England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
(Mr Justice Pumfrey)

		Royal Courts of Justice Strand London WC2A 2LL Thursday, 30th May 2002

Thursday, 30th May 2002

1. LORD JUSTICE PETER GIBSON: Longmore LJ will give the first judgment.
2. LORD JUSTICE LONGMORE: Yeoman's Row SW3 runs south from Old Brompton Road not far from Harrods. In 1954 the Trustees of Henry Smith's Charity constructed a new building to replace 9 Victorian houses which had fallen into disrepair. The replacement building was modest in character, and is now said to be notably poor in provision for heating and heat and sound insulation; in 1954 building restrictions were in force and building materials limited. The local authority rehoused the tenants of the Victorian houses, in return for which the trustees of the Charity permitted the local authority to nominate 12 of the first 13 tenants from the local authority waiting list for the flats in the building. Mr Meyrick, then 38 years old, was one of those nominated and became the original tenant of what is now called Flat 44, Yeoman's Row. With his first family he entered into occupation under the terms of a letter dated 21st October 1954 at a rent of £114.80 per annum. The rent was a concessionary rent in line with then council house rents. In 1957 the rent was increased to £160 per annum and on 26th September 1958 the Trustees entered into a written periodic monthly tenancy agreement with Mr Meyrick in the amount of £160 per annum. On 6th June 1966 the Trustees terminated the contractual tenancy and Mr Meyrick held over as a statutory tenant. In 1997 they sold the building to the Wellcome Trust and in December 1997 the respondent to this appeal, the second Mrs Meyrick, became the first successor tenant. In March 1998 Wellcome sold the building to the appellants (whom I will call "the Landlords"). One of the Landlord's directors has had family connections with the building since 1975 and been a tenant of a flat in the building since 1984. Wellcome had begun the refurbishment of the building, spending (we are told) some £40,000 in its first year of ownership. The new Landlords say that they have spent considerable sums on refurbishment in their first three years of ownership. They have been represented on this appeal by the director, to whom I have referred, Mrs Zipporah Mainwaring.
3. The scheme of the tenancy agreement made on 26th September 1958 is that the tenant's covenants are set out in clause 2. The relevant repairing covenants of the tenant are sub-clauses (3) and (4). They provide as follows:

"(3) DURING the said term to keep the interior of the said flat and all the fixtures and fittings therein including sash lines window fastenings door furniture and fastenings and all glass in the windows and doors thereof and water taps and water waste preventers ball cocks and pipes gas pipes and electric wires in good and tenantable repair and condition.

(4) DURING the said term to keep all the windows cisterns flues and chimneys of the said flat properly cleaned and in particular to clean all the windows once at least in every month and all cisterns and chimneys twice at least in every year."

4. Apart from these covenants there is no wider liability to repair, and Miss Mainwaring drew our attention to the dicta of Denning LJ in Warren v Keen [1953] QB 15 at 29 in relation to a weekly tenancy with no covenant to repair:

"The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys when necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must not damage the house, wilfully or negligently."

5. There is no decorating covenant on the part of the tenant, and the tenant also covenants at subclause (6):

"NOT to make any alteration in the said flat or remove any partitions doors or cupboards or other fixtures therein nor cut or injure any of the walls floors or timbers thereof."

6. There are then further covenants, two of which are at the heart of the case, in subclauses (19) and (20). They provide:

"(19) TO permit the Landlords and their Agent and all persons authorised by them respectively at all reasonable times to view the state and condition of the said flat and within one month after the Landlords or their Agent shall have given to the Tenant or left on the said flat notice in writing of any wants or reparation cleansing and amendment required to the interior of the said flat for which the Tenant is responsible hereunder well and substantially repair cleanse and amend the same accordingly.

(20) TO permit the Landlords and their Agent and all persons authorised by them at all reasonable times to take inventories of the fixtures in the said flat and to execute any repairs or work to the inside or outside of the said flat and also for the purpose of executing any repairs or work to or in connection with any flats above or below or adjoining the said flat to enter upon the said flat or any part thereof with or without any necessary tools or appliances."

7. Lastly, at sub-clause (25) there is the obligation to yield up the flat and the landlord's fixtures and fittings "clean and in good tenantable repair" at the end of the tenancy.
8. Clause 3 contains the landlords' covenants, including at subclause (1) that the tenant "shall quietly enjoy the said flat during the said term without the interruption by the Landlords."
9. Clause 4 then contains various provisions including proviso 4:

"THE Tenant shall not be entitled to make any objection to or be entitled to any compensation from the Landlords by reason of any noise or disturbance occasioned by the making of any structural or other alteration to the building of which the said flat forms part or by the making of any additions thereto or for any interference by the Landlords to access of light and air to the said flat or any part thereof and that the Landlords shall not be liable to the Tenant for any loss damage or inconvenience which may be caused to the Tenant by reason of any defects in the building or the failure at any time or times during the said tenancy of the water gas or electricity supply to the said flat or by reason of the bursting stoppage leaking defect or damage of any main service or other pipes or electric wires or cables or by reason of the breakdown..."

10. The Landlords have now served notice that they wish to do work on the flat in 16 separate respects, and they claim that they are entitled to possession of the flat for that purpose, accommodating the tenant elsewhere for the duration of such works. For this purpose they rely on clause 2(20) with its provision which I have read that the Tenant is to "permit the Landlords to execute any repairs or work to the inside or outside of the said flat".
11. Miss Mainwaring submits that these are wide words and entitle the Landlords to do any work they wish and, indeed, if such work constitutes an improvement, to seek an increase in the rent accordingly. She does accept that there must be some restriction on the apparent width of the words to the effect that the Landlord should have a bona fide belief that such work must be beneficial to the flat and the building as a whole and also must not derogate from the Landlord's grant. In order to demonstrate such bona fides she put before the Circuit Judge a surveyor's report indicating that the proposal was in fact for the benefit of the flat and the building.
12. His Honour Judge Peter Cowell, before whom the matter came in the West London County Court, decided that the word "repairs" in subclause (20) was the governing word. He held that such repairs included repairs which the Tenant was obliged to do but had failed to do and also repairs which the Landlord wished to do. He held that the word "work" was additional to "repair", and that one reason for including the word "work" was that there might be matters which the tenant had failed to do or the Landlords wished to do that could not be construed as repairs. He instanced the tenant's obligation to sweep the chimney, which on no view could be regarded as "repairs". Another example was tying in a wall which had a tendency to lean outward. Other work which might be included was work required by a local authority to be done. He concluded this part of his judgment by saying this:

"It seems to me that the words `or work' are apt to include matters which the landlord may be required by law to do or works that he may wish to do which might not ordinarily be termed "repairs" in order to maintain the integrity of the building, but are akin to works of repair.

It seems to me that for the claimant to enter simply to do improvements, which are in no way akin to a repair and not required to be done in any way, really does infringe the covenant for quiet enjoyment..."

13. Pumfrey J has upheld the decision of His Honour Judge Cowell, but Mummery LJ gave permission to appeal on the basis, as he put it, that it was a point of important to know how such a provision as clause 2(20), in its context in the tenancy agreement, should be construed.
14. Miss Mainwaring, in a forceful argument, has attacked the conclusions reached by His Honour Judge Cowell and Pumfrey J. She has submitted that the words in clause 2(20) are, on the face of them, clear and general words. Second, she has submitted that the second phrase of subclause (20) must have a wide interpretation. She emphasises the words "for the purpose of executing any repairs or work to or in connection with any flats above or below or adjoining the said flat", and she submits that the words in that phrase must equally and even more clearly be given a wide and general construction. She submits further that commercially any landlord would wish to have the right to do more than mere repairs, viz. to make improvements, otherwise in a monthly tenancy of this kind the building would be at risk of becoming ossified for the whole of its natural life. In that connection she relies on the speech of Lord Hoffmann in Investor Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, particularly the fifth point made by Lord Hoffmann on page 913 and his quotation from the speech of Lord Diplock in the case of the Antaios [1985]v A.C. 191, 201. She has also put before us the second the edition of Dowling & Reynolds on Dilapidations for that purpose.
15. I have come to the conclusion, despite Miss Mainwaring's able submissions on the point, that I agree with the judge. I say that for four main reasons:

(1)As Judge Cowell pointed out, subclause (20) of clause 2 must be construed with the covenant of quiet enjoyment granted in clause 3(1). It would be an invasion of that covenant of quiet enjoyment of the flat if the tenant could be required to submit to works of improvement being done and, still more, if she can, or has to, be dispossessed while that work is done. There is no suggestion that there should be any particular restriction on the length of time such works would take.

(2)It is not an express part of the bargain contained in the tenancy agreement that the landlords can do any improvement that they choose. If it was the intention that the landlord should be able to deprive the tenants of quiet enjoyment to that extent, one would expect a much clearer indication to that effect in the lease.

(3)Miss Mainwaring accepts, as she has to, that there must be some qualification read into the width of the words. The only question therefore is the extent of the qualification that has to be read in. For my part, it seems to me that the necessary qualification comes from the terms of the covenant of quiet enjoyment in clause 3 of the tenancy agreement. The qualification suggested by Miss Mainwaring is itself a very small qualification. She asserts the right to carry out any work provided that the landlords bona fide believe it to be beneficial for the flat and the building and does not derogate from the grant. That would mean that, even if the works which the landlords wished to do were in fact excessive, or unreasonable, or lengthy, the landlords would still be entitled to do them, provided that they had a bona fide belief that such works were for the benefit of the flat and the building. I cannot believe that that would be the right construction of this tenancy agreement.

(4)For my part, like Judge Cowell, I attach some significance to the fourth proviso which I have read. That provides that the tenant cannot object to disturbance "occasioned by the making of any structural or other alteration to the building of which the said flat forms part". In my judgment the implication of that is that the tenant can object to any structural or other alteration to the flat itself, because the flat itself is something which is not the same as the building of which the said flat forms part. Miss Mainwaring submitted that the building is only a component of the number of flats, whatever the position might be in relation to the question whether other flats not covered by this tenancy agreement would come within the phrase "the building of which the said flat form part". It seems to me that the flat which is the subject of the tenancy agreement does not form part of that phrase.

16. I, therefore, find myself in accordance with the judgments of both His Honour Judge Cowell and Pumfrey J and would dismiss this appeal.
17. LORD JUSTICE JONATHAN PARKER: I agree.
18. I would only add that I do not consider that the issue on this appeal raises any point of principle. It is, as I see it, simply an issue as to the true construction of the particular tenancy agreement. As to that, I agree with my Lord, for the reasons he has given, that His Honour Judge Cowell and Pumfrey J reached the right conclusion and so I too would dismiss this appeal.
19. LORD JUSTICE PETER GIBSON: I also agree.
Order: Appeal dismissed with costs summarily assessed at £3,500 payable within 14 days. We have been assured by Miss Carrington that a partner will sign the bill before our order is enforced.