LAW REPORT 12 September 1995; Landlord in breach of repairing covenant

British Telecommunications plc v Sun Life Assurance Society plc; Court of Appeal (Lord Justice Nourse, Lord Justice Roch and Lord Justice Hutchison) 28 July 1995

A landlord was in breach of his covenant to keep in repair the other parts of a building in which the demised premises were situated immediately they ceased to be in repair, not after a reasonable period for doing the repairs had expired.

The Court of Appeal unanimously dismissed an appeal by the defendant landlord, Sun Life Assurance Society plc, against a preliminary ruling by Mr Justice Aldous ([1994] 2 EGLR 66) that it was in breach of a covenant to keep in repair the exterior brick cladding of Randolph House, Wellesley Road, Croydon, of the sixth and seventh floors of which the plaintiff, British Telecommunications plc, was the tenant.

Kirk Reynolds QC and Wayne Clarke (Church Adams Tatham) for the landlord; Jonathan Gaunt QC and Christopher Nugee (Ashurst Morris Crisp) for the tenant.

Lord Justice Nourse said the covenant in question was contained in clause 3(5) of what had been called the Franthorne lease, which required the landlord:

from time to time and at all times during the said term to uphold, maintain, cleanse and keep in complete good and substantial repair and condition the demised premises . . . and including all party and other walls, boundary walls and fences.

The obligation extended to the building as a whole. The distinctive feature of this case was that the defect occurred in the external cladding at fifth-floor level, part of the building not comprised in the premises demised to the plaintiff.

It was now established, by a line of authority culminating in the House of Lords' decision in O'Brien v Robinson [1973] AC 912, that, where a defect occurred in the demised premises themselves, a landlord was in breach of his obligation to keep them in repair only when he had information about the defect such as would put a reasonable landlord on inquiry as to whether works of repair were needed and he failed to carry out the necessary works with reasonable expedition.

The defendant argued that the same rule applied by analogy where the defect occurred elsewhere in the building. Although, since the premises affected by the defect were either in his possession or under his control, a landlord must be treated as having the necessary knowledge as soon as the defect occurred, he was not in breach of his obligation to repair it until he had failed to do so with reasonable expedition thereafter.

Though initially inclined to accept that submission, his Lordship was now satisfied from a consideration of the authorities on which the rule in O'Brien v Robinson was founded that it was in truth an exception from the general rule and, moreover, one which proved it.

The rule in O'Brien v Robinson was principally founded on the majority decision of the Court of Exchequer in Makin v Watkinson (1870) LR 6 Exch 25, where a landlord successfully pleaded lack of notice in defence to an action for alleged breach of a covenant to maintain the premises. Channell B referred to Vyse v Wakefield (1840) 6 M & W 442 as authority for the proposition that when a covenant would, according to the letter, be an unreasonable one, words not inconsistent with the words used might be interpolated to give it a reasonable construction. At p28 he said:

Now here repairs are to be done to the exterior of the premises, as to which it is just possible that the lessor might, by observation, acquire a knowledge of their necessity. But the main timbers of the building, which must be within its carcase, and the roofs are to be kept in repair; and of the repairs required for these he could have no knowledge without notice . . . Here, therefore, . . . we ought to import into the covenant the condition that he shall have notice of the want of repair before he can be called on . . . to make it good.

The basis of that decision necessarily affirmed the general rule, recognised in the subsequent authorities, that a landlord must be held to the terms of his covenant to repair if the defect occurred in premises not comprised in those demised to the tenant. The general rule was that a covenant to keep premises in repair obliged the covenantor to keep them in repair at all times, so there was a breach of the obligation immediately a defect occurred.

Lord Justice Roch and Lord Justice Hutchison agreed.

Paul Magrath, Barrister

Suggested Topics
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Geography Teacher

£85 - £140 per day: Randstad Education Cheshire: We require a teacher of Geogr...

HR Assistant / Human Resources Assistant

£Neg + Excellent Benefits: Guru Careers: An HR Assistant / Human Resources Ass...

Talent Community Coordinator

£Neg + Excellent Benefits: Guru Careers: A Talent Community Coordinator is nee...

Business Support - Banking - Halifax - £250 pd

£150 - £250 per day: Orgtel: HR Analyst - Banking - HR - Halifax - £150 - £250...

Day In a Page

Evan Davis: The BBC’s wolf in sheep’s clothing to take over at Newsnight

The BBC’s wolf in sheep’s clothing

What will Evan Davis be like on Newsnight?
Finding the names for America’s shame: What happens to the immigrants crossing the US-Mexico border without documents who never make it past the Arizona desert?

Finding the names for America’s shame

The immigrants crossing the US-Mexico border without documents who never make it past the Arizona desert
Inside a church for Born Again Christians: Speaking to God in a Manchester multiplex

Inside a church for Born Again Christians

As Britain's Anglican church struggles to establish its modern identity, one branch of Christianity is booming
Rihanna, Kim Kardashian and me: How Olivier Rousteing is revitalising the house of Balmain

Olivier Rousteing is revitalising the house of Balmain

Parisian couturier Pierre Balmain made his name dressing the mid-century jet set. Today, Olivier Rousteing – heir to the house Pierre built – is celebrating their 21st-century equivalents. The result? Nothing short of Balmania
Cancer, cardiac arrest, HIV and homelessness - and he's only 39

Incredible survival story of David Tovey

Tovey went from cooking for the Queen to rifling through bins for his supper. His is a startling story of endurance against the odds – and of a social safety net failing at every turn
Backhanders, bribery and abuses of power have soared in China as economy surges

Bribery and abuses of power soar in China

The bribery is fuelled by the surge in China's economy but the rules of corruption are subtle and unspoken, finds Evan Osnos, as he learns the dark arts from a master
Commonwealth Games 2014: Highland terriers stole the show at the opening ceremony

Highland terriers steal the show at opening ceremony

Gillian Orr explores why a dog loved by film stars and presidents is finally having its day
German art world rocked as artists use renowned fat sculpture to distil schnapps

Brewing the fat from artwork angers widow of sculptor

Part of Joseph Beuys' 1982 sculpture 'Fettecke' used to distil schnapps
BBC's The Secret History of Our Streets reveals a fascinating window into Britain's past

BBC takes viewers back down memory lane

The Secret History of Our Streets, which returns with three films looking at Scottish streets, is the inverse of Benefits Street - delivering warmth instead of cynicism
Joe, film review: Nicolas Cage delivers an astonishing performance in low budget drama

Nicolas Cage shines in low-budget drama Joe

Cage plays an ex-con in David Gordon Green's independent drama, which has been adapted from a novel by Larry Brown
How to make your own gourmet ice lollies, granitas, slushy cocktails and frozen yoghurt

Make your own ice lollies and frozen yoghurt

Think outside the cool box for this summer's tempting frozen treats
Ford Fiesta is UK's most popular car of all-time, with sales topping 4.1 million since 1976

Fiesta is UK's most popular car of all-time

Sales have topped 4.1 million since 1976. To celebrate this milestone, four Independent writers recall their Fiestas with pride
10 best reed diffusers

Heaven scent: 10 best reed diffusers

Keep your rooms smelling summery and fresh with one of these subtle but distinctive home fragrances that’ll last you months
Commonwealth Games 2014: Female boxers set to compete for first time

Female boxers set to compete at Commonwealth Games for first time

There’s no favourites and with no headguards anything could happen
Five things we’ve learned so far about Manchester United under Louis van Gaal

Five things we’ve learned so far about United under Van Gaal

It’s impossible to avoid the impression that the Dutch manager is playing to the gallery a little