Liability to Remedy an Inherent Defect

The question of liability for curing an inherent defect in a building first arose for judicial decision in Collins v Flynn [1963] 2 ALL ER 1068. The facts of that case were that, owing to an inherent defect in the form of inadequate foundations, a pier carrying one end of a girder which directly supported a considerable part of the rear main wall, and indirectly supported part of the side wall of a house, subsided and it became necessary to rebuild the pier and walls with newly designed foundations. The house had been let on a lease containing a full repairing covenant by the tenant, but it was held that the tenant was not liable to carry out th e remedial work because it would involve the tenant in rendering up the premises in a different condition from that in which they were demised.
The decision in Collins v Flynn gave rise to the belief that the work required to remedy an inherent defect could never fall within the scope of a tenant's repairing covenant, at least in the absence of express words imposing liability. Such belief was shown to be misplaced, however, by the subsequent decision in Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1980] QB 12.
The Ravenseft case
The building in Ravenseft was relatively new, and it had an inherent defect in that no expansion joints had been included, because it had not been appreciated that the different coefficients of expansion of the concrete of the structure and of the stone with which it was cladded made their inclusion necessary. As a result of the absence of expansion joints the stone cladding became bowed, detached from the structure and was in danger of falling. The tenants argued that no liability could arise under their repairing covenant because the disrepair was due to an inherent defect in the building. That argument was rejected, however, and the tenants were held to be liable in damages for the cost of putting in expansion joints, notwithstanding that the building was thereby improved because it could not be said in any realistic sense 'that there was any other possible way of reinstating this cladding than by providing the expansion joints which were, in fact, provided' (ibid at p.22, per Forbes J).
The Elmcroft case
In the case of Elmcroft Development Ltd v Tankersley-Sawyer (1984) 270 EG 140, there was damage to the walls of a flat from rising damp, owing to the fact that when it was built in late Victorian times the damp-proof course was put in too low. To repair the walls it was necessary to install a horizontal damp-proof course and to form vertical barriers in each case by silicone injection and the work was held to be within the landlord's repairing covenant on the ground that, although it involved improvement, it did not involve giving to the tenant a different thing from that which was demised.
Quick v Taff-Ely Borough Council
The case of Quick v Taff-Ely Borough Council [1986] 1 QB 809 concerned a council house which was suffering from severe condensation due to lack of insulation around the concrete window lintels, sweating from the single-glazed metal-framed windows and inadequate heating. The condensation had caused the house to be virtually uninhabitable in winter and the tenant had applied to the county court for specific performance of the statutory covenant to repair implied by s. 32(1) of the Housing Act 1961.
The county court judge had found in favour of the tenant, but it was held by the Court of Appeal that the council could not be required to carry out work to alleviate the condensation because liability under the covenant arose only when a physical condition existed which called for repair to the structure or exterior of the house and not because of lack of amenity or inefficiency and there was no evidence to indicate any physical damage to, or want of repair in, the structure or exterior. Lawton LJ said (at p.823):
'There must be disrepair before any question arises as to whether it would be reasonable to remedy a design fault when doing the repair. In this case...there was no evidence that the single glazed metal windows were in any different state at the date of the trial from what they had been in when the plaintiff first became a tenant. The same could be said of the lintels.'
The Aquarius Properties case
The decision in Quick v Taff-Ely Borough Council passed almost unnoticed at the time, but the same is certainly not true of the recently reported decision in Post Office v Aquarius Properties Ltd (1986) 281 EG 798, Although it was to a similar effect. In the latter case the basement of an office building had bee flooded for most of the time between 1979 and 1984 owing to a rise in the local water table and a failure through defects of construction and, possibly, of design of the 'kicker' joint between the floor and the walls. Since 1984 the basement had been dry as a result of a lowering of the water table and, despite the presence of water for several years, there was no evidence of any physical damage to the building.
At first instance (reported at (1985) 276 EG 923) Hoffman J had decided that the work necessary to cure the defects did not come within the scope of the tenants' repairing covenant because it involved structural alterations and improvements to the basement and could not appropriately be described as 'work of repair'. The decision assumed that the building was in fact in a state of disrepair but, as Slade LJ pointed out in his judgment in the Court of Appeal (at p.804), 'a state of disrepair...connotes a deterioration from some previous physical condition', and at the trial, 'there was no finding (and we have been referred to no evidence) that any part of this defective building had suffered deterioration since its original construction'. In those circumstances it was held by the Court of Appeal that no liability had arisen at that time under the tenants' covenant to repair and the landlords' appeal was dismissed.
Conclusion
The decision in Aquarius Properties case has excited some criticism based upon a reluctance to accept the proposition that an inherent defect is not in itself a disrepair. It is submitted, however, that such criticism is misconceived. The decisions in Ravenseft and Elmcroft are authority only for the proposition that work required to remedy an inherent defect maybe work of repair. If such work would involve giving back to the landlord, or giving to the tenant, a wholly different thing from that which was demised it will not be work of 'repair' in any event. Cases in which the existence of an inherent defect has not resulted in actual damage or deterioration will surely be rare, even though Quick v Taff-Ely Borough Council and Post Office v Aquarius Properties Ltd are recent examples. In such cases, however, it is suggested that the court is wholly correct to conclude, as Ralph Gibson LJ put it in his judgment in Aquarius Properties (at p.803), 'that, if on the evidence the premises demised are and at all times have been in the same physical condition (so far as concerns the matters in issue) as they were when constructed, no want of repair has been proved...'.