West & Smith's Law of Dilapidations

PF Smith, William Anthony West

• Publisher: Estates Gazette
• Year: 2017
• ISBN:
  9781135322212
• Edition: 11
• Topic: Law
• Subtopic: Property Law
• Index: Law

Discusses the legal principles governing dilapidated premises. This book examines the express implied and statutory repairing obligations of landlord and tenants. It looks at the remedies which are available to both parties to a lease if a repairing obligation is broken. It is useful for both professionals and students in the dilapidations field.

Chapter 1
Introduction

I - Overall review of aspects of the current law

This book examines the English and Welsh legal principles which apply when property falls into disrepair. The importance of these is considerable. The government, in connection with housing policy, has admitted that: "a sizeable minority of people face severe problems with housing".¹ Some of the best known problems have been highlighted in the residential sector. The Law Commission, in a fairly recent and comprehensive report,² cited two cases concerned with council properties whose results were unfortunate. In one,³ the tenant's house was affected by severe condensation dampness. The council landlord was not liable under the statutorily implied covenant applying to short residential tenancies⁴ to cure this state of affairs because the property was not in disrepair. The house, as designed, was unfit for the demands of modern living which had increased the risks of the release of condensation-producing humidity.

The other case⁵ concerned the tenant of a council flat which was cockroach-infested. This state of affairs lasted for some five years. Though the local authority required the landlords to abate it as amounting to a "statutory nuisance", the tenant was unable to recover any damages for her losses and inconvenience, a sum estimated at £10,000. The premises were not in disrepair.

A third case⁶ further illustrates possible defects in the law. A council tenant whose flat suffered from serious condensation was held unable to bring an action against his landlord in tort, notwithstanding that the insulation and ventilation of this flat was inadequate to modern living requirements. This was owing to the fact that there is no rule in tort against a landlord letting a house in a state unfit for human habitation.⁷ The landlord did not design or build the flat - so closing off that ground of action for the tenant.⁸ The premises were not in disrepair, so precluding any action by the tenant in respect of the implied statutory obligation imposed on landlords.⁹

The way repairs and maintenance of commercial premises are resolved by the law, although much less controversial than in the residential sector, is not free from difficulty. In relation to a business lease, freedom of contract prevails.¹⁰ The wording of individual repairing obligations is vital. This point is further considered later in this Chapter.

II - Some statistics

The statistical background against which the law operates is a good indication of the context of the rules governing dilapidations.¹¹ During the period 1970-1974, a survey was carried out of a sample size of 510 defective buildings by the Building Research Establishment.¹² It examined a selection of residential premises such as council houses, council flats, private houses and also premises such as offices, schools, universities and churches. It found that among the commonest defects in housing were condensation, rain penetration and cracking. Rain penetration, for example, affected some 38% of council flats and 33% of private houses. Condensation affected 59% of council houses but only 18% of private houses.¹³ About 58% of all defects were ascribed to faulty design, such as a failure to follow the criteria laid down in the relevant building regulations. A further 35% of defects were blamed on faulty execution, whereas only 12% were attributed to faulty materials and the like.¹⁴

A more recent survey of common defects in low-rise traditional housing¹⁵ disclosed a list of defects such as insufficient wall ties, poor quality of mortars or bricks in the substructure, lack of damp proofing, faults in air-bricks, defective pipes and gutters, as well as insufficiently deep foundations for porches as opposed to the main house. Once again, many of these defects were put down to failure to comply with building regulations. A further survey revealed that at that time an estimated two million dwellings in England, mainly in the public and private rented sectors, might have serious damp problems.¹⁶

III - The specific problem of dampness

The English Housing Survey of 1996¹⁷ confirms that dampness is and remains one of the most common reasons for housing unfitness.¹⁸ Damp¹⁹ which is not cured may have a number of nefarious results. Thus, it can lead to structural deterioration; it will result in the decay of wood and will spoil decorations. It can also be dangerous to health owing to mould growth. Dampness may, in particular, manifest itself as rising damp or be the result of condensation. While a freehold owner can be compelled to remedy a damp condition if it amounts to a "statutory nuisance", it must be such as to injure the health of an occupying tenant. Moreover, enforcement depends on the discretion of a local authority, which may decide not to prosecute the owner in question.

If the damp premises are held on a lease or tenancy, one or other party to the lease may be under a covenant to keep the premises in repair. If the tenancy is for a term of less than seven years and the property is a dwelling-house or flat, the landlord is under a statute-implied covenant to keep the structure and exterior of the dwelling-house in repair.²⁰ However, since liability to carry out remedial work is dependent on a number of factors, notably that the party seeking to render the other liable must prove that the premises are out of repair,²¹ there is no guarantee that dampness will be remedied under a repairing obligation. If the dampness is the result of condensation caused by modern living styles and there is no item in the premises which is physically out of repair or damaged as a result of the condensation whose replacement would be required under a repairing covenant, a landlord, as already seen, cannot be compelled to cure the fact that it may be owing to the inadequacy of the design of the premises for modern living that condensation has become a problem. If the cause of the dampness is found to be the absence of a damp-proof course in the premises, as where they were built at a time before such treatment came into being, owing to the fact that a covenant to repair does not require a landlord to improve the design of the demised premises beyond their original construction, the landlord is not liable to insert a new damp-proof course, even if thereby a problem of rising damp would be cured.²² Since, however, a covenant to repair requires the party liable to make good a damaged item so that, after the remedial work, the item is in as good as condition as it would have been if it had not been physically damaged,²³ the landlord of flats whose damp-proof course had failed had to replace it with a new and better-designed damp-proof course than the item which had failed - even though some minor structural work would be involved.²⁴

The traditional approach of English law to promoting property maintenance in the case of landlord and tenant is by means of express repairing covenants. Sometimes the lease or tenancy is silent as to repairs. In that case, implied obligations need to be considered.

IV - Implied covenant route

The courts are reluctant to imply any covenants into leases. This is largely owing to the survival of the caveat emptor principle - which is that the tenant takes the premises as he or she finds them - a result leading to what Lord Hoffmann characterised as the "bleak laissez faire" of the common law.²⁵ If parties wish to provide for the carrying out of repairs to demised premises, they must do so by suitable terms. The court will not insert any bargain they have not made into a lease.²⁶ If a lease or tenancy agreement would be unworkable without an implied repairing obligation by the landlord or tenant, the court is able under the guise of "business efficacy" to imply the minimum obligation needed to make the lease work.

Thus, a weekly statutory tenancy, entered into prior to the commencement of legislation²⁷ imposing specific repairing obligations on landlords, cast on the tenant an express obligation to keep the interior of the house concerned in repair but no correlative obligation on the either party to keep the exterior in repair. The landlord was held to be the appropriate person, as having more resources than the tenant, on whom to impose the latter obligation by implication, otherwise the tenant could not comply with her obligation, given the damp state of the property.²⁸ The narrowness of the power of the courts to imply repairing obligations is shown by the fact that the oc...

Table of contents

• Cover
• Title
• Copyright
• Foreword
• Preface
• Contents
• Select bibliography
• Table of cases
• Table of statutes
• Chapter 1. Introduction
• Chapter 2. Waste
• Chapter 3. Implied obligations of landlord and tenant as to repair and fitness
• Chapter 4. Repairing obligations of landlords
• Chapter 5. Express repairing obligations of tenant
• Chapter 6. Landlord's remedies for tenants' breaches of repairing obligations
• Chapter 7. Forfeiture for breach of covenant to repair
• Chapter 9. Insurance and reinstatement of premises
• Chapter 10. Liability to repair imposed by statute
• Chapter 11. Party walls and dangerous structures
• Chapter 12. Agricultural dilapidations
• Chapter 13. Third party rights and liabilities
• Chapter 14. Miscellaneous aspects
• Index