•
2.8
370
on
covenant
once
THE HONGKONG WEEKLY PRESS AND
not deny the right of another lessed to use the exterior walls of one flat which he himself was claiming with regard to the other, and that he was interfering with. But that is a very differ- ent thing from saying that the lease of the floor or flat included the use of the outer wall, there- by making the lessor a trespasser if he used it. This case must therefore be put on one side, The only case bearing on the question that is involved in a lease of a flat is Hargrovesv. Hartop. There, however, had been notice by the lessee that a gutter in the roof had become stopped up and that rain water was coming through the roof; and that action was brought for negligence in allowing the repairs to stand over for five days. Moreover there was no covenant to repair, and the plaintiff succeeded on the covenant for quiet enjoyment. The judgment refers to the fact found by the County Court judge that "the roof was not demised to the plaintiff, but was retained in the possession and under the control of the defendants, and there was no evidence that the plaintiffs or any of the tenants had any right of access to the roof or any privilege to go up on it, or that they had in fact ever repaired it or cleaned out the gutter." I agree that this is not a finding which we are bound
it was
that there suggested by, because might have been an express reservation of the control of the roof by the lessor. The sugges. tion is not borne out by the reports of the case all of which state expressly that there
was no such reservation Therefore this Court is called upon to decide what is included in the lease of a flat. We are clearly of opinion that it is a lease of the interior only; that it gives no right to the lessee as against the landlord to use, except by legal necessity, either the outside walls, or the roof, or anything appurtaining
trees, and "black matter," and also with plaster from the wall. The pipes were apparent ly cleared without difficulty by the plain tiff's coolie who was sent up on the roof, and the accumulated water thereupon escaped" The agreement contained the following clause: 3. "The landlords shall keep the roof and all exterior walls of the said premises in a proper tenantable state of repair and amendment at their own costs." The plaintiff sued for breach of this agreement and recovered $500 damages. The defendant is now appealing from the judg- ment of the learned Puisne Judge. The ap- pellants rely on the fundamental principle of law laid down by the majority of the Court of Exchequer in Makin v. Watkinson and since adopted by all courts that such as this the lessor cannot be sued for non-repair, or for damages resulting from non-repair, unless he has received notice of want of repair. It is to be noted at that there is a difference in the facts of this case and that for here the letting was of a flat and not of a whole building, and it was argued that this is sufficient to take the present case out of the principle. We must therefore sea what are the reasons on which this principle is based. As a matter of fact it works out not
a principle of law but as
a very simple little bit of common sense. Baron Bramwell and Channell admitted that the dictum of Chief Justice Mansfield and Justice Gibbs in Moore v. Clark was obiter, but they gave judgment in precisely the same sense.
The lessor may charge the lessee without notice; for the lessor is not on the spot to see the repairs wanting the lessee is. and, therefore, the lessee cannot charge the lessor for breach of repairs without notice, for the lessor may not know that repairs are necessary." There was some discussion as to whether the necessary words to give effect to this idea could be incorporated into the covenant; hut it held that on the assumption that the contracting parties were reasonable men, and intended what was reasonable, it might be done: and the test of reasonableness was this fact-the lessor may not know that repairs are necessary.
I confess that I prefer the words of the old dictum to those given by Baron Bramwell that the lessor has no means of ascertaining the condition of the as there was no demise of that part of the
were because this assumes that if the premises which premises;
of repair. the lessor comes to repair when no repair is. doctrine of notice cannot apply, for the simple needed he will be a trespasser" and that
can go on the roof He would if he came for the purpose of looking into the state of the premises, the lessee could prevent him because that would not be a lawful cause of entry. I should have thought that a reasonable entry for the purpose of fulfilling a covenant in the lease would have been justified from, the necessity of fulfilling the covenant. It might have to be by request, but if the lessee declined he certainly could not recover. But although these criticisms of some part of the reasoning on which Makin v. Watkinson is based are ne- cessary, it is quite clear that the idea involved in the decision is that where the lessor has parted with the control of the premises he cannot be presumed to keep so watchful an eye them the lessee, and, therefore. the duty of surveillance is thrown upon the lessee in so far as this covenant is concerned, and he must give the lessor notice when occasion arises for repairing under the covenant. The Court of Appeal in Huggal v. McLean definite- ly established the rule and severed it from the reason. The drains in a house were in a defec- tive condition, the tenant had not the means of knowing their condition, but the landlord had; yet
Over
as
:
thereto. As to the roof it is too clear, for otherwise the lessee might erect an adver
the roof, and the tisement or sky sign on Was
lessor might, or might not,
use it in any other lawful way. Further there gutt and to the pipes
clearly appurtenant are roof. This is made all the clearer by the fact that there were two flats, one on each floor, under the same roof. and what is true of one lessee must also be true of all four lessees, Therefore
reason that the lessor
out
may
;
to inspect. and the lessee cannot. certainly in law be as much a trespasser as the lessor in the case put by Baron Bramwell in Makin v. Watkinson. The reason for the rule as to notice fails, for the lessor " know that repairs are necessary." That a cause of action therefore occurred in the circumstances, we have no doubt on another familiar principle which deals with accumulations of water on your property which amount to a non-natural use of it. But the action was not brought in this way. but for breach of the covenant to repair, and we must see if this will lie. It seems to me that Hargroves v. Hartop carries the case the whole way. The roof and the gutter were not demised: independently of covenant a duty arises to inspect the gutters and keep them in such a proper state of repair as to prevent water accumulating on the roof in consequence of non-repair it is an a fortiori if there is a covenant: and it is clear that the notice was only referred to in order to aggravate the breach of duty, for the judgment refers to the defendants as "never having inspected the gutters, and delayed repairs even after receipt of the notice." But putting this on one side. the case against the soundness of the decision of the Puisne Judge is put as strongly as it can must not look at the reason but only at the be put in the notice of motion, in paragraphs rule, but if they are not identical then we can only | (3) and (4); The pipes and gutters on the roof apply the rule if the reason is applicable to the are part and parcel of the flat let, to the new circumstances. Two other cases cited. | plaintiff.” We are of opinion that they are Broggi v. Robbins and Tredway v. Maclin do appurtenant to the roof, and were therefore not The covenant only not carry the law any further. The material let to the plaintiff. inquiry in this case is therefore, what is included extends to structural defects of the roof and in the lease of a flat? Does it include the roof? walls and not to choked drain pipes". We I cannot accept the reasoning of Justice Byrne do not agree as to the limitation to structural in Café Co. v. Muse where he arrived at the defects; and
of opinion that a conclusion that the lease of rooms on a floor is a choked drain pipe, both literally and legally lease of a separate dwelling and includes the is in need of repair: if it is not big enough it is outer wall so far as it is solely appropriate a structural defect: just as much as if the wall to the rooms let, because the dispute arose were not strong enough to support the roof : it
✔ not between the lessor and lessee, but between would be if it was big enough but it will not serve' two lessees. It is obvious that one lessee could the purpose for which it was intended if it is in
this was held not sufficient to relieve the tenant from this implied condition of giving notice. If therefore the circumstances are identical, we
f
We are
**
[November
need of repair. Therefore the covenant. covers this case. And the practical result of our decision is the common sense one that if land- lords demise rooms, or flats, or floors, covered by a roof, it is their duty to see that all parts of that roof, with its appurtenances, are in good and working order, without any correlative duty being thrown on the tenant to warn them or give them notice of their being out of repair. The landlord's duty arises out of their relation- ship to the tenant if there is no covenant, it arises out of the covenant if there is one.
The Puisne Judge concurred with the judg ment of the Chief Justice. He thought that the appeal should be dismissed with costs. Proceed- ing, he said that once it was established that the doctrine of notice being necessary only applied where was a demise of actual premises where the want of repairs is alleged and the court had held that in the present case the roof and its appur- tenances were not demised-then the question of negligence arose. The defendant company were certainly not insurers and therefore their duty was to use all reasonable care and skill to keep in proper repair. In the present case he found that less than reasonable care had been exercised and that was the ground on which he found them liable.
Mr. Goldring formally moved for judgment.
Sir Henry Berkeley referring to the question of costs remarked that the respondent appeared in person and had the assistance of Mr. Grist. He submitted that no costs should be given Costs did not include the attendance of a solicitor.
The Chief Justice-I think the Registrar must deal with that.
Sir Henry Berkeley-Mr. Goldring cannot appear here instructed by a solicitor.
Mr. Goldring-My lord, the cases are quite clear on the point. I think it is a matter for the Registrar.
The Chief Justice-Just 80.
LENGTHY LITIGATION.
The Full Court gave judgments on the motions moved by the parties in the action in which Leung Lai Nam and others proceeded against Reuter Brockelmann and Company for damages for alleged illegal seizure of property in China. Hon. Mr. H. E. Pollock, K.C., and Sir Henry Berkeley K. C. appeared for Messrs Reuter. Brockelmann and Company.
The first notice of motion was by the plaintiffs who asked that the verdict of the jury on certain questions be set aside on the ground that the judgment was contrary to the evidence.
The Chief Justice. in a lengthy judgment, thought that the answers to the questions were not such as reasonable men ought to have given and he was of opinion that the verdict on those points should be set aside.
The Puisne Judge was of the opinion that on all the questions, except the second relating to the partnership, the verdict of the jury should stand and that the motion should be dismissed with costs.
The second notice of motion was by the defendants who asked for judgment on the various grounds set forth.
The Chief Justice, in the course of another lengthy judgment, said he could not imagine anything more oppressive than for persons, whether they had a good case or not, setting their consul in motion and through them the Chinese authorities to get property seized and when asked about it calmly fold their arms and tell the plaintiffs to find out for themselves. The law is a just one: it is primitive in its simplicity: you defentants say you have a right to seize or the Chinese authorities have a right to seize on your behalf. Produce your warrant and let us see whether they have acted rightly or not. It might be that on the production of the warrant the case will collapse, but until you do so we cannot tell. His Lordship held that the verdict of the jury must stand.
The Puisne Judge held that the verdict of the jury should be set aside and judgment entered for the defendants with costs of the proceeding here and in the court below.
Mr. Pollock said his side would take the matter further and asked for a stay of execution unless plaintiffs would give an undertaking to refund costs.
The order was made by consent.
No comments yet.
Private notes are available after approval.