Gallagher, Minister for Agriculture nment and Public Health and the Cork County Council

• Jurisdiction: Ireland
• Judgment Date: 25 June 1940
• Date: 25 June 1940
• Court: Supreme Court

Fleming v. Brennan.

HENRY FLEMING

Plaintiff

and

JAMES BRENNAN

Defendant.

Supreme Court.

Landlord and tenant - Sub-lease - Covenant to repair - "Repair and keep in good and sufficient tenantable order, repair and condition" - Breach of covenant - Premises old and not in very good repair at date of sub-lease - Measure of damages.

Plaintiff held premises under a lease for 141 years, dated 13th June, 1801, which contained a covenant to keep the premises in repair and yield them up in good tenantable order, repair and condition. On 6th March, 1918, he sub-demised the premises to the defendant for a term of 23 years. This sub-lease contained the following covenant:—"And the lessee further covenants with the lessor that he will repair and keep in good and sufficient tenantable order, repair and condition the said demised premises and every part thereof and shall, at the expiration or sooner determination of the said term . . . yield up the same . . . in such good and sufficient tenantable repair and condition." The plaintiff brought an action against the defendant for damages for breach of the above covenant. The defendant admitted that there had been a breach of the covenant, but disputed the extent of the liability imposed by the covenant and the amount of the damages awarded. The premises in the sub-lease were over a hundred years old, and were found, on the evidence, to be not in very good repair when the sub-lease was granted in 1918.

Held by Maguire P. that the defendant was liable for the cost of doing all necessary acts well and sufficiently to repair the premises in the words of the covenant, that is to say, the cost of putting them into such a condition as one would have expected to find them in, had they been managed by a reasonably-minded owner, having full regard to the age of the buildings, the locality, the class of tenant likely to occupy them and the maintenance of the property in such a way that only an average amount of annual repair would be necessary in future, provided the age of the premises was regarded as the dominant feature, and the locality and class of tenant was only taken into account in relation to, or as a consequence of, the age of the premises.

Anstruther-Gough-Calthorpe v. McOscar and Another, [1924] 1 K. B. 716,applied.

The defendant appealed to the Supreme Court on the ground that although Maguire P. had adopted the proper principles he had misapplied them, having regard to the age of the premises at the date of the sub-lease and their character and condition at that date.

Held by the Supreme Court that the defendant's contention was unsustainable and that the appeal must accordingly be dismissed.

Witness Action.

The facts have been summarised in the headnote and appear sufficiently for the purposes of this report from the judgment of Maguire P., post.

At the trial it was not denied that there had been a breach of the covenant to repair contained in the sub-lease, and the only matters to be determined were as to the extent of the liability imposed by the covenant and the damages that should be assessed for the breach.

The defendant appealed to the Supreme Court (1) on the following grounds:—

1. That the trial Judge misdirected himself in law in holding that the defendant was bound to repair and renew the premises irrespective of the fact as found by him that the premises had not been properly maintained during many years before the defendant's lease began.

2. That the trial Judge misdirected himself in law in holding that the fact that the premises had not been properly maintained during many years before the defendant's lease began, should not be taken into account

in reduction of the defendant's liability in respect of the matters complained of.

3. That the trial Judge misdirected himself in law in holding that it was clear from the berms of the lease of the 6th March, 1918, that the said lease was only a sub-lease, and misdirected himself in fact in holding that the defendant must have been aware that there was a superior landlord.

4. That the damages awarded were excessive, were not supported by the evidence and were against the weight of evidence.

Maguire P. :—

This is an action for damages for breach of covenant to repair the dwellinghouse and premises, No. 92 Lower Baggot Street in the City of Dublin.

The premises are held by the plaintiff for the residue of a term of 141 years created by a lease of the 13th day of June, 1801. This was a lease of a plot of building ground which contained a covenant on the part of the lessee to keep the premises to be erected on the plot in repair and to yield up same in good tenantable order, repair and condition on the expiration of the lease or its earlier determination.

The plaintiff on the 6th of March, 1918, sub-demised the premises to defendant for a term of 23 years. This lease contained a covenant by the defendant in the following terms:—"And the lessee further covenants with the lessor that he will repair and keep in good and sufficient tenantable order, repair and condition the said demised premises and every part thereof and shall at the expiration or sooner determination of the said term . . . yield up the same . . . in such good and sufficient tenantable repair and condition."This covenant in substance reproduces the covenant contained in the head lease.

Although there is no reference to the head lease in the lease of 1918, it is clear from its terms that it was merely a sub-lease. There is a reservation made to the representatives of the Earl of Fitzwilliam, his heirs and assigns, of all royalties. Furthermore, the covenants are made with "the lessor, his executors, administrators and assigns,"thus indicating that the plaintiff was not the owner in fee.

That there has been a breach of the covenant to repair is not denied.

Before approaching the question of the damages which must be awarded for this breach, I have to consider the nature and extent of the obligation cast upon a tenant

who undertakes the liability contained in the covenant I have quoted.

The first question with which I shall deal is whether the fact that the defendant holds under a sub-lease makes any difference to the extent of his obligations under a covenant such as this.

It is submitted that in this case the defendant took a lease of an old house which had suffered considerably from time and the elements and which was not then in first class repair, and that his obligation to repair does not oblige him to do more than preserve the house in such a condition as it was when he got possession. If I were to accept this view, I should be faced with a very difficult question of fact. The case of Ebbetts v. Conquest(1) makes it clear, however, that where the lessee has notice that there is a superior landlord, the immediate lessor's liability to that landlord must be taken into account, and the cost of putting the property into repair at the end of the term may properly be considered for that purpose. Apart from the fact, however, that the defendant must have been aware that there was a superior landlord, the very clear terms of the covenant into which he entered make it clear that, whatever was the condition of the premises when he took them, he covenanted to keep them in good and sufficient tenantable repair and condition and undertook to yield them up in the like order, repair and condition at the end of the term.

The question as to what is the meaning and effect of such a covenant has been considered many times. It seems to me that the rule which was adopted in Anstruther-Gough-Calthorpev. McOscar and Another(2) affords an excellent guide as to the nature and extent of the obligation created by the covenant entered into by the plaintiff. In that case an official arbitrator, against whose award an appeal was taken, had submitted two figures; he stated that "the higher sum in my award is my, estimate of the cost of doing all needful and necessary acts well and sufficiently to repair, etc., the premises in the words of the covenant, which I took generally to mean the cost of putting the premises into such condition as I should have expected to find them in had they been managed by a reasonably minded owner, having full regard to the age of the buildings, the...