Petersson & Ors v Pitt Place (EPSOM) Ltd

Mutual repairing covenants in a lease should, where the language permits, be construed to avoid overlapping obligations requiring both landlord and tenant to repair the same part of a building. Such overlap may create impractical reciprocal liabilities and undermine both covenants. The court should adopt an alternative construction unless the wording makes the overlap unavoidable. Accordingly, an expression such as the main structure may bear a restricted meaning, excluding roof terraces that fall within the tenant’s repairing covenant, even though the terraces form part of the building’s physical structure.

The landlords appealed against part of a judgment given by His Honour Judge Roger Cooke in the Central London County Court on 8 February 2000, with an order made on 14 March 2000. The proceedings concerned several disputes arising from leases of flats at Pitt Place, including claims concerning water penetration and alleged breaches of repairing covenants.

Permission to appeal was granted on the construction of the landlords’ repairing covenant. The central issue was whether roof terraces forming part of the demise and falling within the tenants’ repairing obligations were also included within the landlord’s covenant to repair the main structure, external walls, balconies and roof.

1. Appeal allowed. Lord Justice Laws delivered the judgment, with Mr Justice Penry-Davey agreeing. The roof terraces were within the demise and within the tenants’ repairing obligations under paragraphs 2(c) and 3(a) of the leases.
2. The word “balconies” in the landlords’ repairing covenant did not include the roof terraces. The remaining question was whether they formed part of “the main structure” or “the roof thereof”.
3. Repairing covenants should, where reasonably possible, be construed to avoid shared or overlapping obligations. If both parties were obliged to repair the same part, each could claim against the other for failure to do the work, producing an impractical and potentially self-stultifying result.
4. The court treated Toff v McDowell, 69 P & CR 535, as an example of that principle in operation. The lease in that case had been construed so that a relevant structure was the tenants’ shared responsibility and was excluded from the landlord’s repairing covenant.
5. Although the roof terraces formed part of the building’s physical structure, the words “main structure” could reasonably be given a more restricted meaning in the context of the lease. The language was imperfect, but it did not compel overlapping liability. The landlords were therefore not responsible under paragraph 4(c)(i) for repairing the roof terraces.
6. The appeal for which permission had been granted was allowed. The respondent tenants were ordered to pay the costs of the appeal. Assessment of damages was remitted to the county court if necessary, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Allowed the landlords’ appeal on the construction of the repairing covenant. Costs were awarded against the respondents, assessment of damages was remitted if necessary, and permission to appeal to the House of Lords was refused.
• Central London County Court: His Honour Judge Roger Cooke’s judgment was given on 8 February 2000, with an order made on 14 March 2000. The judge had treated the roof terraces as falling within the landlords’ repairing covenant.