The tenant’s covenants included an obligation ‘to keep in good and substantial repair . . the demised premises and every part thereof.’
Held: A repairing covenant does not require a defect in design to be made good. One cannot have an existing obligation to repair unless and until there is a disrepair.
Slade LJ said: ‘In these circumstances, there would in my opinion have been no grounds on which the judge could properly have held that the words of the repairing covenant quoted above imposed any present obligation on the tenants to do work to the premises. Counsel for the landlords suggested that any such decision would conflict with the principle established by Proudfoot v Hart (1890) 25 QBD 42, [1886-90] All ER Rep 782 that a tenant’s covenant to keep premises in good repair obliges the tenant, if the premises are not in good repair when the tenancy begins, to put them into that state. However, as he accepted in the course of argument, the relevant statements of the law in that case were only directed to the case where the condition of the premises has deteriorated from an earlier better condition. They were not directed, and in my judgment have no application, to a case such as the present where the structural defect complained of by the landlords has existed from the time when the premises were originally built. Though counsel for the landlords sought to draw a distinction in this context between structural defects due to errors in design and those due to faulty workmanship, I can see no grounds on principle or authority for drawing any such distinction.’
Gibson LJ said that: The reference in Quick’s case to deterioration or damage, such as the statement by Lawton LJ that ‘that which requires repair is in a condition worse than it was at some earlier time’, or that of Dillon LJ that a covenant to repair the structure or exterior ‘will only come into operation where there has been damage to the structure and exterior which requires to be made good’ are not to be taken as applicable to a case of this nature, and their Lordships in Quick’s case did not have such a case as this in mind. In particular, they were not dealing with a case like this where the defective part of the premises is such that it has and may again interfere with the ordinary use and occupation of the premises contemplated by the demise and, having been caused by defective work, was ‘worse’ than it was required to be if that part of the premises was to be regarded as in good repair.
For my part I am unable to accept the submission made by counsel for the appellant landlords. The facts of this case seem to me to be, as I have said, highly unusual. I found it at first to be a startling proposition that, when an almost new office building lets ground water into the basement so that the water is ankle deep for some years, that state of affairs is consistent with there being no condition of disrepair under a repairing covenant in standard form whether given by landlord or tenant. Nevertheless, as was pointed out in the course of argument, the landlord of such a building gives no implied warranty of fitness merely by reason of letting it; and neither a landlord nor a tenant, who enters into a covenant to repair in ordinary form, thereby undertakes to do work to improve the demised premises in any way. I see no escape from the conclusion that, if on the evidence the premises demised are and at all times have been in the same physical condition (so far as concerns the matters in issue) as they were when constructed, no want of repair has been proved for which the tenants could be liable under the covenant.
Judges:
Ralph Gibson LJ, Slade LJ
Citations:
[1987] 1 All ER 1055, (1985) 276 EG 923
Jurisdiction:
England and Wales
Citing:
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 . .
Cited by:
Cited – Jackson v J H Watson Property Investment Ltd QBD 7-Jan-2008
The tenant claimant held under a 125 year lease of the defendant. A fault in a light well led to water ingress and damage. The fault was in the landlord’s land but not the flat. The tenant alleged a nuisance by the landlords. The landlord replied . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 31 May 2022; Ref: scu.263272