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
Start your day with The Independent, sign up for daily news emails
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

Recruitment Genius: Office Manager

Negotiable: Recruitment Genius: Have you been doing a brilliant job in an admi...

Surrey County Council: Senior Project Officer (Fixed Term to Feb 2019)

£26,498 - £31,556: Surrey County Council: We are looking for an outgoing, conf...

Recruitment Genius: Interim Head of HR

£50000 - £60000 per annum: Recruitment Genius: Are you an innovative, senior H...

Recruitment Genius: Human Resources and Payroll Administrator

£20000 - £22000 per annum: Recruitment Genius: Our client, a very well respect...

Day In a Page

HIV pill: Scientists hail discovery of 'game-changer' that cuts the risk of infection among gay men by 86%

Scientists hail daily pill that protects against HIV infection

Breakthrough in battle against global scourge – but will the NHS pay for it?
How we must adjust our lifestyles to nature: Welcome to the 'Anthropocene', the human epoch

Time to play God

Welcome to the 'Anthropocene', the human epoch where we may need to redefine nature itself
MacGyver returns, but with a difference: Handyman hero of classic 1980s TV series to be recast as a woman

MacGyver returns, but with a difference

Handyman hero of classic 1980s TV series to be recast as a woman
Tunnel renaissance: Why cities are hiding roads down in the ground

Tunnel renaissance

Why cities are hiding roads underground
'Backstreet Boys - Show 'Em What You're Made Of': An affectionate look at five middle-aged men

Boys to men

The Backstreet Boys might be middle-aged, married and have dodgy knees, but a heartfelt documentary reveals they’re not going gently into pop’s good night
Crufts 2015: Should foreign dogs be allowed to compete?

Crufts 2015

Should foreign dogs be allowed to compete?
10 best projectors

How to make your home cinema more cinematic: 10 best projectors

Want to recreate the big-screen experience in your sitting room? IndyBest sizes up gadgets to form your film-watching
Manchester City 1 Barcelona 2 player ratings: Luis Suarez? Lionel Messi? Joe Hart? Who was the star man?

Manchester City vs Barcelona player ratings

Luis Suarez? Lionel Messi? Joe Hart? Who was the star man at the Etihad?
Arsenal vs Monaco: Monaco - the making of Gunners' manager Arsene Wenger

Monaco: the making of Wenger

Jack Pitt-Brooke speaks to former players and learns the Frenchman’s man-management has always been one of his best skills
Cricket World Cup 2015: Chris Gayle - the West Indies' enigma lives up to his reputation

Chris Gayle: The West Indies' enigma

Some said the game's eternal rebel was washed up. As ever, he proved he writes the scripts by producing a blistering World Cup innings
In Ukraine a dark world of hybrid warfare and murky loyalties prevails

In Ukraine a dark world of hybrid warfare

This war in the shadows has been going on since the fall of Mr Yanukovych
'Birdman' and 'Bullets Over Broadway': Homage or plagiarism?

Homage or plagiarism?

'Birdman' shares much DNA with Woody Allen's 'Bullets Over Broadway'
Broadchurch ends as damp squib not even David Tennant can revive

A damp squib not even David Tennant can revive

Broadchurch, Series 2 finale, review
A Koi carp breeding pond, wall-mounted iPads and a bathroom with a 'wellness' shower: inside the mansion of Germany's 'Bishop of Bling'

Inside the mansion of Germany's 'Bishop of Bling'

A Koi carp breeding pond, wall-mounted iPads and a bathroom with a 'wellness' shower