Lister v Lane

Facts:

The premises was old and parts of the building started to fall off. The Landlord asserted that the
Tenant had an obligation to knock down the entire building and rebuild it. The Tenant claimed that
this did not fall under his covenant to repair the premises.

Issue:

Did replacing the entire building fall under the Tenant’s covenant to repair the premises?

Held:

No. The court in Lister v Lane & Nesham held that this would require the Tenant to renew the
premises and not “repair” it. As a result, the Tenant would be providing the Landlord with something
different from what he had before. This was not part of the Tenant’s covenant to repair in the Lease.

Lurcott v Wakely & Wheeler

Facts:

The Tenant was under an obligation to carry out repairs to the premises (an old house). Following a
few years, the front wall of the house collapsed. The Landlord asserted that the Tenant was liable to
repair the premises. However, the Tenant disagreed.

Issue:

The main issue in Lurcott v Wakely & Wheeler (1911) 1 K.B. 905:

Was the Tenant liable to repair the premises under the covenant to repair?

Held:

Buckley LJ: “repair is restoration by renewal or replacement of subsidiary parts of a whole. Renewal
as distinguished from repair, is reconstruction of the entirety”. Consequently, if there is something
faulty with the structure of a building and the building falls down, the Tenant would essentially be
rebuilding the premises.

Therefore, the Tenant can escape liability if he is being asked to rebuild and not replace the the
residuary parts. However, in Lurcott, the Tenant was liable because he was not replacing the wall,
but in fact, putting back what was already there when he arrived in the house (a wall).
Anstruther Gough Calthorpe v McOscar

Facts:

This case concerned a 99-year Lease where the Tenants were expected to repair the property. Due
to the longevity of the Lease, the state of the building became progressively worse.

However, the Tenants disagreed with the covenant and argued that the building was already quite
old. Hence, they believed it was unreasonable to expect them to carry out the full repairs on the
premises.

Issues:

The key issues in Anstruther Gough Calthorpe v McOscar [1924] 1 K.B. 716:

What was the standard of repair? Were the Tenants liable to carry out the repairs on the premises?

Held:

Although the Tenants did not live in the premises for a long time, they were responsible for repairing
the premises. As Lord Atkin stated: “the Tenants were obliged to maintain the structure of the
building”.

Brew Bro v Snax

Facts:

An old property was leased to the Tenant. The Landlord expected the Tenant to replace parts of the
premises. However, the Tenant disagreed, claiming that ‘replacing’ was not the same as ‘repairing’
the property.

Issue:

The main issue in Brew Bros Ltd v Snax (Ross) Ltd [1970] 1 Q.B. 612:

Was the Tenant liable to replace parts of the property?

Held:

Megaw LJ held that the Tenant was not liable to produce a different thing from that which he took
when he entered into the Lease or to remedy the results of bad design. Therefore, the Tenant was
not liable.
Post Office v. Aquarius Properties

Facts:

The Tenant agreed to repair the premises and maintain its condition. One day, however, the water
table rose and the basement of the property was flooded with water. The Landlord argued that the
Tenant was responsible to repair the basement under the covenant. However, the condition of the
basement remained the same. Therefore, the Tenant claimed that there was no obligation to repair
the basement.

Issue:

The main issue in Post Office v Aquarius Properties Ltd [1987] All E.R. 1055:

Was the Tenant liable to repair under the covenant?

Held:

There was no deterioration or disrepair involved. Therefore, the Tenant was not liable to carry out
any work under the covenant to repair.

Proudfoot v. Hart

‘Good tenantable repair’ is repair having regard to the age, character, and locality of the house.

Creska v Hammersmith

If a tenant is served with notice by the landlord but then declines to give access, the landlord might
have no alternative but to seek an injunction against the tenant forcing it to allow the landlord to
carry out the work. As illustrated by this case, an injunction will not always be granted. The tenant
had done a large amount of underfloor heating work, but not to one of the floors because, it said, to
do so would be very disruptive to its business; it made provision for the work to be done at the end
of the lease and set aside funds to cover the cost. The landlord’s request for an injunction was
declined. In most cases, however, one would expect the court to grant an injunction.

Ravenseft v Davestone

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.

Minja Properties v Cussins

an office block was to be refurbished prior to sale. The leases obliged the landlord to keep the
structure in "good and tenantable repair" and required the tenants to allow the landlord access to
the property to carry out repairs and to pay for the repairs through the service charge.

One item in the refurbishment programme was the installation of new (and upgraded) window
frames to replace the existing corroded steel ones. This would cost each tenant over £6,000 and one
of the tenants objected. It argued that replacing the window frames was a renewal not a repair, was
therefore outside the scope of the landlord's obligation and so beyond what the tenants should have
to pay through the service charge. The tenant refused to allow the landlord access.

The court ordered the tenant to allow access. These works were a renewal of part, and as such were
within the landlord's repairing obligation. Further, even though the new windows were an
improvement on the original ones, the replacement was still a repair.

Summary

The tenant was in breach of repairing covenants and accordingly liable for damages subject to a cap
imposed by s.18 Landlord and Tenant Act 1927.

Mason v Totafinaelf UK 2003

Facts

The lease in question related to a petrol station and was granted in 1964. The effect upon the value
of disrepair was held to be measurable by reference to the trading potential of the business
operating from the premises (a petrol station, shop, and motor trader). All were diminished in value
to a figure which was less than the cost of the repairs and, accordingly, the landlord’s damages were
capped at the lower figure.

Regis v Dudley

T covenanted to keep the interior of the flat in good and substantial repair ‘fair wear and tear and
damage by accidental fire excepted.’ The House was asked to set the proportion in which L and T
bore the overall repair burden.
Held: T’s responsibilities should not be discounted only because they reflected any common law
burden not to commit waste. The assessment should be on the basis of a hypothetical tenant of he
sort who might be expected to enjoy such an occupation. The fair wear and tear exception did not
excuse the tenant from liability for further damage consequent on fair wear and tear. Lord Denning
said: ‘If a slate falls from a roof through wear and tear and in consequence the roof is likely to let
through the water, the tenant is not responsible for the slate coming off but he ought to put in
another one to prevent further damage.’

Holding and Barnes v Hill House Hammond

There had been a sale of an insurance business under which there were to be granted seven leases,
two of which related to complete buildings and five to parts of buildings. All seven leases contained
landlord’s repairing covenants. One of the leases of a complete building (‘The Ilford lease’) contained
a covenant in the following form: ‘to keep the structure and exterior of the property in good and
tenantable repair and condition.’ The other lease of a whole building had a different form of
covenant: ‘4.3 . . to keep the structure and the exterior of the building (other than those parts
comprised in the property) in good and tenantable condition.’ The problem was that the lease
defined ‘the property’ as the whole building, with the result that, read literally, the clause meant
there was an obligation to keep in repair the exterior of the property, other than the property.
Held: This was an obvious nonsense and it was corrected. ‘The problem which arises is a good
illustration of the dangers of the use of the word processor to produce a draft which is then copied
to provide other drafts to be adapted for the purpose of other cases.’ Looking at the leases together
it could be seen that there was an obvious error and ‘What the parties plainly intended was a
repairing covenant in the same form as that of the Ilford lease . .’ The draftsman of the particular
lease had taken by mistake a covenant from one of the leases of a part building. This was ‘an obvious
clerical error’ which the court could correct.

Day v Harland

The plaintiff was injured repainting a ship in a dry dock.

Held: The situation was one covered by the regulations. The scaffolding used to support the workers
had to be of the standard appropriate to maintain the employees’ safety.

Welsh v Greenwich

The property suffered defects. in this case the covenant was to maintain the property in good
condition. It was accepted that there was no disrepair to activate the covenant to repair, but the
court decided that the obligation to maintain the property in good condition was different from a
covenant to repair and the landlord was in breach of the covenant by not providing appropriate
insulation or dry lining for the walls.

O’Connor and Others v Old Etonians Housing Association Ltd

The pipes in a block of flats had been changed from 1.5 to 1 inch. This was all right for some 6 years
until the water pressure of the supply to the building dropped. The issue was whether there was a
breach of the s.11(1) covenant. The landlords appealed saying that the section imposed upon them a
duty to repair only, and not an obligation to ensure that the pipes were physically or mechanically
capable of supplying water.
Held: There was a distinction between the duty to keep in repair, and the duty to keep in proper
working order. It was not in proper working order if, through a defect in construction or design, it
was not supplying what it should. The landlord was not under an obligation to provide s supply
which could survive any changes in circumstances, but he did have a duty to maintain a system
which could reasonably cope with any changes in the supply which might be expected. ‘an
installation will be in proper working order if it is able to function under those conditions of supply
that it is reasonable to anticipate will prevail.’

Warren v Keen

The landlord in a weekly tenancy sought to recover from his tenant, the sums expanded by him on
repairs to the demised premises. The landlord alleged that it was an implied term of the tenancy
that the tenant would use the premises in a tenant-like manner, and would keep them wind and
watertight, and would affect fair and tenant-like repairs to them, in particular, the alleged defects in
the premises which included damp and stained paster on the internal walls, a cracked and broken
external wall, window sills leaking weather-proof joints, and with decayed paintwork and a leak in
the hot water boiler.
Held: The defects particularised were due to fair wear and tear for which a weekly tenant was not
liable. His only obligation is to use the premises in a tenant-like manner and therefore, the landlord
was not entitled to recover.
Lord Denning said: ‘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, where necessary,
and also the windows. He must mend the electric light when it fuses. He must unstop the sink when
it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable
tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and
he must see his family and guests do not damage it: and if they do, he must repair it.’ and ‘if the
house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by
him, the tenant is not liable to repair it.’