Simmons & Ors v Dresden

Repairing and decorating covenants require substantial compliance, judged by the age, character and locality of the premises and the needs of a reasonably minded tenant of the relevant class. The tenant need not restore premises to their original condition or achieve perfection. A covenant to redecorate may impose an absolute obligation to carry out the specified work, but it does not necessarily require identical materials or finishes. Where a lease gives the landlord a removal remedy for later-added fixtures and fittings, that remedy does not create a separate obligation to repair items the landlord elects to leave. Damages remain limited by the diminution in value of the reversion, which must be proved; repair costs are only evidence of that diminution.

The claimants had held premises under a 25-year lease and were alleged to have breached covenants concerning repair, decoration, cleansing, statutory compliance and alterations. The defendant claimed damages after the lease expired, relying on an extensive schedule of dilapidations. He accepted that Landlord & Tenant Act 1927 s.18(1) limited recovery to diminution in the value of the reversion.

The premises were sold shortly after expiry for £2,655,000 without the defendant carrying out the alleged works. The issues were whether the claimants had breached the relevant covenants, the reasonable cost of remedying any breaches, and whether the defendant had proved any diminution in the value of his reversion.

1. Construction and decoration. Clauses 2(3) and 2(4) required exterior and interior redecoration in the final year of the term, whether strictly necessary or not. However, clause 2(4) gave the tenants an option to paint or repaper. It did not require walls formerly covered with vinyl wallpaper to be repapered with identical wallpaper. Painting over the vinyl wallpaper was a satisfactory method of decoration. The failure to decorate one panelled room was a breach.
2. Repairing standard. Clause 2(5) required the premises to be kept in good and substantial repair. The words substantial and substantially meant that the premises had to be repaired in their essentials, but not in every minute detail. The applicable standard was materially the same as that in Proudfoot v Hart: repair appropriate to the age, character and locality of the premises and the occupation contemplated by a reasonably minded tenant of the relevant class. Minor cosmetic defects and defects which did not affect function generally did not amount to breaches.
3. Fixtures and statutory requirements. Under clause 2(7), the landlord’s remedy for later-added partitions, fixtures or fittings which he required to be removed was removal and recovery of the cost. If removal was not required, no substituted repairing obligation arose. Clause 2(8) applied only to enactments, orders and regulations which actually related to or affected the premises, their additions or improvements, or their use. It did not impose compliance with provisions which had no application, including because they lacked retroactive effect.
4. Individual items. Applying those principles, the court found proved breaches with an aggregate remedial value of £36,480, before additional project costs. The replacement radiators were adequate because a replacement radiator need only have equivalent performance and be broadly similar in shape, size and colour; precise matching was unnecessary.
5. Diminution and result. The defendant bore the burden of proving diminution in the value of the reversion. The cost of repairs was not itself the measure where the landlord had not carried out and did not intend to carry out the works. The valuation evidence did not establish any diminution. The sale price was exceptionally advantageous and exceeded what the premises were shown to be worth in any repaired condition. The Part 20 claim was dismissed.

The judgment records that the proceedings began in Kingston-upon-Thames County Court. On 23 July 2002 District Judge Coni gave judgment for the tenants for £17,962.40, subject to a stay pending trial of the defendant’s Part 20 claim. The present court tried and dismissed that claim.