Eyre & Ors v McCracken

Whether work falls within a repairing covenant is a question of fact and degree. The court must consider the particular building, the lease, the building’s condition when let, the defect, the proposed works, their cost, the building’s value and expected lifespan, and other relevant circumstances.

A repairing covenant does not ordinarily require a tenant to provide a substantially different property from that which was demised. Where an old building was constructed without damp-proofing, installing a comprehensive modern damp-proof course may amount to an improvement rather than a repair. Repairing the consequences of damp, including renewing what was originally present, may nevertheless fall within the covenant.

The trustees of the Eyre Estate sought possession and damages from Robert McCracken under the Rent Act 1977 and the repairing covenants in a lease of a Victorian house. The County Court found the tenant liable for substantial disrepair and ordered possession unless specified works were completed.

The appeal concerned only the proposed insertion of a damp-proof course and ancillary works in the basement. The house had been built without a damp-proof course, and the parties accepted that installing one was the sensible means of preventing recurrent damp. The central issue was whether those works were repairs within the tenant’s covenant or improvements outside it.

1. The appeal was allowed. The tenant was not required under the repairing covenant to insert a damp-proof course and carry out the associated works. The costs orders were varied as stated in the formal order.

2. Per Lord Justice Pill, the question whether work is repair is one of fact and degree. The court must consider the building, the lease, its condition when the lease began, the defect, the nature, extent and cost of the proposed works, the parties’ respective interests, the building’s value and expected lifespan, current building practice, the likelihood of recurrence, alternative remedies and their effect on occupation. The list is not exhaustive and the weight of each factor varies.

3. The absence of a damp-proof course was an original design feature of a building more than 150 years old. Having regard to the building’s age and design, the tenant’s limited interest and the poor condition at the commencement of the lease, requiring the tenant to install comprehensive damp-proofing would require him to return a materially different property from that which had been demised.

4. Lady Justice Hale agreed. She distinguished between works dealing with the consequences of damp, which might constitute repair and include renewal or replacement of what was originally present, and a comprehensive modern damp-proofing system, which would transform the character of the property and was not repair.

5. The case was materially different from Elmcroft Development v Tankersley-Sawyer, where the premises were unfit for occupation and the damp-proof course was an ineffective existing feature. The court also regarded Stent v Monmouth District Council as unhelpful because the replacement there was much less extensive.

• Court of Appeal (Civil Division): The appeal from the Central London County Court was allowed. The order requiring the tenant to carry out the damp-proofing works was set aside in that respect.
• Central London County Court: His Honour Judge Levy QC ordered possession unless the specified works were completed within one year, and found the tenant liable for specified disrepair.