Landlord and tenant: repairing covenants

Property suffering from ingress of water - whether defendant liable under terms of underlease for proportionate contribution to costs of repairs - whether asphalt membrane, structural steel beams and columns 'conveniences' within meaning of underlease - judge holding defendant liable - appeal dismissedDaejan Properties Ltd v Bloom: Court of Appeal: Morritt LJ, Sir Christopher Slade: 30 June 2000

By a lease dated 11 March 1937, Regency Lodge, a block of flats containing a basement and shops facing on to Finchley Road and Avenue Road, London, was demised for a term of 99 years from 25 December 1933, at an annual rent of 4,500.By an underlease made on 22 July 1938, the basement was let for use as a garage for a like term less 10 days, at an annual rent of 2,500.

In 1986 the defendant bought the underlease of the basement garage.By clause 4, the defendant as underlessee covenanted to pay 'a reasonable proportion attributable to the demised premises in common with the owners or occupiers of any adjoining or contiguous premises of the charges for rebuilding, repairing and cleansing all walls, fence walls, fences, drains, ways and other conveniences belonging or which shall belong to the said premises hereby demised or such adjoining or contiguous premises and which shall be used or be capable of being used by the lessee in common with the owners or occupiers of such adjoining or contiguous premises such proportion to be paid on demand.' In December 1989, the defendant made a complaint about an ingress of water into the basement garage to the managing agent.

It was common ground that the basement garage was below the forecourt to the property which had been built upon a reinforced concrete slab over which an asphalt membrane had been laid to provide waterproof protection to the metal reinforcements within the slab, the metal girders that were beneath the concrete slab and the basement garage.A surveyor concluded that in order to solve the problem, all the pavings and finishings would have to be lifted, the asphalt removed and then reinstated after the asphalt membrane itself had been replaced.

The claimant, as the holder of the reversion of the property, claimed a proportion of the costs of the works as determined by the surveyor.The defendant claimed he was not liable to pay.

The issue was whether the slab, the asphalt membrane, the structural steel beams and columns under the forecourt were 'conveniences' within the meaning of the word in clause 4.The judge held that they were, and, accordingly, found that the defendant was liable for a proportionate contribution to the costs of repair.

The defendant appealed, relying on Liverpool City Council v Irwin [1976] 1 EGLR 53, contending that the word 'conveniences' meant something useful but not necessary, and that as the asphalt membrane, the structural steel beams and columns acted as the roof of the basement, they were not merely useful but a necessity.Held: The appeal was dismissed.

The word 'conveniences' was capable of bearing different meanings in different contexts.

However, having regard to the overall scheme that the parties had intended by the underlease, and clause 4 in particular, it was clear that the underlessee was to be obliged to pay a reasonable proportion of the costs of repairing all items, whether structural or otherwise.The word 'conveniences' had been used to catch anything that had not been described.

Although it might have been a curious use of the word, there was no reason why the defendant as the underlessee should not be required to pay a proportionate contribution to the cost of essential repairs.Stephen Jourdan (instructed by Jay Benning & Peltz) appeared for the claimant; Jonathan Ferris (instructed by Jeremy Simon & Co, of Watford) appeared for the defendant.