Liverpool City Council v Irwin

Where a tenancy does not fully state the landlord’s obligations, the court may imply the legal incidents which the nature of the contract and relationship necessarily require. Mere reasonableness is insufficient.

A landlord who retains control of common facilities essential to a multi-occupancy tenancy must take reasonable care to keep them in reasonable repair and usable condition. The obligation is not absolute, and breach requires proof of a failure to take reasonable care.

The statutory duty under section 32(1)(b)(i) of the Housing Act 1961 to keep sanitary installations in proper working order is absolute. Faulty design affords no defence where an installation floods during normal use or cannot perform its proper function.

In Liverpool City Council v Irwin [1977] AC 239, the council sought possession of a ninth-floor maisonette after the tenants withheld rent. The tenants counterclaimed, alleging defects within the maisonette and persistent failures affecting the lifts, stairs, lighting and rubbish chutes. The County Court granted possession but awarded the tenants £10 nominal damages.

The Court of Appeal allowed the council’s appeal against the counterclaim. Roskill and Ormrod LJJ held that no repairing obligation concerning the common parts should be implied. Lord Denning MR considered that the council owed a duty of reasonable care but found no breach. The court also rejected the claim under section 32 of the Housing Act 1961.

The tenants appealed. The central questions were whether the tenancy carried an implied obligation concerning essential common facilities, the standard and breach of any such obligation, and whether the defective lavatory cistern breached the statutory repairing covenant.

1. Disposition. The House unanimously allowed the appeal only in respect of the defective lavatory cistern and awarded £5 damages. The appeal concerning the common parts was dismissed, and the possession order remained unaffected.

2. Implication of contractual obligations. Lord Wilberforce treated the tenancy as a contract whose bilateral terms had not been fully stated. The court therefore had to identify the legal incidents which the nature of the contract and the landlord-and-tenant relationship necessarily required. Lord Cross distinguished such general incidents of a class of contract from terms inserted into a particular, apparently complete bargain under the business-efficacy test. Lord Salmon and Lord Edmund-Davies likewise rejected the proposition that a term may be implied merely because it is reasonable. The approach in Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555 was applied, while The Moorcock (1889) 14 P.D. 64 was distinguished as addressing a different category of implication.

3. Essential common facilities. The retained stairs, lifts and other essential common facilities were indispensable to the practical enjoyment of the high-rise maisonettes. The tenancy therefore carried rights to use them and an obligation on the council to take reasonable care to keep them in reasonable repair and usable condition. Where artificial lighting was necessary to make the means of passage usable, the duty extended to taking reasonable care to maintain adequate lighting. The House approved the landlord-and-tenant reasoning in Miller v Hancock [1893] 2 Q.B. 177.

4. Standard and breach. The contractual obligation was one of reasonable care, not an absolute repairing covenant. The tenants’ own responsibilities and the effects of vandalism were relevant to what could reasonably be expected of the landlord. The tenants had pleaded an absolute obligation, and the County Court had made no finding that the council failed to take reasonable care. The available evidence did not justify such a finding on appeal.

5. Statutory covenant. Lord Salmon and Lord Edmund-Davies explained that section 32(1)(b)(i) of the Housing Act 1961 imposed an absolute obligation to keep relevant sanitary installations in proper working order. A cistern which either overflowed and flooded the floor or, when adjusted, failed to flush adequately was not in proper working order. Faulty design did not excuse the breach. Lord Wilberforce, Lord Cross and Lord Fraser agreed in the resulting award of £5 damages.

1. House of Lords: In Liverpool City Council v Irwin [1977] AC 239, unanimously allowed the tenants’ appeal concerning the statutory covenant, awarded £5 damages, and otherwise dismissed the appeal.
2. Court of Appeal: Allowed the council’s appeal against the County Court judgment on the counterclaim. The court agreed that no breach of section 32 of the Housing Act 1961 had been established, although its members differed about whether an obligation concerning the common parts should be implied.
3. Liverpool County Court: Granted the council possession and awarded the tenants £10 nominal damages on their counterclaim, having found breaches concerning the common parts, quiet enjoyment and the statutory repairing covenant.