O’Brien v Robinson

A landlord’s covenant to keep residential premises in repair is an undertaking to perform necessary repair work, rather than an absolute guarantee that the premises will never fall into disrepair. The obligation to begin repairs arises when the landlord has information about an existing defect sufficient to put a reasonable person on inquiry whether repairs are needed. This rule applies to latent as well as patent defects.

A warning that continuing conduct may eventually cause damage does not give the required information where it does not indicate that a defect already exists. Once the obligation arises, the landlord avoids breach by carrying out the necessary work with reasonable expedition.

The appellants occupied rooms owned by the respondent. The first appellant was the tenant, whose tenancy included the repairing covenant implied by section 32 of the Housing Act 1961. The second appellant’s position depended on section 4 of the Occupiers’ Liability Act 1957.

In 1965 the first appellant complained that noisy parties and stamping in the flat above might eventually bring down the bedroom ceiling. The nuisance ended shortly afterwards. No defect became visible, but the ceiling fell in 1968 and injured both appellants. Bristow J dismissed their action, finding that the earlier complaints concerned the possible future consequence of continued stamping and did not indicate an existing defect.

The appeal came directly from the High Court under section 12 of the Administration of Justice Act 1969. The central issue was whether a landlord’s repairing obligation arose in respect of a latent defect before the landlord received information sufficient to put him on inquiry about the need for repair.

1. Appeal dismissed unanimously. Lord Diplock delivered the leading speech. Lord Reid and Lord Simon of Glaisdale agreed with him. Lord Cross of Chelsea agreed with Lord Diplock and Lord Morris of Borth-y-Gest.

2. Per Lord Diplock, the covenant implied by section 32(1) of the Housing Act 1961 remained contractual in nature. It had the legal characteristics of a landlord’s repairing covenant. Sections 32 and 33 did not convert it into a tortious duty of reasonable care or an absolute undertaking to prevent the premises from ever becoming defective.

3. A repairing covenant requires the landlord to perform repair work when the premises have fallen into disrepair. The obligation to start work does not arise until the landlord has information about an existing defect sufficient to put a reasonable person on inquiry whether repairs are needed. If the landlord then acts with reasonable expedition, there is no breach.

4. The rule applies to latent as well as patent defects. The Court of Appeal’s decision in Morgan v Liverpool Corporation [1927] 2 KB 131 had decided the point on the basis of a latent defect. It was expressly approved by the House in McCarrick v Liverpool Corporation [1947] AC 219. Those decisions had governed transactions for many years, and neither injustice nor clear error justified departing from them.

5. The tenant’s statements in 1965 did not convey information that the ceiling was already defective. They warned that continued stamping might eventually bring it down. The nuisance soon ceased, no defect was visible, and nothing thereafter suggested that repairs were required. Bristow J’s finding was amply supported by the evidence.

6. Whether information from a source other than the tenant would suffice did not require decision. Lord Morris considered that a landlord who acquired knowledge of dangerous disrepair would be obliged to take appropriate action even if the tenant lacked that knowledge.

7. In the consequential costs decision, the House ordered the respondent’s costs of resisting the appeal to be paid from the Legal Aid Fund. Lord Diplock held that this was just and equitable because the legally aided appeal sought to alter settled law of general public importance, while the successful respondent and his insurers had no business interest in changing it.

1. House of Lords: The appeal was dismissed unanimously. The respondent was subsequently awarded his costs of resisting the appeal from the Legal Aid Fund.

2. High Court: Bristow J dismissed the plaintiffs’ action with costs. He certified under section 12 of the Administration of Justice Act 1969 that the case involved a point of law of general public importance governed by a previous decision of the House of Lords, permitting a direct appeal.