There was an obligation on the landlord to keep the premises in repair in the condition in which they were demised. The premises were ground floor and basement premises which were let for the purpose of providing accommodation for the public for drinking cocktails and wines. The covenant was that the landlord ‘would keep the external part of the demised premises other than the shop front in good and tenantable repair and condition’.
Held: ‘It is an old house, 100 years or more in age, and it was built at a time when modern devices for avoiding the consequences of damp were unknown. As the surveyor points out in his report, there was no provision for waterproofing it. When one comes to construe the repairing covenant, and looks (as directed by the authorities) to the nature of the premises demised, it is clear from the evidence, the judgment, and the surveyor’s report that this was a house of the old type, with a cellar for the most part built into the ground, without any precautions against damp oozing through the porous bricks into the cellar. The house above fortunately may have remained dry, but that was the kind of house which was demised.’
In this particular covenant: ‘The first question which arises in this case is what was the nature of the obligation to repair. In order to ascertain that, it is first necessary to consider the nature of the premises which had to be repaired under the covenant. I think that, for the purposes of this case, the principle which has never been doubted, is to be found stated in a short passage in a judgment of Lord Esher, MR, in Lister v Lane and Nesham. That is a case which has been subsequently followed and approved in Lurcott v Wakely and Wheeler. In Lister v Lane and Nesham, after reviewing the earlier authorities, Lord Esher, MR, who was speaking there of a tenant, says:
‘Those cases seem to me to show that, 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 ….’
Applying that to a landlord, in the same way as it is in that case applied to a tenant, if the counterclaim here made by Mrs Lamdin be correct, she is entitled to receive at the hands of this landlord ‘a different thing’ form that which she took when she entered into the covenant. She took this old house with a cellar without any waterproof protection, and she is asking the landlord so to repair that house as to give her a cellar which has a waterproof protection and is dry. That is not a right which she can possibly maintain, because the obligation of the landlord is to repair that which is demised, and not to give her something much drier in its nature than that which was demised.’ The installation of a damp course was not a repair.
Judges:
Slesser LJ
Citations:
[1940] 2 All ER 434
Jurisdiction:
England and Wales
Cited by:
Distinguished – Elmcroft Developments Ltd v Tankersley-Sawyer CA 1984
The premises were a part of a late Victorian purpose-built mansion block consisting of 27 flats, including seven basement flats. They formed part of a larger terrace of buildings of a similar character and provided high-class accommodation in a . .
Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Cited – Eyre and others v McCracken CA 10-Mar-2000
The court considered the tenant’s covenant to repair in the context of a need for a damp course: ‘I have regard to the age, (over 150 years) and the design of the building. It has no damp-proof course . . I bear in mind the limited interest of the . .
Applied – Wainwright v Leeds City Council CA 1984
The court considered the landlord’s covenant for repair of residential property.
Held: The installation of a damp-course in property which did not previously have one was not a repair: ‘applying the facts of that case to the facts of this . .
Cited – Quick v Taff Ely Borough Council CA 1986
Because of fungus, mould growth and dampness, the tenant’s council house was virtually unfit for human habitation in the winter when the condensation was at its worst. Section 32(1) of the 1961 Act implied in the tenancy a covenant by the council to . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 08 April 2022; Ref: scu.235456
