Scottish Court of Session Decisions

In October 1876 Messrs Gilchrist & Gardner, builders, Glasgow, let to John R. Granger, M.D., Glasgow, the house No. 1 Sutherland Terrace there, under a lease terminating at Whitsunday 1882, at a yearly rent of £80, with a break in the option of the tenant at Whitsunday 1880. In September 1878 the Scottish Heritable Security Co. (Limited), who were heritable creditors of Gilchrist & Gardner, entered into possession of the property under their bond. During his occupancy of the house Dr Granger and his family were frequently annoyed with bad smells coming from the drains, and causing sickness and discomfort. The company several times, in response to complaints made by him, had the nuisance complained of attended to. On 23d January 1880 Dr Granger wrote to the manager of the company this letter referring to his option to give up the lease at Whitsunday 1880—“Dear Sir,—As I have already informed your factor here (Mr Archd. Stewart), I now inform you, that it is in my option to break my lease at May first. We have been occupying at much too high a rental (£80), and to induce us to remain Mr Stewart has offered to reduce that to £67, 10s., but I still think further reduction necessary, and I hope for the following reasons you will see it your interest to recommend Mr S. to make further deduction. Our house is not by any means what it should be in regard to drainage, by which in the past we were put to so much trouble and you to expenses, for occasionally still we are like to be driven from the house by sewage smells. .… I think I have said quite enough to show that I am at least entitled to a reduction of 20 per cent. from our present rental.” At that time the rents of some of the neighbouring houses, which also belonged to the company, were being reduced, and it was arranged with Dr Granger by the company's factor that his rent also should be reduced. On 31st January Dr Granger wrote this letter to Mr Stewart, the factor. In reply he received from Mr Stewart a letter dated 4th February, which was not produced in process. In that letter Mr Stewart said—“I understood you took the house. If you did not mean that, let me know by return. It is now for you to say if you take the house for two years.” To this Dr Granger answered on 6th February—“I am in receipt of yours, and become a yearly tenant at £67, 10s. for two years.” When this letter was written several of Dr Granger's children were unwell, but their illness was not serious. On 16th February the illness of the children, which was proved to be such as is caused by the emanations from defective drains, had much increased, and Dr Granger wrote to Mr Stewart as follows—“Dear Sir,—I beg to withdraw my offer entirely for a lease of this house beyond the two years already stipulated for. My eldest girl is at present laid up with typhoid fever, and as soon as she is able to be removed, or if the worst should happen (for in the meantime we have to look the worst in the face), I will insist on the house being examined by an outside party, and any repairs on the drains thought necessary put into execution without delay.” Mr Stewart replied that he had no objections to an examination of the drains as proposed, and that he would have all cause of complaint removed. Dr Granger had an examination of the drainage made, with the result stated in the following letter (dated 21st February) from his agents to Mr Stewart—

Page: 281↓

“Sir,—Dr Granger, the tenant of the house 1 Sutherland Terrace, informs us that in consequence of his children being laid down with gastric fever, he has had the drains of the house lifted and thoroughly examined, and the result is that they are so thoroughly and radically deficient that he has been ordered by Drs Fergus and Finlayson at once to leave the house. He has already removed his children, and he will himself remove so soon as he can get accommodation elsewhere. We have advised Dr Granger, and now intimate to you, that he will not be responsible for rent after this date. He will further hold the landlord liable in whatever damage he has sustained or may yet sustain from the insufficiency of the house. That you may satisfy yourself as to the drains, we refer you to Drs Fergus and Finlayson, Messrs Lindsay & Benzie, Mr Reid, the plumber, and the sanitary inspector for Partick, who have already inspected the drains, and Dr Russell, the Glasgow officer of health, who is to make an inspection to-day. Of course you will understand this intimation as applying both to next year and what remains of this.” The agents for the company replied, declining to admit responsibility for the illness in Dr Granger's family and for any other damage he might sustain, and intimating that they would hold Dr Granger liable for the rent till the expiry of his lease. Dr Granger's youngest child died on 24th February, in the opinion of the medical man who attended it, from the emanations from the drains. The other children recovered after their removal from the house. The operations necessary to put the drains into proper working order occupied a period of two months. Dr Granger declined at the end of that period to return to the house, but offered to pay a quarter's rent on condition of being relieved of all further claims. The company declined to release him from the lease of the house, but were willing to make an abatement of their rent in respect of the period during which the operations on the drainage were being carried out. An agreement not having been come to, the company in August 1880 raised an action against Dr Granger in the Sheriff Court of Lanarkshire, concluding for £40, being the amount of the rent for the half-year from Martinmas 1879 to Whitsunday 1880. Dr Granger raised a counter action concluding for £400 as loss and damage sustained by him in consequence of the defective drainage of the house.

The actions were conjoined, and on 30th November 1880 the Sheriff-Substitute ( Spens) issued this interlocutor, after sundry findings as to the facts narrated above—“Finds, under reference to note, that the party Granger was not entitled to repudiate the lease in question: Finds that the party Granger is entitled to a deduction from the half-year's rent for non-occupation of the premises, in respect in the circumstances above set forth he was entitled to leave the premises in question until the drains of the house were put in a proper state: Finds that he is also entitled to a deduction for the expense he was put to in connection with such removing, and fixes said deduction at £25, except, however, as regards the said deduction hereby allowed: Repels the whole claims for damage advanced by the said party Granger, and decerns against him, in favour of the parties The Scottish Heritable Security Company (Limited), for the sum of £15, with interest on said sum as craved,” &c.

He added this note—… . “With his family ill, and examination having revealed that there was a hole in the drain pipe under the floor, and a bad smell coming from the stuff lying about this pipe (whether it was soap waste or excreta), I am clear that Dr Granger was entitled to leave the house until at least matters were put right. The result of the investigation made by the Heritable Company was that the conclusion was arrived at, that to make a thoroughly satisfactory job of the drains it was advisable that the drain in question should be removed to the outside, and the position of a W.C. shifted, &c., and this has been done at a very considerable expense, between £40 and £50 I think. To get that work done seems to have taken about two months. For that period I think there is no claim against Dr Granger for rent; but I do not think that Dr Granger was entitled to repudiate the lease. He knew or ought to have known just as much about the drains as the Heritable Company, and on the 6th of February, having a break in the existing lease at Whitsunday 1880, he agreed to take on the house for two years from that last-mentioned date—nay, more, just about this very time he wrote to the Heritable Company wanting a still further deduction from rent than that obtained from the factor on the ground of the drainage not being what it ought to be. It is impossible, therefore, to hold that the state of the house was not present to his mind at the date of the renewal of the lease of 6th February, which lease he repudiated before the end of the month. The position which I am of opinion Dr Granger should have taken up was to call upon the landlords to put matters right. Probably it would have been better for him to have got the assistance of a skilled person as to what was necessary, and called upon the landlords to carry out the alterations suggested. If the landlords refused to do what was necessary, then I think Dr Granger would have been entitled to repudiate the lease, or he would have been entitled to have carried out the alterations at his own hands, and deducted the cost from the rent. It is, I think, necessary to determine in this case whether the lease is or is not binding, because unless Dr Granger had established (which I take it he has not done on the proof) that he could only get a house temporarily by taking it on to the Whitsunday term, then I think rent must run against him as from the period when the drains had been put in proper order and the house was fit for occupation, which seems to have been about the 20th of April. For the inconvenience caused by removal, and the non-occupation of the premises in question for a couple of months, I think £25 a fair sum to award as a deduction from rent, and decree accordingly for £15 is pronounced in the action against the party Granger.”

Granger appealed to the Court of Session, and he did not insist in the action for damage at his instance. In that for rent, at the instance of the company, he argued—The house was uninhabitable owing to a serious inherent defect, which could not be put right in a reasonable time. In point of fact, it took two months to remedy the defect, and a tenant when the subject let to him proved to have such a serious defect was entitled to abandon the lease. No doubt it was to some

Page: 282↓

extent a question of degree whether he could abandon the subject as had been here done, but in the circumstances of this case that course was reasonable and proper. The appellant was not barred by reason of his knowledge of the premises, since he did not know the real state of the house till the full examination, made immediately before his agent's letter of 21st February.

Authorities— Walker v. Baine, July 3, 1815, 3 Dow. Ap. 233; Clark v. Glasgow Assurance Company, August 8, 1854, 1 Macq. 868; Kippen v. Oppenheim, December 13, 1847, 10 D. 242; Drummond v. Hunter, January 12, 1869, 7 Macph. 347; Duff v. Fleming, May 18, 1870, 8 Macph. 769.

Argued for the respondents—Admitting that the appellant had a right to remove till the house was put into a proper state, it did not follow that he might renounce the lease. A temporary inconvenience will not justify a tenant in giving up his lease. By the correspondence relating to the new lease the appellant was effectually bound to take the house, and all cause of complaint had been removed.