B e f o r e :
|HUSSEIN AND OTHERS|
(i) A repudiatory breach of a contract of letting is legally possible.
(ii) There was in this case a repudiatory breach by the defendant of the section 11 covenants.
(iii) The plaintiffs by vacating the property and returning the keys on March 18 1991 had accepted the defendant's breach as putting an end to the lease.
Repudiation of a lease
It is time to get away from the medieval concept of rent. That appears from a passage in Holdsworth, A History of English Law, vol. VII (1900), p 262 . . .: . . . in modern law, rent is not conceived of as a thing, but rather as a payment which a tenant is bound by his contract to make to his landlord for the use of the land.
The time and manner of the payment is to be ascertained according to the true construction of the contract, and not by reference to out-dated relies of medieval law.
. . . Whatever the position last century, the word 'rent' today can often simply refer to any contractual sum to which a landlord becomes entitled for the use of his land.
There has been a considerable development from the medieval conception of rent as a 'thing' or proprietary interest to the modern conception of rent as a contractual obligation to pay for the use of property let, and the notion that 'rent' must have the quality that it can be distrained for is more appropriate to the medieval than the modern conception. Accordingly, the question in each case is to determine what in substance is the subject-matter of the tenancy granted to the tenant by the contract: prima facie rent is the monetary compensation payable by the tenant in consideration for the grant, however it be described or allocated . . .
Mr Thompson for the dealer says that the oil company have repudiated their contract by insisting on the new stipulation of payment before delivery. He says that the dealer accepted that repudiation. He treated the agreement as at an end and got deliveries elsewhere. Seeing that the repudiation was accepted, the oil company can no longer insist on the agreement being performed.
The second point is: what is the effect of the repudiation by the oil company which was accepted by the dealer? Does it put an end to the lease? I think not. A lease is a demise. It conveys an interest in land. It does not come to an end like an ordinary contract on repudiation and acceptance. There is no authority on the point, but there is one case which points that way. It is Leighton's Investment Trust Ltd v Cricklewood Property & Investment Trust Ltd  KB 493 . . .  AC 221. Lord Russell of Killowen and Lord Goddard at pp 234 and 244 were both of opinion that frustration does not bring a lease to an end. Nor I think does repudiation and acceptance.
Despite the repudiation by the Plaintiffs of part of the lease and the defendants' acceptance thereof, I cannot accept that, as to the latter's occupancy during the remainder of the 14-year term, they would be able to say, 'We are entitled to remain in possession without regard being paid to where we obtain our petrol supplies.'
This reasoning limits itself to the impossibility of approbating and reprobating at the same time and fixes the defendants with their continuance in possession under the lease. The third judgment, that of Stephenson LJ, agreed with both the previous judgments and went on at p 325D:
This complex of lease and trading agreement has not been repudiated . . .
not 'cannot be repudiated'.
I conclude that the matter is not decided by authority and that the question is open to your Lordships to decide on principle. In my view your Lordships ought now so to decide it. Is there anything in principle which ought to prevent a lease from ever being frustrated? I think there is not. In favour of the opposite opinion, the difference in principle between real and chattel property was strongly urged. But I find it difficult to accept this, once it has been decided, as has long been the case, that time and demise charters even of the largest ships and of considerable duration can in principle be frustrated.
It was pointed out, however, by Atkin LJ in Matthey v Curling  2 AC 180 200, in a passage later approved by Viscount Simon  AC 221, 230 that as a lease can be determined, according to its terms, upon the happening of certain specified events, there is nothing illogical in implying a term that it should be determined on the happening of other events - namely, those which in an ordinary contract work a frustration . . .
A man may desire possession and use of land or buildings for, and only for, some purpose in view and mutually contemplated. Why is it an answer, when he claims that this purpose is 'frustrated', to say that he has an estate if that estate is unusable and unsaleable? In such a case the lease, or the conferring of an estate, is a subsidiary means to an end, not an aim or end of itself.
He concluded at p 696G:
It was not until the Cricklewood case that the argument was put on principle and fully explored. The governing decision (of the Court of Appeal) was summary, unargued, and based upon previous cases which will not bear the weight of a generalisation. I think that the movement of the law of contract is away from a rigid theory of autonomy towards the discovery - or I do not hesitate to say imposition - by the Courts of just solutions, which can be ascribed to reasonable men in the position of the parties.
Slight circumstances will not suffice but such serious reasons may exist, as will justify a tenant in quitting at any time, and it is for you to say whether in this case any such exist. . . . It is for you to say whether such serious reasons for quitting, existed in this case, as will exempt the defendant from this demand, on the ground of his having had no beneficial use and occupation of these premises; and that, through no default of his own, but through the fault of a person (the Plaintiff) who ought to have taken care, that the premises should have been in such a state, as to continue useful to the defendant.
In any case, the tenant is bound to pay rent during the time for which he has contracted, unless he satisfies the jury that, under the circumstances, he was justified in quitting. I think however that in point of law he will be freed from his obligation to reside on the premises, if he makes out, to the satisfaction of the jury, that the premises were noxious and unwholesome to reside in, and that this state arose from no default or neglect of his own, but from something over which he had no control, or none, except at an extravagant and unreasonable expense. Thus, he could not be bound to make a sewer; and if nothing else could keep the house wholesome, I think he was justified in quitting. The expense of making a sewer may be heavy; but if the Plaintiff would not make it, he cannot, I think, call upon his tenant to continue in a house which requires it.
The cases referred to in the argument, in which the tenant has been allowed to withdraw himself from the tenancy, and to refuse payment of rent, will be found to be cases where there has been either error or fraudulent misdescription of the premises which were the subject of the letting, or where the premises have been found to be uninhabitable by the wrongful act or default of the landlord himself; neither of which circumstances occur in this case.
(Thus it seems that Killick v Roberts, above, did have precedents.)
I am of opinion that, unless there has been some fraud or improper concealment on the part of the Plaintiff, which is not suggested, the contract for letting this house was perfectly good. The Defendant was, therefore, bound to perform it so long as the Plaintiff performed her part of it . . .
The rule laid down by Tindal, CJ, in Izon v Gorton, is the correct one, that in order to enable a tenant to avoid his lease, there must be a default on the part of the landlord.
in point of law every house must be taken to be let upon the implied condition that there was nothing about it so noxious as to render it uninhabitable.
These authorities appear to me fully to warrant the position, that if the demised premises are incumbered with a nuisance of so serious a nature that no person can reasonably be expected to live in them, the tenant is at liberty to throw them up.
I entertain no doubt whatever on the subject, and think the defendant was fully justified in leaving these premises as he did: indeed, I only wonder that he remained so long, and gave the landlord so much opportunity of remedying the evil.
Section 11 covenant
(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
(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
. . .
(3) In determining the standard of repair required by the lessor's repairing covenant, regard shall be had to the age, character and prospective life of the dwelling-house and the locality in which it is situated.
It has been conceded in this case, as in earlier cases, that the internal plasterwork is part of the structure of the house.
(Counsel for the local authority was Mr John Stuart Colyer QC, whose experience in this field of law was unrivalled.) Lloyd LJ concluded his judgment:
Once it was conceded, as it was, that the plaster was part of the structure it follows that there was a breach of the condition implied by section 11(1)(a) of the Landlord and Tenant Act 1985 . . .
Breaches of covenant
It is admitted that the ceilings were in a dangerous condition, and therefore that the rooms were not, speaking in a broad sense, fit for human habitation.
Notice to the lessor
The bituminous felt covering to the roof of the single-storey back addition is in poor condition and needs to be stripped off and renewed with proper detailing provided at the edges, particularly at the junction with the main rear wall. Works of repair may also prove to be necessary to the underlying structure of this roof due to defects resulting from water penetration.
Termination of the lease
(a) Space heating
(b) The bedroom ceiling
This made it necessary to clean up daily. The wind was carrying soot from the loft and other debris through the house.
(c) The sitting-room
(d) I have described the poor state and fitting of some of the doors.
General damages for structural disrepair
Other special damage
Rent thrown away
Further, or alternatively, the Plaintiffs are entitled to a refund of the whole or part of the rent paid or payable during the contractual term or damages representing the same.
A refund of the whole or part of the rent and deposit of £ 750 paid to the Defendant or which may be held to be payable to the Defendant.
Judgment for the plaintiff with costs.
The electronic text of this judgment was provided by Estates Gazette, whose assistance is gratefully acknowledged.