B e f o r e :
|LAMBETH LONDON BOROUGH COUNCIL|
In a lease to which this section applies
-- and this is such a lease --
. . . there is implied a covenant by the lessor - (a) to keep in repair the structure and exterior of the dwelling-house
-- and various other installations.
I have reached the conclusion that the law today is that a landlord must apply his mind before letting to a tenant to the question of whether the premises may be considered to be reasonably safe. He must have in contemplation the reasonable use of the premises by the proposed tenant, his family and his visitors. In contract he may make exclusion clauses. That does not apply here. In my judgment, therefore, there was and is a legal duty on a landlord to take reasonable steps to ensure that the premises are reasonably safe.
The danger in that case was that there were certain glass panels which were not strong enough and were a danger if someone fell against them. In the present case safety is not quite what is in issue and the duty would be adapted as a duty to take reasonable steps to ensure that the premises are habitable. I will come back to the duty as formulated in the Rimmer case later.
The facts are not in dispute. The law laid down by the Court of Common Pleas in the passage quoted by the Master of the Rolls from the judgment of Erle CJ in Robbins v Jones is beyond question: 'A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term: for, fraud apart, there is no law against letting a tumble-down house; and the tenant's remedy is upon his contract, if any.'
We have come to the conclusion that it was not open to the judge, and is not open to any court below the highest, to say that that is the law, however desirable that it should be.
Stephenson LJ then, at the foot of p 14 letters G to H, said about Cavalier v Pope:
We reach our decision without treating Cavalier v Pope . . . as overruled, for Pope did not design or construct the floor through which Mrs Cavalier fell. He was not a builder-owner, but what may be called a bare landlord, or a landowner as such: Gallagher v N McDowell Ltd  NI 26, 38 per Lord MacDermott CJ. Counsel for Mr and Mrs Anns in Anns v Merton London Borough Council . . . submitted to the House that it was not necessary to overrule Cavalier v Pope; and their Lordships refrained from doing so, and left for another day the immunity of a bare landlord, too closely confined to avail the council but too deeply entrenched in our law for any court below the highest to disturb or destroy it.
That is the short answer to this appeal.
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.
The . . . 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.
Subsection (3) defines the relevant defect as meaning:
a defect in the state of the premises existing at or after the material time
-- which, for practical purposes, is when the tenancy commences --
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.
In a contract to which this section applies for the letting of a house for human habitation there is implied, notwithstanding any stipulation to the contrary --
(a) a condition that the house is fit for human habitation at the commencement of the tenancy, and
(b) an undertaking that the house will be kept by the landlord fit for human habitation during the tenancy.
That, as it seems to me, is the sort of obligation which the plaintiff in the present case would wish to impose on the council as a matter of common law. Subsection (3) of section 8 provides, however, that:
This section applies to a contract if --
(a) the rent does not exceed the figure applicable in accordance with subsection (4).
The question we have to determine is whether, on an agreement of this nature, which is an agreement for the letting and hiring of a house, in what is considered a fashionable district, at a high rent for three months at the height of the season, if the house prove not merely not habitable and not reasonably fit for occupation, but in some respects so unsuitable for the accommodation of those who intend to occupy it, that they could not reside in it, even for one night, without danger to their health, whether, . . . in such a case the hirer . . . is at liberty to consider the agreement at an end, to throw the house up altogether, and to resist all demands for rent.
The appeal was dismissed with costs, not to be enforced without leave of the court; legal aid taxation of appellant's costs was ordered; application for leave to appeal to the House of Lords was refused.
The electronic text of this judgment was provided by Estates Gazette, whose assistance is gratefully acknowledged.