Scottish Court of Session Decisions

[1] This action arises as a consequence of the conditions imposed in missives of let between the pursuer's predecessor and the defenders. The defenders wished the premises to use as an office in connection with the construction of a new Sheriff Court building in Chambers Street, Edinburgh.

[2] The premises themselves were a flat in a tenement building. The let endured from 1990 until June 1995. The pursuer avers;

These are the only averments relating to the condition of the premises at the end of the tenancy. The pursuer also avers that in or about August 1991 the landlord agreed to further alterations on certain conditions, i.e. that the defenders would restore the premises to the same state and condition as they were in prior to the works being carried out. No specification is given of the time when any movement occurred in the tenement building.

[3] In terms of the lease, the defenders by Clause 6.3 were taken bound in the following terms:

[4] By Clause 7.1 the defenders obliged themselves:

The defenders go on to make some averments in the pleadings about Clause 7.3 which does not now appear to have any relevance to the case and requires to be removed.

[5] The issue in the case is solely the effect of Clause 6.3 since it does not appear that Clause 7 adds anything. The defenders' complaint was that there was no specification of any kind about the deterioration of the building and since it was plain from the Clause that the tenants were obliged in relation to some matters, but that they were not in relation to others, there was no indication of how this movement in the building could have relevance in relation to Clause 6.3. It was argued that nowhere in the pleadings is it said that any work was done or what it was that was required to bring the premises back to any particular condition at any time, whether that be 1990 or August 1991.

[6] Counsel for the pursuer argued that the pursuer had averred all that was required. The onus lay upon the tenant to establish the exception to his general liability which was as set out in the first part of Clause 6.3. Just as in the case of a tenant who was obliged to keep premises in good and substantial repair, fair wear and tear excepted, the onus was upon the tenant to show that the defects complained of were such as fell within the exception and not for the landlord to exclude fair wear and tear. The case of Haskell &c v Marlow &c 1998 2 KB 45 was cited for the dictum of Talbot J. at page 48, which statement was given express approval by the House of Lords by Regis Property Co Ltd v Dudley 1959 AC 370 per Viscount Simmons at p. 393. In Haskell the obligation was to insure against loss by fire and the tenant was obliged as "also keeping the same in good repair and condition (reasonable wear and tear excepted)" Talbot J. said:

His Lordship then goes on to discuss the effect of defects being superadded to any defect existing at the date of the demise.

[7] At first reading that citation would seem to indicate that the obligation to maintain and repair must be displaced any time a landlord asserts a defect, and that can only be achieved, by the tenant establishing the exception.

[8] I consider that that reads too much into the case if stated in such a generality. No Scots cases were cited to me despite the relevance of Napier v Ferrier 9 D 1354 and Dennis Trustees v Steel 2 F 63. A tenant is not liable for extraordinary repairs. An example given in Napier is "suppose the walls were to tumble down, he is not surely bound to put in new walls.". It is not clear to me how a tenant could rebuild, reinstate or replace the whole premises, (utilising against the landlord the weaker alternative), when these premises are part of a tenement. The tenant could have no right to interfere with external walls as against the other owners or occupiers of a tenement property. Accordingly, even if it could not be established that the movement of the wall was due to inherent defect at the time the tenant entered into the property, it by no means follows that he could be liable to replace after some general movement of the external wall.

[9] On the other hand, the landlord does aver that inadequate repairs have been made to cracking and by supporting of a cracked lintel, but makes no averment as to any time or circumstance in which these occurred other than that it was "during the course of the tenancy". However, the party in the best position to know these matters is the tenant and accordingly no great injustice would be done by making him responsible for that type of specification.

[10] It is with extreme hesitation that I allow to the pursuer a proof before answer of her averments so far as related to liability under Clause 6.3. There are no relevant or specific averments in relation to either Clause 7 or which are not subsumed under 6.3 and none in relation to the alleged contract by way of letters exchanged in 1991. Accordingly, I shall not remit to probation the averments in Condescendence 2 commencing; "Further in terms of Condition 7.1" down to "carried out" at 7B; the averments commencing; "Further they were obliged"; in Condescendence 3 down to "carried out"; and in the same article of Condescendence the averments from "they have failed to leave" down to "breach of contract".

[11] It also follows that the second sentence in Condescendence 4 and the references to said agreement of August 1991 in Condescendence 5 also require to be excluded. It should also be noted that the defenders alleged that there was a lack of specification in relation to the averments of damage. The pursuer has perilled her case as being one of diminution in value as opposed to cost of repairs. I think she is entitled to do that accepting, as she must, the limitation of that approach if the diminution in value is due more generally to the instability of the tenement wall as opposed to the premises themselves.

[12] I repel the pursuer's third plea-in-law and sustain to the extent above noted the pursuer's third plea-in-law. I also, of consent, repel the defenders' first plea-in-law along with the seventh which appears to be a repetition of plea three.