Between: Lurcott
And: Wakely and Wheeler

Judges: Cozens-Hardy MR
Fletcher Moulton LJ

Buckley 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 by:
Buckley LJ

"Repair" and "renew" are not words expressive of a clear contrast. Repair always involves renewal; renewal of a part; of a subordinate part. A skylight leaks; repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood; to substitute sound tiles or slates for those which are cracked, broken, or missing; to make good the flashings, and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and, so far as necessary, new bricks or stone. Repair is restoration by renewal or replacement of subsidiary parts of a whole. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion.

I agree that if repair of the whole subject-matter has become impossible a covenant to repair does not carry an obligation to renew or replace. That has been affirmed by Lister v. Lane ^[F30] and Wright v. Lawson. ^[F31] But if that which I have said is accurate, it follows that the question of repair is in every case one of degree, and the test is whether the act to be done is one which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantially the whole. It is with such limitations as these that the language in the cases which have been cited to us must be read. For instance, in Gutteridge v. Munyard ^[F32] Tindal C.J. says:

"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."

Every decay which is the subject of repair is effected by the operation of the lapse of time and the elements diminishing the value. Decay always results from time and nature. Of course the Chief Justice did not mean his words to be understood as meaning that all decay is to be borne by the landlord. They are words which follow upon a sentence in which he was speaking of a building of a particular character, namely, a very old building, and was negativing the argument that the old building was, under the operation of a covenant to repair, to be converted into a new one. Lord Esher in Lister v. Lane ^[F33] says:

"If a tenant takes a house which is of such a kind that by its own inherent nature it will in the course of time fall into a particular condition, the effects of that result are not within the tenant's covenant to repair."

Now every house is of such a kind that by its own inherent nature it will in the course of time fall into a particular condition. Lord Esher, of course, did not mean that decay is in every case not within the tenant's covenant to repair. The context shews that he did not mean that. He goes on to say this:

"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. He has to repair that thing which he took; he is not obliged to make a new and different thing."

If "repair" be understood in the sense which I suggest, the authorities are not, I think, difficult. In Gutteridge v. Munyard ^[F34] the building was a very old building, and the finding of the jury under the directions of Tindal C.J. only involved that the tenants had substantially kept the building such as it was in repair, although they had not improved it. Lister v. Lane ^[F35] and Wright v. Lawson ^[F36] were cases in which the buildings could not by any repair be brought into their original condition. In Lister v. Lane ^[F35] the only thing that could be done was, not to replace the old timber platform, but to support the house entirely anew by walls carried down another 17 feet to the subjacent gravel. That would be not repairing such a house as was there in question, namely, a house whose foundations were timbers lying on oozy soil, but providing a new house in the sense that its foundations would be on the gravel. In Wright v. Lawson. ^[F36] the bay window could not be replaced, supported as it must have been before by cantilevers, but could be reproduced only by that which would be a new structure, namely, a bay window supported by vertical supports from the ground.

Proudfoot v. Hart ^[F37] contains, I think, no general principle. It was a question as to what was performance of a covenant to keep in good tenantable repair. All that Lord Esher says ^[F38] is that if the floor become rotten the tenant must put in a new floor unless he can make the floor good by ordinary repair. The floor was a subsidiary part of the whole. The house could not be occupied if the floor were rotten, and the tenant, to comply with his covenant as to tenantable repair, must either make it good by repair or replace it, for otherwise the house would not be tenantable.

Torrens v. Walker ^[F39] was a case in which the covenant was to keep the outside of the premises in repair. The house was triangular in form at the junction of two streets. The pulling down amounted to a demolition of substantially the whole subject-matter of the covenant. In these circumstances the finding of the learned judge ^[F40] was justified, that repairing the building, or, as I prefer to say, repairing the subject-matter of the covenant, namely, the outside of the premises, was impossible, and that nothing could be done but rebuild. The learned judge found in that case that the act to be done was not one of renewal or replacement of a subsidiary part, but substantially a rebuilding of the whole subject-matter of the covenant.

All the cases, to my mind, come only to this, that the question is one of degree, and what we have to look to in the present case is to see whether the official referee in his findings of fact has treated the front wall of this house as being a subsidiary part of a larger structure, or has regarded the necessary operations as amounting to substantially a re-erection of the house. His findings of fact are these. First, he finds that the decay of the front wall is not due to any vibration superinduced by the tenants; he thinks it is caused by old age. That of course is in the appellants' favour. He then finds that the wall could not have been repaired without rebuilding. That again is in the appellants' favour. But then, after discussing the authorities, Proudfoot v. Hart, ^[F41] Lister v. Lane, ^[F42] Wright v. Lawson, ^[F43] and Torrens v. Walker, ^[F39] he goes on to say:

"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 have been retained, and the case appears to me to be exactly like that of the new floor mentioned by Lord Esher."

That is a material finding of fact on the part of the referee. He finds that this is not the erection of a new house; it is only repair in the sense that it is restoring to stability and safety a subordinate part of the whole. He likens it to the case where the house requires a new floor; here it requires a new wall. When it has got its new wall it will not be a new house; it will be the old house put into repair in the sense that there has been renewed or replaced a worn out subordinate part of the whole. On that finding of fact it appears to me that the appeal fails.

Appeal dismissed.