Campden Hill Towers Ltd v Gardner
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW |
| Judgment Date | 24 November 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J1124-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 November 1976 |
[1976] EWCA Civ J1124-4
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: His Honour Judge Leslie - Bloomsbury and Marylebone County Court)
Lord Justice Megaw
Lord Justice Scarman and
Lord Justice Browne
Mr. JOHN STUART COLTER, Q.C. and Mr. ROBERT PRYOR (instructed by Messrs. Thornton Lynne & Lawson) appeared on behalf of the Appellants (Plaintiffs).
Mr. DEREK WOOD (instructed by Messrs. Allen & Son) appeared on behalf of the Respondents (Defendants).
The judgment which I am about to read is the judgment of the Court.
This appeal raises questions as to the meaning and effect of section 32 of the Housing Act, 1961.
By an underlease dated 3rd July, 1968, the first plaintiffs, Campden Hill Towers Ltd., let a third floor flat, No. 20, in a block of flats known as Gate Hill Court to Miss Lawson and Miss Field. During the currency of the underlease, the second plaintiffs, Davstone (Holdings) Ltd., took over the interests of the first plaintiffs in Gate Hill Court and another, adjacent, clock known as Campden Hill Towers. They became the lessors in the underlease. Miss Lawson married Mr. Gardner and he and she became the lessees. They are the defendants. For the purposes of this appeal, there is no need to distinguish between the first and second plaintiffs. In so far as the defendants are liable, there is no dispute as to the proportion of their liability as between the first and second plaintiffs. We shall call the plaintiffs "the lessors" and the defendants "the lessees".
The proceedings in the Bloomsbury and Marylebone County Court, as they ultimately emerged, consisted of an action by the lessors against the lessees for the recovery of so-called "service charges" totalling £197.22 in respect of the years ending 31st March, 1973, and 31st March, 1974. The claim was based on a covenant in the underlease, clause 4 (2). The defendants relied on the provisions of section 32 of the Housing Act, 1961, in support of their contention that the plaintiffs were not entitled to recover from them the whole of the sum claimed.
Section 32 (1) of the Housing Act, 1961 , provides: "In any lease of a dwelling-house, being a lease to which this section applies, there shall be implied a covenant by the lessor (a) tokeep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes); and (b) to keep in repair and proper working order the installations in the dwelling-house (i) for the supply of water, gas and electricity, and for sanitation (including basins, sinks, baths and sanitary conveniences but not, except as aforesaid, fixtures, fittings and appliances for making use of the supply of water, gas or electricity and (ii) for space heating or heating water; and any covenant by the lessee for the repair of the premises (including any covenant to put in repair or deliver up in repair, to paint, point or render or to pay money in lieu of repairs by the lessee or on account of repairs by the lessor) shall be of no effect so far as it relates to the matters mentioned in paragraphs (a) and (b) of this sub-section".
The first issue raised in the County Court was the lessors' contention that the underlease was not a lease to which that section applies. In this Court we are not concerned with that issue. In his judgment delivered on 23rd October, 1975, Judge Leslie rejected that contention. While the lessors in their notice of appeal disputed that rejection, that part of the appeal was not pursued on their behalf in this Court. Hence it is accepted on behalf of the plaintiffs, and we need not consider the reasons, that this underlease is a lease to which section 32 applies, as the defendants contended.
For the purpose of considering the issue which does arise in the appeal, it is necessary to have in mind the definition of "dwelling-house" for the purpose of section 32, as given in subsection 5 thereof. Sub-section 5 reads: "'Lease of a dwelling-house' means a lease whereby a building or part of a building is let wholly or mainly as a private dwelling, and 'the dwelling-house' means that building or part of a building".
It follows that the relevant "dwelling-house", in this case, for the purposes of section 32 (1), is the third floor flat, No. 20, in the building, Sate Hill Court, For that flat is the relevant "part of a building" which is let as a private dwelling. The block of flats is not the "dwelling-house"; the individual flat is the dwelling-house.
Section 32 (1) provides that in the underlease here in question there shall be implied a covenant by the lessors in the terms of paragraphs (a) and (b), whatever they comprise, and that any covenant inconsistent therewith - that is, purporting to remove from the lessors, or to reduce, the obligations comprised in the paragraphs - shall be ineffective. The sub-section does not purport to render ineffective a covenant putting on the lessees any obligation as to repairs outside the scope of paragraphs (a) and (b).
But section 32 (1) goes further. By the latter part of the sub-section, it renders ineffective "any covenant by the lessee for the repair of the premises (including any covenant….to pay money,….on account of repairs by the lessor)….so far as it relates to the matters mentioned in sub-paragraphs (a) and (b) of this subsection".
The intention and effect of these provisions, particularly as regards covenants to pay money, are, in some respects, obscure. For example, much argument was devoted, before us, to the intended meaning of the words "the premises". What do those words mean? In particular, what do they mean in relation to the facts of the present case, where the "dwelling-house" for the purposes of the subsection is a single flat in a block of flats, and where, further, the relevant covenant in the underlease is concerned with, amongst other things, repairs to two blocks of flats and also other buildings? However, in view of the concluding words of the sub-section, we do not think that it matters for the decision in this case howwide or how narrow a meaning ought to be given to "the premises" as used in the sub-section: for the concluding words in any event limit the "no effect" of the covenant to the covenant "so far as it relates to the matters mentioned in paragraphs (a) and (b)"; and those paragraphs refer to "the dwelling-house", not "the premises".
There are other aspects also of the provisions of section 32 (1) relating to covenants for the payment of money which we find obscure. But it is not necessary for us to try to find light in those dark places; because, as we understand it, it is common ground that the covenant with which we are concerned, clause 4 (2) of the underlease, incorporating the third schedule thereto, is a covenant which in some degree is affected by this provision of section 32 (1). It is accepted that it is a covenant "by the lessee for the repair of the premises". It is a covenant which, in some of its terms, provides for the payment of money "on account of repairs by the lessor". It is a covenant which in some degree "relates to the matters mentioned in paragraphs (a) and (b) of the subsection". The question is: "in what degree?". That involves examination of the meaning of the paragraphs.
It is not necessary to set out the provisions of the underlease in detail. By clause 1 (1) (e), "the premises" are defined for the purposes of the underlease (not, of course, for the purposes of the statute) as "the blocks of residential and other accommodation…. known,….as Gate Hill Court and Campden Hill Towers", So "the premises" include, not only the whole block of flats in which the relevant flat, "the dwelling-house", is situated, but also other property including another block of flats.
Clause 2 contains the demise. What is demised is "All that flat….numbered 20 and being on the third floor of the said Gate Hill Court….(but so that this demise shall not include any part of the outside walls or roof thereof) together with the Landlord'sfixtures and fittings installed therein And together also with the rights and privileges specified in the First Schedule hereto…."
So the demise expressly excludes any part of the outside walls. The first schedule gives the lessee rights of way and the right to have free and uninterrupted passage of water, gas, electricity, telephone, etc.
Clause 2 further provides for the yearly rent of £460, "and also by way of further rent the service charge as is more particularly hereinafter set out".
The "service charge" is dealt with by long and complex provisions in clause 4 (2). It would appear that there were, in all, 140 flats in "the premises" as defined. The lessees covenanted to pay in each year one-140th part of the total of any increase in the costs incurred by the lessors in respect of the items of expenditure mentioned in the third schedule, together with an additional 25 per cent, of such amount as a reserve fund. The "increase" in question was an increase over the costs which had been incurred by the lessors in respect of the same items in the year ended 51st March, 1961.
It is accepted by both parties that, to the extent that this "service charge" involves payment by the lessees in respect of matters which, on the true construction of paragraphs (a) and (b) of section 32 (1), fall within these paragraphs, the lessors cannot require payment by the lessees. To that extent the covenant for the "service charges" is unenforceable. But to the extent that the service charges relate to matters outside the scope of paragraphs (a) and (b), the covenant is enforceable and the...
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