Irene King v South Northamptonshire District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANN,SIR GEORGE WALLER |
| Judgment Date | 12 November 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1112-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/1027 |
| Date | 12 November 1991 |
[1991] EWCA Civ J1112-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE WILSON)
Royal Courts of Justice
Lord Justice Mann
Sir George Waller
91/1027
MR ANDREW GORDON-SAKER, instructed by Messrs Shoosmiths & Harrison (Northampton), appeared for the Appellant (Defendant).
MR JULIAN MATTHEWS, instructed by Messrs Smith Chamberlain (Wellingborough), appeared for the Respondent (Plaintiff).
This is an appeal against a decision of His Honour Judge Wilson given in the Northampton County Court on 4th October 1990. The appellant is the South Northamptonshire District Council, who were the defendants in an action brought against them by the respondent, who is Mrs Irene King. By his decision the judge ordered the appellants to repair a certain rear access path and to pay to the respondent £750 as general damages for breach of covenant to repair that path. He also made a consequent order as to costs.
There is no dispute as to the primary facts. Mrs King has since 1967 been the weekly tenant of a house at 69 Forest Road, Piddington. That house is owned by the appellant in its capacity as housing authority. As is commonplace with Council lettings there is no written tenancy agreement, but both parties have assumed, and rightly so in my judgment, that the Council's standard conditions of tenancy apply. Those conditions, again as is commonplace in relation to Council lettings, impose no obligations upon the landlord, but they do impose obligations upon the tenant. However, there is not amongst those imposed obligations any repairing covenant by the tenant. The tenant does, however, covenant to provide access to the landlord for the purpose of repair.
The house is upon an estate. That estate is laid out in terraces of two and four houses. No. 69, when viewed from the front, is the third house in a terrace of four, numbered 65 to 71. No. 69 has, as do the others, a rear door. A path, which can be reached from the rear door, runs from the rear of No. 69 across the rear of No. 71, to join at right-angles a path to Forest Road running between No. 71 and No. 73, which is the first house in the next terrace.
Nos. 71 and 73 were sold by the Council to the sitting tenants in 1981, no doubt under the right to buy legislation. Under the transfers, the ownership of the path across the rear of No. 71 passed to the new owner and the ownership of the path between Nos. 71 and 73 was divided laterally between the two new owners, each enjoying a right of way over the half not in his ownership.
Mrs King in her action claimed a right of way over the paths which she said she had used since 1967. I should say, although I do not think it of significance in law, that the path and its condition have become of importance to Mrs King because she has had the misfortune to become a victim of rheumatoid arthritis and for the last five years has had to use a wheelchair. This is difficult to use through the front door of No. 69, partly because of the internal arrangement of the house and partly because of an installed stair lift. Accordingly she has had to use the rear access to reach Forest Road by means of the path. The path, insofar as it comprises the length running between Nos. 71 and 73, is in a bad state of repair and the plaintiff has found that to use that path in her wheelchair is both painful and dangerous.
In her action, Mrs King claimed a mandatory injunction and damages for pain, suffering, inconvenience and distress. The learned judge found that there was granted to her upon the grant of the tenancy a right of way over the path. He based his conclusion upon section 62 of the Law of Property Act 1925, which provides that on a demise there shall pass appurtenant rights and easements. The judge also found that it was an implied term of the tenancy that the Council would repair the path, that it was in breach of that implied term, and that it was also in breach of a term implied by statute. The statutory term is the term now contained in section 11 of the Landlord & Tenant Act 1985, which re-enacts section 32(1) of the Housing Act 1961. The judge made no finding on an alternative claim by reference to section 4(4) of the Defective Premises Act 1972. In regard to that there is no respondent's notice, but I shall comment upon it later.
The judge's conclusion that a right of way over the path passed with the demise to the plaintiff in 1967 is not now challenged. Nor is it challenged that the path is out of repair. The issue on this appeal is, narrowly, as to whether the judge was right in holding that the appellants were under an obligation to repair the path. The appellants' case is that they were not. They say that it was wrong to imply a covenant for repair in principle and that there is no applicable exception to that principle. They say further that there was no breach of the statutory covenant because the circumstances in which that covenant can be broken did not here arise.
I approach the problem from the basis that the expressed terms of the tenancy, as derived from the conditions of tenancy, were incomplete. They were incomplete because they lacked any obligation upon the landlord at all. In order to give the arrangement a necessary bilateral character, the landlord's obligations have to be derived by implication of law. That exercise is of course an exercise for the purpose of completing an agreement as of 1967. It is in regard to affairs as they then stood that one must look. What has happened since that time, whether it be the alienation of the path or the misfortune which has befallen the plaintiff, is of no materiality.
As a matter of general law, it is not to be implied that there is an obligation upon a landlord to maintain retained land over which a right has been granted to the tenant. That is not in dispute. To that general proposition there is an exception, the germ of...
To continue reading
Request your trial