Lister v Lane and Nesham
[1893] 2 Q.B. 212(Judgment by: Lord Esher MR (including background))
Between: Lister
And: Lane and Nesham
Judges:
Lord Esher MRBowen LJ
Kay LJ
Subject References:
LORD AND TENANT
Covenant by Lessee to 'repair, uphold, and maintain' Demised Premises
Inherent Defect in Premises
Judgment date: 9 June 1893
Judgment by:
Lord Esher MR (including background)
The plaintiffs granted to the defendants a lease of a house in Lambeth, containing a covenant by the lessees that they would "when and where and as often as occasion shall require, well, sufficiently, and substantially, repair, uphold, sustain, maintain, amend and keep" the demised premises, and the same "so well and substantially repaired, upheld, sustained, maintained, amended and kept," at the end of the term yield up to the lessors. Before the end of the term one of the walls of the house was bulging out, and after the end of the term the house was condemned by the district surveyor as a dangerous structure and was pulled down. The plaintiffs sought to recover from the defendants the cost of rebuilding the house. The evidence shewed that the foundation of the house was a timber platform, which rested on a boggy or muddy soil. The bulging of the wall was caused by the rotting of the timber. The house was at least 100 years old, and possibly much older. The solid gravel was seventeen feet below the surface of the mud. There was evidence that the wall might have been repaired during the term by means of underpinning:-
Held, that the defect having been caused by the natural operation of time and the elements upon a house the original construction of which was faulty, the defendants were not under their covenant liable to make it good.
Appeal by the plaintiffs against the judgment of Grantham, J., at the trial of the action, for the defendant Nesham.
The action was by lessors against their lessees, the defendants Lane & Nesham, to recover damages for alleged breach of a covenant contained in the lease to repair the demised premises. The defendant Lane died after he had delivered a defence, and the action proceeded against the defendant Nesham alone.
The lease was dated November 22, 1883, and by it the plaintiffs demised to the defendants Lane & Nesham a wharf at Lambeth, known as the Shot Tower Wharf, and also the building known as the Shot Tower and a warehouse, and also a messuage (called the Cottage), stables, sheds, & c., adjoining, to hold unto Lane & Nesham, their executors, administrators, and assigns, for the term of seven years from September 29, 1883, at the yearly rent of 800l. There was a joint and several covenant by the lessees with lessors, that the lessees would at their own costs and charges
"when and where, and as often as occasion shall require, well, sufficiently and substantially repair, uphold, sustain, maintain, glaze, pave .... amend and keep all and singular the said wharf, Shot Tower, warehouse, messuage, buildings and premises .... and all the walls, pavements, & c., to the said premises belonging or in anywise appertaining .... and the said wharf, Shot Tower, warehouse, messuage, buildings, and premises ...., so well and substantially repaired, upheld, supported, sustained, maintained, glazed .... amended, and kept, at the end or other sooner determination of the said term hereby granted, will peaceably and quietly leave, surrender and yield up" unto the lessors in such good and substantial state and condition as the lessors "may be bound to deliver up the same premises to the superior landlord or landlords thereof at the expiration of the lease under which they now hold the premises."
The defendants entered into possession of the demised premises under this lease, and they remained in possession until the end of the term in September, 1890. In August, 1890, the plaintiffs delivered to the defendants a notice, signed by the plaintiffs' surveyor, to execute certain repairs to the premises according to particulars delivered with the notice. The plaintiffs by their statement of claim alleged that "the defendants did not, pursuant to the said notice, do the said repairs. In consequence of the said breaches of covenant by the defendants part of the said demised buildings became dangerous and had to be pulled down, and the plaintiffs suffered great loss and damage to their reversion."
The plaintiffs claimed 700l., the principal item in which was a sum of 569l. for "rebuilding dwelling-house," meaning the Cottage.
The defendant Nesham by his defence said that the notice to repair "required work to be done which the defendant was not bound to do by the terms of the covenant to repair in the said lease contained. The premises were repaired and were delivered up in repair in accordance with the said covenant. After the determination of the said lease part of the demised buildings were pulled down, but not by order of the defendants, nor in consequence of their act or default."
At the trial Mr. Douglas, the plaintiffs' surveyor, was examined. He said that in 1887 the premises were in bad condition. He called the attention of the defendant Nesham to the want of repair. In August, 1890, he again inspected the premises. The south wall of the Cottage was bulged, and the floors were five inches out of level. The witness prepared the notice which was served in August, 1890. The repairs were commenced, and all was done but the wall. He said that the wall could have been rebuilt without any difficulty in 1887, and if the pointing of the wall had been done and the wall had been underpinned, no difficulty would have arisen. The wall had pitched more towards the east in 1890. In August, 1890, he gave notice to pull down or repair the wall. It might be that it would have involved the pulling down of the house. He estimated the cost of putting right the Cottage at 513l. From what he had seen since he did not believe it was possible to have pulled down the wall without pulling down the house.
Mr. Truscott, a builder, stated that he was employed by the defendants to do work to the premises, and from 1889 to June, 1891, he was continuously doing something. He put up scaffolding to point the wall in September, 1891, intending to pull down part of the wall and rebuild. He gave notice to the district surveyor, who examined the house and condemned it as a dangerous structure. "In the foundations of the building I found a mud cill. It was used instead of concrete foundation, and it had rotted. I think it would cost 530l. to put the Cottage back." A "mud cill" was explained as meaning a timber platform, which rested on a boggy soil and on which the Cottage was built. In cross-examination the witness said: "The Cottage was a very old building indeed, at least 100 years. I cannot say if it was 200 years old. No one knew of the foundation. It could have been underpinned."
Mr. Hewitt, the district surveyor, deposed that in November, 1891, the Cottage was in a dangerous condition. He came to the conclusion that it was a bad foundation.
"I think it had been falling over ever since it was built. I think the cause of bulging was the sinking of the foundation. I think the decay would be gradual, and it would get worse from 1890 to 1891. I do not think it would have been profitable to repair it without pulling it down. The soil is very boggy, and the gravel is seventeen feet down."
T. Terrell, for the plaintiffs. There was a breach of the defendants' covenant to repair during the lease and at the end of it. The defendants might have underpinned the wall; but the learned judge at the trial held that that would have cost so much that it did not reasonably come within the covenant. No doubt the authorities shew that such a covenant must be construed with regard to the nature and the age of the demised premises. But here the covenant is not only to "repair," but also to "uphold, maintain and keep" the premises. Under a general covenant to repair the tenant is bound to rebuild a house if it is accidentally destroyed by fire: Bullock v. Dommitt. [F1]
The principles applicable to the construction of repairing covenants are shewn by Payne v. Haine; [F2] Easton v. Pratt; [F3] Proudfoot v. Hart; [F4] Gutteridge v. Munyard. [F5]
[Bowen, L.J., referred to Soward v. Leggatt.] [F6]
McCall, Q.C., and Stewart-Smith, for the defendant Nesham, were not heard.
Lord Esher, M.R. In deciding this case we have to consider by what rules we ought to govern our inquiry. In Smith's Law of Landlord and Tenant, 3rd ed. at p. 302, I think that the result of the cases is properly stated. I do not cite that work as an authority, but only as stating correctly the rule to be deduced from the cases. The learned author says, referring to Gutteridge v. Munyard (5) and other cases: "These cases establish that, where there is a general covenant to repair, the age and general condition of the house at the commencement of the tenancy are to be taken into consideration in considering whether the covenant has been broken; and that a tenant who enters upon an old house is not bound to leave it in the same state as if it were a new one." You have to consider not only what the damage is - what is the amount of repair required - but also whether the covenant has been broken. That I take to be the right rule, and it is derived partly from the summing-up of Tindal, C.J., in Gutteridge v. Munyard, [F7] which is always cited on this point. The learned Chief Justice said: [F8]
"Where a very old building is demised, and the lessee enters into a covenant to repair, it is not meant that the old building is to be restored in a renewed form at the end of the term or of greater value than it was at the commencement of the term. What the natural operation of time flowing on effects, and all that the elements bring about in diminishing the value, constitute a loss which, so far as it results from time and nature, falls upon the landlord."
You have then to look at the condition of the house at the time of the demise, and, amongst other things, the nature of the house - what kind of a house it is. If it is a timber house, the lessee is not bound to repair it by making a brick or a stone house. If it is a house built upon wooden piles in soft ground, the lessee is not bound to take them out and to put in concrete piles. That seems to me to be the effect of Soward v. Leggatt, [F9] in which Lord Abinger, C.B., said (at p. 617): "The surveyor who has been called on the part of the plaintiff has given you an estimate; but it is also proved that, when the repairs came to be done, they amounted to considerably more than the estimate, and that is generally the case, because, when the work is actually done, improvements are made for which the tenant is not liable, of which the improved mode of laying the joists in the kitchen is an example, and if the joists have been now laid in a manner which will make them more durable and last longer before new ones are again wanted, that is a thing for which the tenant is not liable on the covenant to repair."
Those cases seem to me to shew that, if a tenant takes a house which is of such a kind that by its own inherent nature it will in course of time fall into a particular condition, the effects of that result are not within the tenant's covenant to repair.
However large the words of the covenant may be, a covenant to repair a house is not a covenant to give a different thing from that which the tenant took when he entered into the covenant. He has to repair that thing which he took; he is not obliged to make a new and different thing, and, moreover, the result of the nature and condition of the house itself, the result of time upon that state of things, is not a breach of the covenant to repair.
What is the evidence in the present case? The house is an old house built in Lambeth. Lambeth, as we know, was formerly at every unusually high spring tide under water. Therefore, the soil on which this house was built was saturated with water and turned into mud. The high tides in the Thames - that is, the natural elements - made that soil from time to time a boggy and muddy soil, and a shifting soil, for the moment it becomes liquid it shifts like a moss. How did people build at that time upon that muddy soil? They did not go down to the gravel below, but they placed a platform of timber, which, as it were, floated on the muddy soil, in the same way as when the railway went through Chatmoss, the engineer put into the moss as many fagots as possible, and then built the railway on them. So here the builder placed a platform of timber on this muddy soil, and built the house upon it.
That is the nature of this house. Whatever happens by natural causes to such a house in course of time - the effects of natural causes upon such a house in the course of time - are "results from time and nature which fall upon the landlord," and they are not a breach of the covenant to repair. They are matters which must be taken into account in considering whether the covenant to repair has been broken, and, when they are the results of time and nature operating on such a house, they are not a breach of the covenant, and the tenant is not bound to do anything with regard to them. That, as it seems to me, is the state of things in this case, and therefore the decision of Grantham, J., was quite right. The tenant from time to time did the proper repairs, and now the plaintiffs want him to do something for which he is not liable, and which would be of no avail unless he built a house of an entirely different kind.