Gavin and Another (Claimants/Appellants) v Community Housing Association Ltd (Now one Housing Group Ltd)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lady Justice Black,Lord Justice Mummery |
| Judgment Date | 24 May 2013 |
| Neutral Citation | [2013] EWCA Civ 580 |
| Date | 24 May 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2010/2396 |
[2013] EWCA Civ 580
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HH JUDGE COWELL
CHY09015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Patten
Lady Justice Black
Case No: B5/2010/2396
Ms Jo Flores (Gavin) appeared in person for Appellants
Ms Zia Bhaloo QC (instructed by Bircham Dyson Bell LLP) for the Respondent
This is an appeal by Ms Jo Flores (formerly Ms Jo Gavin) and Ms Chantal Cracy against an order of HH Judge Cowell dated 22 nd September 2010 which was made at the conclusion of proceedings in the Central London County Court.
Ms Flores is the tenant of commercial premises at 104, Cromer Street, London, WC1 ("104") under a lease from the Respondent, Community Housing Association Limited ("CHAL"), dated 8 th June 2000. Together with Ms Cracy she is also the tenant of adjoining premises at 106/108 Cromer Street ("106") under a lease from CHAL dated 17 th March 2005. The lease of 104 was granted for a term of 6 years from 8 th June 2000 at an initial rent of £5,500 per annum subject to review. The lease of 106 was granted for a term of two years from 8 th April 2004 and was then extended on 17 th March 2005 for a term until 7 th April 2014 at an initial rent of £9,000 per annum again subject to review.
The demise under both leases comprised the ground floor and basement of the premises including internal plaster; ceiling and floor coverings; doors and windows; and all conduits within the demised premises. It did not extend to any part of the upper floors of 104 and 106 which have been converted into residential flats and have been let as such by CHAL. Nor did it include the soil pipes on the rear wall of the building which serve the upper part of the premises.
Under both leases the tenants covenanted to put and keep the demised premises in good and substantial repair, decoration and condition (clause 5(6)(b)) and to decorate them every three years (clause 5(6)(c)) but there is no corresponding covenant by CHAL as landlord to repair those parts of the building which it has retained. Instead its only express covenants are that the tenant should have quiet enjoyment of the demised premises (clause 7(1)) and an insurance covenant (clause 7(2)) which (so far as material) is in these terms:
"To insure the Demised Premises and the Development in an insurance office of good repute or at Lloyds against the Insured Risks and in the event of the Demised Premises being destroyed or damaged by any of the Insured Risks the Landlord shall with all convenient speed (subject to the availability of all necessary labour and materials and the obtaining of all necessary permissions) lay out and apply in rebuilding repairing or otherwise reinstating the Demised Premises all monies received by virtue of such insurance other than monies received in respect of loss of rent Provided that the Landlord shall be under no liability to the Tenant hereunder if the insurance money under any policy of insurance effected by the Landlords shall be wholly or partially irrecoverable in the circumstances set out in 5(22) above….".
The "insured risks" are defined by clause 1(11) to mean:
"loss or damage by or in consequence of fire and such other risks as the Landlord may deem desirable or expedient including three years loss of rent and architects and surveyors fees and demolition clearance and similar expenses."
Clause 5(22) provides that:
"In the event of the Demised Premises or the building in which they are situate or any neighbouring premises or any of them or any part thereof being destroyed or damaged by any of the Insured Risks and the insurance money under any policy of insurance effected thereon by the Landlord being by reason of any act neglect default or omission of the Tenant wholly or partially irrecoverable forthwith in every such case to pay to the Landlord on demand the cost of rebuilding and reinstating the building or buildings so destroyed or damaged such rebuilding works to be carried out by and in accordance with the requirements of the Landlord and the Tenant being allowed towards the expenses of so doing (upon such rebuilding and reinstatement being completed) the amount (if any) actually received by or on behalf of the Landlord (other than in respect of loss of rent) under any such insurance as aforesaid in respect of such destruction or damage."
Under the heading "Landlord's Liability" clause 6(5)(a) also provides that:
"In any case where the facts are or should reasonably be known to the Tenant and not reasonably known by the Landlord the Landlord shall not be liable to the Tenant in respect of any failure of the Landlord to perform any of its obligations to the Tenant hereunder whether express or implied unless and until the Tenant has notified the Landlord of the facts giving rise to the failure and the Landlord has failed within a reasonable time to remedy the same."
In addition to these provisions clause 6(3) of each lease contains a cesser of rent clause in the following terms:
"If the Demised Premises or any part thereof shall be destroyed or so damaged by fire or any other risk for which the Landlord is indemnified under the insurance of the Demised Premises so as to be unfit for occupation or use then unless the insurance of the Demised Premises shall have been vitiated by the act neglect default or omission of the Tenant the rent hereby reserved or a fair and just proportion thereof according to the nature and extent of the damage sustained shall be suspended and cease to be payable until the Demised Premises or damaged portion thereof shall have been reinstated or made fit for occupation or until the third anniversary of such destruction or damage whichever shall be the sooner."
There is also the usual proviso for re-entry in the event of rent being unpaid for 21 days or of any breach of the tenant's covenants: see clause 6(1).
The appellants fitted out the demised premises at some expense for use as gallery space and, as part of their business, let out part of the area for exhibits and other commercial events. But on at least four occasions between April 2004 and June 2005 the interior of the demised premises was damaged by the ingress of water and on two occasions sewage from the parts of the building retained by CHAL. The judge found that in April 2004 gaps between the glass pavement lights above the basement of 106 let water through. They were repaired in September 2004 and in January 2006 an insurance payment of £150 was made in respect of the damage. In September 2004 one of the soil pipes carrying sewage from the flats above leaked and sewage permeated the rear wall of 104. The leak was remedied by the landlord's contractors on 31 st January 2005 and part of the wall was then replaced. A further insurance payment was made in respect of the damage.
On 7 th February 2005 there was then another leak from a stack pipe on the rear wall of 106 which was repaired on 26 th April 2005. Again this would have resulted in an insurance payment but for the excess on the policy of £100. Finally on 24 th June 2005 water from a tap or leaking pipe in one of the flats above 104 inundated the demised premises about a week before an art exhibition was due to be held. It necessitated the replacement of the ceiling (which was completed in October 2005). The cost of those works was met by the insurers and the appellants received a cheque direct from the insurers of £3,141.65 for this leak plus the other matters referred to.
The judge found that all of these leaks (including the defective pavement lights) emanated from the premises retained in the ownership of CHAL. But, in the absence of any express repairing covenant in respect of its adjoining premises, CHAL contended that it had no liability to the appellants beyond being required to lay out payments received from the buildings insurance it had taken out pursuant to clause 7(2) of the leases in the repair of the damage to the demised premises which had been caused. It is common ground that this was done.
Until June 2008 the appellants continued to pay the rent due under both leases but the rent due on the June quarter day was not paid and, as a result, CHAL served notices in respect of both leases that unless payment was received within 7 days it would proceed to re-enter and forfeit the leases. The rent due on 29 th September also went unpaid and the landlord served further notices of its intention to forfeit the leases. The appellants responded through their solicitors to the effect that they had no liability for rent for those quarters because they had continued to pay rent in 2005 when the demised premises had been unfit for occupation within the meaning of the cesser of rent clause contained in clause 6(3) of the two leases. As a consequence, they contended that they were entitled to recover the rent paid (but not due) during this period and to set off the relevant amount against the rent due in September and October 2008.
On 29 th October 2008 CHAL re-entered 104 and 106 and changed the locks. On 4 th November Wilkie J. granted the appellants an injunction ex parte requiring CHAL to allow them back into possession and this injunction was continued until trial by Christopher Clarke J. on 14 th November. The landlord's case at the inter partes hearing (and on this appeal) is that the appellants have no claim in restitution or otherwise to recover the rent which...
To continue reading
Request your trial
-
John Michael Stratton and Another v Mahesh Shantilal Patel MP Building Ltd (Third Party)
...difficulties in the light of the Court of Appeal decision in Gavin v One Housing Group (Formerly Community Housing Association) Ltd [2013] EWCA Civ. 580; [2013] 2 P. & C. R. 332. However in my judgment it is not necessary for me to grapple with these not insubstantial legal difficulties (ac......
-
Stonecrest Marble Ltd v Shepherds Bush Housing Association Ltd
...for the landlord to allow the retained part to become out of repair.” 20 In Gavin & Anor v Community Housing Association Limited [2013] EWCA Civ 580 Patten LJ held [at 31] that the obligation to take reasonable care arises in contract as an implied term, rather than in tort. However, “the ......
-
Overriding Interest
...ensures that it clarifies who is responsible for repairing various parts of the building. Gavin v Community Housing Association [2013] EWCA Civ 580 Holding Over: The Risk for Tenants The landlord, Barclays Wealth Trustees, had granted a five year lease to Erimus. Erimus remained in occupati......