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Cite as: [1976] 2 All ER 39, [1976] UKHL 1, [1977] AC 239

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JISCBAILII_CASE_PROPERTY
JISCBAILII_CASE_CONTRACT

    Die Mercurii, 31° Martii 1976

    Parliamentary Archives,
    HL/PO/JU/4/3/1289


    HOUSE OF LORDS

    LIVERPOOL CITY COUNCIL (as successors to the Lord Mayor,
    Aldermen and Citizens of the City of Liverpool) (RESPONDENTS)

    v.
    IRWIN (A.P.) and another (A.P.) (APPELLANTS)


    Lord Wilberforce
    Lord Cross of Chelsea

    Lord Salmon
    Lord Edmund-Davies
    Lord Fraser of Tullybelton


    Lord Wilberforce

    MY LORDS,

    This case is of general importance, since it concerns the obligations of
    local authority, and indeed other, landlords as regards high-rise or multi-
    storey dwellings towards the tenants of these dwellings. This is a com-
    paratively recent problem though there have been some harbingers of it in
    previous cases.

    No. 50, Haigh Heights, Liverpool, is one of several recently erected tower
    blocks in the District of Everton. It has some 70 dwelling units in it. It
    was erected 10 years ago following a slum clearance programme at con-
    siderable cost, and was then, no doubt, thought to mark an advance in
    housing standards. Unfortunately, it has since turned out that effective
    slum clearance depends upon more than expenditure upon steel and concrete.
    There are human factors involved too, and it is these which seem to have
    failed. The defendants moved into one of the units in this building in July
    1966: this was a maisonette of two floors, corresponding to the ninth and
    tenth floors of the block. Access to it was provided by a staircase and by
    two electrically operated lifts. Another facility provided was an internal
    chute into which tenants in the block could discharge rubbish or garbage
    for collection at the ground level.

    There has been a consistent history of trouble in this block, due in part
    to vandalism, in part to non-cooperation by tenants, in part, it is said, to
    neglect by the Corporation. The defendants, with other tenants, stopped
    payment of rent so that in May 1973 the Corporation had to start proceed-
    ings for possession. The defendants put in a counterclaim for damages
    and for an injunction, alleging that the Corporation was in breach of its
    implied covenant for quiet enjoyment, that it was in breach of the statutory
    covenant implied by section 32 of the Housing Act 1961, and that it was in
    breach of an obligation implied by law to keep the " common parts " in
    repair. The case came for trial in the Liverpool County Court before His
    Honour Judge T. A. Cunliffe. A good deal of evidence was submitted, both
    orally and in the form of reports. The judge himself visited the block and
    inspected the premises: he said in his judgment that he was appalled by the
    general condition of the property. On 10th April, 1974, he gave a detailed
    and careful judgment granting possession to the Corporation on the claim,
    and on the counterclaim judgment for the defendants for £10 nominal
    damages. He found that the defects alleged by the defendants were esta-
    blished. These can be summarised as consisting of (i) a number of defects
    in the maisonette itself—these were significant but not perhaps of major
    importance ; (ii) defects in the common parts, which may be summarised as
    continual failure of the lifts, sometimes of both at one time, lack of lighting
    on the stairs, dangerous condition of the staircase with unguarded holes
    giving access to the rubbish chutes, and frequent blockage of the chutes.
    He found that these had existed or been repeated with considerable frequency
    throughout the tenancy, had gone from bad to worse, and that while some
    defects in the common parts could be attributed to vandalism, not all could
    be so attributed. No doubt also some defects, particularly the blocking of
    the rubbish chutes, were due to irresponsible action by the tenants them-
    selves. The learned judge decided that there was to be implied a covenant
    by the Corporation to keep the common parts in repair and properly lighted,
    and that the Corporation was in breach of this implied covenant, of the
    covenant for quiet enjoyment and of the repairing covenant implied by the
    Housing Act 1961, section 32.

    2

    The Corporation appealed to the Court of Appeal, which allowed the
    Corporation's appeal against the judgment on the counterclaim. While
    agreeing in the result, the members of that Court differed as to their grounds.
    Roskill and Ormrod L.JJ. held that no covenant to repair the common
    parts ought to be implied. Lord Denning M.R. held that there should be
    implied a covenant to take reasonable care, not only to keep the lifts and
    stairs reasonably safe, but also to keep them reasonably fit for use by the
    tenant and his family and visitors. He held, however, that there was no
    evidence of any breach of this duty. The court was agreed in holding that
    there was no breach of the covenant implied under section 32 of the Housing
    Act 1961 ; the tenants did not seek to uphold the judge's decision on the
    covenant for quiet enjoyment, and have not done so in the House.

    I consider first the tenants' claim in so far as it is based on contract. The
    first step must be to ascertain what the contract is. This may look
    elementary, even naive, but it seems to me to be the essential step and to
    involve, from the start, an approach different, if simpler, from that taken
    by the members of the Court of Appeal. We look first at documentary
    material. As is common with council lettings there is no formal demise, or
    lease or tenancy agreement. There is a document headed " Liverpool Cor-
    " poration, Liverpool City Housing Dept." and described as " Conditions of
    " Tenancy ". This contains a list of obligations upon the tenant—he shall
    do this, he shall not do that, or he shall not do that without the Corporation's
    consent. This is an amalgam of obligations added to from time to time,
    no doubt, to meet complaints, emerging situations, or problems as they
    appear to the council's officers. In particular there have been added special
    provisions relating to multi-storey flats which are supposed to make the
    conditions suitable to such dwellings. We may note under " Further special
    notes " some obligations not to obstruct staircases and passages, and not to
    permit childrden under 10 to operate any lifts. I mention these as a
    recognition of the existence and relevance of these facilities. At the end
    there is a form for signature by the tenant stating that he accepts the tenancy.
    On the landlords' side there is nothing, no signature, no demise, no covenant:
    the contract takes effect as soon as the tenants sign the form and are let into
    possession.

    We have then a contract which is partly, but not wholly, stated in writing.
    In order to complete it, in particular to give it a bilateral character, it is
    necessary to take account of the actions of the parties and the circumstances.
    As actions of the parties, we must note the granting of possession by the
    landlords and reservation by them of the " common parts "—stairs, lifts,
    chutes, etc. As circumstances we must include the nature of the premises,
    viz., a maisonette for family use on the ninth floor of a high block, one
    which is occupied by a large number of other tenants, all using the common
    parts and dependent upon them, none of them having any expressed
    obligation to maintain or repair them.

    To say that the construction of a complete contract out of these elements
    involves a process of " implication " may be correct: it would be so if
    implication means the supplying of what it not expressed. But there are
    varieties of implications which the courts think fit to make and they do not
    necessarily involve the same process. Where there is, on the face of it, a
    complete, bilateral contract, the courts are sometimes willing to add terms
    to it, as implied terms: this is very common in mercantile contracts where
    there is an established usage: in that case the courts are spelling out what
    both parties know and would, if asked, unhesitatingly agree to be part of the
    bargain. In other cases, where there is an apparently complete bargain, the
    courts are willing to add a term on the ground that without it the contract
    will not work—this is the case, if not of The Moorcock itself on its facts,
    at least of the doctrine of The Moorcock as usually applied. This is, as was
    pointed out by the majority in the Court of Appeal, a strict test—though the
    degree of strictness seems to vary with the current legal trend, and I think
    that they were right not to accept it as applicable here. There is a third
    variety of implication, that which I think Lord Denning M.R. favours, or

    3

    at least did favour in this case, and that is the implication of reasonable
    terms. But though I agree with many of his instances, which in fact fall
    under one or other of the preceding heads, I cannot go so far as to endorse
    his principle: indeed, it seems to me, with respect, to extend a long, and
    undesirable, way beyond sound authority.

    The present case, in my opinion, represents a fourth category, or I would
    rather say a fourth shade on a continuous spectrum. The court here is
    simply concerned to establish what the contract is, the parties not having
    themselves fully stated the terms. In this sense the court is searching for
    what must be implied.

    What then should this contract be held to be? There must first be implied
    a letting, i.e., a grant of the right of exclusive possession to the tenants. With
    this there must, I would suppose, be implied a covenant for quiet enjoyment,
    as a necessary incident of the letting. The difficulty begins when we consider
    the common parts. We start with the fact that the demise is useless unless
    access is obtained by the staircase: we can add that, having regard to the
    height of the block, and the family nature of the dwellings, the demise
    would be useless without a lift service: we can continue that there being
    rubbish chutes built in to the structures and no other means of disposing
    of light rubbish there must be a right to use the chutes. The question to be
    answered—and it is the only question in this case—is what is to be the legal
    relationship between landlord and tenant as regards these matters.

    There can be no doubt that there must be implied (i) an easement for the
    tenants and their licensees to use the stairs, (ii) a right in the nature of an
    easement to use the lifts, (iii) an easement to use the rubbish chutes.

    But are these easements to be accompanied by any obligation upon the
    landlord, and what obligation? There seem to be two alternatives. The
    first, for which the council contends, is for an easement coupled with no
    legal obligation, except such as may arise under the Occupiers' Liability Act
    1957 as regards the safety of those using the facilities, and possibly such
    other liability as might exist under the ordinary law of tort. The alternative
    is for easements coupled with some obligation on the part of the landlords as
    regards the maintenance of the subject of them, so that they are available
    for use.

    My Lords, in order to be able to choose between these, it is necessary to
    define what test is to be applied, and I do not find this difficult. In my
    opinion such obligation should be read into the contract as the nature of the
    contract itself implicitly requires, no more, no less: a test in other words of
    necessity. The relationship accepted by the Corporation is that of landlord
    and tenant: the tenant accepts obligations accordingly, in relation inter alia
    to the stairs, the lifts and the chutes. All these are not just facilities, or
    conveniences provided at discretion: they are essentials of the tenancy
    without which life in the dwellings, as a tenant, is not possible. To leave
    the landlord free of contractual obligation as regards these matters, and
    subject only to administrative or political pressure, is, in my opinion,
    inconsistent totally with the nature of this relationship. The subject matter of
    the lease (high-rise blocks) and the relationship created by the tenancy
    demands, of its nature, some contractual obligation on the landlord.

    I do not think that this approach involves any innovation as regards the
    law of contract. The necessity to have regard to the inherent nature of a
    contract and of the relationship thereby established was stated in this House
    in Lister v. Romford Ice & Cold Storage Co. Ltd. (1957] AC 555. That
    was a case between master and servant and of a search for an " implied
    " term ". Viscount Simons makes a clear distinction between a search for
    an implied term such as might be necessary to give " business efficacy " to
    the particular contract and a search, based on wider considerations, for such
    a term as the nature of the contract might call for, or as a legal incident of
    this kind of contract (I.c. p. 579). If the search were for the former, he
    says, " I should lose myself in the attempt to formulate it with the necessary

    4

    " precision ". We see an echo of this in the present case, when the majority
    in the Court of Appeal, considering a " business efficacy term "—i.e. a
    " Moorcock " term—found themselves faced with five alternative terms and
    therefore rejected all of them. But that is not, in my opinion, the end, or
    indeed the object of the search.

    We have some guidance in authority for the kind of term which this
    typical relationship (of landlord and tenant in multi-occupational dwelling)
    requires in Miller v. Hancock [1893] 2 Q.B. 177. There Bowen L.J. said:

    " The tenants could only use their flats by using the staircase. The
    " defendant, therefore, when he let the flats, impliedly granted to the
    " tenants an easement over the staircase, which he retained in his own
    " occupation, for the purpose of the enjoyment of the flats so let.
    " Under those circumstances, what is the law as to the repairs of the
    " staircase? It was contended by the defendant's counsel that, accord-
    " ing to the common law, the person in enjoyment of an easement is
    " bound to do the necessary repairs himself. That may be true with
    " regard to easements in general, but it is subject to the qualification
    " that the grantor of the easement may undertake to do the repairs
    " either in express terms or by necessary implication. This is not the
    " mere case of a grant of an easement without special circumstances.
    " It appears to me obvious, when one considers what a flat of this kind
    " is, and the only way in which it can be enjoyed, that the parties to the
    " demise of it must have intended by necessary implication, as a basis
    " without which the whole transaction would be futile, that the landlord
    " should maintain the staircase, which is essential to the enjoyment of
    " the premises demised, and should keep it reasonably safe for the use
    " of the tenants, and also of those persons who would necessarily go up
    " and down the stairs in the ordinary course of business with the tenants ;
    " because, of course, a landlord must know when he lets a flat that
    " tradesmen and other persons having business with the tenant must
    " have access to it. It seems to me that it would render the whole
    " transaction inefficacious and absurd if an implied undertaking were
    " not assumed on the part of the landlord to maintain the staircase so
    " far as might be necessary for the reasonable enjoyment of the demised
    " premises."

    Certainly that case, as a decision concerning a claim by a visitor, has been
    over-ruled. (Fairman v. Perpetual Investment Building Society [1923] A.C.
    74.) But I cite the passage for its common sense as between landlord and
    tenant, and you cannot over-rule common sense.

    There are other passages in which the same thought has been expressed.
    De Meza v. Ve-Ri-Best Manufacturing Co., Ltd. (1952) 160 Estates Gazette 364
    was a case of failure to maintain a lift in which Lord Evershed, M.R. sitting
    with Denning and Romer L.J.J. held the landlords liable in damages for
    breach of an implied obligation to provide a working lift. The agreement
    was more explicit than the present agreement in that there was an express
    demise of the flat " together with the use of the lift ", but I think there is no
    doubt that the same demise or grant must be implied here, and if so can
    lead to the same result.

    In Penn v. Gatenex Co. Ltd. [1958] 2 Q.B. 210, a case about a refrigerator
    in a flat, Sellers L.J. said this:

    " If an agreement gives a tenant the use of something wholly in the
    " occupation and control of the landlord, for example, a lift, it would,
    " I think, be accepted that the landlord would be required to main-
    " tain the lift, especially if it were the only means of access to the
    '' demised premises. I recognise that a lift might vary in age and
    " efficiency, but in order to give meaning to the words ' the use of' and
    " to fulfil them, it should at least be maintained so that it would take
    " a tenant up and down, subject to temporary breakdown and reason-
    " able stoppages for maintenance and repairs."

    That was a dissenting judgment but Lord Evershed M.R. (I.c. p. 220) makes
    a similar observation as to lifts.

    5

    These are all reflections of what necessarily arises whenever a landlord
    lets portions of a building for multiple occupation, retaining essential means

    of access.

    I accept, of course, the argument that a mere grant of an easement does
    not carry with it any obligation on the part of the servient owner to maintain
    the subject matter. The dominant owner must spend the necessary money,
    e.g. in repairing a drive leading to his house. And the same principle may
    apply when a landlord lets an upper floor with access by a staircase:
    responsibility for maintenance may well rest on the tenant. But there is a
    difference between that case and the case where there is an essential means
    of access, retained in the landlord's occupation, to units in a building of
    multi-occupation: for unless the obligation to maintain is, in a defined
    manner, placed upon the tenants, individually or collectively, the nature of
    the contract, and the circumstances, require that it be placed on the landlord.

    It remains to define the standard. My Lords, if, as I think, the test of
    the existence of the term is necessity the standard must surely not exceed
    what is necessary having regard to the circumstances. To imply an absolute
    obligation to repair would go beyond what is a necessary legal incident
    and would indeed be unreasonable. An obligation to take reasonable care
    to keep in reasonable repair and usability is what fits the requirements of
    the case. Such a definition involves—and I think rightly—recognition that
    the tenants themselves have their responsibilities. What it is reasonable to
    expect of a landlord has a clear relation to what a reasonable set of tenants
    should do for themselves.

    I add one word as to lighting. In general I would accept that a grant of
    an easement of passage does not carry with it an obligation on the grantor to
    light the way. The grantee must take the way accompanied by the primaeval
    separation of darkness from light and if he passes during the former must
    bring his own illumination. I think that the case of Huggett v. Mien [1908]
    2 K.B. 278 was decided on this principle and possibly also Devine v. London
    Housing Society Ltd.
    [1950] 2 All E.R. 1173. But the case may be different
    when the means of passage are constructed, and when natural light is either
    absent or insufficient. In such a case, to the extent that the easement is
    useless without some artificial light being provided, the grant should carry
    with it an obligation to take reasonable care to maintain adequate lighting—
    comparable to the obligation as regards the lifts. To impose an absolute
    obligation would be unreasonable; to impose some might be necessary. We
    have not sufficient material before us to see whether the present case on its
    facts meets these conditions.

    I would hold therefore that the landlords' obligation is as I have
    described. And in agreement, I believe, with your Lordships I would hold
    that it has not been shown in this case that there was any breach of that
    obligation. On the main point therefore I would hold that the appeal fails.

    My Lords, it will be seen that I have reached exactly the same conclusion
    as that of Lord Denning M.R., with most of whose thinking I respectfully
    agree. I must only differ from the passage in which, more adventurously,
    he suggests that the courts have power to introduce into contracts any terms
    they think reasonable or to anticipate legislative recommendations of the Law
    Commission A just result can be reached, if I am right, by a less dangerous
    route.

    As regards the obligation under the Housing Act 1961, section 32, again
    I am in general agreement with Lord Denning M.R. The only possible
    item which might fall within the covenant implied by this section is that
    of defective cisterns in the maisonette giving rise to flooding or, if this is
    prevented, to insufficient flushing. I do not disagree with those of your
    Lordships who would hold that a breach of the statutory covenant was
    committed in respect of the matter for which a small sum of damages may
    be awarded. I would allow the appeal as to this matter and dismiss it for
    the rest.


    6

    Lord Cross of Chelsea

    MY LORDS,

    I have had the advantage of reading the speeches of my noble and learned
    friends Lord Wilberforce, Lord Salmon and Lord Edmund-Davies. I agree
    with them that on the main point—the liability of the respondent council to
    pay damages to the appellants for failure to keep the staircases and chutes
    in repair and the lifts in working order—this appeal should be dismissed;
    but that it should be allowed so far as concerns the claim under section 32
    of the Housing Act 1961 relating to the lavatory cistern inside the maisonette.
    I do not wish to add anything with regard to the latter claim, but in view of
    its general importance and because I am—with respect to him—unable to
    agree with a passage in the judgment of the Master of the Rolls I will add
    a few words of my own on the main point.

    When it implies a term in a contract the court is sometimes laying down
    a general rule that in all contracts of a certain type—sale of goods, master
    and servant, landlord and tenant, and so on—some provision is to be
    implied unless the parties have expressly excluded it. In deciding whether
    or not to lay down such a prima facie rule the court will naturally ask itself
    whether in the general run of such cases the term in question would be one
    which it would be reasonable to insert. Sometimes, however, there is no
    question of laying down any prima facie rule applicable to all cases of a
    defined type but what the court is being in effect asked to do is to rectify
    a particular—often a very detailed- contract by inserting in it a term which
    the parties have not expressed. Here it is not enough for the court to say
    that the suggested term is a reasonable one the presence of which would
    make the contract a better or fairer one: it must be able to say that the
    insertion of the term is necessary to give—as it is put—" business efficacy "
    to the contract and that if its absence had been pointed out at the time both
    parties—assuming them to have been reasonable men—would have agreed
    without hesitation to its insertion. The distinction between the two types of
    case was pointed out by Lord Simonds and Lord Tucker in their speeches
    in Lister v. Romford Ice and Cold Storage Co. Ltd. [1957] AC 555 at p. 579
    and p. 594, but I think that Lord Denning in proceeding—albeit with some
    trepidation—to "kill off" Lord Justice Mackinnon's "officious bystander"
    must have overlooked it. Counsel for the appellant did not in fact rely on
    this passage in the speech of the Master of the Rolls. His main argument
    was that when a landlord lets a number of flats or offices to a number of
    different tenants giving all of them rights to use the staircases, corridors
    and lifts there is to be implied, in the absence of any provision to the
    contrary, an obligation on the landlord to keep the " common parts" in
    repair and the lifts in working order. But—for good measure he also
    submitted that he could succeed on the " officious bystander " tests.

    I have no hesitation in rejecting this alternative submission. We are not
    here dealing with an ordinary commercial contract by which a property
    company is letting one of its flats for profit. The respondent council is a
    public body charged by law with the duty of providing housing for members
    of the public selected because of their need for it at rents which are sub-
    sidised by the general body of ratepayers. Moreover the officials in the
    council's housing department would know very well that some of the tenants
    in any given block might subject the chutes and lifts to rough treatment and
    that there was an ever present danger of deliberate damage by young
    " vandals "—some of whom might in fact be children of the tenants in that
    or neighbouring blocks. In these circumstances, if at the time when the
    respondents were granted their tenancy one of them had said to the council's
    representative, " I suppose that the council will be under a legal liability to
    us to keep the chutes and the lifts in working order and the staircases
    properly lighted ", the answer might well have been—indeed I think, as
    Roskill L.J. thought, in all probability would have been—" Certainly not".
    The official might have added in explanation—" Of course we do not expect
    " our tenants to keep them in repair themselves—though we do expect them

    7

    " to use them with care and to co-operate in combating vandalism. The
    " council is a responsible body conscious of its duty both to its tenants and
    " to the general body of ratepayers and we will always do our best in what
    " may be difficult circumstances to keep the staircases lighted and the lifts
    " and chutes working; but we cannot be expected to subject ourselves to a
    " liability to be sued by any tenant for defects which may be directly or
    " indirectly due to the negligence of some of the other tenants in the very
    " block in question." Some people might think that it would have been,
    on balance, wrong for the council to adopt such an attitude; but no one
    could possibly describe such an attitude as irrational or perverse.

    I turn, therefore, to consider the main argument advanced by the appel-
    lants. One starts with the general principle that the law does not impose
    on a servient owner any liability to keep the servient property in repair
    for the benefit of the owner of an easement.
    If I let you a house on my land
    with a right of way to it over my property and the surface of the way is in need
    of repair you cannot call on me to repair it if I have not expressly agreed to do
    so. I can say: " I do not use that road much myself
    and so the fact that it is out of repair does not trouble me. If it troubles
    you you can repair it yourself ". I see no reason why the same principle
    should not be applicable when the owner of a house lets part of an upper
    storey in it to a single tenant. The landlord would, no doubt, be subject
    to the liability of an occupier under the Occupiers' Liability Act 1957; but
    as a matter of contract between himself and his tenant he could, I think, say
    " I agree that the staircase is dark and somewhat in need of repair; but I
    " am content with it as it is. If you are not content with it you can repair
    " it and light it yourself". But must it follow that the same principle
    must be applied to the case where a landlord lets off parts of his property
    to a number of different tenants retaining in his ownership " common
    " parts "-halls, staircases, corridors and so on—which are used by all the
    tenants? I think that it would be contrary to common sense to press the
    general principle so far. In such a case I think that the implication should
    be the other way and that instead of the landlord being under no obliga-
    tion to keep the common parts in repair and such facilities as lifts and
    chutes in working order unless he has expressly contracted to do so, he
    should—at all events in the case of ordinary commercial lettings—be under
    some obligation to keep the common parts in repair and the facilities in
    working order unless he has expressly excluded any such obligation. This
    was the view taken by the Court of Appeal in Miller v. Hancock [1893]
    2 Q.B. 177 and though the actual decision in that case which gave a visitor
    the right to sue on the implied obligation was wrong and was later over-
    ruled by this House I think that so far as concerns the position as between
    landlord and tenant the Court of Appeal was right. I agree, however, with
    your Lordships that the obligation to be implied in such cases is not an
    absolute one but only a duty to use reasonable care to keep the common
    parts and facilities in a state of reasonable repair and efficiency.

    So far as concerns ordinary commercial lettings I do not suppose that
    the acceptance by this House of the correctness of the view expressed by
    the Court of Appeal in Miller v. Hancock as to the implied obligations of
    a landlord in such cases is of much importance for normally the tenancy
    agreement contains detailed provisions as to the extent of the landlord's
    liability for the repair, cleaning and lighting of the common parts and the
    maintenance of the lifts coupled often with provisions for the payment by
    the tenants of a service charge separate from the basic rent to cover the cost
    incurred by the landlord in such repair and maintenance. But the question
    remains—and it is the only question in this appeal over which I have felt
    any doubt—whether the considerations which make it to my mind impossible
    to apply the " officious bystander " test in this case ought not to lead to the
    drawing of a distinction between ordinary commercial lettings and the
    grant of tenancies of council flats—so that while in the former class the
    landlord should be under an obligation unless he has expressly excluded
    it, the general rule as to the repair of easements should apply in the latter
    class and the council only be under an obligation if it has expressly assumed
    it. But on reflection I do not think that the differences between the letting

    8

    of council flats and of privately owned flats are great enough or clear cut
    enough to justify the drawing of such a distinction. Nowadays most
    tenants pay less than the full economic rent for their accommodation,
    though in the case of privately owned properties the subsidy is at the
    expense of the landlord and not of the local community, and it is not only
    council flats that suffer from " vandalism ". If local authorities wish to
    avoid any contractual liability to their tenants with regard to the repair
    and lighting of the common parts and maintenance of the lifts and chutes
    then they must expressly exclude it. But to succeed in their claim the
    appellants had to prove negligence on the part of the respondent council and
    I agree with all the judges in the Court of Appeal and with your Lordships
    that they did not prove it in this case.

    Lord Salmon

    MY LORDS,

    On the llth July 1966 Liverpool City Council accepted the defendant
    and his wife as their tenants of a council maisonette consisting of three
    bedrooms, together with a sitting room, kitchen, bathroom, W.C. and an out-
    side balcony. This dwelling was on the 9th floor of a fifteen storey block
    known as Haigh Heights which comprised some seventy similar dwellings.

    The only access to any of the fifteen storeys was by two lifts and a
    staircase. These lifts and this staircase remained in the possession and
    control of the council. The original rent was £3 1s. 2d, a week inclusive of
    rates. This was undoubtedly a low rent; and it still is, although I under-
    stand that it has now been increased by about three times that amount. The
    tenancy was terminable by either party giving to the other four weeks'
    notice in writing ending on any Monday.

    After a rent strike by the tenants (including the defendant) caused by what
    the County Court Judge found to be appalling conditions to which the
    tenants in this multi-storey block were all subjected, a notice to quit
    was served upon the defendant in 1973. Subsequently the council
    brought an action to evict him, and on the 18th June 1973 the defendant
    filed a defence and a counterclaim for £10 nominal damages. The County
    Court judge found rightly that there was no defence to the action and made
    an order for possession. He awarded the defendant the £10 damages
    counterclaimed. The judgment on the counterclaim was based chiefly on
    the ground that the council, in breach of its obligations, continuously failed
    to keep the lifts in operation and left the staircase in complete darkness and
    also on the ground that the council was in breach of section 32(1)(b) of the
    Housing Act 1961, to which I shall presently refer. Without challening any
    of the facts, the council appealed from that judgment and the appeal was
    allowed, the majority of the Court of Appeal, Roskill and Ormrod LJJ.,
    deciding that the council was under no obligation of any kind to keep the
    lifts or the staircases in repair, and Lord Denning M.R. deciding that,
    although the council was under a duty to use reasonable care to keep the
    lifts working and staircase lit and in repair, they had not failed in that duty.
    The Court of Appeal unanimously concluded that the council was not in
    breach of the Housing Act 1961. The defendant now appeals from that
    judgment.

    This appeal turns chiefly upon whether the council was under any, and
    if so what, contractual obligation to their tenants. The printed Conditions
    of Tenancy dated 11th July 1966 imposed a great many express obligations
    upon the tenants but did not expressly impose any obligations of any kind
    upon the council.

    It has been argued that the council should not be taken to have accepted
    any legal obligations of any kind. After all, this was a distinguished city
    council which expected its tenants happily to rely on it to treat them reason-
    ably without having the temerity to expect the council to undertake any

    9

    legal obligations to do so. I confess that I find this argument and similar
    arguments which I have often heard advanced on behalf of other organisa-
    tions singularly unconvincing.

    Clearly, there was a contractual relationship between the tenants and the
    council with legal obligations on both sides. Those of the tenants are
    meticulously spelt out in the council's printed form which mentions none
    of the council's obligations. But legal obligations can be implied as well as
    expressed. In order to discover what, if any, are the council's implied
    obligations, all the surrounding circumstances must be taken into account.

    Amongst the most important surrounding circumstances are the following:
    This was a block fifteen storeys high which was built to be let to parents
    with young children. The lifts and staircases were obviously provided by
    the Council as being necessary amenities for their tenants which they
    impliedly gave the tenants and their families and visitors a licence to use.

    " This is not the mere case of a a grant of " (licence) " without
    special circum-
    " stances. It appears to me obvious, when one considers what" (a
    block) " of this kind is, and the only way in which it can be enjoyed,
    " that the parties to the demise of it must have intended by necessary
    " implication, as a basis without which the whole transaction would
    " be futile, that the " (council) " should maintain " (the lifts and stair-
    cases), which are " essential to the enjoyment of the premises demised ",
    (and that the council) should keep (them) reasonably safe. ..." It seems
    " to me that it would render the whole transaction inefficacious and
    " absurd if an implied undertaking were not assumed on the part of
    " the" (council) " to maintain the" (lifts and staircases) " so far as
    " might be necessary for the reasonable enjoyment of the demised
    " premises ". Miller v. Hancock

    [1893] 2 Q.B. 177 per Bowen L.J. at p. 181.

    Could it in reality have been contemplated by the council or their tenants
    that the council undertook no responsibility to take, at any rate, reasonable
    care to keep the lifts in order and the staircases lit? No doubt the tenants
    also owed a duty to use the lifts and staircases reasonably ; indeed, so
    much was clearly implied in the printed terms of the tenancy. Can a
    pregnant woman accompanied by a young child be expected to walk up
    fifteen, or for that matter nine, storeys in the pitch dark to reach her home?
    Unless the law, in circumstances such as these, imposes an obligation upon
    the council at least to use reasonable care to keep the lifts working properly
    and the staircase lit, the whole transaction becomes inefficacious, futile and
    absurd. I cannot go so far as Lord Denning M.R. and hold that the courts
    have any power to imply a term into a contract merely because it seems
    reasonable to do so. Indeed, I think that such a proposition is contrary to
    all authority. To say, as Lord Reid said in Young & Marten Ltd v.
    McMamus Childs Ltd. [1969] 1 A.C. 454 at 465, that:

    "... no warranty ought to be implied in a contract unless it is in all
    " the circumstances reasonable ".

    is. in my view, quite different from saying that any warranty or term which
    is, in all the circumstances, reasonable ought to be implied in a contract. I
    am confident that Lord Reid meant no more than that unless a warranty or
    term is in all the circumstances reasonable there can be no question of
    implying it into a contract, but before it is implied much else besides is
    necessary, e.g. that without it the contract would be inefficacious, futile and
    absurd.

    The decision in Miller v. Hancock [1893] 2 Q.B. 177 to the effect that a
    visitor to demised premises who met with an injury could take advantage of
    the implied contractual terms between the landlord and tenant and accord-
    ingly sue the landlord for injuries which the visitor suffered as a result of
    the breach of those terms was naturally overruled in Fairman v. Perpetual
    Investment Building Society
    [1923] A.C. 74. But the general propositions
    of Bowen L.J. to which I have referred have never been overruled. It has,
    however, been made clear that those propositions were not intended to impose

    10

    an absolute obligation to maintain but only an obligation to take all
    reasonable care to maintain the lifts and staircase for the reasonable enjoy-
    ment of the demised premises (Dunster v. Hollis [1918] 2 K.B. 795, at p. 803).

    For my part, I do not think that the propositions laid down by Bowen
    L.J. as modified are in any way weakened—indeed, I think they are sup-
    ported—by two of the authorities cited by Roskill L.J. namely, In re
    Comptoir Commercial Anversois
    v. Power, Son and Company [1920] 1 K.B.
    868 and Rex v. Paddington and St. Marylebone Rent Tribunal, Ex parte
    Bedrock Investments Ltd
    [1947] K.B. 984. In the first of these cases,
    Scrutton L.J. said at pp. 899-900 " (the court) ought not to imply a term
    " merely because it would be a reasonable term to include if the parties had
    " thought about the matter, or because one party, if he had thought about
    " the matter, would not have made the contract unless the term was included ;
    " it must be such a necessary term that both parties must have intended that
    " it should be a term of the contract and have only not expressed it because
    " its necessity was so obvious that it was taken for granted ". In the second
    authority Lord Goddard C.J. said at p. 990: "No covenant ought ever to
    " be implied unless there is such a necessary implication that the court can
    " have no doubt what covenant or undertaking they ought to write into the
    " agreement." I find it difficult to think of any term which it could be more
    necessary to imply than one without which the whole transaction would
    become futile, inefficacious and absurd as it would do if in a 15 storey block
    of flats or maisonettes, such as the present, the landlords were under no legal
    duty to take reasonable care to keep the lifts in working order and the
    staircases lit.

    It may be that further codification of the law of landlord and tenant is
    desirable. The recommendations of the Law Commission referred to in the
    Court of Appeal may be translated into statutes sooner or later—perhaps
    much later. I respectfully agree with Lord Denning M.R. that, in the
    meantime, the law should not be condemned to sterility and that the judges
    should take care not to abdicate their traditional role of developing the law
    to meet even the advent of tower blocks.

    The next point for decision is whether the defendant has proved that
    the continuous failure of the lifts and of the lights on the staircases was
    due to the council's failure to take reasonable care. The difficulty is that
    in his pleadings the defendant never alleged that the council owed a duty
    to take reasonable care. He alleged that they were under an absolute
    duty to maintain the lifts and keep the staircases lit.

    If any such absolute duty rested on the council—which, as I have
    indicated, I cannot accept—the defendant, on the judge's findings of fact,
    would clearly be entitled to succeed. I, of course, recognise that in the
    County Court pleadings are apt not to be so strictly regarded as in the
    High Court. I am also conscious that most of the evidence on both sides
    seems to have been directed to the issue of whether or not the failure of
    the lifts and the lights were to be attributed to the council's fault. Neverthe-
    less, had failure to take reasonable care (which was the council's only
    obligation under the contract) been pleaded as it should have been, it
    may be that the council would have armed themselves with more convincing
    evidence that they had done everything which could reasonably be expected
    of them. I have, with some reluctance and doubt, come to the conclusion
    that it would not be fair to find against them on an issue which has never
    been pleaded against them, or, indeed, expressly raised before the County
    Court judge.

    My doubts are certainly not diminished by the impression I have drawn
    from the judge's notes that if failure to take reasonable care had 'been
    pleaded the judge might well have found it proved. The lifts were out
    of action inordinately often and only a little more than half the time on
    account of vandalism. Moreover, Mr. Tyrer, the council's District Housing
    Manager, conceded that a lot of the damage was not done by the children
    in the blocks—Haigh Heights being one of a group of three blocks. Since,
    however, only an absolute obligation was pleaded against the council to

    11

    which they had a complete answer, I do not think it would be right for
    the reasons I have already given to find against them on the ground that
    they failed to take reasonable care. I would accordingly dismiss the appeal
    in so far as it relates to the lifts and staircase.

    It remains to consider whether the council were in breach of their
    obligations under section 32 (1) (b) of the Housing Act 1961 which admittedly
    applies to the tenancy in question. It reads, so far as relevant, as follows:
    " In any lease of a dwelling house, being a lease to which this section
    " applies, there shall be implied a covenant by the lessor . . . (b) to keep
    " in repair and proper working order the installations in the dwelling house
    " —(i) for the supply of water ... for sanitation (including . . . sanitary con-
    " veniences. . .)” The judge found that every time a water closet was
    used, the water overflowed and was apt to flood the floor and escape
    on to the landing where it lay without any means of draining away.
    Whether the ball-cock as fitted caused this tiresome fault or whether it was
    due to the design of the sanitary convenience is not clear—nor in my view
    does it matter. Some tenants tried using pails to catch the overflow.
    Others attempted to bend the ball-cock down which stopped the overflow but
    did not allow sufficient water to flush the water closet efficiently. For my part
    I do not understand how on any acceptable construction of the section, it can
    be held that in the circumstances I have recited the council complied with
    their statutory obligations to keep the sanitary conveniences in proper working
    order. I can well understand that sanitary conveniences may be in proper
    working order even if they are too small or there are too few of them, but
    how they can be said to be in proper working order if every time they are
    used they may swamp the floor passes my comprehension.

    My Lords, I would accordingly allow the appeal in relation to that part
    of the counterclaim based on the council's breach of the Housing Act 1961,
    and reduce the damages awarded from £10 to £5.


    Lord Edmund Davies

    My lords.

    The questions to which this appeal gives rise fall into two parts: (1) Were
    the respondents, the Liverpool City Council, under any obligation to the
    plaintiffs as ninth floor tenants of Haigh Heights, Everton, in respect of the
    common parts of that tower block which they, as landlords, retained in
    their possession and control? If so, what the nature of their obligation,
    and were they in breach of it? (11) Were the respondents in breach of
    section 32(1) of the Housing Act 1961?

    I. Maintenance of the Common Parts

    The Conditions of Tenancy signed by the appellants imposed no express
    duty on their landlords. They were drafted mainly with houses in mind
    and, towards the end, there were added " Further special notes for multi-
    " storey dwellings " These imposed on the tenants certain prohibitions in
    respect of hallways, staircases and lifts, but again imposed no express
    obligations on the landlords. Yet, to all save tenants occupying groundfloor
    maisonettes, the tenancies were useless unless adequate means of ascent
    were provided. Even so, the finding of the majority of the Court of Appeal
    was that there was no sort of obligation on the landlords to keep available
    such access without which the premises were not worth even the extremely
    low weekly rent of £3. 1. 2d. fixed in July 1966. Such a. conclusion is
    explicable only on the basis that the members of the Court of Appeal
    adopted what I respectfully regard as an initially wrong approach to the
    the novel problem presented by the facts. The case for the tenants was
    founded upon Miller v. Hancock [1893] 2 Q.B. 177. where a landlord was
    held liable to compensate his tenant's visitor for personal injuries sustained
    while descending stairs leading from the tenant's second-floor premises owing
    to the worn and defective condition of one of the stairs. Woodfall (27th Ed.

    12

    p. 577) cites that decision as authority for the proposition that: "Where
    " the landlord of a building let out in flats or offices retained the possession
    " or control of a staircase, there is an implied agreement by him with his
    " tenants to keep the staircase in repair". That set the Court of Appeal off
    on considering in what circumstances a contractual term could be implied,
    and that understandably but unfortunately led them to The Moorcock (1889)
    14 P.D. 64, C.A. It had not been cited in Miller v. Hancock (ante) but the
    Court of Appeal considered that it enshrined the only possible basis for
    implying such a term as that contended for by the tenants. It is right to say,
    furthermore, that such was the only basis advanced on behalf of the tenants
    themselves at that time. The Court of Appeal accordingly proceeded to
    consider whether, in the light of The Moorcock (ante), such a term could
    he implied in the tenancy agreement. Roskill, L.J. (with whom Ormrod LJ.
    agreed) said (1975 3 W.L.R 677):

    " I cannot agree .... that it is open to us in the court at the present
    " day to imply a term because subjectively or objectively we as indi-
    " vidual judges think it would be reasonable so to do. It must be
    " necessary in order to make the contract work, as well as reasonable
    " so to do, before the court can write into a contract as a matter of
    -i implication some term which the parties have themselves, assumedly
    " deliberately, omitted to do ".

    Lord Denning M.R., on the other hand, " with some trepidation " (which
    was understandable), took a different view and, after referring to some out
    of the "stacks" of relevant cases, said (ibid., 670B):

    '..... in none of them did the court ask: what did both parties
    " intend? If asked, each party would have said he never gave it a
    '' thought: or the one would have intended something different from
    " the other. Nor did the court ask: Is it necessary to give business
    " efficacy to the transaction? If asked, the answer would have been:
    " ' It is reasonable, but it is not necessary '. The judgments in all those
    " cases show that the courts implied a term according to whether or not
    " it was reasonable in all the circumstances to do so. ... This is to
    " be decided as a matter of law, not as a matter of fact".

    I have respectfully to say that I prefer the views of the majority in the Court
    of Appeal. Bowen L.J. said in the well-known passage in The Moorcock
    (ante, at p. 68):

    " In business transactions such as this, what the law desires to effect
    " by the implication is to give such business efficacy to the transaction
    " as must have been intended at all events by both parties who are
    " business men ; ... to make each party promise in law as much, at
    " all events, as it must have been in the contemplation of both parties
    " that he should be responsible for ... ".

    That is not to say, of course, that consideration of what is reasonable plays no
    part in determining whether or not a term should be implied. Thus, in
    Hamlyn & Co. v. Wood & Co. [1891] 2 Q.B. 488, at 491, decided only two
    years after The Moorcock (to which he had been a party), Lord Esher said:

    "... the court has no right to imply in a written contract any such
    " stipulation unless, on considering the terms of the contract in a
    " reasonable and business manner, an implication necessarily arises
    " that the parties must have intended that the suggested stipulation
    " should exist. It is not enough to say that it would be a reasonable
    " thing to make such an implication. It must be a necessary implica-
    " tion in the sense that I have mentioned ".

    Bowen and Kay L.JJ., who had also been members of The Moorcock
    court, delivered similar judgments. The touchstone is always necessity
    and not merely reasonableness: see, for example, the judgment of Scrutton
    L.J. in Reigate v. Union Manufacturing Co. [1918] 1 K.B. 592, at 605,
    and in the case cited below by Roskill L.J. In re Comptoir Commercial
    Anversois
    v. Power, Son & Co. [1920] 1 K.B. 868, at 899.

    But be the test that of necessity (as I think, in common with Roskill and
    Ormrod L.JJ.) or reasonableness (as Lord Denning M.R. thought), the exercise

    13

    involved in that of ascertaining the presumed intention of the parties.
    Whichever of these two tests one applies to the facts of the instant case, in my
    judgment the outcome would be the same for, in the words of Roskill LJ.
    (ibid. at 677H):

    " I find it absolutely impossible to believe that the Liverpool City
    " Council, if asked whether it was their intention as well as that of
    " their tenants of these flats that any of the implied terms contended
    " for by Mr. Godfrey should be written into the contract, would have
    " given an affirmative answer. Their answers would clearly have been
    " No ' ".

    It follows that, had such continued to be the case presented on the appel-
    lants' behalf to your Lordships' House, for my part I should have rejected
    it. But it was not, for Mr. Godfrey adopted before your Lordships a
    previously unheralded and more attractive approach, which was very
    properly not objected to by Mr. Francis despite its late appearance on the
    scene. As an alternative to his argument based on The Moorcock (ante),
    Mr. Godfrey submitted before this House that an obligation is placed upon
    the landlords in all such lettings of multi-storey premises as are involved in
    this appeal by the general law, as a legal incident of this kind of contract,
    which the landlords must be assumed to know about as well as anyone
    else. This new approach was based largely upon Lister v. Romford Ice
    & Cold Storage Co. Ltd.
    [1957] AC 555, a case concerning the incidents
    of a contract of service between master and servant, in which Viscount
    Simonds said (at p. 576):

    " For the real question becomes, not what terms can be implied in
    " a contract between two individuals who are assumed to be making a
    " bargain in regard to a particular transaction or course of business;
    " we have to take a wider view, for we are concerned with a general
    " question, which, if not correctly described as a question of status, yet
    " can only be answered by considering the relation in which the drivers
    " of motor-vehicles and their employers generally stand to each other.
    " Just as the duty of care, rightly regarded as a contractual obligation,
    " is imposed on the servant, or the duty not to disclose confidential
    " information (see Robb v. Green), or the duty not to betray secret
    " processes (see Amber Size and Chemical Co. Ltd. v. Menzel), just as
    " the duty is imposed on the master not to require his servant to do any
    " illegal act, just so the question must be asked and answered whether
    " in the world in which we live today it is a necessary condition of the
    " relation of master and man that the master should, to use a broad
    " colloquialism, look after the whole matter of insurance. If I were to
    " try to apply the familiar tests where the question is whether a term
    " should be implied in a particular contract in order to give it what is
    " called business efficacy, I should lose myself in the attempt to formu-
    " late it with the necessary precision. The necessarily vague evidence
    " given by the parties and the fact that the action is brought without
    " the assent of the employers shows at least ex post facto how they
    " regarded the position. But this is not conclusive ; for, as I have said,
    " the solution of the problem does not rest on the implication of a
    " term in a particular contract of service but upon more general
    " considerations ".

    From this basis one reverts to Miller v. Hancock itself, where Lord Esher
    M.R. said (at p. 179):

    " What ... are the rights of the tenants and the duties of the land-
    " lord towards them? Their only mode of access to their tenements
    " was ... by this staircase. This may be called an easement, but it was,
    " in my opinion, under the circumstances, such an easement as the
    " landlord was bound to keep so as to afford a reasonably safe entrance
    " and exit to the tenants. It seems to me that there is an implied
    " obligation on the part of the landlord to the tenants to that effect,
    " or else he is letting to the tenants that which will be of no value to
    " them ".

    14

    Bowen L.J. (p. 180) and Kay L.J. (182) expressed similar views. Mr.
    Godfrey submitted (and it is important to stress that Mr. Francis did not
    challenge) that, in lettings of the kind here under consideration, the general
    law confers upon the tenants easements of access by the staircases and lifts
    provided such as gives them a legal remedy were the landlord to prevent the
    tenants from enjoying them by, for example, locking the lifts or erecting
    a barrier across the stairs. But the question is whether the general law
    imposes any duty upon the landlord save the duty of non-interference and,
    above all, whether it obliges the landlord to repair such means of access.
    Mr. Francis denies that any such extended obligation exists, and relies
    upon the well-established principle that the law imposes, for example, no
    duty of repair on the servient owner in respect of a right of way over his
    land, leaving it to the dominant owner to effect such repair as he finds
    necessary for the proper enjoyment of his easement. Accordingly, so ran his
    argument, to hold that any obligation of repair rests upon the Liverpool
    Corporation would be a radical and impermissible departure from well-
    established law and only Parliament can impose such an obligation.

    But there appears to be no technical difficulty in making an express grant
    of an easement coupled with an undertaking by the servient owner to main-
    tain it. That being so, there seems to be no reason why the easement arising
    in the present case should not by implication carry with it a similar burden
    on the grantor. As Bowen L.J. said in Miller v. Hancock (ante, at p. 181):

    " It was contended by the defendant's counsel that, according to the
    " common law. the person in enjoyment of an easement is bound to do
    " the necessary repairs himself. That may be true with regard to ease-
    " ments in general, but it is subject to the qualification that the grantor
    " of the easement may undertake to do the repairs either in express
    " terms or by necessary implication. This is not the mere case of a
    " grant of an easement without special circumstances. It appears to me
    " obvious, when one considers what a flat of this kind is, and the only
    " way in which it can be enjoyed, that the parties to the demise of it
    " must have intended by necessary implication, as a basis without
    " which the whole transaction would be futile, that the landlord should
    " maintain the staircase, which is essential to the enjoyment of the
    " premises demised . . ."

    There is modem support for such a view. Thus in de Meza v. Ve-Ri-Best
    Manufacturing Co. Ltd.
    (1952) 16o Estates Gazette 364, where a fourth-
    floor flat had been demised " together with the use of the lift " and the lift
    had been out of order for three years, the tenants were held entitled to
    damages for the landlords' failure to maintain it in working order. Lord
    Evershed M.R. (with whom Denning & Romer L.JJ. concurred) dealt with
    the submission advanced on the landlords' behalf that there was no express
    covenant to repair in the tenancy agreement and that none could be implied
    by saying that the terms of the agreement imposed upon the landlords the
    obligations to maintain a working lift. The tenants are afforded a further
    measure of support by the observation made obiter by Sellers L.J. in his
    dissenting judgment in Penn v. Gatenex Co. Lid. [1958] 2 Q.B. 210 at p. 227)
    that—

    " If an agreement gives a tenant the use of something wholly in the
    " occupation and control of the landlord, for example, a lift, it would,
    " I think, be accepted that the landlord would be required to maintain
    " the lift, especially if it were the only means of access to the demised
    " premises. I recognise that a lift might vary in age and efficiency, but
    " in order to give meaning to the words ' the use of' and to fulfil them,
    " it should at least be maintained so that it would take a tenant up and
    " down, subject to temporary breakdown and reasonable stoppages for
    " maintenance and repair."

    I therefore conclude that the City Council were under an obligation to
    the tenant in relation to the maintenance of stairs and lifts in Haigh Heights
    in such a condition as to enable them to be used as means of access to and
    from their maisonettes. This also involved the maintenance of reasonably
    adequate lighting of the staircases at such times and in such places as
    artificial lighting was called for.

    14

    Bowen LJ. (p. 180) and Kay LJ. (182) expressed similar views. Mr.
    Godfrey submitted (and it is important to stress that Mr. Francis did not
    challenge) that, in lettings of the kind here under consideration, the general
    law confers upon the tenants easements of access by the staircases and lifts
    provided such as gives them a legal remedy were the landlord to prevent the
    tenants from enjoying them by, for example, locking the lifts or erecting
    a barrier across the stairs. But the question is whether the general law
    imposes any duty upon the landlord save the duty of non-interference and,
    above all, whether it obliges the landlord to repair such means of access.
    Mr. Francis denies that any such extended obligation exists, and relies
    upon the well-established principle that the law imposes, for example, no
    duty of repair on the servient owner in respect of a right of way over his
    land, leaving it to the dominant owner to effect such repair as he finds
    necessary for the proper enjoyment of his easement. Accordingly, so ran his
    argument, to hold that any obligation of repair rests upon the Liverpool
    Corporation would be a radical and impermissible departure from well-
    established law and only Parliament can impose such an obligation.

    But there appears to be no technical difficulty in making an express grant
    of an easement coupled with an undertaking by the servient owner to main-
    tain it. That being so, there seems to be no reason why the easement arising
    in the present case should not by implication carry with it a similar burden
    on the grantor. As Bowen L.J. said in Miller v. Hancock (ante, at p. 181):
    " It was contended by the defendant's counsel that, according to the
    " common law, the person in enjoyment of an easement is bound to do
    " the necessary repairs himself. That may be true with regard to ease-
    " ments in general, but it is subject to the qualification that the grantor
    " of the easement may undertake to do the repairs either in express
    " terms or by necessary implication. This is not the mere case of a
    " grant of an easement without special circumstances. It appears to me
    " obvious, when one considers what a flat of this kind is, and the only
    " way in which it can be enjoyed, that the parties to the demise of it
    " must have intended by necessary implication, as a basis without
    " which the whole transaction would be futile, that the landlord should
    " maintain the staircase, which is essential to the enjoyment of the
    " premises demised . . ."

    There is modern support for such a view. Thus in De Meza v. Ve-Ri-Best
    Manufacturing Co. Ltd.
    (1952) 160 Estates Gazette 364, where a fourth-
    floor flat had been demised " together with the use of the lift" and the lift
    had been out of order for three years, the tenants were held entitled to
    damages for the landlords' failure to maintain it in working order. Lord
    Evershed M.R. (with whom Denning & Romer L.JJ. concurred) dealt with
    the submission advanced on the landlords' behalf that there was no express
    covenant to repair in the tenancy agreement and that none could be implied
    by saying that the terms of the agreement imposed upon the landlords the
    obligations to maintain a working lift. The tenants are afforded a further
    measure of support by the observation made obiter by Sellers L.J. in his
    dissenting judgment in Penn v. Gatenex Co. Ltd. [1958] 2 Q.B. 210 at p. 227)
    that—

    " If an agreement gives a tenant the use of something wholly in the
    " occupation and control of the landlord, for example, a lift, it would,
    " I think, be accepted that the landlord would be required to maintain
    " the lift, especially if it were the only means of access to the demised
    " premises. I recognise that a lift might vary in age and efficiency, but
    " in order to give meaning to the words ' the use of' and to fulfil them,
    " it should at least be maintained so that it would take a tenant up and
    " down, subject to temporary breakdown and reasonable stoppages for
    " maintenance and repair."

    I therefore conclude that the City Council were under an obligation to
    the tenant in relation to the maintenance of stairs and lifts in Haigh Heights
    in such a condition as to enable them to be used as means of access to and
    from their maisonettes. This also involved the maintenance of reasonably
    adequate lighting of the staircases at such times and in such places as
    artificial lighting was called for.

    15

    The next question that arises is: what is the nature and extent of such
    obligation? In other words, is it absolute or qualified? If the former, any
    failure to maintain (save of a wholly minimal kind) would involve a breach
    of the landlord's obligation, and in Hart v. Rogers [1916] 1 K.B. 646 at 650
    Scrutton J. considered that such was the view taken by the Court in Miller
    v. Hancock
    (ante). But later decisions, such as Dunster v. Hollis [19181 2
    K.B. 795 and Cockburn v. Smith [1924] 2 K.B. 119, treat the duty only as
    one of reasonable care, and such is the conclusion I have come to also. To
    impose an absolute duty upon the landlords in the case of buildings in
    multiple occupation would, I think, involve such a wide departure from the
    ordinary law relating to easements that it ought not to be held to exist unless
    expressly undertaken and should not be implied.

    Then, adopting the standard of reasonable care, were the landlords shown
    to have been in breach? The County Court judge made no such finding,
    and this for the good reason that no such breach had been alleged in the
    counterclaim of the tenants, who were then asserting that the landlords
    owed an absolute duty. In these circumstances, and for the reasons appear-
    ing in the judgments of Lord Denning M.R. & Roskill L.J. it would, I think,
    be wrong now to hold on such evidence as was adduced that lack of reason-
    able care had been established. I therefore concur with my Lords in
    dismissing this part of the appeal.

    II Housing Act, 1961

    It is clear that section 32(1)(b) of the Housing Act 1961 imposes an
    absolute duty upon the landlord " to keep in repair and proper working order
    the installations in the dwelling house . . . .". It could be said that the
    opening words (" to keep . . .") apparently limit the landlord's obligation
    to preserving the existing plant in its original state and create no obligation
    to improve plant which was, by its very design, at all times defective and
    inefficient. But the phrase has to be read as a whole and, as I think, it
    presupposes that at the inception of the letting the installation was " in
    " proper working order ", and that if its design was such that it did not
    work " properly " the landlord is in breach.

    Bathroom equipment which floods when it ought merely to flush is
    clearly not in " working order ", leave alone " proper " working order (if,
    indeed, the adjective adds anything). To say that such whimsical behaviour
    is attributable solely to faulty design is to advance an explanation that affords
    no excuse for the clear failure " to keep .... in proper working order ".
    J ust as badly designed apparatus has been held not of " good construction "
    (Smith v A. Davies & Co. (Shopfitters) Ltd. (1968) 5 K.I.R. 320, per
    Cooke, J.), so in my judgment the landlords here were in breach of section
    32(1)(b) by supplying bathroom equipment which, due to bad design, through-
    out behaved as badly as did the Irwins' cistern. I do not, however, find
    established any of the other statutory breaches alleged.

    In the result, while otherwise dismissing the appeal, I hold that the
    appellants are entitled to succeed in the one respect indicated and I concur
    in the award of damages of £5.00 in respect thereof.

    Lord Fraser of Tullybelton

    my lords.

    I have had the advantage of reading in print the speech of my noble
    and learned friend on the Woolsack. I agree with him that there is to be
    implied, as a legal incident of the kind of contract between these landlords
    and these tenants, an obligation on the landlords to take reasonable care to
    maintain the common stairs, the lifts and the lighting on the common stairs.
    I agree also that the landlords have not been shown to be in breach of that
    obligation.

    With regard to the second point I am of opinion that the landlords were
    in breach of their statutory obligation under section 32(l)(b)(i) of the Housing;

    16

    Act 1961 in respect of the cisterns, but not in any other respects. The
    cisterns, apparently because of their faulty design, were so inefficient that
    tenants had either to bend the ball-cock arm so that the cistern did not fill
    completely, with the result that it did not flush the lavatory properly, or
    to leave the ball-cock in the designed position, with the result that the cistern
    overflowed and caused flooding. Such a cistern was clearly not in " proper
    "working order" and in my opinion the landlords failed to "keep" it in
    proper working order.

    I would allow the appeal on the second point and reduce the damages
    to £5.

    329251 120 Dd 896269 3/76 StS



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