Jackson v J H Watson Property Investment Ltd

A tenant cannot ordinarily use nuisance to impose on a landlord an obligation to remedy defective construction existing when the lease was granted. The principle of caveat lessee applies where the defect is in adjoining or retained premises, as well as in the demised premises. A landlord’s control of the adjoining area does not of itself displace that principle.

A repairing covenant generally requires restoration of premises that have deteriorated. Words such as “amendments” do not create a wider obligation to improve or correct original construction unless the covenant, properly construed, contains such an obligation.

The claimant held a long lease of a basement flat. Water entered the flat because concrete in adjoining light wells had been defectively laid before the lease was granted. The light wells were outside the demise but remained under the landlord’s control.

The claimant sought the cost of remedial works and damages for inconvenience or diminution in value. He relied principally on nuisance and argued that the landlord’s repairing covenant, including references to “amendments”, imposed liability. The central issues were whether the repairing covenant covered the original defect and whether nuisance could circumvent the caveat lessee principle.

1. Repairing covenant. The covenant required the landlord to repair and maintain the exterior, structural parts and related features. A covenant to repair ordinarily concerns deterioration from the condition existing at the commencement of the lease. It does not require improvement or correction of defective original construction. The reference to “amendments” was ancillary to the repairing obligation and created no separate obligation.
2. Service charge. The tenant’s contribution under clause 3(b) related only to the landlord’s costs in complying with obligations under the Fifth Schedule. Since the landlord had no repairing obligation in respect of the original defect, no contribution was payable. If the landlord had been liable in tort, the tenant would not have been required to reimburse the landlord for the damages or interest through the service charge.
3. Nuisance and caveat lessee. The authorities established that, absent an effective repairing covenant or statutory intervention, a tenant takes the premises as they are. The rule applies even where the complaint concerns adjoining parts of the building outside the demise. Retention of control by the landlord does not by itself create liability for a defect existing before the tenancy. The cases relied on by the tenant concerned nuisances created or maintained after the tenancy, such as blocked gutters or defective artificial structures, and were materially different.
4. The nuisance claim therefore could not impose on the assignee of the reversion an obligation to remedy faulty construction carried out by its predecessor before the lease. The claim was dismissed.