Regis Property Co Ltd v Dudley

November 6. Viscount Smmonps. My Lords, the respon-
dent is the tenant of certain premises known as Flat 248, Chelsea
Cloisters, in the county of London. His landlords are the
appellant company, Regis Property Co. Ltd. These premises
are, by reason of their low net rateable value, subject to rent
control under the provisions of the Rent Act, 1957. That Act,
however, provides that a landlord may, upon giving the appro-
priate notice, alter the method of calculating the rent of
controlled dwelling-houses from the former basis of a standard

35 [1949] 1 K.B. 599, 603; 65 T.L.R. 176; [1949] 1 All E.R. 256.

A.C. AND PRIVY COUNCIL.

rent plus permitted increases to a new basis which, so far as is
relevant to the present appeal, is to be fixed by multiplying the
gross rateable value of the premises by what is called '' the
'" appropriate factor.''

Taking advantage of this provision, on July 22, 1957, the
appellant company applied to the West London County Court for
an order determining the appropriate factor by which the gross
value of the premises should be multiplied for the purpose of
ascertaining the rent limit applicable thereto, and served due
notice of the application on the respondent. Other matters also
were brought before the court, but with these your Lordships
are not concerned.

On August 29, 1957, the learned county court judge made an
order determining that the appropriate factor for the relevant
purpose was five-thirds. An appeal from his order was dismissed
by the Court of Appeal. Your Lordships are now asked to set
these orders aside and to remit the application to the county
court for the redetermination of the appropriate factor in accord-
ance with what appear to your Lordships to be the correct
principles upon which it should be determined. I emphasise
that your Lordships can take this step only if the learned judge
and the Court of Appeal acted upon some wrong principle.

It is convenient that I should now state in greater detail
first the relevant provisions of the 1957 Act and then the tenancy
agreement between the parties.

Section 1 (1) of the Act provides that: '' Subject to the
'* following provisions of this Act the rent recoverable for any
'" rental period from the tenant under a controlled tenancy shall
"" not exceed . . . a rent of which the annual rate is equal to the
'1956 gross value of the dwelling multiplied by two (or, if the
'' responsibility for repairs is such as is specified in Part I of the
'' First Schedule to this Act, by the appropriate factor specified in
''the said Part I),'' together with annual amounts in respect of
rates and service with which this appeal is not concerned. As I
have already indicated, '' appropriate factor '' means the number
by which the gross value is to be multiplied in determining the
rent limit.

The relevant provisions of Part I of Schedule I may be set
out verbatim. They are as follows: ''1.—(1) The following
'' provisions shall have effect in ascertaining the rent limit by
'reference to the 1956 gross value. (2) If under the terms
''of the tenancy the tenant is responsible for all repairs, the
'' appropriate factor shall be four-thirds. (3) If under the terms

387

He. Lt (2)
1958

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PROPERTY
Co. Lrp.

v.
DcDLeEy.

Viscount
Simonds.

388

H. L. (E.)
1958

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0.
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Viscount
Simonds.

HOUSE OF LORDS [1959 |

'of the tenancy the tenant is responsible for some, but not all,
''repairs, the appropriate factor shall be such number less than
'two but greater than four-thirds as may be agreed in writing
'between the landlord and the tenant or determined by the
'county court."

It is plain that it is only Part I of the Schedule which has
any bearing upon the determination of the appropriate factor,
but the appellants referred to and relied upon Part II and I
therefore myself refer to it. It is concerned with the obtaining
of a so-called certificate of disrepair which, while it is in force,
prevents the landlords from getting the increase of rent which
they might otherwise get under Part I. It is headed '* Abate-
''ment for disrepair '' and contains elaborate provisions for the
service by a tenant of a notice of disrepair of the premises by
reason of defects stated in the notice, for the landlords' under-
taking to repair the defects, for the issue by the local authority
to the tenant of a "' certificate of disrepair,'' and for the can-
cellation in certain circumstances of such certificate, and so on.
Specifically it provides, by paragraph 7 (2), that: '' Where a
'' certificate of disrepair is issued, then as respects any rental
'"" period beginning while the certificate is in force the appro-
'* priate factor shall be four-thirds.'' Reliance was also placed
on paragraph 15, which provides that references in that Part
(i.e. Part II) of the Schedule '' to defects for which the tenant
"ig responsible are references to defects for the remedying of
'' which, as between the landlord and the tenant, the tenant is
'""yesponsible, or defects which are due to any act, neglect or
'"' default of the tenant or any person claiming under him or
'""any breach by the tenant or such a person of any express
'agreement.'' These provisions may give rise to difficulties of
their own, but I am at a loss to know what light they can throw
upon the meaning of the provisions of Part I.

The tenant's obligations in respect of repair are contained
in clause 2 (C), (D), (E) and (F) of the agreement and are
as follows: [His Lordship read clause 2 (C), (D), (E) and (F)
and paragraph 1 of the schedule of rules and regulations and con-
tinued: ] This provision is clearly out of place. It is an important
obligation of repair and I should have expected it to follow
clause 2 (C) in the body of the agreement. It will be seen that
some difficulty has been caused by this fact.

The only other fact which need be noticed is that the
appellants' agents circularised the tenants to the effect that
where taps required washering or reseating they were particularly

2?

>?

'

A.C. AND PRIVY COUNCIL.

389

requested to report it to the porter's lodge, when the landlords H. L. (B.)

would be pleased to effect repairs without charge to the tenant.
I do not think that this offer, which could at any moment be
recalled, can affect the appropriate factor.

When the application came before the county court judge
evidence was given by an expert witness on each side and it
was natural that their opinions should widely differ as to the
burden in terms of pounds, shillings and pence falling upon the
tenant under the terms of the agreement. It was a noteworthy
fact that the landlords' witness was for reducing the tenant's
liability, the tenant's for enlarging it. The learned judge did not
wholly accept the evidence of either of them and held that the
landlords' liability for repairs should be valued at £7 5s. per
annum and the tenant's at £7 7s. He therefore assessed the
appropriate factor at five-thirds. I do not think that in coming
to this conclusion the learned judge preferred the principles
adopted by one witness to those adopted by the other: I doubt
whether there was in this respect any difference between them.
The difference was in quantum—a matter of fact upon which
the decision cannot be questioned unless the judge erred in
principle.

I ask, then, what was the error in principle? It appears that
in the county court and in the Court of Appeal two main
questions and a subsidiary question were argued. The first
main question is succinctly stated in the first and second reasons
in the appellants' formal case. They are (1) that '' the learned
'" county court judge erred in principle in having regard to repairs
'* for which the respondent would be responsible at common law
''had there been no repairing covenant in his tenancy agree-
'"ment'' and (2) (which is consequential) that he "' erred in
'* principle in evaluating those liabilities, in that he credited the
'" respondent with the full value thereof.''

As I understand the argument for the appellants, it is that,
if some repair is necessary to the premises and if that repair
is made necessary by some act of the tenant for which he could
be held liable at common law, then, notwithstanding that he is
also liable to repair under the terms of his tenancy, it is a repair
for which he is not to be regarded as responsible for the purpose
of determining the appropriate factor under Part I of. the
Schedule to the Act. This argument was rejected, and, in my
opinion, rightly rejected, in the county court and the Court of
Appeal. The court is concerned only with the tenant's respon-
sibility for repairs under the terms of the tenancy. It is

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irrelevant why those repairs have become necessary. JI am
ignoring for the moment the "' fair wear and tear '' clause which
demands separate consideration. Nothing could be plainer than
the language of Part I: '' If under the terms of the tenancy the
'tenant is responsible for all repairs'': '' If under the terms
'' of the tenancy the tenant is responsible for some, but not all,
''repairs.'' I see no reason why "all '' should mean anything
less than all, why there should be excluded from "all '' repairs
those repairs (if there be any) which the tenant can be called
upon to execute by invoking the doctrine of permissive waste or
any implied obligation on his part arising at common law out
of the relation of landlord and tenant or even, as was suggested,
by reason of his negligence. Not only is there no possible reason
for any such interpolation: it would as a practical matter be a
difficult, if not an impossible, task to fix the tenant with any
such liability. I do not recall any case—I do not, my Lords,
believe that there is any case in the books—in which a court of
law has been asked to do gross violence to the plain language
of a statute upon such an inadequate pretext. The language is
plain: no words could more plainly express a simple concept.
The violence is gross: an indefinite ''some'' is substituted for
'""all.'' The pretext is inadequate and worse. For it is in itself
nothing else than the assertion that in this difficult area of the
relation of landlord and tenant the court knows better than
Parliament what changes should be made in the existing legis-
lation and will adjust and alter the language of a statute
accordingly. I reject with such emphasis as I can command
any such suggestion. I am content to adopt the view expressed
by Pearce L.J., delivering the unanimous judgment of the Court
of Appeal,' that '' such repairs are in fact a responsibility under
'"'the express terms of the agreement. The fact that there may
'"be a concurrent liability at common law does not alter that
""fact.'' He added, and I agree, that '' if one applies the test
'""of common-sense and practice, one can hardly imagine a
"landlord claiming against a tenant in respect of them other
'than under the express covenant.'' This challenge to the
judgment of the county court judge, which primarily, if not
solely, turns on the true construction of the statute, therefore
fails.

>?

It is convenient at this stage to notice an argument which
was directed to the alleged anomalous result of the decision. It

1 [1958] 1 Q.B. 346, 358-359; [1958] 2 W.L.R. 856; [1958] 1 All E.R. 510.

A.C. AND PRIVY COUNCIL.

391

was said to put a premium on a tenant's negligent conduct H. L. (E.)

enabling him to proclaim how bad a tenant he was and would
be, what damage he would do and how heavy would be his
lability to repair and therefore to demand that the appropriate
factor should be as low as possible. My Lords, I do not doubt
that such complicated legislation as the Rent Act has led and
will lead to some anomalies. But I am not moved by this
suggested anomaly. The court is not concerned with the
character or proclivities of the particular tenant. Rightly, no
evidence was given in regard to those of the present respondent.
The court is concerned only with the premises and the relevant
repairing obligations of the tenant.

At this stage I must diverge from the argument as presented
to the Court of Appeal and in the formal case of the appellants
in this House. The assumption being made that upon the true
construction of the Act the county court judge did not err in
principle in having regard to repairs for which the respondent
might be responsible at common law had there been no repairing
covenant in his tenancy agreement, it appeared to their Lord-
ships that the question was still unresolved what weight should
be given to this element in a tenant's obligations in determining
the appropriate factor. They, therefore, required further argu-
ment from counsel and posed to them the question whether
upon the assumption already stated the learned judge had
misdirected himself by not assuming, for the purpose of his
determination, a tenant who was reasonably careful in his user
of the premises let to him. It appeared, however, at once that
there was some ambiguity in this question. Learned counsel for
the appellants, Mr. Lawson, adhering to the view that damage
due to negligence (as I will call it for short) must be altogether
excluded, was, of course, ready to accept the standard of a
hypothetical tenant who was reasonably careful if that meant a
tenant who, being reasonably careful, never caused damage by
carelessness. A number of difficult questions would admittedly
arise in respect of damage caused by the tenant's family or
guests or licensees or trespassers. But, broadly speaking, the
result was precisely the same as it would be if no assumption
had been made and damage due to negligence and a consequent
obligation to repair were outside the relevant computation. And
to reinforce this view he made it quite clear that he did not
ask your Lordships to remit the case to the county court for
further consideration except upon that basis.

1958

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PROPERTY
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v.
DUDLEY.

Viscount
Simonds.

_

392

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1958
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Co. Lp.

7)

DUDLEY.

Viscount
Simonds.

HOUSE OF LORDS [1959 }

The attitude of learned counsel for the respondent, Mr.
Megarry, was very different. He agreed—he could not do
otherwise—that it is necessary to assume some kind of tenant
since the rent is to be paid by a tenant. What sort of tenant,
then, is this hypothetical tenant to be? For Mr. Megarry, as
for Mr. Lawson, the essential question was whether damages for
negligence should be excluded, and it appeared to me that, as
long as this question was answered in the negative, he did not
mind whether the hypothetical tenant was described as an
average tenant or a reasonably careful tenant or by any other
description. He was in fact satisfied with the way in which the
matter had been dealt with by the county court judge, who
declined to assume a tenant who in his own words "' can be
'" relied on always to be careful.''

Upon this question there was much discussion. It was clearly
a very difficult matter to define the hypothetical tenant with any
sort of precision. It is desirable that more definition should not
be attempted than the occasion needs and therefore, though I had
myself attempted that task, I shall say no more than that, having
read the opinion which my noble and learned friend, Lord Tucker,
will shortly deliver, I find myself fully in agreement with every
word of it and respectfully adopt it.

I turn to the second main question argued in the courts below
and again I look at the appellants' third and fourth reasons in
their formal case. They are (1) that the county court judge
'erred in principle in crediting the respondent with more than a
'"nominal amount in respect of his liability to repair in view of
'"'the 'fair wear and tear exception' contained in the tenancy
'""agreement,'' and (2) that '' Taylor v. Webb? was rightly
'"decided.'' This latter reason must remain, for the moment,
enigmatical. I will return to it.

The purport of his argument is that the qualification of the
repairing covenant in clause 2 (C) by the fair wear and tear clause
reduces the value of the tenant's obligation to a small or even
negligible amount, that this is the effect of the decision in Taylor
v. Webb? and that the learned judge did not pay sufficient regard
to it. I must interpose that counsel for the respondent, the
tenant, while content with the order as it stands, asks that if
the matter is remitted to the county court, there should be a
direction to the judge to assess the appropriate factor upon the
footing that Taylor v. Webb? was wrongly, not rightly, decided.
He claimed that too much weight had been given to that decision

2 [1937] 2 K.B. 283; 53 'T.L.R. 377; [1937] 1 All E.R. 590.

A.C. AND PRIVY COUNCIL.

and that upon a true view of the clause the tenant's obligation
under the covenant, though qualified, was greater than the judge
allowed. It is, I think, a fair criticism of the judgment of the
learned judge that it is not easy to see just how, as a matter of
principle, he did regard the impact of the fair wear and tear clause
nor how he translated into figures the qualification which it
imposed on the covenant.

My Lords, I must now refer to Taylor v. Webb,? which has
loomed large in this case, though I doubt whether it has great
practical importance. There is, I think, no doubt that the
decision in that case has been regarded as making a substantial
change in the law. It may be that in the peculiar circumstances
of the case the decision was correct. I do not have to decide that.
But I entertain no doubt that the statements of principle made
by the court (Slesser L.J., Scott L.J. and Farwell J.), if they are
applied (as I think they were intended to apply) to the common
case of a qualified repairing covenant, cannot be supported. I say
"intended to apply '' because the court expressly overruled the
decision of a Divisional Court in Haskell v. Marlow? in which
the court had, in what I have called the common ease, given a
narrower meaning and effect to such a covenant. In the latter
case Talbot J., whose judgment I prefer to that of Salter J., said
of such a covenant': "' The meaning is that the tenant (for life
'' or years) is bound to keep the house in good repair and condition,
'"but is not liable for what is due to reasonable wear and tear.
'"That is to say, his obligation to keep in good repair is subject
'"to that exception. If any want of repair is alleged and proved
''in fact, it lies on the tenant to show that it comes within the
'exception. Reasonable wear and tear means the reasonable use
'* of the house by the tenant and the ordinary operation of natural
'' forces. The exception of want of repair due to wear and tear
''must be construed as limited to what is directly due to wear
''and tear, reasonable conduct on the part of the tenant being
''assumed. It does not mean that if there is a defect originally
'* proceeding from reasonable wear and tear the tenant is released
'' from his obligation to keep in good repair and condition every-
'« thing which it may be possible to trace ultimately to that defect.
'' He is bound to do such repairs as may be required to prevent
''the consequences flowing originally from wear and tear from
'' producing others which wear and tear would not directly

2 [1937] 2 K.B. 2838; 53 T.L.R. 3 [1928] 2 K.B. 45; 44 T.L.R.

377; [1937] 1 All E.R. 590. 171.
4 [1928] 2 K.B. 45, 58-59.

393

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v.
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HOUSE OF LORDS [1959 |

'produce.' The learned judge then quotes as an example the
ease of a tile falling off a roof and the consequential damage.

My Lords, I have quoted this passage at length because it states
better than I could state it what I believe was always regarded
as the law on this matter until Taylor v. Webb * was decided and
should now be reinstated as the law by your Lordships' decision.
In that case each of the three judges directly disapproved of the
reasoning of Talbot J. in Haskell v. Marlow * and in effect held
that the clause relieved the tenant, not only from the immediate
effects of wear and tear, but from the obligation to take any
steps to avert any consequential damage. I think that the learned
editor of the 25th edition of Woodfall on Landlord and Tenant
was well justified in saying at p. 766: ''It is open to question
'' whether this case [sc. Taylor v. Webb 7] does not go too far as
'"a statement of principle and should be regarded perhaps as a
'"decision on the particular facts; the principle quoted from
'Tindal C.J. seems to accord better with what draftsmen
'"intend.'' The quotation to which he refers is the well-known
passage from Gutteridge v. Munyard.* The guarded observations
of the Court of Appeal in Brown v. Davies® point in the same
direction.

My Lords, can it, then, be said that in the present case the
judge was wrong in principle in the force which he gave to the
clause? He had before him the then binding decision in Taylor
v. Webb: he said that he must consider in due course the
application of that decision to the circumstances of the case and,
though, as I have said, it is not clear at least quantitatively how
he applied it, I can see no ground for saying that in any sense
adverse to the appellants his decision was based on any wrong
principle. On the contrary, I can well understand the claim of
the respondent that, if the learned judge, following Taylor v.
Webb,'® made his assessment on the footing that the tenant was
relieved from all liability, not only in respect of an original defect,
but also from all consequential damage, then he erred in principle
in favour of the appellants. Therefore the second main ground
of challenge fails.

But, my Lords, there is another aspect of this clause which
has caused me much difficulty. It is closely linked with what I
have called a subsidiary question which arises upon the first rule

5 [1987] 2 K.B. 288. 2 1958] IO Bait, 26127)
6 [1928] 2 K.B. 465. [1957] 8 W.L.R. 818; [1957] 8 All
7 [1937] 2 K.B. 288. H.R. 401.

8 (1834) 1 Moo. & R. 334. 10 [1937] 2 K.B. 288.

A.C. AND PRIVY COUNCIL.

or regulation in the schedule. That has already been set out.
The question was whether the fair wear and tear clause applied
to the rule as well as to clause 2 (C) of the tenancy agreement
in which it is to be found. The learned judge held that it did.
The Court of Appeal held that it could not be read into rule 1
without qualification as it seemed inappropriate to the obligations
in regard to various specific matters imposed by the rule. With
this I agree. It would, for instance, be absurd to qualify damage
caused '* through improper use or negligence '' by a fair wear and
tear clause. On the other hand (agreeing again with the Court
of Appeal), I see no reason why, reading the rule with clause
2 (C) as I must, since that clause specifically refers to '' sanitary
'"and water apparatus,'' the fair wear and tear clause should not
be applied to those matters to which it can properly be applied,
i.e., to the opening words down to the words "' proper repair and
'"order.'' And this, I think, is all that the learned judge in effect
has done.

Finally, it has been said that the learned judge has erred in
principle because in his enumeration of the items for which the
tenant will remain liable notwithstanding the fair wear and tear
clause, he has included damage which falls within the exception
provided by that clause. My Lords, it is obvious that it may be
open to debate, whether any particular damage necessitating
repair when it has occurred has been due to fair wear and tear
or not. Still more is it open to debate whether when it occurs in
the future it will be due to fair wear and tear. I should not myself
say that it is impossible or even unlikely that some of the events
enumerated might not be so due. But I do not think it is possible
to say that the learned judge erred in principle in his enumeration
and I think, therefore, that on this ground too the appeal fails.
In the result the appeal should, in my opinion, be dismissed,
with costs.

Lorp Morron or Henryton. My Lords, the most important
question arising on this appeal relates to the method to be adopted
in ascertaining the '' appropriate factor '' specified in Part I of
Schedule I to the Rent Act, 1957, in a case where, under the
terms of the tenancy, the tenant is responsible for some, but not
all, repairs. A minor question arises as to the true construction
of the tenancy agreement made between the appellants as land-
lords and the respondent as tenant. The relevant facts are as
follows: [His Lordship stated the facts and continued: |

My Lords, it was common ground between the parties that

"ce

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Lord Morton
of Henryton.

HOUSE OF LORDS [1959 |

the learned judge was right in the course which he pursued of
estimating the sums which each party would have to spend per
annum on repairs, under the terms of the tenancy, and fixing the
appropriate factor on this basis; and I add that the words
'' under the terms of the tenancy '' in Part I of Schedule I must,
in my view, apply equally to an oral and a written tenancy agree-
ment. The court must first ascertain what obligations as to repair
are placed upon the tenant under the terms of the tenancy and
then estimate the annual cost of carrying out these terms. It is
also common ground that on the figures at which the learned
judge arrived he was right in fixing the appropriate factor at 13
of the gross value, that figure being, of course, exactly half-
way between the maximum of 2 and the minimum of 1}. It was,
however, contended on behalf of the appellants that the learned
county court judge fell into an important error of principle in
assessing the tenant's liability for repairs under the terms of the
tenancy at '' not less than £7 7s. per annum,'' because he took
into account repairs rendered necessary by conduct of the tenant
which would be a breach of his obligations at common law.

My Lords, I would reject this contention, for the reasons
given by Pearce L.J. in delivering the judgment of the Court of
Appeal, but I have felt considerable doubt as to whether the
learned judge did not go wrong in a different way. It is clear
that the amount which any tenant will have to spend on repairs
in a year, under the terms of his tenancy, depends in part upon
how far the terms of his tenancy make him liable for repairs, in
part upon the nature of the property let, and in part upon the
behaviour of the tenant. Thus, in estimating this sum, the court
must assume a tenant of a particular type. This was recognised
and accepted by counsel for appellants and respondent when the
appeal was further argued on October 21, 1958. It was not
suggested by either side that the court should investigate the
personal qualities of the person who is in fact the tenant at
the time when the estimate has to be made.

My Lords, in my opinion the type of tenant who should be
assumed for the purposes of the calculation now under considera-
tion is a tenant who is reasonably careful in his user of the
premises. I can see no good reason why the legislature should
have had any other type of tenant in mind when it placed upon
the court the task of determining the '' appropriate factor ''; a
task which must obviously involve estimating the burden of the
repairs for which the landlord and the tenant respectively are
'responsible under the terms of the tenancy.'' It would surely

A.C. AND PRIVY COUNCIL.

be wrong for the court, in estimating the burden on the tenant
under these terms, to do so upon the footing that the tenant will
make that burden heavier by reckless behaviour or wanton
destruction.

I recognise, however, that even the reasonably careful tenant
may have moments when he acts in a negligent way, and damage
may be done by negligent acts of his wife (if any), children (if
any), servants and agents. I think that a county court judge is
justified in making some allowance for the possibility of such
events happening. In my opinion, however, the learned judge
in the present case has taken too gloomy a view of the conduct
to be attributed to the hypothetical tenant, and the '"' sort of
'"" things which are likely to happen '' in this little two-roomed
flat, as set out in the list of items, which I have quoted from his
judgment.

For this reason, I was at one time disposed to think that the
present case should be remitted to the county court for recon-
sideration of the figure of £7 7s.; but when this appeal was further
argued on October 21 I found that counsel for the appellants did
not wish to ask for such an order unless your Lordships were of
opinion that every repair rendered necessary by negligence should
be excluded from the calculation. This would involve imagining a
tenant who is never at any time negligent during the whole course
of his tenancy, and attributing a similar perfection of behaviour
to his spouse (if any), children (if any) and servants or agents.
I cannot find in the Act any justification for this.

I now turn to an argument submitted by counsel for the
respondent. In the course of his judgment the learned judge
said: '' My attention has been drawn to the case of Taylor v.
'* Webb," but it must be remembered that the damage under
'" consideration in that case was due to the state of the outside
"' of a house exposed to the elements.'' Later he observed:
'' It is the application of this decision to the circumstances of the
'' present case that I shall have to consider in due course.'' In
fact the learned judge did not refer again to Taylor v. Webb,"
but counsel for the respondent contended (1) that he must be
taken to have applied the principles laid down in Taylor v.
Webb 4 in arriving at the figure to be ascribed to the "' fair wear
''and tear '' exception in clause 2 (C) of the tenancy agreement;
(2) that Taylor v. Webb ™ wrongly overruled Haskell v. Marlow ™;

11 [1937] 2 K.B. 283. 12 [1928] 2 K.B. 45.

397

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PROPERTY
Coss LTo:

v.
DvuDLeEY.

Lord Morton
of Henryton.

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Co. Lip.

v.
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Lord Morton
of Henryton.

HOUSE OF LORDS [1959 |

(3) that the view expressed by Talbot J. in Haskell v. Mar-
low 3% as to the effect of a '' fair wear and tear '' exception is to be
preferred to the views expressed by the members of the Court of
Appeal on the same topic in Taylor v. Webb.14 Accordingly,
counsel for the respondent submitted that if for any reason the
case is referred back to the learned judge—though they were quite
willing to accept his findings as they stood—he should be directed
to reconsider the figure to be ascribed to the "' fair wear and tear "'
exception in the present case in accordance with the view of
Talbot J. just mentioned.

I understand that your Lordships are all inclined, as I am, to
accept the contentions just stated. I think, however; that in a
case such as this, where the obligations of the tenant relate solely
to the interior of the premises, where no question of interior
decoration arises, and where '' the premises "' are a small modern
flat, it can hardly make any difference to the practical result
whether the judge applies the view of Talbot J. in Haskell v.
Marlow * or the view of the Court of Appeal in Taylor v. Webb,'®
and I am not surprised that counsel for the respondent are willing
to accept his findings.

Two further questions were considered in the course of the
argument. First, did the "' fair wear and tear'' exception in
clause 2 (C) of the tenancy agreement apply to the obligations
imposed on the tenant by clause 2 (E) and rule 1 of the schedule?
This exception is not mentioned in either of these two parts of the
document, but the obligations in clause 2 (C) include an obliga-
tion '' to keep the sanitary and water apparatus "' of the flat '* in
"" good and substantial repair and condition,'' with a "' fair wear
'"and tear'' exception. This being so, I think that the same
exception must apply to the opening words of rule 1, down to
'"" proper repair and order,'' since these words deal, in substance,
with the same subject-matter. I do not think that this view
is in conflict with the views expressed in the county court and
the Court of Appeal. Even if the learned judge intended to apply
the exception to the whole of rule 1, I do not think it likely that
this error affected in any way the figure of £7 7s. already
mentioned.

The second question related to the effect (if any) of the
circular letter, already set out, upon the obligations of the tenant
as to repairs. Counsel on both sides agreed, however, that if your
Lordships took the view with which I have just expressed my

13 [1928] 2 K.B. 45, 58, 59. 15 [1928] 2 K.B. 45.
14 [1937] 2 K.B. 283, 16 [1937] 2 K.B. 283.

A.C. AND PRIVY COUNCIL.

agreement, the duty as to washering or reseating taps would be a
"repair '' to which the '' fair wear and tear '' exception applied.
For these reasons, my Lords, I would dismiss the appeal.

Lorp Tucker. My Lords, the main question in issue in this
case in the Court of Appeal and as originally presented to your
Lordships by counsel for the appellant company was whether the
learned county court judge had correctly construed the words '' if
"under the terms of the tenancy the tenant is responsible for
"some, but not all, repairs'' in paragraph 1 (8) in Part 1 of
Schedule I to the Rent Act, 1957, for the purpose of fixing "* the
"appropriate factor '' with a view to determining the rent limit
of the flat in question.

The contention was that the learned judge erred in including
in the repairs for which the tenant was responsible under his
tenancy agreement those repairs for which he would have been
responsible at common law apart from and irrespective of his
express obligations under his agreement.

This raised a pure question of law of wide importance and
eminently suitable for determination by the Court of Appeal. It
was rejected—and, in my opinion, rightly rejected—by that court
in the following words !7:

'" The question is whether in law he could properly throw those
""oecurrences into the tenant's scale as matters for which the
'" tenant was responsible under the terms of the agreement. They
""were in fact matters for which he was so responsible. Mr.
'"* Lawson argues that the tenant's liability for them at common
'"law makes it incorrect to describe them as a responsibility
''under the terms of the agreement. We cannot accept that
''argument. Such repairs are in fact a responsibility under the
'"express terms of the agreement. The fact that there may be
'"a concurrent liability at common law does not alter that fact.
'" Tf one applies the test of common sense and practice, one can
'" hardly imagine a landlord claiming against a tenant in respect
'*of them other than under the express covenant."'

My Lords, I start by asking myself what, apart from actions
for waste, are the common law remedies of a landlord against a
tenant for damage resulting from the negligent use of the demised
premises by the tenant. Neither counsel was able to cite any
case in which any such action had ever been brought. Negligence
involves a breach of duty and I should have supposed that the
measure of that duty arising out of the relationship of landlord

17 [1958] 1 Q.B. 346, 358-359.

399

Ee (Er)
1958
REGIS

PROPERTY

Co. Lrp.

D

DuvDLey.

400

H: L. (B.)
1958

REGIS
PROPERTY
Co. Lip.

v.
DUDLEY.

Lord Tucker.

HOUSE OF LORDS [1959 |

and tenant was to be found in the express terms oi the contract
between the parties or in the covenants which the law over the
years has implied from that relationship in certain types of
tenancy, e.g., the letting of furnished premises, weekly tenancies
and yearly tenancies. However this may be, I will assume for
present purposes that some such action would lie at common law
either concurrently with the remedy for breach of contract or in
lieu thereof where there is no express contract. In such an action
the tenant clearly would not be responsible for the negligent acts
of his children or his guests, and for damage so caused the land-
lord would have to rely on his contractual rights. What should
the county court judge have done with regard to repairs due to
such causes? Should he have excluded them, together with those
which were due to the negligence of the tenant or his servants, or
should he have made a separate calculation with regard to each
category and have excluded one and included the other?

My Lords, such problems do not, in my view, arise out of the
language of the Schedule. The words " repairs for which the
"'tenant is responsible '' must have the same meaning in para-
graph 1 (2) and paragraph 1 (8); it is only the quantum that differs.
I can find no justification for giving the words "' all repairs '' any
meaning other than their natural and ordinary meaning of all
repairs whatever the cause of the disrepair and regardless of any
concurrent remedies available to the landlord for the enforcement
of the tenant's obligations. The only justification, as I under-
stood the argument, for giving a limited meaning to the words was
said to be found in the language of Part 2 of the Schedule
and in particular to paragraph 15 thereof which provides that
references in that Part of the Schedule '' to defects for which the
'' tenant is responsible are references to defects for the remedying
""of which, as between the landlord and the tenant, the tenant
""is responsible, or defects which are due to any act, neglect or
"default of the tenant or any person claiming under him or any
"breach by the tenant or such a person of any express agree-
'""ment.'' The precise effect of these words may require con-
sideration on some future occasion when the cancellation of a
certificate of disrepair is in question, but I do not think they can
justifiably be called in aid in order to qualify the plain language
of a different Part of the Schedule dealing with a different subject-
matter, viz., the ascertainment of the appropriate factor as
distinct from the procedure laid down in Part 2 for the abatement
of disrepair and the grant and cancellation of certificates of
disrepair.

A.C. AND PRIVY COUNCIL.

401

My Lords, I agree with the Court of Appeal in thinking that H. L. (,)

this contention of the appellant company was rightly rejected by
the county court judge.

At a late stage of the hearing counsel for the appellant com-
pany advanced an alternative argument leading to the same result
by a different process which does not involve doing violence to
what I regard as the clear language of the Schedule. He said
that you look at the express language of the tenancy agreement
to ascertain whether it falls within paragraph 1 (3) of the Schedule
and if it does you then proceed to evaluate the quantum. This
entails envisaging a hypothetical tenant and in the present con-
text such a tenant is one who throughout his tenancy is never
guilty of negligence in relation to his user of the premises and
whose servants or agents are equally blameless. This tenant he
described as "' a reasonably careful tenant.'' Mr. Megarry for the
respondent, whilst disposed to accept the description of the hypo-
thetical tenant as '' reasonably careful,'' submitted that such a
tenant would from time to time be liable to fall below the standard
of perfection required from Mr. Lawson's hypothetical tenant and
consequently a certain degree of negligence on his part or on the
part of those for whom he is responsible is to be expected.

My Lords, as counsel on each side by adopting the same
words of description arrive at such different results, it makes
me doubt whether the words '' a reasonably careful tenant '' are
very apt to describe this hypothetical person. However, as I
understand some of your Lordships are of opinion that this is the
proper test, I would not quarrel with this description, provided
it is made clear that Mr. Megarry's interpretation is the right
one and that perfection is not to be attributed to this hypothetical
tenant who is, I think, to be taken to be of the type who may
reasonably be expected to occupy identified premises in a parti-
cular locality on the terms of the agreement in question. I can
find nothing in the judgment of the learned county court judge
which leads me to doubt that this is the test which he applied.
There is, in my opinion, no justification for inferring that he
intended to attribute to the tenant all the acts enumerated by
him towards the end of his judgment. They are merely
examples of the kind of things some of which might be expected
to occur during the tenancy and for which, if they did occur, the
tenant would be responsible. I think the figure of £7 7s. Od. at
which he fixed the tenant's total liability makes this quite clear.
Furthermore, the passage in his judgment at p. 8 of the Record
where he says: "I must, therefore, regard the agreement as one

A.C. 1959. 26

1958

Reais
PROPERTY
Co. Lip.

0.
DUDLEY.

Lord Tucker.

402

Jah, ibe (ane)
1958
REGIs

PROPERTY

Co. Lp.

"

DUDLEY.

Lord Tucker.

HOUSE OF LORDS [1959 |

"that repudiates specifically the assumption that tenants can be
"relied upon always to be careful. It assumes instead that there
"may be some who are not," although founded upon the
language of the particular agreement, clearly indicates the type
of hypothetical tenant envisaged by him.

It is said that unless you exclude repairs due to negligence
it follows that the greater the degree of negligence attributed to
the hypothetical tenant the lower will be his rent. If this is
illogical it is the fault of the statute and is no justification for
reading into the Act words which are not there or endeavouring
to reach the same result by assuming a perfect tenant and con-
cealing his perfection by describing him as " reasonably careful."
Surely there can be no justification for assuming that the con-
duct of the tenant will be either extremely good or extremely
bad and it would seem to be equally illogical that the better his
anticipated conduct the higher will be his rent. To me the
conclusion seems irresistible that the hypothetical tenant must
be the ordinary average man with all his imperfections and
liability occasionally to fail to maintain that standard of care
which the law requires of him in his relation to his neighbours.

With regard to the application of the fair wear and tear
exceptions, I agree that the judgment of Talbot J. in Haskell v.
Marlow '* is to be preferred to the judgments of the Court of
Appeal in Taylor v. Webb ?® in so far as questions of principle are
involved and that to this extent the latter case should be regarded
as overruled. JI find it difficult, however, to ascertain in what
way the application of the decision in Taylor v. Webb }® affected
the computation made by the learned judge, and I agree that
if he erred at all it was probably in favour of the appellants.

My Lords, with regard to the question of the application of the
fair wear and tear exception to paragraph 1 of the schedule to the
tenancy agreement, and to the criticism directed to the inclusion
of some of the specific items enumerated by the county court
judge, I am in agreement with the views which have been
expressed by my noble and learned friend on the Woolsack and
have nothing to add thereto.

For these reasons I would dismiss the appeal.

Lorp Keira or Avonnorm. My Lords, this appeal falls to
be decided, in my opinion, on a very short point. The question
is how the county court judge is to determine the basic rent of
the demised premises, having regard to the terms of the tenancy

18 [1928] 2 K.B. 49. 19 [1987] 2° K.B. 283:

A.C. AND PRIVY COUNCIL.

agreement. This is not a matter on which absolute precision is
possible in the intermediate class of case where the tenant is
liable for some, but not all, repairs as here. At opposite ends
of the scale no difficulty arises. If the tenant is liable for no
repairs the "appropriate factor" is two (section 1 of the Act).
If the tenant is liable for all repairs the " appropriate factor " is
four-thirds (paragraph 1 (2) of Schedule I). In the intermediate
class the "appropriate factor" has to be determined by the
county court and if the judge proceeds on proper principle his
figure can hardly be challenged.

In the present case the learned county court judge, in the
course of his judgment, said this: "' There is, however, a further
"consideration that I am asked to take into account regarding
"repairs arising through negligence, and it is this. It is sub-
"mitted that in construing this agreement it should be assumed
"that the tenant will be a reasonably careful tenant, that is to
"say, not a negligent one, and that the negligence clause can
"therefore be disregarded. It might be possible to accept this
"argument in the case of an agreement that was silent as to
"the tenant's negligence. It might then, I think, be argued
"that it should be assumed that when the agreement was drawn
"up the landlord had in mind only tenants who would behave
"with reasonable care, but this agreement is not silent; it quite
"obviously assumes and takes into account the possibility that
"the tenant or his servants may be negligent and it formulates
" provisions to apply in such a case. I must, therefore, regard
"the agreement as one that repudiates specifically the assump-
"tion that tenants can be relied upon always to be careful. It
"assumes instead that there may be some who are not." From
his catalogue in a later part of his judgment of the sort of
things that happen it is clear, I think, that to some extent he
has applied the view so expressed. In my opinion, he has here
misdirected himself.

The question, as I see it, is not what the particular tenant
would be responsible for in the event of his negligence. Even
if he were under no repairing obligations he would, in my
opinion, be liable for disrepair caused by negligent treatment of
the demised premises. The question is how is the quantum of
repair to be fairly allocated between landlord and tenant in
light of the repairing covenants imposed by the tenancy agree-
ment. The terms of the agreement are material as showing the
scope of the repairs that may be expected to fall on the landlord
and tenant respectively.

403

Eee)
1958
Recis
PROPERTY
Co. Lp.
0

DUDLEY.

Lord Keith
of Avonholin.

404

H. L. (B.)
1958

ReEGIs
PROPERTY
Co. Lop.:

0.
DUDLEY.

Lord Keith

of Avonholm.

HOUSE OF LORDS [1959 |

There are references in rule 1 of the " Schedule of Rules and
'' Regulations '' to negligence of tenants or their servants. These,
I think, refer to negligence in the use of baths and other sanitary
fittings and seem intended to cover consequential damage to the
demised premises or to other flats. This seems a very natural
clause for the protection of the landlord, though it adds, I think,
nothing to the liability which would attach to the tenant in any
case apart from the clause. The reference to "other flats"
would seem also to put it into a special character of stipulation
outside the ordinary repairing covenant. But whatever the
clause means, it cannot be taken to warrant the assumption that
the landlord contemplates a negligent tenant or is granting to
the tenant a charter to be negligent.

It was accepted as common ground and, in my opinion,
tightly so, that the tenant to be regarded is not any particular
tenant, but a hypothetical tenant. That tenant must, in my
opinion, be taken to be a reasonably careful tenant not given
to acts of negligence in his treatment of property or to untenant-
like conduct. That is not to say that regard may not be paid
tio the ordinary mischances and accidents that may occur in any
house from inadvertence.

The assumption of such a hypothetical tenant is, in my
opinion, a necessity to give any coherence or certainty in the
operation of the provisions of the Act. The appropriate factor
cannot depend on the reputation of the particular tenant or on
the neighbourhood in which the dwelling-house is situated or on
an estimate of the conduct of people who stay in or are allowed
to visit the house. If negligence were to be treated as a matter
to be taken into account, how much negligence is to be assumed ?
The: repair bill is clearly going to vary in proportion to the
estimate of the amount of negligence. Some tenants might be
grossly negligent, some might be less negligent and some might
not be negligent at all. It is impossible to strike an average of
negligence, and even if it were it would not be appropriate to all
types of tenant and all classes of property. To introduce negli-
gence, would also mean that a negligent tenant would benefit by
getting a lower appropriate factor, and the greater the negligence
assumed the lower would be the appropriate factor within the
statutory limits.

Negligence must, in my opinion, be entirely excluded in com-
puting the appropriate factor. The appropriate factor must be
gomputed on the assumption of a tenancy by a hypothetical
tenant removed from all considerations of negligence. I would

A.C. AND PRIVY COUNCIL.

accordingly allow the appeal and remit the case to the county
court for further consideration. On the other points in the case
I agree with what has been said and have nothing to add.

Lorp Dennine. My Lords, we are here concerned with the
rent which should be paid by the tenant of a small flat which is
still controlled by the Rent Acts. In the Rent Act, 1957, Parlia-
ment has done away with the old standard rent, and has prescribed
instead a '' rent limit '' for controlled houses. It has laid down
a formula for calculating this ''rent limit.'' This formula,
naturally enough, takes account of the '' responsibility for
""repairs.'' The rent limit goes up or down according as the
burden of repairs falls on the landlord or the tenant. This adjust:
ment up and down is effected by means of a variable multiplier
called the '' appropriate factor '' which works in this way: In
applying the formula, you start with the 1956 gross value of the
dwelling. Then you multiply it by 2 or by 14—or by something in
between—according to the '' responsibility for repairs.'' You find
this multiplier by seeing what is the responsibility for repairs
which falls on the tenant under the terms of the tenancy. If the
tenant is responsible for all repairs, the multiplier is 14. If he
is not responsible for any repairs, the multiplier is 2. If he is
responsible for some, but not all, repairs, the multiplier is such
number less than 2 but greater than 14 as may be agreed by the
parties or determined by the county court.

The formula does not thus far take any notice of the respon-
sibility of the landlord for repairs: but it is to be observed that
the Act contains provisions whereby "in case of disrepair '' the
tenant can get the multiplier reduced to 14. The result is that,
if the landlord wishes to receive the full rent permissible under
the rent limit, he must remedy any defects for which the tenant
is not responsible. i

One other thing to be noticed is that the expression
'repairs '' in the formula does not include internal decorative
repairs. If under the express terms of the tenancy, the landlord
is responsible for internal decorative repairs, he can put up the
multiplier by another 4, so that the top multiplier, for instance,
becomes 23 instead of 2.

So far there is no difficulty. The trouble arises when you
ask—What is the proper way to calculate the "' appropriate
''factor''? It is easy enough at the two extremes. When the
tenant is under an express obligation to keep the dwelling "' in
'' repair,'' or '' in good repair,'' or "' in good tenantable repair,"

Abed

406

Haan)
1958

REGIS
PROPERTY
Co. Lrp.

v.
DUDLEY.

Lord Denning.

HOUSE OF LORDS [1959 |

2

or ''in good and substantial repair,'' or any such like phrase
(with no exception for fair wear and tear or anything else) the
multiplier is 14. When the tenant is not under any express
obligation to do any repairs at all, the multiplier is 2. But what
is the position when the tenant is expressly liable for "' some, but
''not all, repairs,'' as, for instance, in the ordinary case when
he is liable to keep the premises in good repair, fair wear and tear
excepted? The Act says that, in the absence of agreement, the
county court judge is to determine the '' appropriate factor '' but
gives him no guidance as to how to do it.

It is, I think, plain that you must take a hypothetical tenant
and assess the responsibility for repairs by estimating what would
be the annual cost of the repairs falling on him and what on the
landlord. But this leaves the question—What sort of hypo-
thetical tenant are you to take? Are you to take a rough tenant
who knocks the place about? or a perfect tenant who never breaks
anything? or an average tenant who comes somewhere in between?

Or, to put the question in another way—What defects are
you to take into account in making the calculation? In particular,
are you to take into account breakages due to the tenant's fault?
Suppose, for instance, that the tenant negligently drops a bottle
into the washhand basin and breaks it: or suppose that he does
not keep his children under proper control and one of them throws
a stone through the window. Are you to take breakages of that
kind into account when ascertaining the rent limit? A rough
tenant will have a lot of such breakages. A perfect tenant none.
An average tenant will have some but no one can say how many.

If breakages of this kind are to be taken into account, it will
produce a strange result. The judge will have to estimate the
annual cost of such breakages to the average tenant and bring it
into the calculation in the tenant's favour (as being part of the
repairs for which the tenant is responsible) with the result that
the tenant will pay a lower rent on account of them. I can see
no sense in this. I can see no reason why the landlord should
receive less rent—or the tenant pay less rent—simply because the
tenant may be expected, in the ordinary course of things, to break
windows, wash-basins and the like.

After a close consideration of the Act, I have come to the
conclusion that, in calculating the rent limit, you ought not to
take into account breakages which are due to the tenant's own
fault: for the simple reason that the Act envisages a hypothetical
tenant who uses the dwelling in the way that he ought to use it—
in the way that the common law expects and requires him to use

ALC. AND PRIVY COUNCIL.

it—that is to say, a tenant who commits no waste (by which I
mean no voluntary waste) and who uses the dwelling in a tenant-
like manner, and who does not break any agreement he has made
as to his use of it. Such a tenant—you may call him a perfect
tenant if you like, but I would call him a reasonable tenant—does
not damage the place, wilfully or negligently, he does not break
windows or wash-basins, or if he does, he puts it right at his own
expense without troubling the landlord about it.

To prove that such is the kind of tenant envisaged by the Act,
I would first take a case where the tenancy agreement contains no
express provision about repairs at all. It was conceded on all
hands that in such a case the multiplier is 2. The reason is
because there is no term of the tenancy—express or implied—
which requires the tenant to do any repairs at all. He is not
therefore, under the terms of the tenancy, responsible for any
repairs—not even for "'some'' of them. But, nevertheless he
is, by the common law, under an obligation not to commit waste,
that is to say, voluntary waste; and he is also under an obligation
to use the premises in a tenant-like manner. As I pointed out in
Warren v. Keen,"°® those are not obligations to repair. They are
obligations as to his conduct, and user of the premises, and so
long as they are fulfilled, as they ought to be, no question of
repair arises. It is true, of course, that if the tenant breaks those
obligations—as, for instance, if he commits waste by removing
partitions or walls (Marsden v. Edward Heyes Ltd.?") or if he
uses the premises in an untenant-like manner by breaking
windows or doors (Ferguson v. Anon **)—he must execute repairs
or else pay damages. But in doing so he is not fulfilling an obliga-
tion to repair under the terms of the tenancy, express or implied.
He is only remedying his own breaches of his common law
obligations as to conduct and user. These obligations are alto-
gether separate and distinct from those imposed by a covenant to
repair and give rise to separate and distinct remedies, see Kinly-
side v. Thornton,' a case of waste, but the same applies, I think,
to use in a tenant-like manner. I do not think Standen v. Chris-
mas ** was correctly decided on this point.

Take next a case where the tenant expressly agrees not to
commit waste and expressly agrees to use the premises in a
tenant-like manner. The multiplier is still 2. It would obviously

20 [1954] 1 Q.B. 15, 20; [1953] 3 22 (1798) 2 Esp. 590.
W.L.R 702; [1953] 2 All E.R. 1118. 23 (1776) 2 W.BI. 1111.
21 [1927] 2 K.B. 1. 24 (1847) 10 Q.B. 135.

407

H. L. (E.)
1958

Reais
PROPERTY
Co. Lip.

v.
DUDLEY.

Lord Denning.

408

H. L. (E.)
1958

REGIS
PROPERTY
Co. Lp.

v.
DUDLEY.

Lord Denning.

HOUSE OF LORDS [1959]

not be right to reduce it simply because the tenant's obligations
are express and not implied or imposed by law.

It is quite clear, therefore, that the landlord is given the
multiplier of 2 on the basis that the hypothetical tenant is a
tenant who commits no waste and uses the premises in a tenant-
like manner: and that, if the tenant breaks those obligations, he
remedies them at his own expense without any effect on the rent.

Thence the multiplier goes down on a sliding scale from the
highest factor 2 to the lowest factor 14: but it is obvious that it
must proceed on the same basis all the way down the scale—
namely, that at every point the hypothetical tenant must fulfil his
common law obligations as to conduct and user, and must, there-
fore, himself remedy defects due to his own fault—and that he
is only entitled to have the rent limit reduced by a lower factor
than 2 according as more and more repairs fall on him by the
express terms of the tenancy over and above those due to his own
fault.

There is another reason why I say the Act envisages a tenant
such as I have described. If you turn to the provisions which
enable a tenant to get the rent limit reduced ''in case of
''disrepair,'' you will find that he cannot get it reduced for
breakages due to his own fault—see paragraphs 4 (4) and 15 of
Schedule I. The underlying assumption clearly is that, during
the continuance of the tenancy, the tenant should remedy his
own breakages himself at his own expense without affecting the
rent limit at all. If that assumption is to be made when
continuing the rent limit, surely it should also be made when
fiaing it. It would be absurd, after the tenancy has started, to
reduce the rent because the tenant breaks the washhand basin.
So also it would be absurd, before the tenancy has started, to
fix the rent at a reduced level because the tenant—or rather a
hypothetical tenant—might thereafter break a wash-basin.

Mr. Megarry objected to this line of argument. He said that
paragraph 15 is confined to '' this part of this Schedule,'' i.e.,
to Part II, which deals with abatement for disrepair: and that
it cannot be called in aid to construe Part I which deals with
adjustment of rent limit. This is, I think, too narrow a view.
The provisions of Part I can only properly be understood when
they are placed in the context of the Act as a whole, and this
includes Part II. Take, for instance, the question whether, in
ascertaining the appropriate factor for a flat, it is permissible
to take into account the cost to the landlord of repairing any
defects in the common roof or staircase. There is nothing to

A.C. AND PRIVY COUNCIL.

help in Part I. The '' responsibility for repairs '' ordinarily
means repairs to the dwelling itself which is let. But in Part
II there is paragraph 13 (also expressed to be '' for the purposes
'of this part of this Schedule '') which shows that, in a block
of flats, any disrepair of the common roof or common staircase
is to be treated as disrepair of the dwelling and entitles the
tenant to a reduction in the rent limit. The landlord must
therefore remedy any defects in the common roof or staircase
if he wants to keep his full rent. It is reasonable to infer that
the cost of this work is part of the burden of repairs which falls
on the landlord and must be taken into account in the calculation
so that he gets a higher rent on account of it. It was so taken
into account by the judge in this very case and he relied on
paragraph 13 for the purpose. I think he was right in so doing.
And paragraph 15 can likewise be used so as to show what
breakages can properly be taken into account. I decline to put
on one side a most useful pointer to the intention of Parliament
which is contained in this very Act.

Thus far I have considered only breakages due to the tenant's
own fault, that is, damage done to the dwelling by the tenant
himself, wilfully or negligently. Such damage is clearly a
breach of his common law obligations and must be excluded
from the calculation for the reasons I have given. But what
about breakages due to the fault of his family or his guests?
These seem to me to stand on the same footing as his own
breakages. No reasonably-minded tenant expects his landlord
to pay for breakages caused by the negligence of himself or his
family or his guests. He expects to pay for them himself:
and in law he is, I think, bound to do so without any express
stipulation in that behalf. This is because he is under an obliga-
tion to use the dwelling in a tenant-like manner, and this
obligation, properly understood, extends not only to his own use
of the dwelling but also to the use made of it by those claiming
under him. After all, if they do damage to the premises, wil-
fully or negligently, the tenant can recover the full damage from
them. He can rely on his possession for this purpose: for as
against them, his possession is title. (He is, of course, unable to
sue his wife, but that is a rule of procedure, not of substance, and
does not affect the principle.) It is only reasonable, therefore,
that the tenant should be accountable to the landlord for
the damage done by them. This was clearly the view of the
experienced surveyor for the tenant Mr. Russell-Davies, who said
in evidence: ''I had no thought that anybody but the tenant

409

18l5 Ire (035):
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Duptey.

Lord Denning.

410

Jel, Ib (05;,)
1958
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v

DUDLEY.

Lord Denning.

HOUSE OF LORDS [1959 |

'' would be liable for rough treatment or negligent treatment."'
It was the same view as I expressed a few years ago in
Warren v. Keen > when, speaking of the tenant's obligations, I
said: ''He must, of course, not damage the house, wilfully or
'' negligently; and he must see that his family and guests do not
'*so damage it: and if they do, he must repair it.''

It follows that the hypothetical tenant envisaged by the Act
is a tenant who does not himself damage the dwelling, wilfully
or negligently, nor does anyone claiming under him so damage
it: and the rent limit must be calculated on that footing. This
fits in well with paragraph 15, which says that the tenant cannot
get the rent limit reduced for '' defects which are due to any
'"act, neglect or default of the tenant, or any person claiming
"under him."'

I would also point out that, if the tenant expressly agrees
to use or not to use the premises in a particular way, as for
example, not to drive nails into the wall—and he breaks his
agreement—he cannot bring in the cost of remedying it as an
item in his favour. He cannot get the rent limit reduced on
that account, see paragraph 15; and he cannot claim to have a
lower rent fixed on account of it — or the possibility of a
hypothetical tenant doing it.

The next question is what is the effect of the exception of
''fair wear and tear'' in a repairing covenant. I find myself
in full agreement with what Talbot J. said on this subject in
Haskell v. Marlow.?® I think the Court of Appeal in Taylor v.
Webb ?7 were wrong in overruling Haskell v. Marlow.?® I have
never understood that in an ordinary house a '' fair wear and
"tear '' exception reduced the burden of repairs to practically
nothing at all. It exempts a tenant from liability for repairs
that are decorative and for remedying parts that wear out or
come adrift in the course of reasonable use, but it does not
exempt him from anything else. If further damage is likely to
flow from the wear and tear, he must do such repairs as are
necessary to stop that further damage. If a slate falls off
through wear and tear and in consequence the roof is likely to
let through the water, the tenant is not responsible for the slate
coming off but he ought to put in another one to prevent further
damage.

25 [1954] 1 Q.B. 15, 20. 27 [1937] 2 K.B. 283.
26 [1928] 2 K.B. 45. 28 [1928] 2 K.B. 45.

A.C. AND PRIVY COUNCIL.

The third question is whether rule 1 is subject to the excep-
tion of "' fair wear and tear.'' In so far as the rule covers the
same field as clause 2 (D)—that is, in respect of sanitary and
water apparatus—it is subject to the exception, because the
clause in the deed must take precedence over the rule. It
follows that when the washer on a tap wears out and has to be
remedied, or a cistern has to be regulated, or a radiator leaks,
the tenant is not liable, because it is fair wear and tear. The
defect must be made good by the landlord if he wants to get his
full rent. It is part of the burden which falls on him. The
circular which the landlord sent round to the tenants recognises
this burden and does not need separate consideration. In so
far as the rule refers to damage occasioned by improper use or
negligence of the tenants or their servants, this is not '' fair
""wear and tear'' and the tenant must put it right: but the
cost does not come into the calculation for the reasons I have
already given. In so far as the rule refers to notices served by
the water and sanitary authorities, these are all due, as Mr. Dale
said, '*' to plumbing and to leaks,'' that is, to sanitary and water
apparatus. These are, therefore, like the first part of the rule,
subject to the exception of fair wear and tear, and the cost of
remedy forms part of the landlord's burden.

This brings me to a consideration of the judgment of the county
court judge. He seems to have made his calculation in this way:

1. He took the estimated annual cost of repairing the roof
and exterior of this block of flats and of the common lifts and
staircases: and he apportioned it to this flat. The figure came
to £5 10s. He held this was a burden resting wholly on the
landlord. This was clearly right.

2. He took the estimated annual cost of repairing the inside of
the flat (excluding decorative repairs) including fair wear and tear
but excluding damage due to negligence. This figure was given
by Mr. Dale at £4 5s. and seems to have been agreed by the
parties. The judge held that £1 15s. of it rested on the landlord
(presumably for fair wear and tear) and £2 10s. on the tenant
(of which 10s. was under his general covenant to repair and £2
under rule 1). I doubt whether the judge was right about this
£2. The figure was given by Mr. Dale who said £2 would be
spent on washering the taps and regulating the cistern. _ This
looks to me like fair wear and tear and, if so, it should rest on
the landlord.

8. He took the estimated annual cost of repairing breakages,
such as cracked washhand basins, broken windows, bath panels,

411

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Lord Denning.

412 HOUSE OF LORDS [1959 |

H. L. (B.) and so forth, due to carelessness. He had no evidence before
1958 him on which to estimate the figure, but he put it at a figure
of £7 7s. less the £2 10s., namely, at £4 17s. He held that
tee this was a burden resting wholly on the tenant. I do not think
Co. Lrp. the judge was right about this. He ought to have excluded all
Danie damage and breakages due to any act, neglect or default of the
tenant or any person claiming under him. Also all damage, such
as driving nails into the walls, which was due to any breach of the
clauses in the tenancy agreement. Incidentally, I notice that
both surveyors said they would not like to estimate damage due
to negligence, because it depended so much on the particular
tenant. By which I take it there is no average tenant for this
purpose. The right way to deal with it is to exclude negligence
altogether.

In view of these errors by the county court judge, I think the
proper course is to send the case back for the calculation to be
made afresh. I agree with the views expressed by my noble
and learned friend, Lord Keith of Avonholm, and I would allow
the appeal accordingly.

Lord Denning.

Appeal dismissed.