Barrett v Lounova (1982) Ltd

A landlord’s repairing covenant may be implied in a tenancy where implication is necessary to give the agreement business efficacy, or where the parties would plainly have assented to it. There is no rule preventing such an implication in a lease.

Where a tenant is expressly required to keep only the interior in repair, and that obligation cannot remain effective unless the exterior is repaired, the agreement may require an implied correlative obligation on the landlord to keep the exterior in repair. The construction must remain businesslike and realistic. It will not ordinarily be appropriate to imply the exterior obligation on a periodic tenant, or jointly on landlord and tenant.

The tenant occupied a house under a tenancy originating in 1941. The agreement required the tenant to repair the interior and fixtures, but contained no express covenant concerning the exterior. The exterior had fallen into serious disrepair, causing water penetration and internal damage.

The Shoreditch County Court implied a landlord’s covenant to keep the exterior in reasonable repair. It awarded agreed damages of £1,250 and granted a mandatory injunction requiring the scheduled works. The landlord appealed. An alternative claim arose under section 4 of the Defective Premises Act 1972, but the principal issue was whether the tenancy implied the landlord’s repairing obligation.

Appeal dismissed unanimously. Kerr LJ gave the principal judgment, with which Swinton Thomas J agreed.

1. The ordinary rules governing implied terms apply to leases. A term is not implied merely because it is fair or reasonable. It must be necessary to give the agreement business efficacy, or be a term to which both parties would plainly have assented if asked.

2. There is no general rule preventing the implication of a landlord’s repairing covenant. The broad dictum in Cockburn v Smith, (1924) 2 King's Bench 119, was obiter and went too far if it asserted that such a covenant could never be implied. Earlier authorities showed that implication can be appropriate where the tenancy’s terms justify a correlative obligation.

3. On the proper construction of this tenancy, the tenant’s continuing express obligation to keep the interior in repair could not be performed once the exterior had deteriorated. The agreement therefore required someone to maintain the exterior. It was unrealistic and contrary to the express division of responsibility to impose that burden on a weekly-paid periodic tenant. A joint obligation would be unworkable. The only businesslike construction was an implied landlord’s obligation to keep the exterior in reasonable repair.

4. The court also accepted, for completeness, that section 4 of the Defective Premises Act 1972 could protect a tenant. An express or implied right of entry for maintenance or repair can cause the landlord to be treated as under a repairing obligation for section 4 purposes. Although no statutory injunction could be granted on the evidence then before the court, there was no jurisdictional or principled bar to such relief in an appropriate case.

5. The agreed damages and mandatory injunction were upheld. The works were required within four months, and the £5,000 paid into court was to remain there until compliance.

• Court of Appeal (Civil Division): The landlord’s appeal was dismissed. The court upheld the implied repairing covenant, damages and mandatory injunction. Leave to appeal to the House of Lords was refused.
• Shoreditch County Court (Recorder Keane, 10 December 1987): Held that the tenancy implied a landlord’s obligation to keep the exterior in reasonable repair; awarded £1,250 agreed damages and granted a mandatory injunction.