Malborough Park Services Ltd v Rowe & Anor

LORD JUSTICE NEUBERGER: The question in this appeal is whether it is the obligation of the landlord or the tenant to replace defective wooden joists on the intermediate floor of a two-storey maisonette (“the maisonette”). That issue turns on whether the joists are within the expression of “the main structures of the Property”, the property in question being a complex called Marlborough Park in Washington, Tyne and Wear. Marlborough Park is an area of land which, during the 1960s and 1970s, was developed by the erection of three blocks of residential property and ancillary buildings, such as garages, and the laying out of means of access and amenity land. The three blocks, which include Neville Court, contain in total some 380 residential units (“the units”), of which about 100 are two-storey maisonettes, the remainder being one-storey flats.

The freehold of Marlborough Park is now vested in the claimant, Marlborough Park Services Ltd, MPS, which is both the landlord and the management company under the leases of the units. The defendants, Arthur Rowe and his wife Elizabeth Rowe, are tenants of the maisonette which is on the ground and first floors, at 18 Neville Court, and of garage number 22. Their lease, which is in the standard form of lease of residential units at Marlborough Park, is dated 21 December 1981 and is for a term of 125 years from 28 March 1986 at a rent of £10 per annum plus a service charge. It is necessary to refer to some of the terms of the lease. The demise is of “the Flat” and of the garage. “The Flat” is described as:

“including the ceilings and floors thereof and the joists and beams on which the floors are laid together with all the floors, and together with all cistern tanks sewers drains pipes wires ducts and conduits exclusively serving the Flat but no others and also including all windows window-frames and glass thereon and all the doors.”

The Flat and the garage are defined as the “demised premises”.

Clause 3(1)(m) is a covenant by the tenant:

“(i)

to keep the demised premises and all walls party-walls sewers drain-pipes cables wires and appurtenances thereto belonging (other than the parts thereof comprised and referred to in clause 5 hereof) in good and tenantable repair and condition …

“(ii)

…

“(iii)

to permit the council [the landlord at the time] and others authorised by them with or without workmen and others at all reasonable times on notice (except in the case of emergency) to enter into and upon the demised premises or any part thereof for the following purposes, namely:

“a)

to repair any part of the Property [i.e. Marlborough Park].”

Clause 4 contains provisions for the payment of a service charge, which is 0.36 per cent of the annual costs to the management company in carrying out its obligations in clauses 5 and 6 of the lease. Clause 5 contains most of the obligation of the management company, and they include the following:

Clause 10 contains certain declarations and definitions. They include:

“(ii)

… every internal wall separating the Flat from an adjoining flat shall be a party wall severed medially and every internal wall separating the Garage from an adjoining garage shall be a party wall severed medially;

“(iii)

… a ground floor flat includes the land on which it is built and the ceilings of the Flat (but not the floor of the flat above it) and the internal and external walls of the Flat up to the same level;

“… a flat on the first second and third floor includes the floor and ceiling of the Flat (but not the floor of the flat above it) and the internal and external walls of the Flat between the same levels;

“…a fourth floor flat includes the floor of the Flat and the roof of the Property so far as it constitutes the roof of the Flat and the internal and external walls of the Flat between the same levels;

…

“(iv)

… the word ‘repair’ includes the rectification or making good of any defect in the foundations roofs or structures of the Property nothwithstanding that it is inherent or due the original design thereof.”

Cracking has appeared in the walls of the first floor of the maisonette, and a similar problem has occurred in at least seven other maisonettes at Marlborough Park. A structural engineer, Mr Anthony Davies, inspected three of these maisonettes, including 18 Neville Court, and the effect of his report was described by the judge, HHJ Behrens, in the following terms in paragraph 14 of the judgment. He said that Mr Davies explained that:

“The ground floor and the ceiling above the first floor were concrete. However the intermediate floor was of timber construction. The cracking was due to defection of the timber floor. In his view it was increasing. Mr Davies proposed a solution, which was contained in a drawing [and I interpose to say that his proposal involved, quoting from his report, “requirement of remedial works to strengthen the floor”]. At the trial he [that is, Mr Davies] explained that the joists were laid between the partition walls separating 18 Neville Court from the adjoining flat and maisonette rather than the front of the development. He also explained that the timber floor would provide some natural support for the partition walls.”

In paragraph 15 of the judgment, the judge continued:

“If the deflection of the timber floor continues without repair there is a risk (though not an immediate risk) that there will be a partial collapse of the floor. This would have the effect of reducing the natural support for the partition walls.”

It is common ground that the work described by Mr Davies is necessary, and that it constitutes “repair” under the lease, not least in light of clause 10(iv). The question which the judge had to determine is whether the work in question falls within clause 2(a)(i), and is the responsibility of Mr and Mrs Rowe and has to be carried out at their expense, or whether it falls within clause 5(a)(i)(a), and has to be carried out by the management company, MPS, in which case the cost will be recovered, through the medium of the service charge, from the tenants of all the units.

In his clear judgment, HHJ Behrens decided that the work fell within the ambit of clause 5(a)(i)(a), and that it was therefore excluded by the bracketed words from the ambit of clause 3(1)(m)(i). He accordingly considered that the work in question was the responsibility of MPS and that the cost should consequently form part of the service charge to be paid by all the tenants of the units at Marlborough Park, rather than the work being the sole responsibility of Mr and Mrs Rowe. In reaching that conclusion, the judge essentially decided that, when construing the words “main structures” in clause 5(a)(i)(a) of the lease, he could not gather much assistance from any other provision of the lease, or from any of the authorities cited to him. His conclusion was expressed in these terms in paragraph 49 of the judgment:

In challenging this conclusion, Mr Caswell, who appears as he did below for MPS, primarily contends that the expression “main structures” in clause 5 (a)(i)(a) is limited to items in the ownership and control of the landlord, and/or items serving more than one unit. He says that the expression cannot apply to a structure wholly within the envelope of a unit, and exclusively serving that unit, such as, in this case, the joists of the first floor of a ground and first floor maisonette. This argument involves implying words of qualification into the words “main structures” in clause 5(a)(i)(a) of the lease. The law will not, of course, imply words of qualification unless they are either obvious or, in many cases which amount to the same thing, necessary. I do not see how either test can be said to be satisfied in this case.

Further, clause 5(a)(i)(c) contains words, namely “serving the Property other than those serving only one flat in the Property”, which effectively reflect Mr Caswell’s submissions. It seems to me to be particularly difficult to imply those words to the ambit of “main structures” in clause 5(a)(i)(a) if the parties have omitted them from that provision, but have expressly included them in clause 5(a)(i)(c). Furthermore, the notion that the parties intended that those parts of the Property which were included in one demise and effectively served only one unit, were intended to be subject to the repairing covenant of the tenant of the unit, is impossible to reconcile with other provisions of the lease, perhaps most plainly clause 5(b)(i)(c) which, as Mr Caswell accepts, has the effect of imposing a repairing obligation on MPS in respect of every structural aspect of each garage, and each of the garages is included in a demise to an individual tenant.

Quite apart from that, the implied term which Mr Caswell argues for is one which could raise obvious difficulties – indeed it does even in relation to the fact of this case. When does a structure “serve” only one unit? The external walls of the unit could be said to enclose only that unit, but they are obviously important from the point of view of the units above, below, and adjoining that unit. In this case, the structure supporting the upper floor and lower ceiling of the maisonette can arguably be said to “serve” not only the maisonette but any other part of the building above it, below it or next to it, in terms of protection for a lower unit, support of an upper unit, noise attenuation for both units, as well as a degree of lateral support for the main walls which are either external walls or party walls. That latter point is reinforced in this case by the evidence of Mr Davies who, as the judge said, gave evidence to the effect that the joists in this case provided a degree of lateral support to the walls dividing the maisonette from the adjoining maisonette.

Mr Caswell secondly puts his case slightly differently by suggesting that the policy enshrined in the leases was that each tenant was intended to be responsible for all aspects of the unit comprised within his lease. However, it seems to me that such a contention cannot be right. Apart from anything else, carried to its logical conclusion it would give no effect to the bracketed words in clause 3(1)(m)(i), and it is positively inconsistent with the reference to roofs in clause 5(a)(i)(a), as well as with clause 5(b)(i)(c) as explained above. Furthermore, as he himself accepts, the outer walls of the building insofar as they enclose a unit, which are plainly included in the demise of each unit, are nonetheless the landlord’s responsibility as being part of “the main structures”.

Mr Caswell relies on Toff v MacDowell [1993] 69 P&CR 535, where Evans Lombe J held that, in the context of the lease of a basement flat, the landlord’s obligation to repair the “Main Structure” did not extend to the floor between the two flats. It does not seem to me that that decision assists in this case. As was said by the judge in that case, the meaning of an expression such as “main structure” must be determined by reference to its context in the lease under consideration and in light of all the other facts and circumstances of the case. That is illustrated by decisions of Patten J and Rimer J who separately decided, correctly in my view, that the whole of a floor, albeit a balcony floor, with the exception of the surfacing, was included in the expression “main structure” in, respectively, Michael Hallisey v Petmoor Developments Ltd (2000) EGCS 124 and Ibrahim v Dovecorn Reversions Ltd [2001] 30 EG 116. A different decision, it is right to say, was arrived at by this court in Petersson v Pitt Place (Epsom) Ltd [2001] L&TR 21.

In the end, none of these cases seem to me to advance a resolution of the issue in the present case. As Patten J said in paragraph 27 of Hallisey’s case, the decision of Evans Lombe J:

“… does provide a useful illustration of the need to construe particular terms and relief in the context of the lease as a whole, and in the light of the relevant surrounding circumstances”.

Further, in this case one is concerned with “the main structures” which may be subtly different from “the main structure”.

I turn, then, to what I regard as the central question, namely whether, in the context of this lease, and in the relevant circumstances, the floor joists of the ground-floor ceiling and first-floor floor of the maisonette are part of the “main structures of the Property” within clause 5(a)(i)(a). It seems to me that it is a matter of ordinary language that the floor joists must be part of the structure; that is rightly conceded by Mr Caswell. In Ibrahim’s case at paragraph 19, Rimer J cited with apparent approval observations of Mr Recorder Thayne Forbes QC sitting as a deputy judge in Irvine v Moran [1991] 1 EGLR 261, discussing the meaning of the word “structure”, albeit in the context of a statutorily implied repairing covenant. Relevantly, he said this:

“I have come to the view that the structure of the dwelling house consists of those elements of the overall dwelling-house which give it its essential appearance, stability and shape. The expression does not extend to the many and various ways in which the dwelling house will be fitted out, equipped, decorated and generally made to be habitable.

“I am not persuaded … that one should limit the expression ‘the structure of the dwelling house’ to those aspects of the dwelling house which are load-bearing in the sense that that sort of expression is used by professional consulting engineers and the like; but what I do feel is, as with regard to the words ‘structure of the dwelling house’, that in order to be part of the structure of the dwelling house a particular element must be a material of significant element in the overall construction. To some extent, in every case there will be a degree of fact to be gone into to decide whether something is or is not part of the structure of the dwelling house.”

While I accept, as I have emphasised, that words such as “structure” or “main structures” must take their meaning from the particular document, lease or statute in which they are found, and from the surrounding circumstances, and while it can be said that any attempt to define them will, to an extent, raise as many questions as it answers, it seems to me that that is a good working definition to bear in mind, albeit not one to apply slavishly.

While the joists are therefore part of the structure, the central question remains, namely whether they are within the expression “main structures of the Property”. At first sight it may be thought that the word “Property”, extending as it does to the whole of Marlborough Park, may render it more difficult for a particular item to be within the concept of “main structures” but that argument has not been pressed by Mr Caswell and, in my view, rightly so. As is clear from the reference to roofs in the same expression, one simply has to ask oneself whether the joists are sensibly within the expression “Main Structures”, in this lease.

Inevitably, as is apparent from HHJ Behrens’ judgment, the point is, at any rate to some extent, a matter of impression. In my view, the joists in this case are part of the “main structure”. As the judge found on the evidence, the joists play a significant part in keeping the building stable and sound in that they provide a degree of support for walls. Their failure would impinge directly on the effectiveness of walls of the building, and therefore ultimately on the integrity of the building. They would be regarded by any ordinary person as an essential part of the building, both in terms of its usability and in terms of its structural soundness. While they are not “main” to the same degree as the external walls or the roofs, they are certainly more “main” than, say, the floorboards or even completely non-load-bearing internal partition walls. The fact that they have a structural function renders them likely to be within the ambit of the “main structures”, not only as a matter of language, but also in practical terms. Because of their structural function described by Mr Davies, the landlord, the management company and the tenants of units in Marlborough Park, would be more likely to have expected the maintenance of the floor joists to be the responsibility of the management company under clause 5(a)(i)(a) rather than of the individual tenants under clause 3 (i)(m). This point is reinforced by the fact that the work in question would be tolerably substantial and would, as I have mentioned, be to the benefit normally not merely just to the one tenant of one unit but to the tenants of a number of units.

In all the circumstances, therefore, I agree with HHJ Behrens, and for my part I would dismiss this appeal.

LORD JUSTICE SEDLEY: I have nothing to add to the reasoning of my Lord, Lord Justice Neuburger on the construction of the lease, with which I entirely agree.

I do, however, want to sound a cautionary note about the case to which he has referred, the decision of Evans Lombe J in Toff v MacDowell [1993] 69 P & C R 535. Although that case, like this one, concerned liability for what the lease called the “main structure” of the building, reading across from one lease to another is a risky business and the exercise has not been found useful here. In the course of argument, however, in Toff v MacDowell, counsel for the Crown (in which the freehold of the premises had become vested as bona vacantia) submitted that the effect of the unpunctuated phrase “the main structure and in particular the roof chimney stacks gutters and rainwater pipes of the property” was to restrict the meaning of “main structure” to the particularised elements and so to exclude the internal floors and ceilings.

I have to say that I find this a surprising construction. The usual purpose and the natural effect of the phrase “in particular” are not to restrict but to reinforce the generality of the words preceding the phrase. There appears to have been nothing in the lease in Toff v MacDowell to contraindicate such a meaning. The case should not, in my judgment, be regarded as authority for a restrictive meaning of the phrase “in particular”, whether in leases or indeed generally.

I, too, would dismiss this appeal.

LORD JUSTICE TUCKEY: I agree with both judgments. The appeal is therefore dismissed.