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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Niazi Services Ltd. v Van Der Loo [2004] EWCA Civ 53 (10 February 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/53.html Cite as: [2004] EWCA Civ 53, [2004] 1 WLR 1254 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Honour Judge Ryland
CL154716
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DYSON
and
LORD JUSTICE JACOB
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| Niazi Services Ltd |
Appellant |
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| - and - |
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| Johannes Marinus Henricus van der Loo |
Respondent |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
James Browne (instructed by Messrs Dutton Gregory) for the Respondent
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Crown Copyright ©
This is the judgment of the Court to which all members have contributed.
Lord Justice Jacob:
i) They have no liability for the inadequate water supply or lighting failure;
ii) In any event the period of 33 months should be reduced because:
a) It was perverse to find that the water problem commenced in August 1999 – the only proper finding could be April 2000;
b) In any event there should be no liability for the inadequate water pressure until Niazi had notice of the problem which was in April 2000,
c) The judge's finding that a period of one month from notification was a reasonable period to investigate and remedy the water problem is wrong – the period should be longer.
iii) They have no liability for cracks in the plaster;
iv) The damages are too high and were calculated on the wrong principle;
v) The amount awarded for repainting was too high;
"(1) In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor –
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes).
(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and
(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
(1A) If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection (1) shall have effect as if –
(a) the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest; and
(b) any reference in paragraphs (b) and (c) of that subsection to an installation in the dwelling-house included a reference to an installation which, directly or indirectly, serves the dwelling-house and which either –
(i) forms part of any part of a building in which the lessor has an estate or interest; or
(ii) is owned by the lessor or under his control.
(3A) In any case where –
(a) the lessor's repairing covenant has effect as mentioned in subsection (1A), and
(b) in order to comply with the covenant the lessor needs to carry out works or repairs otherwise than in, or to an installation in, the dwelling-house, and
(c) the lessor does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs.
then, in any proceedings relating to a failure to comply with the lessor's repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs."
"The landlord's liability to keep the structure and exterior of the dwelling-house itself in repair is not dependent on his ownership of the structure. His liability to keep other parts of the building in repair is. Thus if the structure of a block of flats is owned by a management company rather than by the landlord, the extended obligation will not apply."
On the other hand Mr Browne found a passage in the White Book (para 3A-307 of the 2003 Edition) which says:
""The obligation to repair and maintain installations was extended from those in the dwelling to any installation which 'directly or indirectly' serves the dwelling and is either part of the same building or owned by the landlord"
Neither of these passages does more than assert an answer. Without reasons they do not assist.
i) An installation in which the landlord merely has some sort of commercial interest – for instance a lessor who had sublet would have a real commercial interest in all the services working properly towards the end of the sub-tenancy so that he could relet without problems;
ii) An installation (or the defective portion of an installation) in that part of a building in which the landlord has an estate or interest;
iii) An installation (including the defective portion), wherever it is in a building provided that the landlord has an estate or interest in that installation itself, considered as itself part of the building.
"an installation will be in proper working order if it is able to function under those conditions of supply that it is reasonable to anticipate will prevail"
"Third, for periods when the tenant remains in occupation of the property, notwithstanding the breach of the obligation to repair, the loss to him requiring compensation is a loss of comfort and convenience that results from living in a property that was not in the state of repair it ought to have been in if the landlord had performed his obligation: [here he cited authorities including Calabar]."
Later on the same page he said:
"Thus the question to be answered is what sum is required to compensate the tenant for the distress and inconvenience experienced because of the landlord's failure to perform his obligation to repair? Such sum may be ascertained in a number of different ways, including, but not limited to a notional reduction in the rent. Some Judges may prefer to use that method alone (McCoy v Clarke), some may prefer a global award for discomfort and inconvenience (Calabar and Chiodi), and others prefer a mixture of the two (Sturoloson v Mauroux and Brent LBC v Carmel). But in my judgment they are not bound to assess damages separately under heads of both diminution in value and discomfort. Whilst in cases within the third proposition these heads are alternative ways of expressing the same concept."