3PLR – LURCOTT V. WAKELY & WHEELER. [IN THE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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LURCOTT

V.

WAKELY & WHEELER.

[IN THE COURT OF APPEAL.]

1911 Feb. 16, 17.

3PLR/1911/5 (CA-E)

 

CITATION

[1911] 1 K.B.905

 

BEFORE THEIR LORDSHIPS

COZENS-HARDY M.R.

FLETCHER MOULTON and BUCKLEY L.JJ.

 

REPRESENTATION

Ernest Pollock, K.C., and A. M. Latter, for the appellants.

 

MAIN ISSUES

REAL ESTATE/LAND LAW:- Landlord and Tenant – Repairs – Lessee’s Covenant – “Keep in thorough repair and good condition” – Old Building – Natural Decay – Dangerous Structure Notice – Rebuilding – Liability of Lessee.

 

HISTORY AND SUMMARY OF FACTS

A lease of a house in London contained a covenant by the lessee to substantially repair and keep in thorough repair and good condition the demised premises and at the end or sooner determination of the term to deliver up the same to the lessors so repaired and kept. Subsequently the reversion expectant on the lease was assigned to the plaintiff and the lease to the defendants. Shortly before the expiration of the term the London County Council served a notice on the owner and occupiers requiring them to take down the front external wall of the house to the level of the ground floor as being a dangerous structure, and the plaintiff called upon the defendants to comply with this notice, which they failed to do. After the expiration of the term, the plaintiff, in compliance with a demolition order of a police magistrate, took down the wall to the level of the ground floor, and then, in compliance with a further notice of the London County Council, took down, the remainder of the wall and rebuilt it in accordance with modern requirements. The house was very old and the condition of the wall was caused by old age, and the wall could not have been repaired without rebuilding it:-

Held, that the defendants were liable under the covenant to recoup the plaintiff the cost of taking down and rebuilding the wall.

The extent of a tenant’s obligation under repairing covenants in a lease considered.

Lister v. Lane, [1893] 2 Q. B. 212, and Torrens v. Walker, [1906] 2 Ch. 166, distinguished.

APPEAL from a decision of a Divisional Court (Darling and Bucknill JJ.).

By an indenture of lease, dated May 18, 1881, and made between Louisa Garle, George Smith, and Edward Vaughan Thompson of the first part, the said George Smith and Mary Ann his wife of the second part, all of which said parties were therein called “the lessors,” and Benjamin William Pratt George, therein called “the lessee,” of the third part, a house numbered 64, Hatton Garden, together with the workshop and appurtenances thereto belonging, was demised to the lessee for a term of twenty-eight years from March 25, 1881, and the lessee, for himself, his heirs, executors, and administrators, covenanted with the lessors, their and each of their heirs and assigns, that he, the said lessee, his executors, administrators, or assigns, would (among other things) from time to time during the said term at his and their own proper costs well and substantially repair, paint, glaze, cleanse, and keep in thorough repair and good condition all the said premises thereby demised, with the appurtenances thereto belonging, and the said premises being so repaired and kept would at the end or sooner determination of the term peaceably yield up to the lessors, their heirs or assigns.

The plaintiff was the assignee of the reversion expectant on this lease, and the defendants were the assignees of the lease. The defendants were manufacturing silversmiths, and they carried on their business at the demised premises.

On February 11, 1909, the London County Council gave notice in writing to the owner and occupiers of the premises under the London Building Act, 1894, and the amending Act of 1898, that the premises had been certified by the district surveyor to be in a dangerous state, and requiring them forthwith to take down the (eastern) external wall to the level of the ground floor.

On February 15, 1909, the plaintiff required the defendants to comply with this notice before March 25, 1909, the date of the expiration of the lease, and then to deliver up to him the premises in a proper state of repair, but upon the expiration of the lease the defendants gave up possession of the premises without having complied with this notice.

In compliance with a demolition order made on May 4, 1909, by a police magistrate under the London Building Act, 1894, the plaintiff took down the wall in question to the level of the ground floor, and subsequently, in compliance with a notice given by the district surveyor on June 11, 1909, under s. 208 of the London Building Act, 1894, he pulled down the remainder of the wall and rebuilt it with concrete foundations and damp courses in accordance with the requirements of the Act. The total cost of these operations was 256l. 4s. 6d.

The plaintiff by this action claimed (amongst other things) to recover this sum from the defendants under the covenants in the lease.

The defendants by their defence disputed their liability to pay this sum, upon the ground that the dangerous condition of the premises was not due to any default of theirs, but was due to the fact that the premises, and in particular the wall in question, were worn out by age and were not originally constructed to endure longer than they had, and could not at any material time have been repaired.

The action was referred to an official referee.

The evidence showed that the house was at least 200 years old. It had a frontage to Hatton Garden of 24 feet. It was one of a row of houses and was bounded on the north by No. 63, Hatton Garden, and on the south by No. 65. It had originally a garden at the back, but in comparatively recent times, apparently about forty years ago, a workshop or factory was built over the garden, and the walls of this workshop or factory were bonded into the walls of the house. The depth of the house from front to back was 40 feet, but the depth of the house and factory together was 100 feet. The plaintiff sought to prove that the dangerous condition of the premises was due to the vibration produced by the working of the defendants’ machinery in the factory, but this was negatived by the official referee.

The official referee found that the condition of the wall was caused by old age and lapse of time, and not by vibration, and that from what was discovered as to the condition of the wall when being pulled down it could not have been repaired without rebuilding it, and he then dealt with the authorities. Referring to Proudfoot v. Hart (1) and to the opinion expressed by Lord Esher that if a floor became rotten a tenant under a covenant to keep in tenantable repair was bound to put down a new floor, he was of opinion that what Lord Esher said as to the floor applied equally to a wall, and that he was bound by that authority, whether it was good law or bad law. He then discussed Lister v. Lane (2), Wright v. Lawson (3), and Torrens v. Walker (4), and concluded as follows: “The circumstances of all those cases seem to me distinguishable from the one before me. The doing of the work claimed by the landlord in those cases involved, not a repair or rebuilding of a worn out portion such as a wall or floor, but a rebuilding of the whole house, which would have given the landlord a new house different from that demised, or, as in Wright v. Lawson (1), a new bay window of a totally different character. In this case it is clear that the whole house does not require rebuilding; the wall can be rebuilt and has been rebuilt, and the old tie plates and binders have been retained, and the case appears to me exactly like that of the new floor mentioned by Lord Esher. Could this wall have been patched or repaired? I find on the facts (although there is a difference of opinion as to that) from what was discovered afterwards that it could not have been patched or repaired, and therefore it could only be rebuilt, and that the defendants were bound to rebuild it. They are liable for the cost of rebuilding it. As to the requirements of the London County Council for rebuilding the wall below the ground, in my opinion, the defendants, as they were bound to rebuild the wall in accordance with the Building Acts and to satisfy the requirements of the London County Council, are therefore liable for the whole of the 256l. 4s. 6d.”

The defendants appealed. The Divisional Court affirmed the decision of the official referee.

Darling J. adopted the statement of the law contained in the summing up of Tindal C.J. in Gutteridge v. Munyard (2) in preference to the statements of later judges, but he thought that the question must always be one of degree. It was settled law that, if the whole house decayed by the lapse of time, the landlord was not entitled to call on the tenant to build him a new house, but it was also settled law that, if a small portion of the house decayed by the lapse of time, the landlord was entitled to call on the tenant to replace it under a covenant to repair. He thought that the wall in this case came within what the tenant might be legitimately called upon to renew, and that therefore the official referee was right in the conclusion at which he had arrived.

Bucknill J., in concurring, said that the rebuilding of this wall did not alter the character or nature of the house, and that therefore the defendants were liable on their covenant.

The defendants appealed.

Ernest Pollock, K.C., and A. M. Latter, for the appellants.

This appeal raises an important question as to the extent of a tenant’s liability under a covenant to repair. Here the official referee has found that the dangerous condition of the wall was due to old age and that it could not have been repaired without rebuilding it. The question is whether the appellants are bound by the covenants in their lease to rebuild it. The authorities shew that repair does not mean renewal. The law as to the operation and effect of a covenant to repair in the case of an old building is thus stated by Tindal C.J. in Gutteridge v. Munyard (1): “It is not meant that the old building is to be restored in a renewed form at the end of the term, or of greater value than it was at the commencement of the term. What the natural operation of time flowing on effects, and all that the elements bring about in diminishing the value, constitute a loss, which, so far as it results from time and nature, falls upon the landlord.” That principle has been applied in Lister v. Lane (2), Torrens v. Walker (3), and Wright v. Lawson. (4)

[COZENS-HARDY M.R. There is a remarkable discrepancy between the reports in Gutteridge v. Munyard (1), and the language in 7 Carrington & Payne is materially different.]

The principle is stated by Lord Esher in Lister v. Lane (2) in equally wide terms. But it has been objected, and this view has been adopted by the official referee and the Divisional Court, that that principle only applies where the whole subject-matter is worn out. What is meant by the whole subject-matter? Does it mean the whole subject-matter of the demise or the whole structure? Suppose a demise of ten houses, must they all be worn out, in order that the principle should apply? But suppose it means the whole structure, nothing decays uniformly throughout, and there must be some point short of the total collapse of the whole at which it can be said that the decay is the result of old age and the loss must fall on the landlord. Whatever be the meaning of the supposed qualification, it is not supported by the authorities. In Lister v. Lane (1) the house was only an insignificant part of the whole demise. In Torrens v. Walker (2) and Wright v. Lawson (3) a part only of the whole structure required rebuilding. In this case, as in Torrens v. Walker (2), which was also a case of rebuilding a wall, the wall – and it was here the only external wall of the house – was an essential part of the fabric, and its dangerous condition was the result of old age, and therefore the principle of Gutteridge v. Munyard (4) applies. That principle is that where old age has brought a thing to the end of its natural life the tenant is not bound under his covenant to repair to give back to the landlord at the end of the term a new and different thing. No doubt, as, Tindal C.J. observed, the tenant is bound by seasonable applications of labour to keep the demised property as nearly as possible in the same condition as when it was demised, and that has been done in this case, but his obligation does not extend beyond that. Proudfoot v. Hart (5) is distinguishable because there the breach, which it is for the landlord to prove, – Soward v. Leggatt (6) – was admitted, and the Court was addressing itself to the quantum of damages; and Gutteridge v. Munyard (4) was not there cited. If Proudfoot v. Hart (5) stands for all the propositions contended for by the reversioner there would be no limit to the effect of these covenants; but in construing a covenant to repair regard must be had to the age and the class of the demised property, and this limitation is always contemplated as between landlord and tenant; otherwise a covenant to repair would import an obligation to rejuvenate, which is contrary to the authorities Walker (1) or whether it falls within the general principle that a man who enters into a covenant to repair is bound to perform it. The principle established by the authorities is that where the house as a whole, or the subject-matter of the covenant as a whole, has by lapse of time fallen into such a condition that it is necessary to rebuild it, the covenant to repair does not apply, but that principle does not extend to a case where only a subsidiary portion of the whole requires rebuilding. In Torrens v. Walker (1) the covenant was by the lessor to repair the outside of the demised premises. There the house was situated at the corner of two streets forming an acute angle and substantially the whole of the outside of the demised premises required rebuilding. Here the wall which was to be rebuilt formed only a subsidiary part of the whole. It is a question of degree in each case. Further, this is not a mere covenant to repair, but is a covenant to repair and keep in thorough repair and good condition, and to deliver up the premises so repaired and kept. The strength of this case lies in the language of the covenant. Gutteridge v. Munyard (2) was a nisi prius case, and there is a material difference between the two reports, but Tindal C.J. was there dealing with the case of a building as a whole, and, assuming that the language of his summing up is correctly reported in 1 Moody and Robinson, no exception need be taken to that language as applied to the facts of that case. Proudfoot v. Hart (3) shews that the renewal of a subsidiary part is covered by the covenant to repair, and the principle of that case applies here.

  1. M. Latter in reply.

No argument can be founded on the language of the covenant in this case because the covenant in Lister v. Lane (4) was equally wide, and Lord Esher there says: “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.”

MAIN JUDGMENT

COZENS-HARDY M.R.

Notwithstanding the very able arguments which have been addressed to us on behalf of the appellants I feel no doubt that the decision of the Divisional Court was perfectly right. [The Master of the Rolls stated the facts, and continued.] The question is whether the appellants, the lessees, are entitled to say that the destruction of the wall in question was due be the effect of time and the elements and not to any negligence on their part, and that, therefore, they are not liable to make it good. Against that it is said that the covenants to repair in this lease are very wide and that in many cases repair necessarily involves, not repair strictly so called, but renewal. If an earthenware pipe breaks, you can only repair it by renewing it. Or again, if window frames become rotten and decayed, you cannot repair them except by renewing; and many other instances might be given.

 

Our attention has been called to a number of authorities some of which contain expressions which taken apart from the context in which they were used seem to me to be far too wide. I refer particularly to the summing up of Tindal C.J. in Gutteridge v. Munyard (1), and I pass it by with the remark that that was a nisi prius case and that there are two reports of what the Chief Justice said, or of a portion of what he said, in his summing up, and that those reports differ materially. I think it is not fair to the memory of that very learned and very able judge to hold him bound, or to suggest that his successors are bound, by the literal meaning of every word he is reported to have used in one of those reports. I certainly am not prepared to assent to the view that “what the natural operation of time flowing on effects, and all that the elements bring about in diminishing the value, constitute a loss, which, so far as it results from time and nature, falls upon the landlord.”

 

That is obviously too wide. If he only meant to say that, given an old house which in the course of the term, though still a habitable house, is rendered worse by mere lapse of time and the effects of wind and weather, the loss falls on the landlord, I should not object to the statement; but if it is to be made use of as Mr. Latter sought to make use of it, as meaning that the tenant is not liable for anything which can be said to be due to the lapse of time and the elements,

(1) 1 Moo. & R. 334; 7 C. & P. 129.

 

I respectfully do not assent to it, and it seems to me to be plainly inconsistent with the subsequent authorities. Then it is said that there are authorities, of which Torrens v. Walker (1) before Warrington J. is perhaps the leading case, which shew that under a covenant to repair there may be such a change of circumstances that the covenantor is not liable, on the ground that what he is required to do cannot fairly be called repairs at all, and that it involves giving an entirely new subject-matter. When I look at the facts in Torrens v. Walker (1), when I see that that was a covenant by the landlord simply to repair the outside of the premises, and when I see that the outside walls in question in that case, which were two sides of a triangle, were in such a condition that they could not be repaired and had to be pulled down from top to bottom, I think that that decision was quite right on the facts, and that the change of circumstances in that case was one which could not have been in the contemplation of the parties when the covenant was entered into, and that the covenant must be construed with reference to that limitation. The same thing is true of Lister v. Lane (2), where a house, which was rather an old house, was built upon what is called a timber cill and really had no foundation. The timber was put on the top of 17 feet of mud. That timber had rotted. The house could not be repaired. Nothing could be done but to remove it, to pull it down, or to underpin it to a depth of 17 feet, and to build some brick or other structure from the gravel or chalk up to the house. It was there held by the Court of Appeal, and I see no reason to quarrel with their decision, that the change of circumstances which had arisen could not have been in the contemplation of the parties and that it would not be reasonable to construe the covenant to repair as applicable to that change of circumstances. But then when I come to what I should have thought was everyday experience in cases of this kind, when I come to consider what is to happen when by reason of the elements acting on an old building, say, a chimney stack is blown down, is it possible for the tenant to say he is not liable to put that up because the collapse was due merely to age and the elements? I am astonished to hear that such a contention can be raised. So, if a tenant under a repairing lease finds that a floor has become so rotten that it cannot be patched up, that it is in such a condition that it cannot bear the weight of human beings or of furniture upon it, can it be said that the tenant is exempt from the liability of replacing that floor, and repairing it in the only way in which it can be repaired in order to make the house habitable, merely because the state of the floor is due to time and the elements? I am entirely unable to follow that argument. Proudfoot v. Hart (1) seems to lay down a perfectly sound and intelligible proposition on this point, namely, that in such a case it is the duty of the tenant, if he cannot patch up the floor so as to make it a floor, to replace that which is no longer a floor by something which is a floor.

 

That being so, it seems to me that we are driven to ask in this particular case, and in every case of this kind, Is what has happened of such a nature that it can fairly be said that the character of the subject-matter of the demise, or part of the demise, in question has been changed? Is it something which goes to the whole, or substantially the whole, or is it simply an injury to a portion, a subsidiary portion, to use Buckley L.J.’s phrase, of the demised property? In this case the view taken by the official referee and the Divisional Court is the view which commends itself to me, that this portion of the wall, 24 feet in front, is merely a subsidiary portion of the demised premises, the restoration of this wall leaving the rest of the building, which goes back more than 100 feet, untouched. The restoration of this wall will not change the character or nature of the building, and I am unable to say that the question differs in any way from that which we should have had to consider if by reason of the elements and lapse of time, say, some rafters in the roof had become rotten, and a corner of the roof gave way so that the water came in. It seems to me that we should be narrowing in a most dangerous way the limit and extent of these covenants if we did not hold that the defendants were liable under covenants framed as these are to make good the cost of repairing this wall in the only sense in which it can be repaired, namely, by rebuilding it according to the requirements of the county council. In my opinion this appeal fails and must be dismissed with costs.

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