Warren v Keen

Except by express agreement, a weekly tenant has no general implied duty to keep premises in repair or to restore deterioration caused by fair wear and tear, lapse of time, or causes not attributable to the tenant. The tenant’s obligation is to use the premises in a tenantlike manner. This requires reasonable care, ordinary small jobs, and repair of wilful or negligent damage caused by the tenant, family, or guests. An asserted duty to keep premises wind and watertight does not enlarge the weekly tenant’s obligation and does not cover ordinary decay such as damp, cracked rendering, or deteriorated window sills.

The landlord claimed £23 5s 0d spent complying with a borough notice requiring defects in a house let on a weekly tenancy to be remedied. The pleaded basis was an implied covenant requiring the tenant to use the premises in a tenantlike manner, keep them wind and watertight, and make fair and tenantable repairs. Waste was pleaded in the alternative.

His Honour Judge Tudor Rees found for the landlord, holding that the tenant had an implied covenant to keep the premises in good and tenantable condition and to carry out necessary repairs. The tenant appealed on the scope of the implied obligations arising from a weekly tenancy.

The Court of Appeal unanimously allowed the appeal. Judgment was entered for the defendant, with costs here and below.

1. Implied repairing obligation. Somervell LJ rejected the trial judge’s broad formulation. A weekly tenant is not subject to a general implied covenant to keep the premises in good condition, keep them in repair, or make general repairs. Even assuming that a tenant from year to year might have some limited obligation to carry out minor repairs needed to keep premises wind and watertight, there was no principled basis for extending that obligation to a weekly tenancy. The continuing occupation of many weekly tenants under the Rent Restriction Acts did not alter the legal incidents of the tenancy.
2. Tenantlike use. Denning LJ stated that, apart from express contract, the tenant’s obligation is to use the premises in a tenantlike manner. This involves reasonable care, ordinary small tasks, and repair of wilful or negligent damage caused by the tenant or those for whom the tenant is responsible. The formulation was supported by Horsefall v Mather Holt’s Nisi Prius, p. 7 and Marsden v Edward Heyes Ltd 1927, 2 King’s Bench, pp. 7–8. The contextual limitation of Lord Kenyon’s language in Ferguson v Anon. 2 Esp. 590 was also explained.
3. Ordinary deterioration. All three judges agreed that a weekly tenant is not liable for deterioration caused by fair wear and tear or lapse of time. The damp, cracked rendering, deteriorated window sills, and related defects were ordinary deterioration, including failure to repaint, and did not fall within any tenantlike obligation or the expression wind and watertight. Denning LJ additionally expressed the view that an action for permissive waste does not lie against a weekly tenant, referring to the Countess of Shrewsbury’s case 5 Coke’s Reports, 13b; that was separate reasoning supporting his conclusion.

1. Court of Appeal: The appeal was allowed unanimously. Judgment was entered for the defendant, with costs here and below.
2. Court below: His Honour Judge Tudor Rees found for the landlord and held that the weekly tenant had an implied covenant to keep the premises in good and tenantable condition and carry out necessary repairs.