Scottish Court of Session Decisions

A petition was presented in the Sheriff Court of Edinburgh by the trustees of the late James Turner, proprietors of the premises No. 61 High Street, Edinburgh, craving for an order to sequestrate and sell the goods, &c., of Mary Scott Steel, tenant of these premises, in security for and payment of the rent of the premises for the past two quarters, and in security for its payment for the coming year.

The parties in 1894 had entered into a lease of the premises for five years, which contained the following obligation—“And further, the said first parties having thoroughly repaired the stairs, water-closets, sinks, and cisterns, the said Mary Scott Steel accepts of the premises hereby set as in proper tenantable condition and repair, and binds and obliges herself and her foresaids not to make any structural alterations on the said premises without the consent in writing of the said first parties or their successors; and she undertakes and binds and obliges herself and her foresaids to keep all internal fittings in

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good order and repair, and to leave the said premises in good tenantable condition and repair at the expiry of this tack.”

The defender entered into possession of the subjects, and occupied them under this lease until Whitsunday 1899, when a fresh lease into which the parties had entered for another five years came into effect. In that lease it was stated that the defender “accepts of the premises hereby let as in proper tenantable condition and repair.”

The present petition was presented to obtain payment of the rent due in February and May 1899, and security for that falling due in the current year.

The petitioners pleaded—“(3) The defences are irrelevant.”

The defender averred—“(Stat. 1) In the attic part of the house, which is occupied as a lodging-house, there is accommodation for, and there are, twenty beds, for each of which 2s. 6d. a week should be drawn, but during the whole of last winter the defender could not let these beds, and was thereby deprived of the occupancy of that part of the house through the wind and rain getting in through the roof, which was in a state of disrepair. Its condition was brought under the notice of the pursuers through their agent and one of the trustees, with a request that it should be repaired and the attics made habitable. Their reply was that the defender was bound by the lease to make the repairs herself, and they did not make them till May last, when they did so. The defenders loss was £65, being for twenty-six weeks at £3, 5s. per bed, or 2s. 6d. a week.” …

She pleaded, inter alia—“(5) The defender having been deprived of the occupancy of the attic part of the house through the roof being in a state of disrepair, and having suffered damage through the fault of the pursuers, is entitled to have an abatement of the rent equivalent to said loss.”

The Sheriff-Substitute ( Hamilton) on 1st August 1899 pronounced the following interlocutor—“Repels the defences and grants warrant to licensed auctioneers, at the sight of the Clerk of Court or one of his assistants, to sell by public roup, after due advertisement, so much of the sequestrated effects as will pay to the pursuers, as trustees mentioned in the petition, (1) the sum of £23, 15s., being the quarter's rent of the premises in question due at 28th February 1899, and (2) the like sum of £23, 15s., being the quarter's rent of said premises due at 15th May 1899, with interest on said sums, and expenses of sale and of process as these shall be ascertained; Appoints the free proceeds of said sale to be consigned with the Clerk of Court: Grants warrant to open doors, if necessary: And quoad ultra continues the cause: Finds the pursuers entitled to expenses,” &c.

The defender appealed to the Sheriff ( Rutherfurd), who on 22nd November 1899 pronounced this interlocutor—“Repels the defender's first four pleas-in-law, the same not being insisted in: Quoad ultra finds that the defence stated is irrelevant: Therefore sustains the pursuer's third and repels the defender's fifth plea-in-law: Adheres to the Sheriff-Substitute's interlocutor of 1st August last: Dismisses the appeal and remits the case to the Sheriff-Substitute,” &c.

The defender appealed to the First Division.

The petitioners objected to the competency of the appeal, but the Court by an interlocutor dated 21st December 1899 repelled the objections (37 S.L.R. p. 250).

Argued for appellant—There was a general obligation on the landlord of urban premises to keep them wind and watertight, which the respondents had failed to implement— Hampton v. Galloway & Sykes, January 31, 1899, 1 F. 501. The obligation imposed upon the appellant by the lease did not import a duty to repair damage arising from inevitable decay, wear and tear. Bell's Pr. sec. 1254— Mossman v. Brocket, 1810, Hume, 850. As, therefore, the appellant had not had full possession of the premises owing to the respondents' neglect, she was entitled to retain part of the rent— Munro v. M'Geoghs, November 15, 1888, 16 R. 93.

Argued for respondents—The obligation in the lease clearly bound the tenant to make ordinary repairs of this kind. The respondents were therefore not in breach of any obligation. But in any case the appellant's claim was one of damages and not for abatement of rent, and she was not entitled to claim an abatement actually larger than the amount of the rent.