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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Alker v Collingwood Housing Association [2007] EWCA Civ 343 (07 February 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/343.html Cite as: [2007] WLR 2230, [2007] 1 WLR 2230, [2007] EWCA Civ 343 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(MR RECORDER CLAYTON QC)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE CARNWATH
and
LORD JUSTICE MOORE-BICK
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ALKER |
Claimant/ Respondent |
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- and - |
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COLLINGWOOD HOUSING ASSOCIATION |
Defendant/ Appellant |
____________________
WordWave International Limited
A Merrill Communications Company
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MR R HARTLEY and MS R PEARSON (instructed by Messrs Linder Myers) appeared on behalf of the Respondent.
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Crown Copyright ©
Lord Justice Laws:
"We must keep your home in good condition. We will repair and maintain:
- the structure and exterior of the building – roofs, walls, floors, ceilings, window frames, external doors, drains, gutters, outside pipes.
- kitchens and bathroom fixtures – basins, sinks, toilets, baths.
- electrical wiring and gas and water pipes.
- heating equipment and water heating equipment.
- any communal areas around your home – stairs, lifts, landings, lighting, entrance halls, paving, shared gardens, parking areas and rubbish chutes."
"Section 4
(1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.
(2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.
(3) In this section 'relevant defect' means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises…
(4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance of repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy."
I have omitted that part of section 4(3) which defines the expression "the material time". Nothing in this case turns on that.
1. The landlord owes an obligation to the tenant under the tenancy for the maintenance or repair of the premises – section 4(1).
2. The landlord knew or ought to have known of whatever is the "relevant defect" – section 4(2).
However those requirements are qualified by section 4(4): the landlord is treated as under a section 4(1) duty if he can exercise a right enjoyed by him to enter the premises in order to carry out works of maintenance or repair. The duty itself, however, is only to take reasonable care to protect potentially affected persons from injury or damage caused by a "relevant defect". That is defined by section 4(3). I repeat the definition for convenience:
"… a defect in the state of the premises … arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him - that is a failure by him to carry out his obligation for maintenance or repair".
Here it is common ground that the conditions are met. The appellant owed an obligation for maintenance or repair (clause 3.1 of the Tenancy Agreement). Section 4(2) (the second condition) was not fulfilled because the appellant had no notice of the putative defect, but that omission is repaired by the application of section 4(4) which, as I have said, qualifies the conditions. The appellant had a right of entry for the purpose of repair or maintenance by force of clause 3.12. Accordingly, the only question in the appeal is whether the state of the glass panel constituted a "relevant defect". The appellant, by Mr Underwood QC, said that it did not because the glass panel was in no need of repair or maintenance. The respondent, by Mr Hartley, says that it did because it was dangerous. That antithesis articulates in essence the short and important point on which the appeal turns.
"The question of fact is whether the replacement of the door or glass panel was something which ought to have been done 'in the interests of all persons who might be expected to be affected by the defect' or 'to remedy any defects which might expose visitors to the premises (or the tenant herself) to the risk of injury.' In other words, did it pose a reasonably foreseeable risk of injury?"
In arriving at this formulation the Recorder purported to draw on the reasoning of this court in McAuley v Bristol City Council [1992] QB 134. That case concerned a garden step which was in disrepair and was unstable. The plaintiff tenant fell on it and broke her ankle. In her subsequent claim she relied on section 4 of the Act.
"I think that, to give business efficacy to the agreement, as Somervell LJ put it in Mint v Good, a right should be implied in the council to carry out repairs for the removal of that risk of injury. A reasonable tenant could not sensibly object to such a right. If the council became aware of a dangerous defect in the steps of a steep garden, as in this case, and asked the tenant for access to repair it, in the interest of all persons who might be expected to be affected by the defect, the court could, in my judgment, properly require the tenant to allow such access on the basis of an implied right in the council to do the work. So limited, I would hold that the implied right to enter to do the necessary repair was proved and the appeal should be dismissed."
Neill LJ said in WLR 984H:
"In my judgment, in order to give business efficacy to this tenancy agreement, the landlord had an implied right to enter the premises to carry out repairs to remedy any defects which might expose visitors to the premises (or the tenant himself) to the risk of injury."
"In my judgment, the key factor in the present case is that disrepair is related to the physical condition of whatever has to be repaired, and not to questions of lack of amenity or inefficiency. I find helpful the observation of Atkin LJ in Anstruther-Gough-Calthorpe v McOscar [1924] 1 KB 716, 734 that repair 'connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged.' Where decorative repair is in question one must look for damage to the decorations but where, as here, the obligation is merely to keep the structure and exterior of the house in repair, the covenant will only come into operation where there has been damage to the structure and exterior which requires to be made good."
Lawton LJ said 821G:
"The standard of repair may depend on whether the house is in a South Wales valley or in Grosvenor Square; [I interpolate I am not sure with great respect whether I would wish to be associated with that antithesis] but wherever it is, the landlord need not do anything until there exists a condition which calls for repair. As a matter of the ordinary use 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. Broadly stated, they come to this: a tenant must take the house as he finds it; neither a landlord nor a tenant is bound to provide the other with a better house than there was to start with; but, because almost all repair work requires some degree of renewal, problems of degree arise whether after the repair there is a house which is different from that which was let."
"But the important point is that that statutory protection for those in occupation of defective premises is geared to the landlord's obligation to repair the premises. It goes no wider than the repair covenant."
"There is, I think, no warrant for a wide construction of the words of section 4."
"It seems to me that the combination of clause 3.12 and the scope of the statutory duty under section 4 in accordance with McAuley is such that on the facts of this particular case, the replacement of the door or glass panel was something which ought to have been done 'in the interests of all persons who might be expected to be affected by the defect' or 'to remedy any defects which might expose visitors to the premises (or the tenant herself) to the risk of injury'."
In short, it is Mr Hartley's case that an obligation at least to maintain, perhaps to repair, and certainly an obligation to keep in good condition encompasses and includes an obligation to make safe at any rate if major structural works are not required.
"80. But an affirmative answer to the question whether there is to be implied a power to enter in order to carry out remedial works required to remedy defects which pose a danger to health does not lead to the conclusion that failure to carry out such works (if not works of repair) may give rise to liability under section 4(1) of the 1972 Act. As I have said, the first question in this context is whether the works that would be required in order to remedy the inherent defects in design – which are the cause of the excessive condensation and mould – are within the expression 'any description of maintenance or repair of the premises'. If they are not, the fact that the landlord may be entitled to enter the premises in order to carry out those works does not give rise to a deemed obligation to the tenant "for that description of maintenance or repair" under section 4(4); so that the defect is not a 'relevant defect' for the purposes of section 4(3); and there is no duty under section 4(1) to take care to see that persons are reasonably safe from injury caused by that defect.
"81. In my view the first respondent local authorities are correct in their submission that the first question should be answered in the negative. The works required to remedy the design defects are not works of repair – giving to 'repair' the meaning which it should bear in this context. It is not contended that the works are works of maintenance. It is, I think, significant that Parliament, when enacting section 4 of the 1972 Act in substantially the terms proposed in the draft bill annexed to the Law Commission report Civil Liability of Vendors and Lessors for Defective Premises (1970) (Law Com No 40), chose to link the duty of care imposed by section 4(1) to the landlord's failure to carry out an obligation "for the maintenance or repair" of the premises: see section 4(3). That is the framework within which the statutory hypothesis in section 4(4) must operate. Parliament did not, as it might have done, link the duty of care to a failure to remedy defects in any more general sense. The obligation to 'repair' has a well recognised meaning in the law of landlord and tenant; and, as the cases show, it does not arise unless the object in respect of which it is imposed is out of repair. If the defect which has caused the injury in respect of which a claim is made under section 4(1) of the 1972 Act is not a defect arising from of repair, it cannot be a 'relevant defect' for the purposes of that section. As Ralph Gibson LJ put it, in the McAuley case [1992] QB 134, 145:
'There is, I think, no warrant for a wide construction of the words of section 4. They apply to all landlords, and not merely to local authorities, and can operate so as to impose a substantial burden upon a landlord in respect of premises under the immediate control of the tenant and in respect of which the landlord has assumed no contractual obligation.'"
Lord Justice Carnwath
"In Welsh v Greenwich LBC [2000] 3 EGLR 41 this court held that an express covenant to 'maintain the dwelling in good condition and repair' did impose on the landlord an obligation to remedy the underlying cause of excessive condensation which had resulted in mould. The court found, in that context, that the words, 'good condition' were 'intended to mark a separate concept and to make a significant addition to what is conveyed by the word 'repair': see the judgment of Robert Walker LJ, at p43, and, also, in the judgment of Latham LJ, p 44D."
Lord Justice Moore-Bick
Order: Appeal allowed.