Lurcott v Wakely and Wheeler
[1911] 1 K.B. 905(Judgment by: Fletcher Moulton LJ)
Between: Lurcott
And: Wakely and Wheeler
Judges:
Cozens-Hardy MR
Fletcher Moulton LJBuckley LJ
Subject References:
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
Case References:
Lister v. Lane - [1893] 2 Q. B. 212
Torrens v. Walker - [1906] 2 Ch. 166
Judgment date: 17 February 1911
Judgment by:
Fletcher Moulton LJ
I am of the same opinion. This case, which has been very well argued, has raised a question of general public interest, and has entailed reference to a large number of authorities. But, speaking for myself, I do not think it offers any difficulty if we observe closely the nature of the obligations which the defendants took upon themselves, and then consider whether they have performed those obligations. The obligations take the form of covenants in a lease, and it is needless to say that the law requires a man who has entered into a covenant to keep it. But he has only to keep it as properly construed, and there can be no doubt that the proper rule of construction is for the Court to give to the words of the covenant their proper legal signification as applied to the subject-matter to which the covenant refers. Now the covenant here, so far as it is necessary for us to deal with it, may be said to be triple. It is that the lessee will repair and keep in thorough repair and good condition. There is also a subsequent covenant that he will render up in that state the premises demised, but it is not necessary to deal with this further covenant.
Speaking for myself, I think it is our duty to give the full meaning to each word of the covenant. It is quite true that there may be pairs of covenants in which the words used are so nearly synonymous in meaning that the scope of the two covenants will greatly overlap. It is even possible that there may be words so absolutely identical in meaning that they may make the two covenants identical. But to my mind the speculation as to the extent to which two covenants would overlap - as to whether there is anything covered by the one which is not covered by the other - is an idle speculation likely to mislead the Court. The sole duty of the Court is to give proper and full effect to each word used, and the question whether this leads to more or less overlapping is of no legal importance. I therefore look upon these as three separate covenants: there is a covenant to repair, there is a covenant to keep in thorough repair, and there is a covenant to keep in good condition.
But all these three relate to the demised premises, and we must construe them, not in an abstract sense, but as applied to the subject-matter. I will take the one which, to my mind, is the most important in this case, as enabling us to decide it with the greatest certainty and with the least difficulty. That is the covenant to keep the premises in good condition. In the year 1881 these premises were old. Nearly thirty years have passed since then, and there is no doubt that although they had not then suffered from age as much as was the case at the termination of the lease, even then they were old premises. Now what is the meaning of keeping old premises in good condition? I can see no difficulty in deciding the meaning of that. It means that, considering that they are old premises, they must be in good condition as such premises.
Let me take a parallel to which I referred in argument. Suppose the case of a ship. A man who covenants to keep the Mauretania in good condition must, of course, keep her in the perfection of condition by reason of the fact that she is a vessel of her class and new. Suppose a man covenants for a year to keep in good condition a tramp that has been at sea for fiteeen years, he must perform the covenant just as much as the man who covenanted to keep the Mauretania in good condition. But the keeping in good condition in the second case will mean something very different from that which it meant in the former case: it will mean in good condition for a vessel of that age and nature. I desire to state that for my own part I feel no reluctance to give full effect to this consideration in interpreting this covenant. We have to consider what it obliges the lessee to do in the case of an old building.
But we must bear in mind that, while the age and the nature of the building can qualify the meaning of the covenant, they never can relieve the lessee from his obligation. If he chooses to undertake to keep in good condition an old house, he is bound to do it, whatever be the means necessary for him to employ in so doing. He can never say "The house was old, so old that it relieved me from my covenant to keep it in good condition." If it was so old that to keep it in good condition would require replacement of part after part until the whole was replaced - if that was necessary - then, by entering into a covenant that he would do it, he took on his own back the burden of doing it with all that this duty might entail. I have looked at all the cases which have been cited in argument, and, with the exception of one to which I shall presently refer, and which I think can be explained on other grounds, I find no case which even suggests that the age and nature of the structure relieve the covenantor from the duty of maintaining it, if he has undertaken to maintain it.
I have dwelt by preference on the covenant to keep in good condition because it seems to me that it is entirely free from any consideration of the means that have to be employed by the lessee to do the work. The duty undertaken is expressed in clear language and must be performed. Supposing there is a house on a plot of land which is let on a lease for eighty years, and the person who takes the lease undertakes to keep that house in good condition for the eighty years, he cannot assert that it is a house which from the nature of the case would under ordinary circumstances last out twenty years, and therefore that he may let it die at the end of twenty years. He must do all that is necessary to keep that house in good condition for the period for which he has covenanted.
But, as I have pointed out, the words "keep in good condition" will have a different meaning according to the nature and age of the house.
Now of one thing one can be certain: there is a breach of the covenant if the house no longer remains a house. It is quite clear that, however you qualify the meaning of the keeping of a house "in good condition," it implies that there is a house; and in the present case it seems to me that the defendants' contention is that they were justified in allowing the house to get into a state where it was no longer a house at all because they only covenanted to do repairs. The answer to that contention is this: that they covenanted to keep the house in good condition, besides covenanting to do repairs (a point with which I will deal later on), and therefore they could not plead that they had performed their contract if they allowed the house to come into a condition in which it was no longer habitable as a house.
I turn to the facts of the case to see whether the defendants maintained the house and left the house in good condition. It is perfectly obvious that they did not. If a house is in such a condition that it is dangerous to the public, and that a portion of it has to be pulled down and rebuilt at the demand of the authorities on the ground of public safety, - which must be the safety of the people within as well as of the people without - there is a plain breach of the covenant to keep in good condition, and I should be satisfied to decide this case on that ground alone, for in my opinion it would be adequate to support the case for the plaintiff.
Now I will go to the second covenant, which is to keep in thorough repair. Here we get more into the realm of previous decisions by reason of the fact that in some of them it has been treated as a covenant the language of which pointed to the mode in which or the means by which the covenantor is to perform his duty. They leave it, however, a matter on which one is free to express one's opinion, and personally I think that to keep in thorough repair does not in any way confine the duty of the person who is liable under the covenant to the doing of what are ordinarily called repairs. A house is spoken of as being in thorough repair when it is a house to which no repairs have to be done. But it is a description of a state and not of a mode by which that state has been arrived at, and, therefore, in my own mind I draw no wide distinction between keeping in thorough repair and keeping in good condition; they both appear to me to describe the condition of the house. What a surveyor would call in good condition and what a surveyor would call in thorough repair may differ somewhat, but they would be something very like, the one to the other. As I have said, the legal obligation is to keep the house in that state, and I confess that I do not think that from the legal point of view there is much difference between the nature of the two obligations.
I come now to the third covenant, which is to repair. Here there is a duty to perform an operation. No doubt, if you thoroughly repair, it will put the house in a good condition and in a state of thorough repair. But it is plain that the word "repair" refers to the operation to which the defendants bind themselves to have recourse. For my own part, when the word "repair" is applied to a complex matter like a house, I have no doubt that the repair includes the replacement of parts. Of course, if a house had tumbled down, or was down, the word "repair" could not be used to cover rebuilding. It would not be apt to describe such an operation. But, so long as the house exists as a structure, the question whether repair means replacement, or, to use the phrase so common in marine cases, substituting new for old, does not seem to me to be at all material. Many, and in fact most, repairs imply that some portion of the total fabric is renewed, that new is put in place of old. Therefore you have from time to time as things need repair to put new for old. If you properly repair as you go along the consequence will be that you will always get a house which will be in repair and usable as a house, but you will not get a house that does not suffer from age, nor a house which when old is the same as when it was new. I cannot think that there is any case which lays down that if a person has undertaken throughout a term to repair a house he can ever say that he has no longer any duties because, although he has properly repaired, the house no longer exists. So far, however, as the present case is concerned, that is a point that need not be decided. The two other covenants are quite sufficient to decide the case.
If I am right we need not go to the authorities, because here there is a plain duty and there is a plain breach of it. It is not pretended that this wall, which was part of the demised premises, was in good condition. It is not pretended that it was in thorough repair. Either it got into its ruinous state before the demise of the premises, or it got into that state during the term of the demise, and it is settled law that when a man undertakes to keep a thing in good condition or in thorough repair, and it is not in that condition when the demise commences, the covenant implies that he is to put it in that state as well as to keep it in that state.
I wish next to deal very shortly with the cases to which we have been referred, and which no doubt deal with exceedingly important questions as to the duty of lessees under repairing leases. Let me take first the case of Proudfoot v. Hart. [F25] This case came first before a Divisional Court, consisting of Cave and Mathew JJ. Cave J. laid down certain principles as to the interpretation of a repairing covenant with which, I think, Mathew J. agreed. The covenant there was to keep the said premises in good tenantable repair and to so leave the same at the expiration of the term. Cave J. there said:
"All that he"
(the tenant)
"undertakes to do is to patch the thing up so long as it is, in the nature of things, right and reasonable that the thing should be patched up. But, where it has got to such a state that patching up is of no avail - and we all know that things do at last get to that state - then the tenant is not bound to put in anything new, or to pay any proportion of the cost of putting in the new thing, because the old one has become unfit to discharge its duty ....
It is quite impossible to read through what the learned official referee has said without seeing that he has not adopted that view of the law, because he says, 'I thought that if the paper or paint was thoroughly worn out he must repaint or repaper where done before.' That is exactly the thing he is not bound to do."
There is no doubt that Cave J. lent his great authority to an interpretation of these covenants which is entirely in conflict with the interpretation that I should give to them, and the case of Proudfoot v. Hart [F25] would be one on which great reliance might justly be placed by the defendants in the present case if it had not gone to appeal and if the law as there laid down by Cave J. had not been formally overruled. It plainly appears from the judgment of Lord Esher M.R. and the judgment of Lopes L.J., who with him constituted the Court, that both of those judges considered that the obligation was to keep the premises in a state described by the words "good tenantable repair," and that, whether it was by reconstruction or whether it was by that which would be ordinarily termed "repair," the tenant was bound to keep them in that state. The Court clearly laid down that the scope of the covenant was defined by the description of the state in which the house was to be kept. So far did they go in that line that Lopes L.J. drafted, and Lord Esher adopted, a definition of what tenantable repair is. Lord Esher says:
"Lopes L.J. has drawn up a definition of the term 'tenantable repair' with which I entirely agree. It is this: '"Good tenantable repair" is such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it,'"
and he contrasts what it would mean in Grosvenor Square with what it would mean in Spitalfields. The word "repair" there does not refer to the operation of repairing. That is proved by the fact that Lord Esher takes the case of a floor being rotten, and he says that if it is rotten the tenant must put in a new one. "Repair" occurring in the phrase "good tenantable repair" is accepted by the Court as a description of a state, and the interpretation given to the covenant is that, however he does it, the covenantor must keep the premises in that state.
The next case to which reference has been made is Lister v. Lane. [F26] That is a peculiar case, and I do not think that sufficient attention has been paid by the very able counsel who have argued the case for the appellants to what the facts of that case were and to what was the nature of the action. The statement of claim there alleged that the defendant was bound to repair on notice, that notice had been given, and that the repairs claimed by the notice were not done. The defence was that the notice required work to be done which the defendant was not bound to do by the terms of the covenant, and that the premises were repaired and were delivered up in repair in accordance with the covenant.
The learned judge at the trial found in favour of the defendant. In other words, he found that the repairs set out in the notice were repairs outside the covenant, and that the defendant had delivered up the premises repaired, so far as his covenant required. That was the issue at the trial and that was the decision. It appears from the excerpts of the evidence given at the trial that the evidence given by the defendant was directed to shew that the house as repaired was a house in a poor condition because it was a house with very uncertain foundations, and that the notice had called upon him to support the house on foundations of a totally different type from that which it had at the time of the demise.
The Court said that the duty of the defendant was to repair the premises demised and that he was not obliged to give back at the end of the demise a totally different structure merely because the premises demised were at the time of the demise in a very bad state of stability. They were in that state when they were demised and in that state they had to be given up. I can find no evidence that the premises would not stand in the condition in which they were delivered up, or that they were worse than when they had been demised originally, excepting, perhaps, that they had sunk somewhat more, a matter which was due to the nature of the premises. The plaintiff there sought to recover damages by evidence of the following kind: "I think the cause of bulging was the sinking of the foundation.
I think the decay would be gradual, and it would get worse from 1890 to 1891. I do not think it would have been profitable to repair it without pulling it down." That last statement (which was one material for the plaintiff's purpose) has nothing whatever to do with the defendant. He had not stipulated to do the best thing for his landlord. What he had stipulated to do was to repair, and the learned judge found that he had repaired in accordance with the covenant. The question therefore was whether he was required to give up totally different premises from those that were demised, or pay the cost of foundations which did not exist in the demised premises that he gave up. In my opinion Lister v. Lane [F27] has no bearing whatever on this case. It certainly contains nothing which says that a covenantor is in any way relieved from the burden of his covenant because it may be that in order to fulfil it he will have to a certain extent to rebuild the premises.
The next case is Torrens v. Walker. [F28] That again is a very peculiar case. It is a case where the lessor had undertaken to keep the outside walls in repair, and it was held - and the learned judge decided in accordance with the authorities - that it was a question of repair on notice. No notice had been given by the lessee to the lessor to repair until after the London County Council had served a notice to pull down, or practically to pull down, the outside walls, and also a portion of the party wall, or inside wall, which abutted on a neighbour's premises.
At the time, therefore, when the notice was given repair in my opinion was not possible. It seems to me, on reading the facts of that case, that the house was practically destroyed. When the house was examined the whole of the outside walls, all the inside wall above the second floor, and probably much that was below the second floor, were in a state of ruin. The lessee's premises started from the first floor. Therefore nearly the whole of the structure, so far as it was demised to the lessee, and probably the whole of it, were in a state of ruin when the notice was given. It was held by the learned judge that the duty did not begin till notice. It may very well be that under those circumstances the lessor could say "You have called upon me to do this, but my duty did not begin till you called on me to do it. You did that at a time when it was impossible for me to perform the operation which I undertook to do."
I am not bound to say whether Torrens v. Walker [F29] was rightly decided. It is sufficient to say that considerations arose in that case which do not arise here, and I think that it would not be useful to go out of my way to pronounce whether I approve of that decision or not. I reserve my opinion upon it till the time arrives when the very same case comes up before us. But certainly it differs widely from the present case, and, in my opinion, the present case can be decided on the ordinary principle that a covenantor is required to perform his covenant, if the language of it be clear as construed in relation to the subject-matter.
For these reasons I think that the defendants were bound to renew this wall. If it were necessary to treat this as a question of degree I should say that this was only the repair of an element in the whole of the demised premises; but from my point of view it is not necessary to consider that question, and therefore I do not do so. I am of opinion that the appeal should be dismissed with costs.