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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Warren v Keen [1953] EWCA Civ 1 (09 October 1953) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1953/1.html Cite as: [1953] EWCA Civ 1, [1954] QB 15, [1953] 2 All ER 1118, [1954] 1 QB 15, [1953] 3 WLR 702 |
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COURT OF APPEAL
B e f o r e :
LORD JUSTICE DENNING
and
LORD JUSTICE ROMER
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KEEN |
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-v- |
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WARREN |
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MR ROGER WILLIS (instructed by Messrs Pengelly & Co.) appeared
on behalf of the Respondent (Plaintiff).
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Crown Copyright ©
The ease for the Plaintiff before us was put in this way - and this is the way it appears in the Particulars of Claim. It was alleged that a tenant from year to year is under an obligation not only to use and cultivate the land or premises in a husbandlike or tenantlike manner but also to keep the buildings wind and watertight. That will be found stated in the Judgment of Lord Justice Swinfen Eady in Wedd v. Porter (1916, 2 King's Bench, page 91, at page 100) and in various other places in cases and in text books* On the other hand, the researches of Counsel have failed to discover any case which throws light on the scope of that obligation, in ether words, any case where a tenant has been held liable for failure to keep wind and watertight where the damage would not be covered by the obligation not to commit voluntary waste or the obligation to use the premises and land in a tenantlike manner. So whether there is an additional obligation of a limited kind with regard to repairs in the case of a tenant from year to year remains at any rate in a state of some doubt.
LORD JUSTICE DENNING: Apart from express contract, a tenant owes no duty to the landlord to keep the premises in repair. The only duty of the tenant is to use the premises in a husbandlike, or what is the same thing, a tenantlike manner. That is how it was put by Sir Vicary Gibbs, Chief Justice, in Horsefall v. Mather. Holt's Nisi Prius, at page 7, and by Lord Justice Scrutton and Lord Justice Atkin in Marsden v. Edward Heyes Ltd., 1927, 2 King's Bench, at pages 7 and 8. But what does it mean, "to use the premises in a tenantlike manner"? It can, I think, best be shown by some illustrations. 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, when 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 that his family and guests do not damage it; and if they do, he must repair it. But apart from such things, if the house falls into disrepair through fair wear and tear or lapse of time or for any reason not caused by him, then the tenant is not liable to repair it The landlord sought to put upon the tenant a higher obligation. He said that the duty of the tenant was to keep the premises wind and watertight and to make fair and tenantable repairs thereto. That seems to be based on Hill and Redman on Landlord and Tenant, page 186. I do not think that is a correct statement of the obligation.
Take the first branch, "to keep the premises wind and watertight". Lord Tenterden in one or two cases at Nisi Prius used that expression and it was followed by the Court of Appeal in Wedd v. Porter. 1916, 2 King's Bench, at page 100: but it is very difficult to know what "wind and watertight" means. I asked Counsel whether there was any ease to be found in the books where a tenant had been found liable for breach of that obligation. I wanted to see what sort of thing it had been held to cover. But there was no such case to be found. In the absence of it, I think that the expression "wind and watertight" is of doubtful value and should be avoided. It is better to keep to the simple obligation "to use the premises in a tenantlike manner".
Take the second branch, "to make fair and tenant-able repairs". Lord Kenyon used the expression in the case of Ferguson v. Anon., 2 Esp., 590, which is only reported by Esplnasse, who was notoriously defective. If you read the whole sentence used by Lord Kenyon, however, it is clear that he was only referring to cases where a tenant does damage himself, such as breaking the windows or the doors. Then, of course, he must repair them. The sentence used by Lord Kenyon was explained by Lord Justice Bankes in Marsden v. Heyes by saying that if a tenant commits waste — that is, if he commits voluntary waste by doing damage himself — he must do such repairs to the premises as will enable them to exclude wind and water. So explained, it does not support the proposition stated in Redman.
LORD JUSTICE ROMER: I also agree and can express in a very few words why I think the learned Judge came to a wrong conclusion in this case. He is reported (although inaccurately as we were told) to have said in his Judgment with regard to the original contract of tenancy, which was a weekly tenancy, "There was an implied covenant that the tenant would keep the premises in a good and tenantable condition and do such repairs as were necessary to this end". That language (had it been used) would be attributing to a weekly tenant a degree of liability in the matter of repairs which is higher than that imposed by the law on tenants from year to year, as has been shown by Lord Justice Swinfen Eady in Wedd v. Porter. Lord Justice Bankes in Marsden v. Edward Heyes Ltd. and in other cases to which my brethren have referred. Accordingly, Mr Willis is unable to support the degree of liability which the learned Judge was reported to have laid down.
has authority to support him) that a yearly tenant is at all events liable to keep the demised premises wind and watertight, whatever that may mean, and that this obligation is also imposed upon a weekly tenant. There is no authority supporting that proposition so far as weekly tenants are concerned and I, for my part, find difficulty in accepting it. But, at all events, it is only really necessary for me to say in the present case that in my opinion the deterioration of which the Plaintiff complains and on which she is suing in these proceedings is deterioration due to fair wear and tear or failure to paint, or both, and a weekly tenant is certainly not answerable for deterioration of that character. Therefore, the learned Judge, in my opinion, was in error, because whatever the liability of a weekly tenant may be it does not extend to the damage which is complained of in this particular ease which, as I say, is due to ordinary deterioration by wear and tear. I accordingly agree that the appeal should be allowed.