Mancetter Developments Ltd v Garmanson Ltd

A tenant’s common-law right to remove tenant’s or trade fixtures carries a corresponding obligation to make good damage caused by their removal. Leaving substantial apertures in walls, cladding or lining is therefore voluntary, or commissive, waste, even where the fixtures were lawfully removable and the original openings were lawfully made. The landlord may sue in tort where the damage constitutes waste, although contractual covenants may ordinarily govern reinstatement and repair. A director who directs or procures the company’s tortious act may be personally liable for the resulting damage, but not for damage beyond the scope of his instructions.

The claimant landlords let industrial premises to Pilot Chemical Co Ltd. Pilot installed pipes and extractor fans which penetrated the building’s walls. Garmanson Ltd later acquired Pilot’s business and fixtures, occupied the premises, removed the fixtures on leaving, and failed to make good the apertures. The deputy official referee held Garmanson liable for waste and held its active director, Mr Givertz, personally liable for the cost of reinstatement which he had directed or procured.

Mr Givertz appealed on principle. The Court of Appeal had to decide whether lawful removal of tenant’s fixtures, without reinstating substantial openings, constituted tortious waste and whether that liability could attach personally to the director.

1. Appeal dismissed. Dillon LJ gave the principal judgment. Kerr LJ agreed with his reasons. Sir George Waller LJ dissented.
2. A director may be personally liable for a company’s tort where he himself directs or procures the tortious act. That principle applied if Garmanson’s removal of the fixtures without reinstatement constituted waste. Mr Givertz was liable for the reinstatement cost within the scope of his instructions; he was not contractually liable to the landlords.
3. The common-law right to remove tenant’s or trade fixtures arose independently of contract, although contract could confirm or exclude it. Equally, the obligation to make good damage caused by removal arose at common law. It was a condition attached to the right of removal.
4. Removal of tenant’s fixtures without making good substantial damage caused by the removal exceeded the right of removal and constituted voluntary or commissive waste. The relevant damage was injury to the reversion. The requirement was to leave the premises in a reasonable condition. It did not ordinarily extend to minor screw or nail holes or to redecorating, but substantial holes affecting the structure were not merely decorative.
5. Kerr LJ added that in most ordinary cases contractual repairing or reinstatement covenants would govern the issue, leaving little scope for an alternative tort claim. The present case was exceptional because no relevant contractual obligation bound Garmanson. Kerr LJ also rejected the view that Pilot’s original creation of the openings was itself waste, since the fixtures remained in place and the use was not shown to be untenantlike. The actionable act was Garmanson’s voluntary removal without reinstatement.
6. Garmanson was liable for the larger sum found at trial, while Mr Givertz’s liability was confined to the damage caused by the acts he directed. The appeal was dismissed with costs.

• Court of Appeal: dismissed Mr Givertz’s appeal from the order of Sir Ian Percival QC, sitting as deputy official referee, dated 25 May 1984. The order awarded the landlords £524.87 against Mr Givertz and £771.58 against Garmanson Ltd, with costs.