Joseph Dayani (Plaintiff) v London Borough of Bromley
| Jurisdiction | England & Wales |
| Judgment Date | 12 November 1999 |
| Judgment citation (vLex) | [1999] EWHC J1112-10 |
| Docket Number | 1996 ORB 1077 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 November 1999 |
[1999] EWHC J1112-10
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
JUDGMENT OF HH JUDGE HARVEY Q.C.
1996 ORB 1077
1999 TCC 2
The subject-matter of this action is three leases of dwellings which were granted by the claimant to the defendant local authority. The defendant took the leases to enable it to use the dwellings to house homeless people pursuant to its obligations under the Housing Act 1985. The leases were for fixed terms of 156 weeks and, apart from the identities of the premises, the dates and the rents they were in identical terms. I have to decide two preliminary issues.
The First Issue
The first issue is whether the last nine words of clause 2.2 are effective to limit the amount of damages recoverable for breach of that clause to the amount of eight weeks' rent.
By clause 2.2, the tenant covenanted as follows:-
To keep or cause to be kept the interior of the Property in tenentable repair (reasonable wear and tear and damage by an insured risk excepted) and at the determination of this Agreement to give back the Property in such condition as it was in on entering such condition being set out in the Schedule of Condition (reasonable wear and tear and damage by an insured risk excepted including chipped paintware, some marks on walls, etc.), up to a maximum value of eight weeks rent.
The clause contains two obligations: first, to keep the interior of the property in tenantable repair; and second, to give back the property in such condition as it was in on entering. Both those obligations contain parenthetical exceptions. Ignoring the last nine words, the clause is meaningful and clear. It cannot be that either of those obligations is qualified by the last nine words. That would make no sense at all.
Syntactically, the last nine words cannot possibly qualify the first parenthetical exception. If one were to move the second closing bracket from its existing position to the end of the clause, then the last nine words could syntactically govern the second parenthetical exception. The wording would still be infelicitous. One could read it as providing that there is a breach of the second obligation if the cost of remedying reasonable wear and tear in such a manner as to put the property in such condition as it was in on entering exceeds the value of eight weeks' rent. In that case, however, the syntax would also require that the exception of damage by an insured risk would likewise be limited. That would appear to make no commercial sense.
Mr Edwin Buckett, counsel for the defendants, expressly disclaimed that approach. He submitted that the last nine words of the clause did not qualify the words in brackets. He submitted that any reasonable person would read the clause as limiting the liability of the tenant to the landlord. The landlord knew that the properties were to be let as short term lets for homeless people, at a modest rent with short notice periods (twelve weeks). Clearly it was contemplated that there might well be some damage to the property by the nature of the letting and it was liability for that that was sought to be limited by clause 2.2. He submitted that the clause should be read as though the last nine words were replaced by the words "The tenant's liability for breach of this clause shall be limited to a maximum value of eight weeks' rent". I see no reason to suppose that the intention was to limit the tenant's liability. The clause is not ostensibly a clause relating to damages. The background referred to by Mr Buckett could in my judgment equally well justify a limitation of the exception rather than of the tenant's liability.
The primary submission of Mr Barry Denyer-Green, counsel for the claimant, was that the nine words were meaningless and could be disregarded as superfluous. His fall back position was that they limited a dilapidations claim for loss of rent arising during a period when repairs were carried out to the value of eight weeks' rent.
Mr Buckett submitted that if the last nine words were meaningless, the whole clause should be struck down.
I find that the nine words in question are unintelligible in this context. I cannot find any meaning that is plausible. A clause that is meaningless can be ignored. I have to decide whether the nine words should be ignored or the whole clause. I have no hesitation in concluding that the rest of the clause, which must at least approximate to the parties' intentions, must stands. To strike it down would surely depart further from their intentions than to strike down the nine words. Thus clause 2.2 is to be construed as though the last nine words were not there.
The Second Issue
The second issue is whether the tenant under the leases in question can be liable for permissive waste.
The tenancies in question were for fixed terms. It follows that the defendant was a tenant for years: see Woodfall on Landlord and Tenant, release 41, paragraph 6.010. It is there stated that every estate which must expire at a period certain and pre-fixed, by whatever words created, is an estate for years. A leasehold interest may be a term of years, even though it is for less than two years. Those propositions were not in issue.
In this judgment I have to quote a number of ancient statutes. I use the translations contained in Statutes of the Realm, volume 1, 1810. That work was prepared by the Record Commissioners set up by royal command pursuant to an address of the House of Commons. A description of the publications of the statutes and a history of the various translations into English, the first of which date from the early 16th century, are contained in chapter I, section I of the introduction. The sources of the text are given in chapter III, section II of the introduction. There is a useful explanation of the contractions used by the early scriveners and later printers at appendix D to the introduction. The Commissioners compared the various printed and manuscript texts of each statute, which are not always by any means identical, and produced or used translations which they considered best fitted to the available source material. Those translations I regard as definitive. They are expressed in somewhat archaic language, and I have made, here and elsewhere in this judgment where I have quoted archaic English, minor amendments to put them into modern English, without altering the sense.
The Statute of Marlborough, 1267, chapter 23, section 2, provides as follows:
Also farmers, during their terms, shall not make waste, sale or exile of house, woods, men, or of anything belonging to the tenements that they have to farm, without special licence had by writing of covenant, making mention that they may do it; which thing if they do, and thereof be convicted, they shall yield full damage and shall be punished by amerciament grievously.
The Commissioners noted that the word "house" should read "houses".
The statute was commented upon by Lord Coke, C.J., in Part 2 of his Institutes of the Laws of England, (the ed. of W Clarke & Sons 1817 p.145) as follows:
The mischief before this statute was, that against lessees for life or years, there lay no prohibition of waste at the common law, because they came in by the act of the lessor, and he might have provided upon the making of the lease, against waste to be done, and him that might and would not provide for himself, the common law would not provide for: otherwise it is of estates created by law, as tenant in dower, and the guardian; but seeing waste and destruction is hurtful to the commonwealth, this act provides remedy for waste done by lessee for life, or lessee for years, and it is the first statute that gave remedy in those cases: for the rule of the Register is, that there are five manner of writs of wastes, viz. two at the common law, as for waste done by tenant in dower, or by the gardian; and three by statute, or special law, as against tenant for life, tenant for years, and tenant by the curtesy.
He said that firmarii (farmers) comprehend all such as hold by lease for life, or lives, or for years, by deed or without deed; and went on to say:
To do or make waste, in legal understanding in this place, includes as well permissive waste, which is waste by reason of omission, or not doing, as for want of reparation, as waste by reason of commission, as to cut down timber trees, or prostrate houses, or the like; …
He said that single damages were given by the statute against lessee for life and lessee for years.
If those passages were correct, it is clear that at the time of Charles I, when they were written, a tenant for years was liable for permissive waste. However, Mr Buckett submitted that they were wrong. I shall return to that question.
The point arose, but was not decided, in Harnett v. Maitland (1847) 16 M & W 257, a decision of Parke, Alderson, Rolfe and Platt, BB, in the Court of Exchequer. The claim failed upon a demurrer, but the following remarks were made in the unanimous judgment:
As to the question, whether the action for permissive waste lies against a tenant for years, all the authorities are collected in the notes to Greene v. Cole, in 2 Saund. 252, where it is stated as clear law, that at common law the action only lay against tenant by the curtesy, tenant in dower, or guardian, but that by the statute of Gloucester, 6 Edw. 1, c. 5, the action is given against lessee for life or years, or tenant pur auter vie, or against the assignee of tenant for life or years for waste done after the assignment. The same authorities are referred to in Vol. 1, p.323 b, where, however, it is said that the point cannot yet be considered as absolutely settled. We are all of opinion, however, that this declaration is defective on general...
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