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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Janet Reger International Ltd v Tiree Ltd [2006] EWHC 1743 (Ch) (17 July 2006) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2006/1743.html Cite as: [2006] EWHC 1743 (Ch) |
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CHANCERY DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
sitting as a deputy High Court Judge
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Claimant/Part 20 Defendant | ||
and | ||
TIREE LIMITED | ||
Defendant/Part 20 Claimant |
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(instructed by Suttons for the Claimant)
Stephen Jourdan
(instructed by Dewar Hogan for the Defendant)
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Crown Copyright ©
The lease.
"the Building" means numbers 2, 3, 4, and 5 Beauchamp Place, London, SW3 of which the Demised Premises form part: Cl. 1.1 (b)."Demised Premises" is defined as including
(a) the plasterwork and decorative finishes applied to the internal surfaces of the external and load-bearing walls and columns of the Building but not any other part of the external or load bearing walls and columns(b) the floor finishes the raised floor and its supports and the void beneath the raised floor so that the lower limit of the Demised Premises includes such finishes raised floor supports and void but does not extend to anything below them: Cl.1.1 (d)"Retained Parts" includes "the Structure": Cl.1.1 (o)
"Structure" includes:
(i) the entirety of the roofs and foundations of the Building;(ii) the entirety of all floors and ceilings of the Building but excluding the floor finishes the raised floors and their supports and the void beneath the raised floors . . . ;(iii) the entirety of all external walls of the Building but excluding the plasterwork and decorative finishes applied to the internal faces of such walls;(iv) the entirety of all load-bearing walls pillars and other structures of the Building but excluding the plasterwork and decorative finishes applied to the faces of such walls pillars and other structures;(v) . . .(vi) all other parts of the structure of the Building not referred to on the preceding paragraphs (a) to (e): Cl 1.1 (q).
1 All costs and expenses whatsoever incurred by the Landlord in and about the discharge of the obligations on the part of the Landlord set out in clause 5.3. . .
2 Maintaining, repairing amending altering rebuilding renewing reinstating the Retained Parts.
An obligation, subject to the Tenant's compliance with clause 4.6 to use reasonable endeavours to maintain repair and renew the Structure . . . : Cl.5.3.2.
Witnesses
On behalf of the Claimant:
Miss AlizaThe Background.
The cause of the damp
Was the Defendant under an obligation to carry out the works to prevent the damp entering into the basement ?
"The Landlord shall use reasonable endeavours to remedy any defective part of the Structure of the Building which is, or threatens to cause immediate damage to any part of the demise which the Tenant is obliged to maintain and/or keep in substantial repair and condition under its covenants in the lease".
Reliance upon a claim in nuisance was abandoned by the Claimant.
Is the Defendant in breach of clause 5.3.2 ?
As a matter of the ordinary usage of English that which requires repair is in a condition worse than it was at some earlier time. This usage of English is, in my judgment, the explanation for the many decisions on the extent of a landlord's or tenant's obligation under covenants to keep houses in repair."
and at p.823B:
"In my judgment, there must be disrepair before any question arises as to whether it would be reasonable to remedy a design fault when doing the repair. In this case, as the trial judge found, there was no evidence that the single glazed metal windows were in any different state at the date of the trial from what they had been in when the plaintiff first became a tenant. The same could have been said of the lintels. The judge misdirected himself in finding that these windows required repair."
Dillon LJ at 818D and Neill LJ at 823C gave judgments to the same effect.
"I found it at first to be a startling proposition that, when an almost new office building lets groundwater into the basement so that the water is ankle deep for some years, that state of affairs is consistent with there being no condition of disrepair under a repairing covenant in standard form whether given by landlord or tenant. Nevertheless, as was pointed out in the course of argument, the landlord of such a building gives no implied warranty of fitness merely by reason of letting it; and neither a landlord nor a tenant who enters into a covenant to repair in ordinary form thereby undertakes to do work to improve the demised premises in any way. I see no escape from the conclusion that, if on the evidence the premises demised are and at all times have been in the same physical condition (so far as concerns the matters in issue) as they were when constructed, no want of repair has been proved for which the tenants could be liable under the covenant".
At page 1063(g) he held that the principle was not confined to bad design but applied to bad workmanship.
"But it is important to keep in mind that, in those cases, there was evidence of damage to the structure (the damaged plaster being treated as part of the structure for that purpose) which gave rise to the need for repair. The cases show that, where there is a need to repair damage to the structure, the due performance of the obligation to repair may require the landlord to remedy the design defect which is the cause of the damage. They do not support the proposition that the obligation to repair will require the landlord to remedy a design defect which has not been the cause of damage to the structure; notwithstanding that the defect may make the premises unsuitable for occupation or unfit for human habitation."
There is no reason why the same principle should not apply to defective workmanship.
Is there an implied term in the lease to the effect that the Landlord will remedy any defective part of the Structure which causes damage to part of the Demised Premises which the Tenant is obliged to maintain in the terms asserted by the Claimant ?
" the courts are reluctant to imply a term where, as here, there is a long and complex legal document drawn up by the lawyers in which the parties have crystallised the terms of their relationship. The conditions that must apply before the courts will imply a term in these circumstances were set out by Lord Simon in BP Refinery (Westernpoint) Pty Ltd v Shire of Hastings (1978) 52 ALJR 20 at p26 and repeated by Sir Thomas Bingham MR in Philips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472 at p481 as follows:
for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.
To this, the defendant has suggested that a sixth principle has been added by Hughes v Greenwich London Borough Council [1994] 1 AC 170, that the courts would imply a term into a contract only where there was a compelling reason for doing so, which I accept, although it seems to me that this may simply be another way of looking at Lord Simon's second condition.".
"It must follow that to imply an obligation to keep the dwelling in good condition in a tenancy agreement which contains only an express term to keep the structure in repair (as in the Lee appeal) or which contains no express repairing obligation on the landlord, so that the repairing obligations are those implied under section 11(1) of the 1985 Act (as in the Ratcliffe appeal) is to invite the criticism that the court is seeking to make for the parties a bargain which they have not themselves made. The term would impose on the landlord obligations which, on a proper understanding of the law as explained by this court in Quick's case [1986] QB 809, the landlord could not have intended to undertake. Nor, viewed objectively, could the tenant have thought that the landlord did intend to undertake those obligations: see the observations of Lord Hoffmann in Southwark London Borough Council v Mills [2001] 1 AC 1, 12: "In the grant of a tenancy it is fundamental to the common understanding of the parties, objectively determined, that the landlord gives no implied warranty as to the condition or fitness of the premises." Lord Millett explained the position in the following passage, at pp 17-18:
'It'the principle that a tenant takes the property as he finds it 'is simply a consequence of the general rule of English law which accords autonomy to contracting parties. In the absence of statutory intervention, the parties are free to let and take a lease of poorly constructed premises and to allocate the cost of putting them in order as they see fit. The principle applies whether the complaint relates to the state and condition of the demised premises themselves or, as in the cases cited, of other parts of the building in which the demised premises are located.'
.
Is there an implied term that in circumstances where the Landlord has the right, but not the obligation, to carry out works to the premises the Landlord must, within a reasonable time or upon request, inform the Tenant whether and if so when and how it intends to carry out the works ?
"If any part of the Retained Parts is in need of remedial works which the Landlord is not obliged to but may carry out under the terms of this lease then the Landlord must, within a reasonable time or upon request, inform the Tenant whether, and if so, when and how it intends to carry out those works".
Was the Claimant entitled to withhold any part of the rent pursuant to clause 6.6 of the lease ?
"8 Escape of water from any tank, apparatus or pipe including the cost of replacing any tank apparatus or pipe which has suffered physical damage at the time of the loss
If there is an escape of water from the above equipment which causes damage to the insured property the company will pay for the necessary and reasonable expenses the insured incur in locating and making good the source of the escape of water.".
There is excluded from cover any loss or damage (a) arising directly or indirectly from seepage, (b) attributable to a rise in the water table or (c) which originated before the start of "this insurance".
.
Was the Claimant's decision to vacate the basement and move to Number 8 a reasonable one ?