) was a right to recover damages for breach of a covenant to repair and that the leave of the court to commence proceedings for the enforcement of that right was accordingly required. However, in Hamilton v. Martell Securities Ltd [1984] Ch. 266 Vinelott J. declined to follow the decision of McNeill J. and held the opposite. In the later case the material provision was nearer in form to clause 2(i) than that in the earlier one, but it is agreed that that is not a distinction of any importance. What may be of importance is that Vinelott J. was referred to certain authorities which were not cited to McNeil! J. Of these the one to which Vinelott J. attached the greatest weight was the decision of the Court of Appeal in Middlegate Properties Ltd v. Gidlow-Jackson (1977) 34 P. &
C.R. 4 in which the earlier decision of Roskill J. in Bader Properties Ltd v. Linley Property Investments Ltd (1967) 19 P. & C.R. 620 was approved. In each of those cases it was held that the right conferred on a landlord bya covenant on the part of hi• tenant to pay all expenses incurred by him in relation to any section 146 notice or the like wasa right to recover not damages buta debt due from the tenant. Accordingly, the Act of 1938 did not apply and the leave of the court to take pro ctedlngs for the recovery of the amount of the expenses was not required.
In Hamilton v. Martell Securities Ltd [1984] Ch. 266 Vinelott J., having said that the
decision of the Court of Appeal in Middlegate Properties Ltd v. Gidlow-Jackson, 34 P. & C.R. 4 was binding on him, expressed the view that it compelled the conclusion that in the case before him the landlord’s right to recover the costs of the repairs was nota right to recover damages for breach ofa covenant to repair within 11ction 1 (1) and (2) of the Act of 1938: see [1984] 2 W.L.R. 699, 711. He then said that neither that decision nor the decision of Roskill J. in the Bader case, 19 P.& C.R. e20, nor the decision of the Court of Appeal in Sidnell v. Wilson [1966]2 Q.B. 67 had been cited to McNeil! J. in Swallow Securities Ltd v. Brand, 45 P. & C.R. 328. In Sldnell v. Wilson [1966]2 Q.B. 67, 76, 79 both Lord Denning M.R. and Harman L.J. had described the mischief which the Act of 1938 was intended to defeat. Earlier in his judgment Vinelott J. had gone into that matter in some detail witha view of showing that it was at least doubtful whether the Act of 1938 was intended to operate ona case of this kind: see [1984] Ch. 266, 277-278. Finally, Vinelott J. pointed out that the attention of McNeill J. was also not drawn to the difficulties which later emerged asa result of the decision of Mr Michael Wheeler Q.C. in S.E.0.A.C. Investments Ltd v. Tanner[1982] 1 W.L.R. 1342 in applying section 1(5) of the Act of 1938 toa case wherea want of repair has actually been remedied by the landlord, nor to the difficulties which would seem equally to confronta landlord who sought leave to bring proceedings to recover the cost of carrying out repairs before he had
acItuaamlly scaatrisrifeieddththeamt tohuet.decision of Vinelott J. was reached after full consideration of the decision of McNeil! J. Secondly, I am not convinced that Vinelott J. was wrong in not following McNeill J.I have had full and careful arguments on both sides, each of which was almost certainly fuller than the argument on the same side in either of the earlier cases. I think it inappropriate either that I should examine those arguments or express any further view of my own. That implies no disrespect or ingratitude to counsel. Indeed, the contrary is the case. Whatever may be thought appropriate on any other occasion, this is a question upon which it is in my judgment inappropriate that there should be any further debate or expression of judicial view below the level of the Court of Appeal. In the circumstances I need say only that I propose to follow and apply the decision of Vinelott J. in Hamilton v. Martell Securities Ltd[1984] 2 W.L.R. 699.
Associated British Ports v CH Bailey plc
ASSOCIATED BRITISH PORTS V. C.H. BAILEY PLC
(House of Lords)
[1990]2 AC. 703; [1990] 2 W.L.R. 812; [1990] 1 All E.R. 929; [1990] 16 E.G. 65;
60 P. & C.R. 211
Lord Templeman: As against the formidable authority of a powerful Court of Appeal in Sidne// v. Wilson, there stands the express direction in section 1 (5) of the Act of 1938 that the landlord shall prove that the immediate remedying ofa breach ofa repairing covenant by the tenant is necessary to prevent the landlord coming to harm. The battle between landlord and tenant must be fought at some stage and Parliament has directed that it shall be fought under the Act of 1938 when the landlord seeks leave to pursue his remedies for breach of covenant, leaving only the question of relief to be determined under section 146 of the Act of 1925. If the landlord fails to prove that he is entitled to pursue his remedies, the tenant is entitled, as of right, toa dismissal of the landlord’s application under the Act of 1938; the tenant is immediately relieved from the threat of forfeiture implicit in the section 146 notice served on him and from the expense and uncertainty of forfeiture proceedings and tenant do not agree, then the landlord must attempt to prove his case under the Act of 1938 and, if he fails to do so, there will be no forfeiture proceedings. If the landlord does prove his case under the Act of 1938, I do not accept that it is neces sary or proper that the battle need or should be fought all over again on the hearing of forfeiture proceedings or that, in practice, additional expense and delay will result. In any event, the Act of 1938 requires that the landlord shall prove his case; the Act of 1925 requires that the tenant shall satisfy the court that he is entitled to relief.
In the present case the tenants have adduced expert evidence that damage to the reversion is not substantial and that, in any event, immediate remedying of the breaches of covenant at a cost of £600,000 is not requisite for preventing substantial damage to the value of the reversion and is wholly out of proportion to the extent of the damage to the reversion. The tenants’ evidence is that the builders’ fixtures and machinery are bound to be obsolete by the year 2049, useless for the purposes of a modern dry dock and ship repairing business and useless for any other purpose. The landlords’ expert brushes aside the evidence adduced by the tenants and asserts that, in effect, serious breaches of a repairing covenant must damage the reversion. No doubt this proposition is true in most cases but has not been proved to be true in the peculiar circumstances of the present. The landlords appear to be asking for
£600,000 to be spent on the demised premises to no good purpose and the tenants appear to be determined to pay £4,000 per annum until 2049 for premises for which there is no business use permitted by the lease. The evidence discloses that develop ment plans are contemplated for the docks at Barry; if the landlords can forfeit the lease now, the value of the reversion will be much enhanced. If the tenants can resist forfeiture now, their lease will be of some substantial value because their consent or co-operation will be required and some compensation will be payable if the demised premises are to be included in future development. The landlords are getting and will continue to get their rent of £4,000 a year. In the circumstances it is difficult to accept that the landlords or any purchasers of the reversion are entitled to be frightened about what the position will be in the year 2049. Section 1 of the Act of 1938 is there to protect a tenant from a landlord whose only object is to turn out the tenant 59 years in advance.
The landlords wish to produce further evidence because, as their counsel, Mr Birts, pointed out, they were only concerned, applying the decision of the Court of Appeal in Sidnell v. Wilson [1966] 2 Q.B. 67, to produce before Harman J. a prima facie or arguable case. The landlords would, in any event, be able to launch a fresh application under the Act of 1938 and in these circumstances Mr Lewison, who appeared on behalf of the tenants, is content that the landlords’ present application under the Act of 1938, should not be dismissed, for what it is worth, but shall be remitted to a judge other than Harman J. to rehear the application in the light of the opinions expressed by your Lordships and with the benefit of such further evidence as the parties may wish to adduce.
Calabar Propeties v Stitcher
CALABAR PROPERTIES LTD V. STITCHER
(Court of Appeal)
[1984]1 W.L.R. 287; [1983] 3 All E.R. 759; (1983) 268 E.G. 697
Griffiths L.J.: I venture to add a few words of my own because it appears to me, both from the arguments at the Bar and the way in which the judge expressed him self, that there may bea widely held belief by those practising in this field that when damages are claimed bya tenant for breach of a landlord’s repairing covenant they must always be assessed by reference to the diminution in the open market value of the premises and that they can never include the cost of alternative accommodation whilst the repairs are being carried out.
The object of awarding damages against a landlord for breach of his covenant to repair is not to punish the landlord but, so far as money can, to restore the tenant to the position he would have been in had there been no breach. This object will not be achieved by applying one set of rules to all cases regardless of the particular circum- 1tances of the case. The facts of each case must be looked at carefully to see what damage the tenant has suffered and how he may be fairly compensated by a mon etary award.
In this case on the findings of the judge the plaintiff landlords, after notice of the defect, neglected their obligation to repair for such a length of time that the flat even tually became uninhabitable. It was also clear that unless ordered to do so by an order of the court, the plaintiffs had no intention of carrying out the repairs. In these circumstances the defendant had two options that were reasonably open to her: either of selling the flat and moving elsewhere, or alternatively of moving into tempor ary accommodation and bringing an action against the plaintiffs to force them to carry out the repairs, and then returning to the flat after the repairs were done. If the defendant had chosen the first option then the measure of damages would indeed have been the difference in the price she received for the flat in its damaged condition and that which it would have fetched in the open market if the plaintiffs had observed their repairing covenant. If however the defendant did not wish to sell the flat but to continue to live in it after the plaintiffs had carried out the necessary structural repairs it was wholly artificial to award her damages on the basis of loss in market value, because once the plaintiffs had carried out the repairs and any consequential redecoration of the interior was completed there would be no loss in market value. The defendant should be awarded the cost to which she was put in taking alternative accommodation, the cost of redecorating, and some award for all the unpleasantness of living in the flat as it deteriorated until it became uninhabitable. These three heads of damage will, so far as money can, compensate the defendant for the plaintiffs’ breach.
But it was said that the court cannot award the cost of the alternative accom modation because of the decision of the Court of Queen’s Bench in Green v. Ea/es, 2 Q.B. 225, and in particular the passage in the judgment of Lord Denman C.J. in which he said, at p. 238:
We are of opinion that the defendant was not bound to find the plaintiff another residence whilst the repairs went on, any more than he would have been bound to do so if the premises had been consumed by fire.
But I take that passage to do no more than draw attention to the fact that a landlord is not in breach of his covenant to repair until he had been given notice of the want of repair and a reasonable time has elapsed in which the repair could have been carried out. If in this case the plaintiffs had sent workmen round to carry out the repairs promptly on receiving notice of the defect and the defendant for her own convenience had decided to move to a hotel whilst the repairs were carried out, she could not have claimed the cost of the hotel because the plaintiffs would not have been in breach of the repairing covenant. That Lord Denman C.J. meant no more than this is I think apparent from his observation that the tenant might have had a claim on the basis that the time he had to be in alternative accommodation had been lengthened by the delay in carrying out repairs. For these reasons I do not regard Green v. Ea/es as an authority for the proposition that there can be no claim for the costs of alternative accommodation, but if it did purport so to decide, it was in my view wrongly decided.
If the defendant in this case had claimed for the cost of alternative accommodation it would in principle have been an allowable head of damage. It would naturally havebeen closely investigated in the evidence; was the defendant’s true reason for leav ing the flat that she and her husband found the conditions intolerable, or were there other reasons for going to live in the Isle of Man; was the cost of the alternative accommodation reasonable? – and so forth. However, the claim was not made and I agree that it is now too late to put it forward.
The judge awarded the defendant part of the costs of the internal decorations which she had had to carry out as a result of the plaintiffs’ breach of covenant. In my view he should have awarded the whole of the costs of the repairs. However, he deducted one-third of the cost of repairs as a betterment element because he was attempting the unreal exercise of putting a price on the diminution in value of the flat in circumstances when there was no need to do so.
The judge was however invited to assess damages in this way by the defendant’s counsel because it was thought that the decision of the Court of Appeal in Hewitt v. Rowlands, 93 L.J.K.B. 1080, left no other approach to the assessment. That was a case in which a statutory tenant claimed damages against his landlord for breach of the landlord’s duty to repair. The sums involved were very small and in giving directions to the registrar as to the basis on which damages should be assessed Bankes L.J. said, at p. 1082:
Prima facie the measure of damage for breach of the obligation to repair is the difference in value to the tenant during that period between ‘the house in the condition in which it now is and the house in the condition in which it would be if the landlord on receipt of the notice had fulfilled his obligation to repair. (My emphasis.)
Whatever Bankes L.J. meant by “the difference in value to the tenant,” the one thing he cannot have meant in the circumstances of that case was the diminution in the market value of the tenancy, for it was a statutory tenancy which the tenant could not sell, and thus it had no market value. In my view the difference in value to the tenant must vary according to the circumstances of the case. If the tenant is in occupation during the period of breach he is entitled to be compensated for the discomfort and inconvenience occasioned by the breach and I suspect that that is what Bankes L.J. had in mind when he used the phrase “the difference in value to the tenant” in Hewitt v. Rowlands, 93 L.J.K.B. 1080, 1082, for which th judge in this case awarded
£3,000. If the tenant has rented the property to let it and the landlord is aware of this, then “the difference in value to the tenant” may be measured by his loss of rent if he cannot let it because of the landlord’s breach. If the tenant is driven out of occupation by the breach and forced to sell the property then “the difference in value to the tenant” may be measured by the difference between the selling price and the price he would have obtained if the landlord had observed his repairing covenant. But each case depends upon its own circumstances and Hewitt v. Rowlands should not be regarded as an authority for the proposition that it is in every case necessary to obtain valuation evidence.
In my view there was no need for any valuation evidence in this case. I repeat that damages in a case such as this should include the cost of the redecoration, a sum to compensate for the discomfort, loss of enjoyment and health involved in living in the damp and deteriorating flat and any reasonable sum spent on providing alternative accommodation after the flat became uninhabitable.
Jeune v Queens Cross Properties Limited
JEUNE v. QUEENS CROSS PROPERTIES LTD
[1974] Ch. 97; [1973] 3 W.L.R. 378; [1973] 3 All E.R. 97; 26 P.& C.R. 98
Pennycuick V.-C.: The defendant’s repairing covenant requires it to maintain, repair and renew the structure, including the external walls. A mandatory order upon the defendant to reinstate the balcony is a much more convenient order than an award of damages leaving it to the individual plaintiffs to do the work. There is nothing burdensome or unfair in the order sought.
My only pre-occupation in this matter has been in regard to a principle whichI am told is stated in some textbooks to the effect that specific performance will never be ordered of repairing covenants in a lease. So far as the general law is concerned, apart froma repairing covenant in a lease, it appears perfectly clear that in an appro priate case the court will decree specific performance of an agreement to build if cer tain conditions are satisfied. See Snell’s Principles of Equity, 26th edn (1966), p. 647:
The rule has now become settled that the court will order specific performance of an agree ment to build if- (i) the building work is sufficiently defined by the contract, e.g., by reference to detailed plans; (ii) the plaintiff has a substantial interest in the performance of the contract of sucha nature that damages would not compensate him for the defendant’s failure to
build; and (iii) the defendant is in possession of the land so that the plaintiff cannot employ another person to build without committing a trespass.
It is clear that all those conditions are satisfied in the present case; in particular, the balcony is not included in any of the leases.
A similar principle was enunciated in relation to tort by Lord Upjohn in Morris v. Red/and Bricks Ltd [1970] A.C. 652. In particular Lord Upjohn said, at p. 666:
If in the exercise of its discretion the court decides that it is a proper case to granta man datory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but asa matter of fact, so that in carrying out an order he can give his contractors the proper instructions.
I
Again in the present case there is no• difficulty about that because the defendant would know what has to be done.
The difficulty arises from something;which was said by Lord Eldon LC. in Hill v. Barclay (1810) 16 Ves.Jun. 402. The facts should be looked at butI will not take time reading them now. Lord Eldon LC. considered whether this wasa case in which for
feiture should be decreed against the plaintiff tenant and in the course of his judgment said, at p. 405:
The situation of the landlord is however very different as to rent and as to these other cov enants. He may bring an ejectment upon non-payment of rent: but he may also compel the tenant to pay rent. He cannot have that specific relief with regard to repairs. He may bring an action for damages: but there is a wide distinction between damages and the actual expenditure upon repairs, specifically done. Even after damages recovered the landlord cannot compel the tenant to repair: but may bring another action. The tenant therefore, standing those actions, may keep the premises until the last year of the term; and from the reasoning of one of the cases [Hack v. Leonard (1724) 9 Mod. 91] the conclusion is, that the most beneficial course for the landlord would be, that the tenant, refraining from doing the repairs until the last year of the term, should then be compelled to do them. The difficulty
upon this doctrine ofa court of equity is, that there is no mutuality in it. The tenant cannot be compelled to repair.
Now that decision is, I think, an authority laying down the principle thata landlord cannot obtain against his tenant an order for specific performance ofa covenant to repair. It does not however apply to a landlord’s covenant to repair, although it is said that there may be some other explanation for the words “The difficulty upon this doctrine ofa court of equity is, that there is no mutuality in it.”
Counsel for the plaintiffs has looked through various textbooks on the law of land lord and tenant and assures me that – although Hill v. Barclay, 16 Ves. 402, is repeatedly cited – there is no other authority in point.
It is worthwhile to refer to two passages in Ha/sbury. In Halsbury’s Laws of England, 3rd edn, vol. 23 (1958) – on landlord and tenant – it is stated, at p. 587:
Unless the lease contains a proviso empowering the landlord to re-enter for forfeiture on breach of the covenant to repair, the landlord’s remedy is an action for damages; for specific performance of such a covenant will not ordinarily be granted.
Reference is made there to Hill v. Barclay.
In Halsbury, vol. 36 (1961) – on specific performance – there is this passage, at
p. 267: “In particular, the court does not, as a rule, order the specific performance of a contract to build or repair.” It then goes on to refer to the circumstances in which specific performance of a contract to build will be granted.
There is nothing at all there inconsistent with a power in the court to make an order on a landlord to do specific work under a covenant to repair. I cannot myself see any reason in principle, why, in an appropriate case, an order should not be made against a landlord to do some specific work pursuant to his covenant to repair. Obviously, it is a jurisdiction which should be carefully exercised. But in a case such as the pre sent where there has been a plain breach of a covenant to repair and there is no doubt at all what is required to be done to remedy the breach, I cannot see why an order for specific performance should not be made.
er 1O to operate any lifts.I mention these asa recognition of the existence and relevance of these facilities. At the end there isa form for signature by the tenant stating that he accepts the tenancy. On the land lords’ side there is nothing, no signature, no demise, no covenant: the contract takes effect as soon as the tenants sign the form and are let into possession.
We have thena contract which is partly, but not wholly, stated in writing. In order to complete it, in particular to give it a bilateral character, it is necessary to take account of the actions of the parties and the circumstances. As actions of the parties, we must note the granting of possession by the landlords and reservation by them of the “common parts-” stairs, lifts, chutes. etc. As circumstances we must include the nature of the premises, viz., a maisonette for family use on the ninth floor ofa high block, one which is occupied by a large number of other tenants, all using the
common parts and dependent upon them, none of them having any expressed obli gation to maintain or repair them.
To say that the construction of a complete contract out of these elements involves a process of “implication” may be correct; it would be so if implication means the supplying of what is not expressed. But there are varieties of implications which the courts think fit to make and they do not necessarily involve the same process. Where there is, on the face of it, a complete, bilateral contract, the courts are sometimes willing to add terms to it, as implied terms: this is very common in mercantile contracts where there is an established usage: in that case the courts are spelling out what both parties know and would, if asked, unhesitatingly agree to be part of the bargain. In other cases, where there is an apparently complete bargain, the courts are willing to add a term on the ground that without it the contract will not work
– this is the case, if not of The Moorcock (1889) 14 P.D. 64 itself on its facts, at least of the doctrine of The Moorcock as usually applied. This is, as was pointed out by the majority in the Court of Appeal, a strict test – though the degree of strictness seems to vary with the current legal trend – and I think that they were right not to accept it as applicable here. There is a third variety of implication, that which I think Lord Denning M.R. favours, or at least did favour in this case, and that is the implication of reasonable terms. But though I agree with many of his instances, which in fact fall under one or other of the preceding heads, I cannot go so far as to endorse his principle; indeed, it seems to me, with respect, to extend a long, and undesirable, way beyond sound authority.
The present case, in my opinion, represents a fourth category, or I would rather say a fourth shade on a continuous spectrum. The court here is simply concerned to establish what the contract is, the parties not having themselves fully stated the terms. In this sense the court is searching for what must be implied.
What then should this contract be held to be? There must first be implied a letting, that is, a grant of the right of exclusive possession to the tenants. With this there must, I would suppose, be implied a covenant for quiet enjoyment, as a necessary incident of the letting. The difficulty begins when we consider the common parts. We start with the fact that the demise is useless unless access is obtained by the staircase; we can add that, having regard to the height of the block, and the family nature of the dwellings, the demise would be useless without a lift service; we can continue that, there being rubbish chutes built into the structures and no other means of disposing of light rubbish, there must be a right to use the chutes. The question to be answered – and it is the only question in this case – is what is to be the legal relationship between landlord and tenant as regards these matters.
There can be no doubt that there must be implied (i) an easement for the tenants and their licensees to use the stairs, (ii) a right in the nature of an easement to use the lifts, (iii) an easement to use the rubbish chutes.
But are these easements to be accompanied by any obligation upon the landlord, and what obligation? There seem to be two alternatives. The first, for which the council contends, is for an easement coupled with no legal obligation, except such as may arise under the Occupiers’ Liability Act 1957 as regards the safety of those using the facilities, and possibly such other liability as might exist under the ordinary law of tort. The alternative is for easements coupled with some obligation on the part of the landlords as regards the maintenance of the subject of them, so that they are available for use.
My Lords, in order to be able to choose between these, it is necessary to define what test is to be applied, and I do not find this difficult. In my opinion such obligation should be read into the contract as the nature of the contract itself implicitly requires, no more, no less: a test, in other words, of necessity. The relationship accepted by the corporation is that of landlord and tenant: the tenant accepts obligations accord ingly, in relation inter alia to the stairs, the lifts and the chutes. All these are not just facilities, or conveniences provided at discretion: they are essentials of the tenancy without which life in the dwellings, as a tenant, is not possible. To leave the landlord free of contractual obligation as regards these matters, and subject only to admin istrative or political pressure, is, in my opinion, inconsistent totally with the nature of this relationship. The subject matter of the lease (high rise blocks) and the relation ship created by the tenancy demand, of their nature, some contractual obligation on the landlord.
I do not think that this approach involves any innovation as regards the law of contract. The necessity to have regard to the inherent nature of a contract and of the relationship thereby established was stated in this House in Lister v. Romford Ice and Cold Storage Co. Ltd [1957] A.C. 555. That was a case between master and servant and of a search for an “implied term.” Viscount Simonds, at p. 579, makes a clear distinction between a search for an implied term such as might be necessary to give “business efficacy” to the particular contract and a search, based on wider considerations, for such a term as the nature of the contract might call for, or as a legal incident of this kind of contract. If the search were for the former, he says, “… I should lose myself in the attempt to formulate it with the necessary precision.”
My Lords, it will be seen that I have reached exactly the same conclusion as that of Lord Denning M.R., with most of whose thinking I respectfully agree.I must only differ from the passage in which, more adventurously, he suggests that the courts have power to introduce into contracts any terms they think reasonable or to antici pate legislative recommendations of the Law Commission. A just result can be
reached, if I am right, by a less dangerous route.
As regards the obligation under the Housing Act 1961, section 32, again I am in
general agreement with Lord Denning M.R. The only possible item which might fall within the covenant implied by this section is that of defective cisterns in the maisonette giving rise to flooding or, if this is prevented, to insufficient flushing.I do not agree with those of your Lordships who would hold thata breach of the statutory covenant was committed in respect of this matter for whicha small sum of damages
may be awarded.
Barrett v Lounova (1982) Limited
(Court of Appeal)
[1990] 1 Q.B. 348; [1989] 2 W.L.R. 137; [1989] 1 All E.R. 351; (1989) 57 P. & C.R. 216
Kerr L.J.: Finally, there is a recent decision of this court in Duke of Westminster v. Guild [1985] Q.B. 688, in which the judgment was delivered by Slade L.J. At pp. 696-697 he referred to Barnes v. City of London Real Property Co. [1918] 2 Ch. 18 in which an obligation on landlords had been implied to do certain work, in the first case the cleaning of the common parts of the premises and in the second painting the premises. These obligations were implied from terms imposed on the tenants to pay for the cost of a cleaner in the first case, and for the cost of the necessary paint in the second. The position in those cases was of course far stronger than here.
Before quoting the general proposition from Woodfafl’s Law of Landlord and Tenant, which I have already set out, Slade L.J. said, at p. 697:
We do not question the correctness of these two decisions on their particular facts, or doubt that in some instances it will be proper for the court to imply an obligation against a landlord, on whom an obligation is not in terms imposed by the relevant lease, to match a correlative obligation thereby expressly imposed on the other party. Nevertheless we think that only rather limited assistance is to be derived from these earlier cases where obligations have been implied.
…..
So it follows that a repairing obligation upon the landlord can clearly arise as a matter of implication. But that leaves the question already mentioned, which I find difficult and on the borderline, whether the terms and circumstances of this particular lease enable such an implication to be made. As to that, although I have not found this an easy case, I agree with the conclusion of the recorder. In my view the clue lies in what Slade L.J. referred to as a “correlative obligation,” in this case one which is correlative to the express covenant by the tenant to keep the inside and fixtures in good repair, order and condition.
The considerations which lead mE1 to that conclusion are the following. It is obvious, as shown by this case itself, that sooner or later the covenant imposed on the tenant in respect of the inside can no longer be complied with unless the outside has been kept in repair. Moreover, it is also clear that the covenant imposed on the tenant was intended to be enforceable throughout the tenancy. For instance, it could not possibly be contended that it would cease· to be enforceable if the outside fell into disrepair. In my view it is therefore necessary, as a matter of business efficacy to make this agreement workable, that an obligation to keep the outside in repair must be imposed on someone. For myself, I would reject the persuasive submission of Mr Pryor on behalf of the landlord, that both parties may have thought that in practice the landlord
– or possibly the tenant – would do the necessary repairs, so that no problem would arise. In my view that is not a businesslike construction of a tenancy agreement.
Accordingly, on the basis that an obligation to keep the outside in a proper state of repair must be imposed on someone, three answers are possible.
First, that the tenant is obliged to keep the outside in repair as well as the inside, at any rate to such extent as may be necessary to enable him to perform his covenant. I would reject that as being unbusinesslike and unrealistic. In the case of a tenancy of this nature, which was to become a monthly tenancy after one year, the rent being paid weekly, it is clearly unrealistic to conclude that this could have been the common intention. In that context it is to be noted that in Warren v. Keen [1954] 1 Q.B. 15, this court held that a weekly tenant was under no implied obligation to do any repairs to the structure of the premises due to wear and tear or lapse of time or otherwise, and that it was doubtful whether he was even obliged to ensure that the premises remained wind and watertight. Any construction which casts upon the tenant the obligation to keep the outside in proper repair must in my view be rejected for these reasons; and also because there is an express tenant’s covenant relating to the inside, so that it would be wrong, as a matter of elementary construction, to imply a covenant relating to the outside as well.
The second solution would be the implication of a joint obligation on both parties to keep the outside in good repair. I reject that as being obviously unworkable and I do not think that Mr Pryor really suggested the contrary.
That leaves one with the third solution, an implied obligation on the landlord. In my view this is the only solution which makes business sense. The recorder reached the same conclusion by following much the same route, and I agree with him.
Quick v Taff-Ely BC
(Court of Appeal)
[1986] Q.B. 809; [1985] 3 W.L.R. 981; [1985] 3 All E.R. 321; [1985] 2 E.G.L.R. 50;
(1985) 276 E.G. 452
Dillon L.J.: Mr Blom-Cooper’s proposition has very far-reaching implications indeed. The covenant implied under section 32 of the Act of 1961 is an ordinary repairing covenant. It does not only apply to local authorities as landlords, and this court has held in Wainwright v. Leeds City Council (1984) 270 E.G. 1289 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’s 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 thata 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 observation of Atkin L.J. in Anstruther Gough-Calthorpe v. Mc0scar[1924] 1 K.B. 716, 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 only come into operation where there has been d&mage 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, arid thus to some extent improve without wholly renewing the property as the only f)racticable 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 [1980] Q.B. 12. There there was an inherent defect when the building, a relatively new on . 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, at p. 22, 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, 270 E.G. 140, 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 asa 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 horizonal 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 (1982) 44 P.& C.R. 50 is to the same effect; the damage to a recently constructed restaurant built on a concrete raft on piles over a river could only be cured 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.
The only other of the many cases cited to us which I would mention is Pembery
v. Lamdin [1940] 2 All E.R. 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 water-proof 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 L.J. appears to recognise, at p. 438, that repointing of the existing basement walls where the mortar had partially 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. Though there is ample evidence of damage to the decorations and to bedding, 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 sweat Ing 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 1tructure 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 allevia tion 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’s 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 the 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 ata 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.
Waste Cases
West Ham Central Charity Board v East London Waterworks Co
WEST HAM CENTRAL CHARITY BOARD V. EAST LONDON WATERWORKS COMPANY
[1900] 1 Ch. 624
Buckley J: The best definition of waste that I have been able to find is in Lord Darcy . Askwith, which vis in these words:
It is generally true, that the lessee hath no power to change the nature of the thing demised; he cannot turn meadow into arable, nor stub a wood to make it pasture, nor dry up an ancient pool or piscary, nor suffer ground to be surrounded, nor decay the pale of a park; for then it ceaseth to be a park, nor he may not destroy nor drive away the stock or breed of any thing, because it disherits and takes away the perpetuity of succession, as villains, fish, deer, young spring of woods, and the like; but he may better a thing in the same kind, as by digging a meadow, to make a drain or sewer to carry away water.
The test, as there laid down, seems to be whether the act which the lessor says is an act of waste by the lessee is an act which alters the nature of the thing demised. At one time this principle of law seems to have been carried so far that it was supposed that it was waste for a tenant to build a new house on the land demised, and in Co. Litt. 53a, the law is to be found stated thus: “If the tenant build a new house it is waste”; and in a case, which was cited in the course of the opening … , of
Queen’s College, Oxford v. Hallett … , I find Lord Ellenborough saying this:
It is an injury to the title of the reversioners, and a present damage to them. Lord Mansfield held that building a wall, where none was before, was sufficient to entitle the reversioner to this kind of action pending the lease, though it might be pulled down again before the lease expired.
If that was the law at one time, I think it is plain that it is not the law now. For that I may refer to Jones v. Chappell, a decision of the late Sir George Jessel, where he held that the lessee of land who erects buildings thereon without the consent of his lessor does not commit waste within the definition in Co. Litt. 53a, unless it can be shewn that such building is an injury to the inheritance. I am content to take the law
from the case of Doe v. Earl of Burlington, and I will read from p. 517:
Upon the whole, there is no authority for saying that any act can be waste which is not injurious to the inheritance, either, first, by diminishing the value of the estate, or, secondly, by increasing the burthen upon it, or, thirdly, by impairing the evidence of title. And this law is distinctly laid down by Chief Justice Richardson in Barret v. Barret cited at the bar from Hetley’s Reports.
If the permanent character of the property demised is not substantially altered, as for instance, by the conversion of pasture land into plough land, by breaking up ancient meadows, or the like, I conceive that the law is that it is not now waste for the tenant to do things which within the covenants and conditions of his lease he is not pre cluded from doing. Within those covenants and conditions he may use his holding as he pleases. And, as regards what is a dealing within the covenants and conditions of his lease, I may cite some words of Lord Eldon in Church v. Brown, and I will read from p. 268, where Lord Eldon says this:
The safest rule for property is, that a person shall be taken to grant the interest in an estate, which he proposes to convey, or the lease he proposes to make; and that nothing, which flows out of that interest, as an incident, is to be done away by loose expressions, to be construed by facts more loose; that it is upon the party, who has forborne to insert a covenant for his benefit, to shew his title to it.
Here, therefore, it seems to me that what I have to investigate is, what is the nature of the property which was demised by the lease of 1830, and is the act which is being done by the defendants, or one of them – because there is some difference in their two cases – an act which alters the nature of the thing demised? Of course it lies on the threshold of that inquiry to see from the lease of 1830 what the thing demised was.
Now the effect of that lease seems to be that these twelve acres of ground were demised to the company with authority to alter the ground in a particular way. They might excavate it, and they might make a reservoir on it, but they were not to take away any soil displaced in the course of excavation. That was to be used, I suppose, to heighten the bank which surrounded’it; and two years before the end of the term they were to reinstate the premises in ‘their original condition and sow them again with grass-seed. [His Lordship then stated the facts as to the non-construction of the reservoir, the mode in which the land was used by the company, its condition, the negotiations for the underlease to B se, and the material provisions of the under lease, and then proceeded as follows: – ] It seems to me plain that the authority which the Waterworks Company gave, to Base was this. They knew perfectly well that the demise to him was to be a d6imise for the purpose of using the land for a shoot for materials of some description. I conclude as a matter of fact that they did not authorize him to shoot offensive materials, but that they authorized him to fill up and to increase the level of the land. Now, the question I have to investigate is this. Is this alteration of the land, by imposing upon it a heap of matter such as I have endeavoured to describe, an alteration of the nature of the thing demised? The defendants say, “No, it is not, in this sense, that although it is an alteration of the thing demised in that, in order to build upon it hereafter you would have to do an act which if it were left in its original condition you would not have to do – that is to say, you would have to dig down through the ten feet of super-imposed material before you reached the foundations – the expense which would be incurred by this digging down for a better foundation would be more than compensated by the additional rent which you could get for the land.” The land, they say, as raised, is more valuable, inasmuch as the increase in value will counterbalance the extra cost of going down to obtain foundations. This is an argument which comes to this: “It is allowable to alter the nature of the thing demised provided you so alter it that there is a countervailing advantage which reimburses you the additional expense which you are put to by the alteration.” It seems to me that that is waste. Directly you admit that you have altered the thing as building land, so that you have to deal with it in a different way as building land, in my judgment you have, within the rule that I have endeavoured to lay down as regards waste, altered the nature of the thing demised.
It must be to a great extent a question of degree. It seems to me that here there has been such an alteration of the level of the soil, and such an alteration of the thing demised, as does amount to waste, irrespective of the question whether the material added has been of an offensive description or an inoffensive description. In other words, I think the waterworks company in authorizing Mr Base to go there, and to do that which he did, are equally responsible in this action for the consequence of what has been done.
It appears to me, therefore, that the plaintiffs are entitled to an injunction restrain ing both the defendants, their officers, contractors, servants, agents, and workmen, from bringing, or permitting to be brought, upon the land any rubbish, earth, or material, or otherwise committing waste on the said land.
Warren V Keen
(Court of Appeal)
[1954] 1 Q.B. 15; [1953] 2 All E.R. 1118; [1953] 3 W.L.R. 702
Denning L.J.: Apart from express contract, a tenant owes no duty to the landlord to keep the premises in repair. The only duty of the tenant is to use the premises in a husbandlike, or what is the same thing, tenantlike manner. That is how it was put by Sir Vicary Gibbs C.J. in Horsetail v. Mather and by Scrutton L.J. and Atkin L.J. in Marsden v. Edward Heyes Ltd. But what does “to use the premises in a tenantlike manner” mean? It can, I think, best be shown by some illustrations. 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. H must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place whicha reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see that his family and guests do not damage it: and if they do, he must repair it. But apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, then the tenant is not liable to repair it.
The landlord sought to put upqn the tenant a higher obligation. She said that the
duty of the tenant was to keep tlile premises wind and water tight and to make fair and tenantable repairs thereto. That seems to be based on Hill and Redman on Landlord and Tenant, 11th edn, p. 186. I do not think that is a correct statement of
the obligation.
Take the first branch, “to keep the premises wind and watertight.” Lord Tenterden,
In one or two cases at Nisi Prius, used that expression and it was followed by the Court of Appeal in Wedd v. Porter, but it is very difficult to know what “wind and water tight” means. I asked counsel whether there was any case to be found in the books wherea tenant had been held liable for breach of that obligation. I wanted to see what sort of thing it had been held to cover. But there was no such case to be found. In the absence of it, I think that the expression “wind and water tight” is of doubtful value and should be avoided. It is better to keep to the simple obligation “to use the
premises in a tenantlike manner.”
Take the second branch, “to make fair and tenantable repairs.” Lord Kenyon used
the expression in Ferguson v. Anon., which is only reported by Espinasse, who was notoriously defective. It is said that he only heard half of what went on and reported the other half. If you read the whole sentence used by Lord Kenyon, however, it is clear that he was only referring to cases where a tenant does damage himself, such as breaking the windows or the doors. Then, of course, he must repair them. The sentence, used by Lord Kenyon, was explained by Bankes L.J. in Marsden v. Heyes by saying that if a tenant commits waste – that is, if he commits voluntary waste by doing damage himself – he must do such repairs to the premises as will enable them to exclude wind and water. So explained, it does not support the proposition stated
in Redman.
It was suggested … that an action lies against a weekly tenant for permissive
waste.I do not think that that is so. It has been held not to lie against a tenant at will, see the Countess of Shrewsbury’s case, and in my opinion it does not lie againsta weekly tenant. In my judgment, the only obligation on a weekly tenant is to use the premises in a tenantlike manner. That does not cover the dampness and other defects alleged in the particulars of claim. The appeal should be allowed accordingly.
Hampshire v Wickens
HAMPSHIRE V. WICKENS
(1878) 7 Ch.D.555; 47 L.J.Ch.243; 38 L.T. 408
Jessel M.R.: There are various objections to the contention of the Plaintiff, but I only Intend to refer to one of them, which arises thus: the Defendant agreed to take a lease of the house “on all usual covenants and provisoes.”
The lease under which this property was held contained a covenant on the part of the lessee that he would not without the lessors’ consent, “assign, underlet, or part with the possession of the said premises, but such consent not to be withheld to a respectable and responsible tenant;” and, further, that he would not without their consent put up thereon any bill for letting apartments.
That was a very special and very unusual covenant, but it is said that it is less extensive than a general covenant not to assign at all, and that if no objection can be made to an unrestricted covenant against assignment none can be made to a covenant that is restricted. I think that reasoning is sound, and shall therefore consider whether an unrestricted covenant not to assign can be inserted among “usual covenants.” I am of opinion that it cannot. This was decided by Lord Thurlow in Henderson v. Hay, by Lord Eldon in Church v. Brown, and more recently by the Court of Appeal in Hodgkinson v. Crowe (3), affirming a decision of Vice-Chancellor Bacon, so that it cannot now be fairly disputed.
But I have been referred to acontrary decision in Haines v. Burnett. That case appears to me to be opposed both to principle and authority, and it must now be treated as distinctly over-ruled by Hodgkinson v. Crowe. In Haines v. Burnett, Lord Romilly, without any special provision having been made in the contract to that effect, held that a covenant should be inserted making the lease determinable on the bankruptcy of the lessee, or on his making any arrangement for the benefit of his creditors. That was in fact nothing less than a variation of the contract. I cannot see any reason for holding such a covenant to be usual. Yet it is rather difficult in looking at the case to under stand how it was decided. Lord Romilly seems to have thought that in considering general covenants, and all such other covenants as are usually inserted in leases of property of a similar description, some regard might be had to the peculiar nature and tenure of the property. But I cannot find any evidence on that point mentioned in the report, and it would seem that the Judge, from his view of the nature of the property, inserted the clause. But when we look at the reasoning of Vice-Chancellor Bacon in Hodgkinson v. Crowe, I think it is conclusive against any Judge being allowed to say from his own view that such a covenant ought to be introduced. The Court of Appeal affirmed that decision, and went further and held that, under an agreement for a lease to contain “all usual and customary mining clauses,” the landlord was not entitled to have inserted in the lease a proviso for re-entry except on non-payment of rent.
Usual covenants may vary in different generations. The law declares what are usual covenants according to the then knowledge of mankind. Lord Eldon, in Church
v. Brown, puts it thus (1):
Before the case of Henderson v. Hay (2), therefore, upon an agreement to grant a lease with nothing more than proper covenants, I should have said they were to be such covenants as were just as well known in such leases as the usual covenants under an agreement to convey an estate.
Now what is well known at one time may not be well known at another time, so that you cannot say that usual covenants never change. I have therefore looked at the last edition of Davidson’s Precedents in Conveyancing, to see whether the usage is said to have changed. He says (3):
The result of the authorities appears to be that in a case where the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for the lease containing ‘usual covenants,’ or, which is the same thing, in an open agreement without any reference to the covenants, and there are no special circumstances justifying the introduction of other covenants, the following are the only ones which either party can insist upon, namely,
g’ venants by the lessee
1. To pay rent.
2. To pay taxes, except such are expressly payable by the landlord.
3. To keep and deliver up the premises in repair, and
4. To allow the lessor to enter and view the state of repair.
And the usual qualified covenant by the lessor for quiet enjoyment by the lessee.
When he refers to “special circumstanc s” he means peculiar to a particular trade, as for example, in leases of public-house$, where the brewers have their own forms of leases, the “usual covenants” would mean the covenants always inserted in the leases of certain brewers.
There is no mention of any other “u u·a1 covenants,” and as nothing in this case has been lost for want of industry on the part of the counsel who have argued it, I am justified in saying that there is nothing in any text-book or book of precedents to shew that a covenant not to assign is a usual covenant.
I am therefore of opinion that it is not a usual covenant, and I dismiss the action with costs.