McNerny v Lambeth London Borough Council

The residual rule in Cavalier v Pope remains binding for an unfurnished letting by a bare landlord. Subject to established exceptions, the landlord owes no general common-law duty to ensure that the premises are habitable merely because their condition causes illness, discomfort or inconvenience: [1906] AC 428.

The Court of Appeal cannot create a wider landlord duty in an area governed by statutory repairing and fitness obligations, involving substantial social-policy and financial consequences. Any extension of those duties is for Parliament.

Mrs McNerny was a tenant of a council flat affected by condensation, fungal growth, deteriorating decorations and minor ailments. The building had been constructed to the standards of its time, and there was no evidence of negligent construction or relevant deterioration amounting to disrepair.

The Wandsworth County Court dismissed her claim. The repairing-covenant and nuisance claims were not pursued on appeal. The remaining issue was whether the local authority, as a bare landlord, owed a common-law negligence duty to take reasonable steps to ensure that the flat was habitable, notwithstanding the rule in Cavalier v Pope and the statutory framework governing landlords’ obligations.

1. Disposition. Dillon LJ delivered the leading judgment and dismissed the appeal. Taylor LJ agreed, and Sir John Megaw agreed with both judgments. The appeal was therefore dismissed unanimously.
2. Repairing obligation. The repairing claim had failed because the condensation problem did not amount to relevant disrepair on the approach adopted in Quick v Taff-Ely Borough Council [1985] 3 All ER 321. That claim was not pursued in the Court of Appeal. The nuisance claim was likewise abandoned.
3. Bare landlord rule. The residual rule in Cavalier v Pope [1906] AC 428 remained binding. The Court of Appeal followed Rimmer v Liverpool City Council [1985] QB 1, which confirmed that a court below the highest court could not recognise a wider duty while the rule remained entrenched. There was no principled basis for excluding local authorities from the rule. The case was one of a bare landlord: there was no evidence that the authority had negligently built the flats.
4. Statutory and policy considerations. Section 4 of the Defective Premises Act 1972 was geared to defects engaging the landlord’s repairing obligation and went no wider than that obligation. The fitness-for-habitation duty in section 8 of the Landlord and Tenant Act 1985 was subject to rent limits which did not ordinarily cover council housing. The court also noted section 10’s reference to ventilation and damp. In this socially and financially significant field, extending landlords’ duties was a matter for Parliament, not the courts.
5. Furnished lettings. The established distinction concerning furnished lettings, including the implied fitness condition discussed in Wilson v Finch Hatton (1877) 2 Ex D 336, did not justify extending the law to this unfurnished letting. The order included costs, legal-aid taxation of the appellant’s costs, and refusal of leave to appeal to the House of Lords.

• Court of Appeal (Civil Division) — The appeal was dismissed unanimously: [1988] EWCA Civ 2.
• Wandsworth County Court — Mr Assistant Recorder Wakefield dismissed the claim on 16 April 1988, holding that the defendant authority was not liable.