Archive for the ‘repairs’ Category

Repairing covenant and the removal of a handrail from a staircase

July 3, 2017

In Dodd v Raebarn Estates Ltd ([2017] EWCA Civ 439, CA (Eng)) Mr D was staying in a friend’s first floor flat. He died after falling while walking down the staircase leading from the flat to the ground floor.

Raebarn owned the freehold of the building. Part of the building was sub-let to an intermediate landlord which had granted further sub-leases of individual flats. The intermediate landlord had, with Raebarn’s consent, altered the building. It removed two existing staircases and replaced them with a new staircase.

The staircase as built did not conform to the plans approved by the local authority in that it seemed likely that the new staircase never had a handrail.

Mrs D brought proceedings against Raebarn under section 4(4) of the Defective Premises Act 1972. Under section 4(4) Raebarn could only be liable if the fact that the new staircase had no handrail amounted to a failure to maintain or repair the property. The question, then, was whether the lack of a handrail amounted to disrepair.

Lewison LJ gave the main judgment with which the other members of the Court of Appeal agreed. The obligation to repair only arises when the demised premises are out of repair ([16]). The duty to repair is not a duty to make safe ([17]). Where, however, there is a need to repair, the work must be carried out in accordance with any applicable regulations and in accordance with standards of good practice at the time that the work is carried out ([25]).

Mrs D’s argument was that the removal of the original staircases was a deterioration in the property giving rise to a need to repair them. The repair works had to be carried out to the requisite standard. The missing handrail meant that they did not satisfy this standard. There had therefore been a failure to maintain and repair the property so that Raebarn was liable under s. 4(4).

This argument failed. The work on the staircases did not give rise to a lack of repair since the head-lease contemplated that such work might be carried out with Raebarn’s consent.

Once the new staircase had been installed, the repairing covenant applied to the staircase as altered. Had it deteriorated? It had not if there had never been a handrail.

Even if the altered staircase had once had a handrail which had been removed, it did not necessarily follow that the staircase was in disrepair. If there was no disrepair, the duty to carry out repairing works to the requisite standard never arose.

Michael Lower


Can a developer retain exclusive use of the external walls of a building and pass repair costs onto the other owners?

October 14, 2015

In Green & Grace Ltd v Wang Lung Industrial Building ([2015] HKEC 1935, LT) the incorporated owners resolved to repair the external walls of the building. A later general meeting specified the contribution of each owner to the works that had been carried out, including the cost of repairing the external wall.

The DMC of the building retained the exclusive use of the external walls for the developer but provided that the developer would not be required to repair them. The question was whether the resolution to repair the external walls was void in the light of section 34H(1) of the Building Management Ordinance:

‘Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment  of that part as the case may be, but the deed of mutual covenant does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.’

The incorporated owners responded by pointing out, among other things, that the DMC gave the Manager some limited control rights over the external walls and that, therefore, the developer’s rights were not ‘exclusive’. This contention failed as did the argument that the limited repairing and maintenance obligations imposed on the developer by the DMC meant that section 34H did not apply. The external wall, being for the developer’s exclusive use, was clearly not a common part.

Kot DJ found the reasoning in Uniland Investment Enterprises Ltd v IO of Sea View Estate ([1999] 4 HKC 141) especially helpful. This looked at the combined effect of sections 34H and 34C(2) of the Building Management Ordinance. The latter provision stipulates that section 34H takes priority over the terms of the DMC in the event of inconsistency. The conclusion was that the DMC provision purporting to relieve the developer from any obligation to maintain the common walls was inconsistent with section 34H and was void. It was for the developer, and not the incorporated owners, to repair the external walls or bear the costs of doing so.

Interestingly, Kot DJ commented on the Court of Appeal decision in 鄭惠娟 對 永利中心業主立案法團及另一人 . He found this unhelpful since the Court of Appeal’s attention had not been drawn to Uniland.

Michael Lower

Landlord’s repairing covenant: the scope of the rule in O’Brien v Robinson

February 24, 2015

Edwards v Kumarasamy ([2015] EWCA Civ 20, CA (Eng)) is a decision of the English Court of Appeal. Although the context is the English Landlord and Tenant Act 1985, it raises a general question as to when landlords must have notice of a defect before they can be in breach of their repairing covenant.

K granted a lease of a flat to E. K owned the flat but no other part of the building. K also had the benefit of certain easements over common parts including the entrance hall to the flats. E tripped over an uneven paving stone in a paved area just outside the entrance hall and injured his knee. He relied on the repairing covenant implied by section 11 of the Landlord and Tenant Act 1985. The Court of Appeal (Lewison LJ giving the main judgment) held that the paved area was part of the exterior of the building (and so within section 11) and that the easements granted to K gave him a sufficient interest for him to be liable for defects in the paved area under the terms of the covenant implied by section 11.

The question was whether K’s liability was conditional on E giving notice of the defect to K. Ordinarily, landlords are in breach of a repairing covenant as soon as a defect occurs and whether or not they have notice of it ([9]). The rule in O’Brien v Robinson, however, is an exception to this. In British Telecommunications plc v Sun Life Assurance Society plc ([1996] Ch 69), Nourse LJ explained the rule thus:

‘ … where a defect occurs in the demised premises themselves, a landlord is in breach of his obligation to keep them in repair only when he has information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether  works of repair to it are needed and he has failed to carry out the necessary works with reasonable expedition thereafter.’

Here the implied repairing covenant imposed on K an obligation to keep the paved area in repair but the paved area did not form part of the demise. The crucial distinction for the rule in O’Brien v Robinson is whether the defect occurs in the demised premises. Since this defect was outside the demised premises, K was liable even though he had no notice of the defect.

Michael Lower

No liability in nuisance for the ordinary use of residential premises. The principle of caveat lessee.

April 12, 2012

There is no liability in nuisance for the ordinary use of residential premises. Landlords are not liable to tenants in nuisance in respect of a state of affairs that existed at the date of the lease.

In Baxter v Camden LBC (No 2) ([2001] Q.B. 1, CA (Eng)) the council had converted a house into three flats (one flat on each floor). The work had been done in accordance with the building standards of the time but these standards did not require the installation of adequate sound insulation between the floors. The tenant of the middle floor complained of the noise from the flats above and below her. These noises were occasioned by the ordinary use of the flats but the lack of sound insulation meant that they could be heard clearly and were a source of great stress to the tenant. She brought proceedings in nuisance against the council.

These failed because the noises were the result of the ordinary use of residential premises and this could not amount to a nuisance. ‘Ordinary use may only give rise to a nuisance if it is unusual or unreasonable having regard to the purpose for which the premises were constructed.’ (per Tuckey L.J. at 12). The claim also failed because the cause of the problem existed at the date of the lease. While it is normally no defence to say that the plaintiff came to the nuisance, this does not apply in the case of landlord and tenant. Here there is a principle of caveat lessee when it comes to the state of the property (per Tuckey LJ at 12 – 13). It would have been different if the inadequate conversion works had taken place after the date of the lease.

On the facts, the landlord was not liable in negligence. The work had been done properly according to the standards of the time.

Tuckey L.J. provided this general statement of the law of nuisance:

‘The essence of the tort is undue interference with the use or enjoyment of land and the right of the plaintiff not to be interfered with. In striking this balance in the case of noise nuisance, and other nuisances of this type, the court will obviously have to consider the locality, age and physical characteristics of the premises in question. Occupiers of low cost, high density housing must be expected to tolerate higher levels of noise from their neighbours than others in more substantial and spacious premises.’ (at 10).

Implied licence for landlord to enter property to perform repairing covenant

April 9, 2012

A tenant who uses property in a reasonable way for a reasonably contemplated use does not commit waste. A covenant to ‘keep’ property in repair implies that, if need be, it will first be put in repair. A landlord who has covenanted to keep demised premises in repair has an implied licence to enter the property for a reasonable time in order to perform the covenant.

In Saner v Bilton ((1877 – 78) L.R. 7 Ch.D. 815) L owned a newly constructed warehouse for the storage of grain. He granted a lease of it to T. L covenanted to ‘keep the main walls and main timbers of the warehouse in good repair and condition.’ T used the property in a reasonable way (L alleged that this was not so but failed to make out this allegation). Nevertheless, a beam supporting one of the floors broke. Two of the external walls bulged and very extensive repair works were needed.

Fry J. held that T had not committed waste. He had not used the property unreasonably. A tenant who uses property in a reasonable way for a reasonably contemplated use does not commit waste. The fact that the cause of the problems arose from the original construction of the building did not take the work outside the scope of the landlord’s repairing covenant. A covenant to ‘keep’ property in repair implies that, if need be, it will first be put in repair. Put another way, a covenant to ‘keep’ in repair does not water down the scope of the repairing covenant. T was not entitled to damages in respect of the time he was kept out of possession by the landlord’s presence for the purpose of the repair works. A landlord who has covenanted to keep demised premises in repair has an implied licence to enter the property for a reasonable time in order to perform the covenant. This implied licence is not inconsistent with the covenant for quiet enjoyment:

“I think the covenant for quiet enjoyment must be read as subject to the license which I have held to be implied in the covenant to repair.’ (per Fry J at 824).

Repairing covenant: no exclusion for damage caused by an inherent defect

February 27, 2012

Any damage to property falls within a repairing covenant provided it is on the right side of the repair / renewal divide; that is provided that it does not involve giving back something substantially different from what had been demised. There is no exclusion for damage caused by an inherent design defect. Further, it may be that curing the design defect is the only acceptable way of repairing the property and, again subject to the question of degree, this curing of the inherent defect will fall within the repairing covenant.

In Ravenseft Properties Ltd v Davstone (Holdings) Ltd ([1980] QB 12) there was a design defect in a building. Because of a failure to use expansion joints, parts of the stone cladding on a concrete structure began to bow away from the structure. The defective sections of cladding were replaced (this time with expansion joints included). The question was whether this work fell within the scope of the tenant’s repairing covenant. The tenant contended that it did not and that there was a doctrine to the effect that remedying damage due to an inherent design defect did not amount to repair.

The tenant failed. There is no doctrine of inherent defect. If the works required amount to repair, rather than renewal of substantially the whole, then they fall within the repairing covenant. The ratio of the cost of the work to the cost or value of the entire property can be an indicator of whether the work is repair or not. Or it might be right to look at whether the part being remedied was a small part of the whole or much more. Applying either of these approaches led to the conclusion that the works involved were repairs. Including expansion joints (curing the ‘inherent defect’) could be a necessary part of the repair. This was so in the present case.

‘Tenantable repair”

February 21, 2012

The English Court of Appeal considered the meaning of a covenant to keep property in ‘tenantable repair’ in Proudfoot v Hart ((1890) L.R. 25 Q.B.D. 42, CA (Eng)). While the courts generally seem not to give much weight to qualifying words such as ‘tenantable’, the approach taken was to consider whether a likely prospective tenant of the property would be put off by any deterioration of its fabric (including the state of decoration). This seems to be a dimension that is added by the word ‘tenantable’. Lopes LJ offered this definition of the phrase:

‘[“Good tenantable repair”] appears to me to mean such repair as, having regard to the age, character, and locality of the house, would make it reasonable fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it.’ (at 55).

As Anstruther Gough Calthorpe v McOscar later explained, this definition needs to be carefully understood. It does not mean that the standard of repair required by the covenant (as originally intended by the parties) is reduced if the character of the area later declines. Perhaps one could say that ‘tenantable’ adds to, rather than subtracts from, the basic covenant to repair.

Implied repairing covenants

February 20, 2012

In Liverpool City Council v Irwin, [1976] 2 W.L.R. 562, (HL)) I was the tenant of a maisonette on the ninth and tenth floors of a multi-storey building. The staircases were unlit, the lifts were often out of order and the rubbish chute was often blocked. These common parts were in the ownership and control of the City Council (the Landlord). The lease contained only obligations on the part of the tenant. The House of Lords held that there was an implied obligation on the landlord to take reasonable care to keep those common parts in reasonable repair and usability. The implication was justified by the nature of the contract, the actions of the parties and the circumstances. The maisonette could not be occupied unless these common parts were in order. The test was one of necessity. The House of Lords was careful to reject the idea that the courts were free to imply an obligation merely because it would be reasonable to do so.

Repair and deterioration due to age

February 15, 2012

The fact that the demised premises have deteriorated due to age or the elements does not mean that the work required to put right the deterioration falls outside the repairing covenant. It is still repair if the work to be done concerns a subsidiary part of the whole and does not amount to renewal of the whole or substantially the whole of the demised premises.

Lurcott v Wakely and Wheeler ([1911] 1 KB 905, CA (Eng)) concerned a lease of an old house. The front wall had to be demolished and rebuilt and the question was whether this constituted repair.  The English Court of Appeal decided that it was. The fact that the lack of repair was the result of the passage of time and the effect of the elements did not take the deterioration outside the scope of a covenant to repair. The question was whether the required work fell short of renewal of the whole or substantially the whole of the demised premises but only required the renewal of subsidiary parts.

Fletcher Moulton LJ said:

‘Now what is the meaning of keeping old premises in good condition? … It means that, considering that they are old premises, they must be kept in good condition as such premises.’ (at 916)

If the property is dilapidated at the date of the grant, the repairing covenant obliges the covenantor to put the property in repair.

Repair: not a fluctuating standard and changes in the character of the neighbourhood are irrelevant

February 14, 2012

A covenant to repair a building is a covenant to do what is needful and necessary for the maintenance of the structure so that it may be expected to last for its normal life. The standard does not fluctuate according to the character of the neighbourhood (a covenant to keep something ‘tenantable’ may be different in this respect).

Anstruther Gough Calthorpe v McOscar ([1924] 1 KB 716, CA (Eng)) concerned a ninety five year lease of three houses. The lease contained a repairing covenant. When the lease ended, the court had to consider the standard of work required to deal with dilapidations. The character of the area in which the houses stood had changed for the worse since the time when the lease was granted. Did this mean that the ‘repair’ works could be to a lesser standard? The Court of Appeal rejected this contention. Atkin LJ offered this definition of repair:

‘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. It involves renewal of subsidiary parts; it does not involve renewal of the whole. Time must be taken into account; an old article is not to be made new; but so far as repair can make good, or protect against the ravages of time and the elements, it must be undertaken.’ (at 733).

Atkin LJ approved the statement that the covenant requires a tenant to do what is needful and necessary for the maintenance of the structure so that it may be expected to last for its normal life.