Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

missing one or two instalments.485 The buyer only loses his occupation if the seller can rescind the contract,486 that is they are treated as buyers rather than as licensees.487

5.Irrelevance of absence of power to create tenancy and short-life of property

[25.88] Earlier cases had suggested that a sub-licence would arise where the immediate landlord held as a licensee and occupied short-life property with a view to housing homeless people until redevelopment proceeded. Both grounds were squashed in

Bruton v. London & Quadrant Housing Trust.488 The trust provided temporary housing for the homeless in short-life properties which they themselves held on licence from Lambeth London Borough Council. Bruton was allowed exclusive rights in a self-contained flat and had a lease as against the trust, meaning that the trust had a repairing obligation.489 Absence of power to grant a lease can be overcome by estoppel.490 An intention to make use of short life accommodation is not sufficient to justify the creation of an exclusive licence.491

P. RENEWAL AND ENFRANCHISEMENT

1.Enfranchisement

[25.89] Long term residential tenants often have the right to acquire the freehold or extend their lease; there are two schemes for tenants of houses, one for individual tenants of flats and one collective scheme for all tenants in a block.492

2.Commercial tenants

[25.90] Business tenants have the right to renew their lease when it expires.493 There are two schemes protecting agricultural tenants.494

485Housing Act 1980 ss 88–89.

486Errington v. Errington [1952] 1 KB 290, 293, Somervell LJ; Lakshmijit v. Faiz Sherani [1974] AC 605, PC; Allen v. IRC [1914] 2 KB 327, 332, Cozens-Hardy MR.

487Errington [1952] 1 KB 290, 294, 296, 301; Street v. Mountford [1985] AC 809, 821, Lord Templeman.

488Bruton [2000] 1 AC 406, HL; P Routley (2000) 63 MLR 424; M Dixon [2000] CLJ 25; S Bright (2000) 116 LQR 7; the HL followed Family H Ass v. Jones [1990] 1 WLR 779, 794B, Slade LJ.

489See below [26.17ff].

490Tower Hamlets LBC v. Sherwood [2002] EWCA Civ 229, [2002] EHLR 13 (kiosk near the Tower of London).

491Westminster CC v. Clarke [1992] 2 AC 288, 300–302, Lord Templeman; Bruton [2000] AC 406, 414E–F, Lord Hoffmann.

492L Ref A 1967; L Ref HUDA 1993; Chold and Ref A 2002; P Sparkes NLT chs 15–16. Termination of very long leases at very low rents may also occur by statutory extension though few leases qualify: LPA 1925 s 153.

493LTA 1954 part II; P Sparkes NLT ch 20; exclusion is considered at 552–555; see also CPR 56.

494Agricultural Holdings Act 1986; Agricultural Tenancies Act 1995; P Sparkes NLT ch 22.

26

CONTENT OF LEASES

Covenants. Rent. Repair. Residential repair. Termination by the tenant. Forfeiture. Flats.

A. COVENANTS

[26.01] The terms on which a tenant holds of his landlord are called the covenants. Although this term is more properly restricted to the terms of a lease by deed the effect of less formal promises is similar. In this introductory text covenants are treated as a single whole, proponents of the New Landlord and Tenant1 find no coherence in the subject and consider that the terms of leases should be treated in three main groupings.

1.Short term residential leases

[26.02] Rents may be regulated, the main repairing burdens are imposed on landlords and European law recognises the generally inferior position of the tenant by allowing terms to be challenged for unfairness.2 A complete consolidation of the rights and duties of tenants may now be on the cards.3

2.Long-term residential leases

[26.03] Leaseholders generally pay a low rent called a ground rent and have the obligation to repair – either directly or by contributing to a service charge. They have rights to enfranchisement and there are important controls over block ownership and management, and there are important statutory controls, recently beefed up, on ground rents, service charges, and forfeiture.4

3.Business leases

[26.04] Terms are negotiated in an open market, repairs are down to the tenant, most rents are subject to review, and there is a move towards contractual analysis of the

1P Sparkes NLT (Hart, 2001); P Sparkes “Towards a Structure for the Law of Landlord and Tenant” ch 13 in E Cooke Modern Studies in Property Law 1 – Property 2000 (Hart, 2001).

2Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083; S Bright & C Bright (1995) 111 LQR 655. OFT Press Release 44/01 (www.oft.gov.uk); D McKibbin [2002] 01 Legal Action 6.

3Reform of Housing Law: A Scoping Paper (Law Com, 2001); M Partington [2001] 04 Legal Action 10.

4See below [26.48].

relationship between landlord and tenant5 which can be identified in such matters as frustration and repudiation.6 Agricultural leases form a specialised sub-genre.7

B. RENT

1.Three sectors

[26.05] Lord Griffiths has said that:

“There are basically two ways in which a landlord can obtain moneys worth for a house that he wishes to let on a long lease. Either he can let the premises for the highest annual rent he can obtain in the market, ie the rack rent, or he can accept a lower rent plus the payment of an immediate capital sum – a premium.”8

Commercial leases tend to reserve a rack rent, that is a rent reflecting the full periodic value of the land,9 and will almost certainly contain a provision for review of the rent.10 Short-term residential letting is also based on rack rental letting, though some rents are regulated11 and others should be affordable.12 Assured lettings in the private sector are now made at market rents. Longer leases are usual for residential ownership of houses and flats. An initial capital payment (a premium) is used to buy the right to the lease, followed by a much smaller annual rent (called a ground rent).13 In extreme cases the rent might be nominal, the tradition being to reserve a notional rent as “one peppercorn (if demanded)”.

2.The rent obligation

[26.06] A rent is a periodical payment for the use of land. Although usually payable in money, payment could take any other form – rabbits, bottles of wine, red roses, or gold.14 Rent is payable in arrears unless the lease provides otherwise. Early payment is not advisable since a new landlord who buys the reversion can sue for the same rent again,15 whereas early payment gives no right to a discount.16 In practice, almost all leases require rent to be paid in advance, that is at the start of the period for which rent is paid.17

5M Howard (2000) 20 LS 503.

6See below [26.30ff].

7P Sparkes NLT ch 22.

8Johnston v. Duke of Westminster [1986] AC 839, 845A.

9Compton Group v. Estates Gazette (1977) 36 P & CR 148.

10P Sparkes, NLT ch 24.

11Fair rents under Rent Act tenancies are capped: Rent Acts (Maximum Fair Rent) Order 1999, SI 1999/6.

12P Sparkes NLT ch 9.

13P Sparkes NLT, 366–368; restrictions now apply to the collection of ground rent; see below [26.48].

14Treseder-Griffin v. Co-Operative Insurance [1956] 2 QB 127.

15De Nicholls v. Sanders (1870) LR 5 CP 589.

16On insolvency the landlord need not allow a deduction to reflect the fact that payment is made early:

Re Park Air Services [2000] 2 AC 172, HL.

17City & Capital Holdings v. Dean Warburg [1989] 1 EGLR 90, CA.

A rent covenant18 is a promise by deed to pay the rent which should be backed up by a proviso for forfeiture in the event of non-payment, which enables the landlord to terminate the lease if the rent is unpaid.19 Where a tenant holds property without a lease, there is an obligation to pay reasonable compensation for use and occupation or damages for trespass depending upon whether the owner does or does not consent to the occupation.20

Tenants are usually obliged to pay rates and taxes and commercial rent may be subject to Value Added Tax.21

3.Termination of the rent liability

[26.07] It is a fundamental of the law of landlord and tenant that entitlement to rent ends when the duration of the lease ends – meaning the contractual period and any statutory extension of it. Whether rent is due in the future depends upon whether either party is able to terminate the lease and so stop rent running. As Lord Millett has observed:

“[R]ent is not a simple debt. It is the consideration for the right to remain in possession. . . .

Its existence depends upon future events. Rent in respect of a future rental period may never become payable at all. Rent payable in future under a subsisting lease cannot be treated as a series of future debts making up a pure income stream.”22

4.Remedies for arrears of rent

[26.08] Arrears of rent can be pursed as a debt by personal action through the courts, almost invariably in the County Courts.23 Short term residential letting will contain a provision for termination in the event of non-payment of rent but the landlord has then to go on and establish a ground for possession under the relevant security of tenure regime.24 Non-payment of rent will be a ground for forfeiture of a commercial lease.25 Forfeiture of long residential leases is now severely controlled.26

If the rent of a tenant is in arrears the head landlord may serve a rent diversion notice to claim the rent payable by a subtenant directly.27

18A reddendum (that is a formal reservation of rent) has the same effect, the traditional phrase “yielding and paying” being equal to an express covenant: Royton Industries v. Lawrence [1994] 1 EGLR 110, Aldous J.

19See below [26.34].

20When a former tenant holds over the liability is for double rent: Distress for Rent Act 1737 s 18; Oliver Ashworth (Holdings) v. Ballard (Kent) [2000] Ch 12, CA; Lewisham LBC v. Masterson [2000] 1 EGLR 134, CA.

21P Sparkes NLT, 642–643. The rental limit for stamp duty on short leases was increased from £500 to £5,000 in March 2000: Finance Act 2000 s 115.

22Re Park Air Services [2000] 2 AC 172, 187E, Lord Millett.

23PD 7, [2.1].

24P Sparkes NLT, 335–340.

25See below [26.34].

26See below [26.48].

27Law of Distress Amendment Act 1908 s 6; Lawrence Chemical Co v. Rubinstein [1982] 1 WLR 284, CA; Rhodes v. Allied Dunbar Pension Services [1989] 1 WLR 800, CA; F Oditah [1990] JBL 431; JE Adams [1993] Conv 11.

5.Distress

[26.09] Distress is the process of seizing goods belonging to a debtor as a means of securing satisfaction of a claim to rent due from a tenant under a lease,28 the process being called a distraint. There are major limitations on this self help remedy and much property is exempt. Distress is strictly limited against residential tenants,29 is under more general review30 and may require modification to make it human rights compliant.31

6.Set off

[26.10] It may be a defence to a rent action to prove that the landlord is in breach of his repairing obligations, but there are technical rules. Set off is the process of putting a counterclaim forward as a means of eliminating or reducing a claim. Naturally the defence must be serious, but there is a reluctance to cut off even shadowy defences before trial.32 Common law recoupment is a right at common law to recover the cost of work which the tenant has actually carried out for which the landlord is liable. This ancient right was lost sight of until Lee-Parker v. Izzet.33 Goff J held that the common law right is restricted to cases where there was an ascertained liability, that is that the repair work had been carried out and a fixed sum was being deducted from the rent,34 and it may be that the sum has also to be indisputable. Equitable set-off is a much broader principle which permits any defendant who faces a claim by action or distress35 to set off any counterclaim which he has against the claimant,36 leaving only the net balance owing.37 If a tenant’s claim for damages for disrepair exceeds the landlord’s claim for rent, the set-off is a complete defence to the rent action, a principle used successfully in the British Anzani case.38 Claims by subtenants that the floors of a warehouse at Felixstowe were seriously defective gave a right to damages estimated to amount to £1m, though unquantified until the court made a monetary award. It was clear that these claims would far exceed the unpaid rent, so no rent was owing. It made no difference that the claim arose from a free-standing covenant outside the

28P Sparkes NLT, 650–653; SI 2000/2737; McLeod v. Butterwick [1998] 1 WLR 1603, CA (nature of walking possession).

29Leave of the court is required: HA 1988 s 19 (assured tenants); Rent Act 1977 s 147 (Rent Act protected tenants).

30Law Com 268 (2001), [1.36].

31J Joyce [2001] EG 186.

32Maremain v. Lewis [1993] EGCS 130, CA; Agyeman v. Boadi (1997) 28 HLR 558.

33[1971] 1 WLR 1688, Goff J; PM Rank (1976) 40 Conv (NS) 196; AJ Waite [1981] Conv 199; Hanak v. Green [1958] 2 QB 9, CA; Melville v. Grapelodge Developments (1979) 39 P & CR 179, Neill J.

34Lee–Parker v. Izzet [1971] 1 WLR 1688, 1693; Asco Developments v. Gordon [1978] 2 EGLR 41, Megarry V-C. Set off requires a counter-liability; none exists if no notice has been given on the need for repair: Holding & Barnes v. Hill House Hammond [2001] EWCA Civ 1334, affirming [2000] 2 P & CR 11 at 145, Neuberger J.

35Lee-Parker v. Izzet [1971] 1 WLR 1688, 1692–1693, Goff J; Fuller v. Happy Shopper Markets [2001] 1 WLR 1681, Lightman J.

36Not other parties: Mander Taylor v. Blaquiere [2002] Times November 21st, CA.

37Supreme Court Act 1981 s 49(2).

38British Anzani (Felixstowe) v. International Marine Management (UK) [1980] QB 137, Forbes J; AJ Waite [1983] Conv 373.

lease. The right is also exercisable to challenge the legality of a distress.39 Set-off is often excluded by a contractual provision requiring payment of the rent without any deduction.40

C. REPAIR

1.Balance of covenants

[26.11] A tenant is liable under an old statute41 for waste under a fixed term42 lease but not under a periodic tenancy.43 In a commercial letting, the landlord’s liability rests solely on repairing covenants,44 but most commercial leases are full repairing leases which allocate all responsibility to the tenant; the landlord’s rent is pure income.45 The landlord is under no implied obligation to repair commercial property nor leasehold flats.46

2.The standard of repair

[26.12] Proudfoot v. Hart47 states that an ordinary repairing covenant imposes an obligation to carry out such repair, having regard to the age, character and locality of the house, as would make it reasonably fit for the occupation of a tenant of the class who would be likely to take it. A higher standard is expected of a new house than of one which is 200 years old, but the remaining commercial life of the building is irrelevant.48 Location matters since a higher standard was expected of a house in Victorian Mayfair than in Spitalfields.49 The standard can be altered by contract. For example, “tenantable” repair is limited to keeping the property habitable50 – excluding painting, decoration and repapering.51 “Necessary” adds nothing to repair,52 but “thorough repair” does increase the standard.53

39Eller v. Grovecrest Investments [1995] QB 272, CA.

40The most recent cases are: Coca-Cola Financial Corp v. Finsat International [1998] QB 43, CA; Unchained Growth III v. Granby Village (Manchester) Management Co [2000] 1 WLR 739, CA; Baygreen Properties v. Gil [2002] EWCA Civ 1340, [2002] 49 EG 126.

41Statute of Marlborough 1267, 52 Henry 3 c 23.

42Dayani v. Bromley LBC [1999] 3 EGLR 144, QBD.

43There is a more limited duty to keep wind and watertight: Wedd v. Porter [1916] 2 KB 91, CA.

44Demetriou v. Poolaction (1982) [1991] 1 EGLR 100, CA.

45O’May v. City of London Real Property Co [1983] 2 AC 726, HL.

46Adams v. Lincoln Grange Management [1998] 1 EGLR 58, CA; Yankwood v. Havering LBC [1998] EGCS 75, Neuberger J. Contrast short term residential letting, below at [26.17ff].

47(1890) 25 QBD 42, CA.

48Ladbroke Hotels v. Sandhu [1995] 2 EGLR 92.

49(1890) 25 QBD 42, 52–53, 55.

50Payne v. Haine (1847) 16 M & W 541, 153 ER 1304.

51Proudfoot v. Hart (1890) 25 QBD 42.

52Truscott v. Diamond Rock Brewing Co (1882) 20 Ch D 251, CA.

53Lurcott v. Wakely [1911] 1 KB 905, 918, Fletcher Moulton LJ.

3.Existing standard or improvement?

[26.13] Whether a tenant is required to improve his property depends upon the form of a particular covenant. If the covenant is simply to repair it is necessary to maintain the standard set at the time of the lease – neither more54 nor less55 – but this must be done irrespective of the commercial life of the building left at the time of enforcement of the covenant.56

A covenant to put into repair, discussed in Proudfoot v. Hart,57 involves improvement in the standard of the property at the outset to a proper standard of repair. If it is to keep in repair, there is a duty first to put it in repair and then to maintain it in repair,58 an odd interpretation acted upon in very many cases. Thus to keep in good and tenantable repair imposed an obligation on the landlord to repair leaking stone cladding which had never been satisfactory.59 Similarly to leave in good condition involves more than just repair, since it must be kept in good condition.60

The Law Society’s standard form for commercial letting departs from the usual terminology of repair, by imposing an obligation to maintain the property, that is to conserve the standard existing at the date of the lease.61

4.Renewal of parts contrasted with improvement of whole

[26.14] Lurcott v. Wakely62 decided that repair may include demolition and reconstruction of a subsidiary part of a building, if this is necessary to put the whole house in repair. After the London County Council had required a landlord to demolish and reconstruct the front wall of a house, the cost was successfully passed on to the tenant under the tenant’s express repairing covenant. The wall was a subsidiary part, which had to be renewed completely if the whole house was to be in repair. Other cases have involved rewiring,63 and complete replacement of a worn-out roof.64 Complete changes to the character of the property let is a rebuilding outside the repairing covenant.65

5.Reconstruction and inherent defects

[26.15] This is outside the scope of a repairing covenant. Thus in Brew Brothers v. Snax (Ross)66 when a flank wall tilted as its weight caused the collapse of a drain, the

54Shaw v. Kay (1847) 1 Exch 42, 154 ER 175.

55Re London Corp [1910] 2 Ch 314, Eve J; Coward v. Gregory (1866) LR 2 CP 153.

56Ladbroke Hotels v. Sandhu [1995] 2 EGLR 92.

57(1890) 25 QBD 42, CA.

58At 50, Esher MR.

59Crédit Suisse v. Beegas Nominees [1994] 4 All ER 803.

60Lurcott v. Wakely [1911] 1 KB 905, 915.

61Standard Business Lease, [5.1].

62[1911] 1 KB 905, CA.

63Roper v. Prudential Assurance Co [1992] 1 EGLR 5 QBD; Creska v. Hammersmith & Fulham LBC

[1998] 3 EGLR 35, CA.

64New England Properties v. Portsmouth New Shops [1993] 1 EGLR 84; Elite Investments v. TI Bainbridge Silencers [1986] 2 EGLR 43.

65City Offices (Regent Street) v. Europa Acceptance Group [1990] 1 EGLR 63, CA.

66[1970] 1 QB 612, CA.

cost of remedial work was equal to the cost of a new building, work which, a majority67 held, went far beyond what a reasonable person would call repair. A commercial tenant is not usually obliged to repair design defects and neither is the landlord.68 A stalemate was reached in Post Office v. Aquarius Properties,69 since neither party was responsible for correcting the fact that the basement of a 1960s office block in the City was often ankle deep in water.

The same rule has been applied, with less justice, to limit the landlord’s obligation to provide proper dwellings. In Quick v. Taff Ely BC70 houses were uninhabitable as a result of design defects which led to excessive condensation. Solving the problem would have required replacement of the metal windows, which were sound.71 This work was not required of the landlord. Similarly in McDougall v. Easington DC 72 the tenant failed because the work needed to prevent water penetration, involved replacement of the front and rear elevations, a new roof and new windows. Work which does fall within a repairing obligation may coincidentally remedy an inherent defect.73

6.Landlord’s damages for disrepair

[26.16] Damages available to a landlord are capped by the Landlord and Tenant Act 192774 so as not to exceed the loss in value of the landlord’s reversion. No damages at all are to be awarded if the premises would be pulled down shortly after the end of the lease, nor if there will be such major alterations that the repair is irrelevant. Landlords in the early 1920s would terminate the lease of a soldier returned from the trenches, sue the displaced tenant for failure to deliver up the property in good repair, and then demolish and reconstruct the property. Landlords were able to secure a double profit, from full repairing damages and from the redevelopment. The 1927 Act withholds this double profit from landlords.75

If the repairs are to be carried out the extent to which the reversion depreciates is normally identical to the cost of the necessary work. However, a cap is imposed at the diminution in value of the reversion. Thus, if the selling value is £5,000 and the cost of the repairs is £10,000 the damages are limited to £5,000. If there is no diminution in value, there are no damages.76 Restrictions apply to actions for damages during the term of the lease.77

67At 640, Sachs LJ, 640, Phillimore LJ: Harman LJ’s dissent (at 631F) that this was risk which the tenant ought to discover by survey is more convincing; Adams v. Lincoln Grange Management [1998] 1 EGLR 58, CA.

68Except under an express covenant: BHP Petroleum Great Britain v. Chesterfield Properties [2001] EWCA Civ 1797, [2002] Ch 194.

69[1987] 1 All ER 1055, CA; PF Smith [1987] Conv 224; S Murdoch [1987] JBL 383.

70[1986] QB 809, CA.

71Contrast Minja Properties v. Cussins Property Group [1998] 2 EGLR 52 (existing windows sound).

72(1989) 58 P & CR 201, CA; PF Smith [1990] Conv 335.

73Ravenseft Properties v. Davston Holdings [1980] 1 QB 12, Forbes J; Elmcroft Developments v. Tankersley-Sawyer [1984] 1 EGLR 47, CA; Stent v. Monmouth DC (1987) 19 HLR 269; Eyre v. McCracken

(2000) 80 P & CR 220, CA; Holding & Barnes v. Hill House Hammond [2001] EWCA Civ 1334, affirming [2000] LTR 428, Neuberger J; see also below [26.19].

74S 18(1).

75Salisbury v. Gilmore [1942] 2 KB 38, CA; Re King [1963] Ch 459, CA.

76For the case law see P Sparkes NLT, 681–684.

77Leasehold Property (Repairs) Act 1938 s 1 as amended; see below [26.37].

D. RESIDENTIAL REPAIR

1.Landlord’s obligation to repair dwellings

(1) Short leases of dwellings

[26.17] Much of the benefit of repair work to property let for a short term will accrue to the landlord, so it is right for statute to place the liability for major structural repairs onto private sector landlords.78 Freedom of contract operates for a lease of exactly seven years79 or for any longer period, but the landlord is obliged to repair any dwelling let for a shorter period.80

The duty only bites after the landlord has made an initial grant of a tenancy. In

Bruton v. London & Quadrant Housing Trust81 the claimant occupied a flat in a block held by a voluntary homelessness trust under a licence granted by a local authority. The Trust granted exclusive possession to Bruton, creating a tenancy binding between themselves, sufficient to entitle Bruton to enforce the statute. This was so despite the fragility of Bruton’s tenure as against the local authority as freeholder.

(2) Work covered

[26.18] There is an implied covenant by the landlord to repair the structure and exterior of the dwelling. With flats the landlord’s duties include not only the individual flat, but also the structure of the entire block.82 Regard is had to the age, character, and prospective life of the dwelling in fixing the standard of repair required.83 Included in the structure are internal plastering, ceilings, and external doors,84 as well as windows, sashes, cords and frames,85 and the steps leading to the back door.86 Excluded are back-yard, rear footpaths,87 and an outbuilding containing a WC.88 The tenant may remain liable for internal decoration.89

Installations must also be maintained by the landlord so as to be in repair and proper working order90 including those for the supply of water (basins, sinks, and baths),91 electricity, gas, sanitation (including toilets), space heating and water

78LTA 1985 ss 11–17; P Sparkes NLT, 368–371.

79Brikom Investments v. Seaford [1981] 1 WLR 863, CA.

80LTA 1985 s 13. Contracting out with the consent of the county court is rare.

81[2000] AC 406, HL.

82LTA 1985 s 11(1A), inserted in 1988 to reverse Campden Hill Towers v. Gardner [1977] QB 823, CA.

83Applying the rule in Proudfoot v. Hart (1890) 25 QBD 42, CA.

84Morris v. Liverpool CC [1988] 1 EGLR 47; Staves v. Leeds CC (1990) 23 HLR 107, CA; Hussein v. Mehlman [1992] 2 EGLR 87, Stephen Sedley QC.

85Irvine v. Moran (1991) 24 HLR 1, 5.

86Brown v. Liverpool Corp [1969] 3 All ER 1345, CA.

87Hopwood v. Cannock Chase DC [1975] 1 WLR 373, CA; McAuley v. Bristol CC [1992] QB 134, CA; King v. South Northants DC [1992] 1 EGLR 53, CA.

88Cresswell v. Sandwell MBC [2001] CLYB 4211, Ct Ct.

89Irvine v. Moran (1991) 24 HLR 1, Ch D.

90Minor adaptions to adjust to changes in patterns of supply are also required: O’Connor v. Old Etonians H Ass [2002] EWCA Civ 150, [2002] Ch 295.

91Sheldon v. West Bromwich Corp (1973) 25 P & CR 360, CA (cold water tank); Wycombe H Ass v. Barnett (1982) 5 HLR 84 (not lagging pipes).

heaters.92 Fittings and other appliances for making use of the services93 remain the tenant’s responsibility.

(3) Exclusion of inherent defects

[26.19] The landlord’s obligation is limited to repairing damage caused by the natural effects of time, and does not extend to reconstruction. As Lord Hoffmann put it in

Southwark LBC v. Mills:94

“Keeping in repair means remedying disrepair. The landlord is obliged only to restore the house to its previous good condition. He does not have to make it a better house than it originally was.”

In Quick v. Taff Ely BC95 houses became uninhabitable as a result of design defects caused by condensation, a problem which could only be cured by replacement of the metal windows. Since existing windows were sound, they were not in disrepair and the landlord was not liable.

(4) Tenant’s responsibility for repairs

[26.20] Tenants of dwellings may be liable to do minor work such as internal decoration and they are more generally required to use any property in a tenant-like manner,96 though fair wear and tear is allowed. Breach of these terms may give rise to a ground for possession.97

2.Fitness for habitation

[26.21] Fitness for habitation98 is distinct from disrepair, since it involves such matters as condensation,99 lack of safety, poor ventilation100 or disrepair of steps.101 Some 5% of all homes are unfit, but as many as 20% in the private rented sector. No obligation is imposed on the landlord of an unfurnished house.102 In Southwark LBC v. Mills103 the House of Lords decided that a local authority landlord was not liable to soundproof residential accommodation against the activities of neighbours, even though the tenants could hear all the everyday activities in the neighbouring flats –

92LTA 1985 s 11(1)(c); Hussein v. Mehlman [1992] 2 EGLR 87 (gas heaters).

93S 11(1)(b).

94[2001] 1 AC 1, 8C.

95[1986] QB 809, CA; Palmer v. Sandwell MBC [1987] 2 EGLR 79, CA; Southwark LBC v. McIntosh

[2002] 1 EGLR 25, Lightman J; Ratcliffe v. Sandwell MBC [2002] EWCA Civ 06, [2002] 2 P & CR 23 at 322; Welsh v. Greenwich LBC [2000] 3 EGLR 41, CA; Lee v. Leeds CC [2002] EWCA Civ 6, [2002] HLR 17 at 367 (survived human rights attack); also above [26.15].

96Warren v. Keen [1954] 1 QB 15, 20, Denning LJ.

97P Sparkes NLT, 344–346.

98LTA 1985 s 10; HA 1985 s 604(2); PF Smith [1998] Conv 189.

99Quick v. Taff Ely BC [1986] QB 809, CA.

100Summers v. Salford Corp [1943] AC 283, HL.

101McCarrick v. Liverpool Corp [1947] AC 219, HL.

102Cavalier v. Pope [1906] AC 428, HL; McNerny v. Lambeth LBC (1988) 21 HLR 188, CA.

103[2001] AC 1, HL; D Rook [2000] Conv 161; J O’Sullivan [2000] CLJ 16.