Between: Lister
And: Lane and Nesham

Judges: Lord Esher MR
Bowen 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:
Kay LJ

I am of the same opinion. I will add a few words with regard to the law. In construing such a covenant, regard must be had to the character and condition of the demised property, and, assuming that this covenant is, as has been argued, expressed in the largest terms, that it is a covenant to keep in repair and to put in repair, still Payne v. Haine ^[F10] shews that regard must be had to the character of the house to which the covenant applies. Here the house was built upon a timber structure laid upon mud, the solid gravel being seventeen feet below the timber structure, and the only way in which the effect of time upon the house could be obviated is, according to the surveyor's evidence, by "underpinning" the house; That was the only way to repair it during the tenancy. "Underpinning," as I understand, means digging down through the mud until you reach the solid gravel, and then building up from that to the brickwork of the house. Would that be repairing, or upholding, or maintaining the house? To my mind, it would not; it would be making an entirely new and different house. It might be just as costly to underpin as to pull the house down and rebuild it. No one says, as I judge from the evidence, that you could repair the house by putting in a new timber foundation. The only way, as the surveyor says, to repair it is by this underpinning. That would not be either repairing, or upholding, or maintaining such a house as this was when the lessee took it, and he is not liable under his covenant for damage which accrued from such a radical defect in the original structure. The appeal must be dismissed with costs.

Appeal dismissed.