Duke of Westminster V Guild (1985)

Court of Appeal

B e f o r e :

Lord Justice STEPHENSON, Lord Justice KERR and Lord Justice SLADE
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Between:

WESTMINSTER (DUKE OF) AND OTHERS V GUILD

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Gavin Lightman QC and A Ginsberg (instructed by Boodle Hatfield & Co) appeared on behalf of the
plaintiffs; Kim Lewison (instructed by T J James & Sarch) represented the defendant.
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1. Giving judgment, SLADE LJ said: This is the judgment of the court on an appeal from a judgment of His
Honour Judge Lipfriend, sitting as a High Court judge, given on May 14 1982 at the trial of a
preliminary issue in an action. The plaintiffs in the action are the trustees of the will of the second Duke
of Westminster. The defendant is Mr Ivan Robin Guild. The action was begun by a writ issued on
February 7 1979, by which the plaintiffs as landlords claimed against the defendant as tenant payment
of alleged arrears of rent and certain other relief. The plaintiffs subsequently issued a summons for
summary judgment. The defendant raised by way of defence and set-off against the rent a claim for
damages in respect of loss suffered by him through the failure to repair a drain which, he said, the
plaintiffs were bound to repair. On December 15 1980 Master Elton gave the defendant liberty to
defend the action and gave certain directions which were intended to enable the question of the liability
for the repair of the drain to be determined as a preliminary issue. Following his directions, a statement
of facts was agreed between the parties on January 25 1982. The preliminary issue was then tried
before His Honour Judge Lipfriend on July 2 1982. He decided it in favour of the defendant. He decided
that the liability for the repair of the drain fell upon the plaintiffs and awarded the defendant the costs of
the preliminary issue. The plaintiffs now appeal from his order.

2. The relevant facts all appear from the agreed statement of facts and from the lease itself. We will
extract those of them which seem to us most material for the purposes of this judgment.

3. By a lease dated August 11 1976 the plaintiffs granted to the defendant a lease of certain premises
now known as 107a Pimlico Road, SW1, in the City of Westminster, for a term beginning on August 11
1976 and ending on March 25 1997. The demise included the express grant of a right of way over a private roadway or mews leading from the demised premises to Pimlico Road, the right being
expressed to endure
so long as the Lessee and his successors in title and Assigns shall pay a
proportion of the expenses hereinafter referred to in Clause 2 (IV) hereof.
By clause 2 (I) the defendant covenanted to pay the rent thereinbefore reserved and 'such
proportionate part thereof as aforesaid'. Clause 2 (III) began with the following words:
The Lessee will at all times during the said term well and sufficiently repair
paint paper and cleanse the whole of the demised premises . . .

4. There followed in clause 2 (III) a long list of particular obligations of the defendant as regards the
exterior of the demised premises, relating to such matters as paint and stonework, which were
expressed to operate without prejudice to the generality of the opening provisions.

5. Clause 2 (IV) read as follows:
(IV) The Lessee will on receipt of the Landlords' written demand forthwith
pay and contribute to the Landlords a fair proportion with other lessees
interested therein of the expenses of making repairing and scouring all party
and other walls gutters sewers and drains belonging or which shall belong
to the demised premises or be used jointly with the occupiers of any
adjoining or neighbouring hereditaments And also a fair proportion of the
expenses of maintaining repairing cleansing and keeping in good order and
condition the paving or surface of the roadway of the passageway and
private roadway shown coloured brown and also of the lighting of the said
passageway and private roadway and further a fair proportion of the
expenses of preserving the amenities of the demised premises and
adjacent or neighbouring premises such proportion (if in dispute) to be
determined by the Estate Surveyor of the Landlords whose determination
shall be final and binding on the Lessee.

6. Clause 2 (VI) gave the plaintiffs liberty at any time during the term to enter the demised premises for
any lawful purpose including (inter alia) viewing its condition. It further provided that, upon any such
entry, they might
bring any requisite appliances and execute as well repairs on adjoining
premises belonging to the Landlords as repairs which ought to be done on
or to the demised premises the Lessee paying the cost of any such repairs
to the demised premises and the Landlords making good all damage
occasioned to the demised premises by any such entry to repair adjacent
premises.

7. Clause 5, so far as material, provided as follows:
THE LANDLORDS COVENANT with the Lessee that the Lessee duly
paying the said rent and performing and observing all and every the
covenants clauses and agreements hereinbefore respectively reserved and
contained shall and may (subject nevertheless as aforesaid) peaceably
enjoy the demised premises for the term hereby granted without any
interruption by the Landlords or any person lawfully claiming through or
under them.

8. The lease did not expressly impose any obligations whatsoever on the plaintiffs in regard to repair or
maintenance. The issue of law raised on this appeal substantially concerns the extent of their liability (if
any) to repair and keep in repair a drain which is situated partly under the demised premises and partly
under the mews. The position of this underground drain ('the green drain'), which serves only the
demised premises, is shown on a plan at p 19 of our bundle of documents. The demised premises are
shown on the plan marked as 107a and bounded by a pink line. The green drain runs through the
premises from left to right in the plan and then towards the bottom of the plan down the mews. At the
date of the grant of the lease the demised premises drained into the public sewer in Pimlico Road by
means of the green drain, which was intended to take both surface and foul water. The green drain
was not expressly identified or referred to in the lease. In this court it has been common ground that (a)
that part of it which was situated beneath the demised premises formed part of 'the demised premises'
within the meaning of Clause 2 (III); (b) the lease included the implied grant of an easement of
drainage through that part of the green drain situated beneath the mews and belonging to the plaintiffs.

9. Before the lease was granted, the defendant made no structural survey of the drains serving the
demised premises and at the date of the grant neither the plaintiffs nor the defendant knew of the
existence of the green drain outside the demised premises. The landlords had not carried out any
works of maintenance to it for many years, if ever.

10. There are two manholes situated beneath the demised premises which are shown by dotted lines on
the plan and respectively marked '1' and '2'. The green drain is shown as running from manhole 1 on
the left of the plan to manhole 2 on the right of the plan and then bending round so as to run from
manhole 2 to a third manhole (numbered '3') at the bottom end of the mews. Manhole 3 was sealed
shut and only at the conclusion of the excavations to which we will refer was it opened by the
defendant's builders and found to be dry. There is also a manhole situated under the mews very near
the defendant's boundary, shown in a circle on the plan and marked '4'.

11. Following the grant of the lease the defendant and a company called Homeworks Furnishings Ltd
('Homeworks') converted the demised premises from a warehouse into a showroom at a cost of around
£ 200,000. In March and early April 1979 it became apparent that the green drain serving the demised
premises was defective. The defendant and Homeworks employees found on opening manhole 1 that
the drain was blocked.

12. By April 2 1979 the plaintiffs had been informed of the want of repair of the drain and thereafter a
series of meetings took place at the demised premises in connection with the drainage problems.
Various investigations were carried out and the defendant made various attempts to clear the drain.
These investigations and attempts were described or detailed in the statement of facts. Eventually the
large manhole no 2 was discovered underneath the demised premises. There had been no obvious
indication of its existence; its inspection cover had been covered over before the grant of the lease.
Most important of all (we quote from the statement of facts):
The green drain leading from manhole no 2 along the Mews towards
manhole no 3 was full of earth and appeared not to have been cleared or
maintained for many years.

13. So far as the plan shows, there was no other drain which served the demised premises, so that it is not
surprising to learn from the statement of facts that the contractors excavating the premises ran into
waterlogged ground before striking the run of the green drain.

14. In order to avoid the expense of rebuilding the entire length of the green drain, it was agreed between
the plaintiffs and the defendant that he should be at liberty to construct a new drain connecting the
demised premises to a private sewer of the plaintiffs which served the mews and is shown coloured red
on the plan. A new manhole was also constructed. Its position and that of the new drain are shown
coloured violet on the plan.

15. The defendant and Homeworks incurred expenses totalling about £ 17,000 in respect of the costs of
the drainage, excavation and building works and other incidental expenses. The defendant contends
that he is entitled to set off this expenditure against the rent which otherwise is admittedly owing from
him. The plaintiffs contend that he alone is liable for the cost in question and that he is not entitled to
make any such set-off. It is common ground that, if a local authority had lawfully called upon the
defendant to repair the green drain, he would have been under an obligation to the plaintiffs to carry
out such works pursuant to a subsidiary provision of clause 2 (III) of the lease, which obliged him to
carry out all works whatsoever which public authorities might lawfully require to be carried out on the
demised premises.

16. By his order of July 2 1982 the learned deputy judge declared as follows:
It is adjudged and declared that (1) upon the true construction of the Lease
dated August 11 1976 made between the Plaintiffs and the Defendant
under which the Plaintiffs let to the Defendant the premises known as 107A
Pimlico Road, London SW1 in the City of Westminster the Plaintiffs had an
obligation to the Defendant to make repair and scour all party walls gutters
sewers and drains belonging to or which should in future belong to the
demised premises therein mentioned or be used jointly with the occupiers of
any adjoining or neighbouring hereditaments (2) that the Plaintiffs owed to
the Defendant a duty to take reasonable care to keep in repair and
unobstructed the drain referred to as 'the green drain' in the Agreed
Statement of Facts where not subjacent to the demised premises and (3)
that the Plaintiffs were on February 28 1979 in breach of the said obligation
the said duty and clause 5 of the said Lease AND FOR an amount of
damages to be assessed by a Circuit Judge assigned to Official Referee's
business.
It is further adjudged and ordered that the Plaintiffs do have leave to
contend that the damages to be assessed as aforesaid should be abated in
whole or in part by reason of the provision of clause 2 (IV) of the said
Lease.

17. For the rest of this judgment, we shall refer to that part of the green drain which is subjacent to the
demised premises as 'the tenant's part of the green drain' and to that part which is subjacent to the
property retained by the landlords as 'the landlords' part of the green drain'.

18. Mr Lewison, on behalf of the defendant, has sought to support the decision of the learned deputy judge
on two alternative bases, which are substantially the same as those relied on by the judge, namely that
(a) the lease on its true construction places on the landlords an implied contractual obligation to keep in
repair and unobstructed the landlords' part of the green drain; (b) even if the lease imposes no such
implied contractual obligation, the landlords are under a duty of care to the lessee, which obliges them
to do these things.

19. We will deal separately with both these arguments.
Implied contractual obligation

20. The green drain must undeniably fall within the class of drains referred to in clause 2 (IV) of the lease.
Mr Lewison conceded, as he had to concede, that under clause 2 (III) the obligation to repair the
tenant's part of the green drain undeniably falls on the tenant. Nevertheless he pointed out, having
regard to clause 2 (IV), the landlords clearly have the right to do works to the landlords' part of the
green drain and then to submit a demand to the tenant for reimbursement of a 'fair proportion' of the
cost of such works. We observe in passing that (i) the fair proportion in this context must be the whole,
since the green drain serves only the demised premises; and (ii) in the event of failure by the tenant to
repair the tenant's part of the green drain, the landlords would under clause 2 (VI) have a similar right
to do works to that part also, and to debit the tenant with the cost.

21. In view of the specific obligation to pay the cost of repairs to the green drain which the lease imposes
on the tenant and the rights of the landlords to effect the repairs, the only way to make sense of this
lease, it is submitted on behalf of the defendant, is to imply a correlative obligation on the landlords to
carry out the repairs to the landlords' part of the green drain. In deciding that such an obligation exists,
the learned deputy judge principally relied on the decision in Barnes v City of London Real Property Co
[1918] 2 Ch 18. In that case landlords had let various sets of rooms and by the tenancy agreement had
imposed on the tenants the obligation to pay a stated additional rent specifically for the cleaning of
rooms by a house-keeper to be provided for the purpose. The agreements placed no express
obligation on the landlords to provide for the cleaning of the rooms, but Sargant J (albeit obiter) was of
the clear opinion that such an obligation should be implied (see ibid at pp 32 and 33). That, however,
was a much stronger case than the present, if only because the obligation of the tenants to pay the rent
for the particular service was an unqualified obligation to pay a definite periodic amount in respect of
that service, the obligation to pay not being expressed so as to be conditional on the provision of the
service or on the service of notice requesting payment. Mr Lewison also relied on the decision in
Edmonton Corporation v W M Knowles & Son Ltd (1962) 60 LGR 124, where McNair J implied from a
provision in a lease obliging the tenant to pay to the landlords 'the cost . . . of painting in a workmanlike
manner every third year of the term all outside wood and metal work and other external parts of the
demised premises' a matching obligation on the landlords to do the repairs (see at p 128).

22. We do not question the correctness of these two decisions on their particular facts or doubt that in
some instances it will be proper for the court to imply an obligation against a landlord, on whom an
obligation is not in terms imposed by the relevant lease, to match a correlative obligation thereby
expressly imposed on the other party. Nevertheless we think that only rather limited assistance is to be
derived from these earlier cases where obligations have been implied. The general rule is, in our
judgment, correctly stated in Woodfall's Landlord and Tenant at para 1 - 1465:
In general there is no implied covenant by the lessor of an unfurnished
house or flat, or of land, that it is or shall be reasonably fit for habitation,
occupation or cultivation, or for any other purpose for which it is let. No
covenant is implied that the lessor will do any repairs whatsoever . . .

23. On occasions special facts may no doubt justify a departure from the general rule. However, the
decision of the Court of Appeal in Sleafer v Lambeth Borough Council [1960] 1 QB 43 well illustrates
that, though the provisions of a lease may indicate the parties' contemplation that in fact and in practice
the landlord will do repairs, and indeed may confer express rights on him to enter the demised
premises for this purpose, it does not follow that any contractual obligation to do the repairs is to be
implied against him (see, for example, at pp 56-57 per Morris LJ).

24. When then is the test to be applied in considering whether an obligation is to be implied against the
landlords in the present instance? In Liverpool City Council v Irwin [1977] AC 239 the House of Lords
had to consider the nature and extent of the obligations of landlords of a building in multiple occupation
to repair essential means of access. In the Court of Appeal ([1976] QB 319) Lord Denning MR had
suggested that the court had power to imply a term if it was reasonable so to do, and held that the
landlords were under an implied obligation to repair accordingly. The majority (Roskill and Ormrod LJJ)
came to a contrary conclusion. Roskill LJ said (ibid at p 337):
But I am afraid, with profound respect, I cannot agree with his view that it is
open to us in this court at the present day to imply a term because
subjectively or objectively we as individual judges think it will be reasonable
so to do. It must be necessary, in order to make the contract work as well as
reasonable so to do, before the court can write into a contract, as a matter
of implication, some term which the parties have themselves, assumedly
deliberately, omitted to do.

25. The House of Lords unequivocally rejected the suggestion of Lord Denning MR that the courts have
power to introduce terms into contracts merely because they think them reasonable. Nevertheless they
supported his ultimate conclusion, by allowing the appeal on rather different grounds. Lord Cross of
Chelsea (at pp 257 and 258) referred to the distinction between two classes of case where the courts
are prepared to imply terms in contracts, a distinction pointed out by Lord Simonds and Lord Tucker in
their speeches in Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555 at pp 579 and 594. The
first class of case is where the court lays down a general rule of law that as a legal incident of all
contracts of a certain type (sale of goods, master and servant, landlord and tenant and so on) some
provision is to be implied. The second class is where there is no question of laying down any prima
facie rule applicable to all cases of a defined type, but the court is being asked in effect to rectify a
particular contract by inserting in it a term which the parties have not expressed. In this second
situation, as Lord Cross pointed out, a quite different test is applicable.

26. In Liverpool City Council v Irwin at least the majority of the House of Lords clearly regarded the case as
falling within the first class of case referred to by Lord Cross. Lord Wilberforce, with whose speech Lord
Fraser of Tullybelton agreed, pointed out (at p 254A) that the court was there simply concerned to
establish what the contract was, in the absence of a formal tenancy agreement, the parties themselves
not having fully stated the terms (see at pp 253 A to C and 254 A). He concluded (at p 254 F-G):
The relationship accepted by the corporation is that of landlord and tenant:
the tenant accepts obligations accordingly, in relation inter alia to the stairs,
the lifts and the chutes. All these are not just facilities, or conveniences
provided at discretion: they are essentials of the tenancy without which life
in the dwellings, as a tenant, is not possible. To leave the landlord free of
contractual obligation as regards these matters, and subject only to
administrative or political pressure, is, in my opinion, inconsistent totally with
the nature of this relationship. The subject matter of the lease (high rise
blocks) and the relationship created by the tenancy demand, of their nature,
some contractual obligation on the landlord.

27. He regarded it as a 'legal incident of this kind of contract' (see at p 255 A).

28. Lord Cross likewise thought that the type of case was one which rendered it appropriate for the court to
lay down a prima facie rule. He pointed out (at p 259 B) that the general principle is that the law does
not impose on a servient owner any liability to keep the servient property in repair for the benefit of the
owner of an easement. He said, however (at p 259 E):
In such a case I think that the implication should be the other way and that,
instead of the landlord being under no obligation to keep the common parts
in repair and such facilities as lifts and chutes in working order unless he
has expressly contracted to do so, he should - at all events in the case of
ordinary commercial lettings - be under some obligation to keep the
common parts in repair and the facilities in working order unless he has
expressly excluded any such obligation.

29. The present case is in our judgment distinguishable from the Liverpool City Council case in at least two
material respects. First there is a formal lease which, on the face of it, represents the apparently
complete bargain between the parties. Secondly, this present case is not in our opinion a type of
landlord-tenant situation, which gives rise to special considerations, such as the case of a high-rise
building in multiple occupation, where the essential means of access to the unit are retained in the
landlord's occupation, thus making it appropriate for the court to imply any particular term as a legal
incident of the contract.

30. Accordingly, for the purpose of considering whether the suggested contractual obligation falls to be
implied in the present case, we can see no justification for applying a test more favourable to the
defendant than the test applicable to the construction of any ordinary commercial lease of unfurnished
premises or land which does not fall into a special category such as was referred to by Lord
Wilberforce or Lord Cross. While this test is capable of being formulated in many different ways, it is
clearly stated by Lord Cross in the Liverpool City Council case at p 258:
Sometimes, however, there is no question of laying down any prima facie
rule applicable to all cases of a defined type but what the court is being in
effect asked to do is to rectify a particular - often a very detailed - contract
by inserting in it a term which the parties have not expressed. Here it is not
enough for the court to say that the suggested term is a reasonable one the
presence of which would make the contract a better or fairer one; it must be
able to say that the insertion of the term is necessary to give - as it is put -
'business efficacy' to the contract and that if its absence had been pointed
out at the time both parties - assuming them to have been reasonable men -
would have agreed without hesitation to its insertion.

31. This is the test which we consider relevant in the present instance; as Lord Edmund-Davies pointed out
in the last-mentioned case (at p 266 E): 'the exercise involved is that of ascertaining the presumed
intention of the parties', by which of course he meant both parties to the contract.

32. Applying this test to the construction of the lease in the present case, we find ourselves quite unable to
apply the suggested provision in the favour of the tenant by a process of implication. There are far too
many factors which seem to us to point in the opposite direction.

33. First, clause 2 of the lease contains a number of careful and elaborate provisions defining the tenant's
contractual obligations in regard to repair and maintenance. If it had been intended that other
contractual obligations relating to repair should be placed on the landlords themselves, one would
prima facie have expected this particular lease to say so.

34. Secondly, the obligations which it is now sought to impose on the landlords by a process of implication
would be obligations of an extensive and onerous nature. Mr Lewison accepted, and contended, that, if
the landlords were under an obligation to repair the drains mentioned in clause 2 (IV) of the lease, a
similar obligation would fall upon them in regard to all the other items mentioned in that subclause
(such as party and other walls and gutters and the surface of the roadway) - and indeed that they
would be subject to a positive obligation to preserve 'the amenities of the demised premises and
adjacent or neighbouring premises'.

35. Thirdly, as Mr Lightman pointed out, the implied covenant contended for by the defendant would in
some respects be in direct conflict with express provisions of the lease. For, as has already been said,
the implied covenant is claimed to extend to all the items mentioned in clause 2(IV) of the lease. But
these items include (inter alia) walls, utters and sewers 'belonging to the demised premises', which the
tenant is plainly obliged to repair by virtue of clause 2(III).

36. Fourthly, the implication of the suggested obligation does not seem to us in any way necessary to
make the scheme of the lease a workable one. The subject of the dispute, that is the landlords' part of
the green drain, is property in respect of which the tenant enjoys an easement of drainage governed by
the general law of easements. It is well settled that the grant of an easement ordinarily carries with it
the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment (Jones v
Pritchard [1908] 1 Ch 630 at p 638 per Parker J). In our opinion therefore it is plain that the tenant
would have the right, when reasonably necessary, to enter the landlords' property for the purpose of
repairing that drain and to do the necessary repairs. In contrast, however, it is an equally well-settled
principle of the law of easements that, apart from any special local custom or express contract, the
owner of a servient tenement is not under any obligation to the owner of the dominant tenement to
execute any repairs necessary to ensure the enjoyment of the easement by the dominant owner; apart
from special local custom or express contract, the law will ordinarily leave the dominant owner to look
after himself (see Gale on Easements 14th ed at p 47; Holden v White [1982] 2 WLR 1030 at p 1034,
per Oliver LJ).

37. Thus, if regard is to be paid to considerations of business efficacy, we think that a perfectly workable
scheme may be derived from this lease in regard to the green drain, without implying any such
obligations as that for which the defendant contends. The scheme is as follows:
(a) The tenant is under a contractual obligation to keep in repair at his own
cost the tenant's part of the green drain (clause 2(III)).
(b) If the tenant allows the tenant's part of the green drain to go into
disrepair, the landlords have the right under clause 2(VI) to enter the
demised premises, do the necessary repairs themselves and debit the
tenant with the cost.
(c) The landlords have the right, if they choose, to do repairs to the
landlords' part of the green drain and to demand reimbursement of the cost
of such repairs by the tenant, under clause 2(IV).
(d) If the landlords do not keep the landlords' part of the green drain in good
repair, the tenant has the right, as ancillary to his easement of drainage, to
enter the landlords' property and do the necessary repairs, again at his own
cost.

38. Perhaps it would have been sensible or even reasonable for the defendant on entering into the lease to
exact an express covenant by the plaintiffs to do these repairs. But he did not do so and we find it
impossible to presume an intention on the part of all parties to the lease that such a covenant should
be included. An obligation of this nature cannot in our judgment properly be added to the lease by a
process of implication.
Duty of Care

39. We now turn to consider the defendant's submissions based on an alleged breach of duty of care by
the plaintiffs. There is a general principle established by such cases as Hargroves & Co v Hartopp
[1905] 1 KB 472 and Cockburn v Smith [1924] 2 KB 119 which is summarised, in our opinion
accurately, in Woodfall's Landlord and Tenant 28th ed, vol I at p 621 as follows:
Where the lessor retains in his possession and control something ancillary
to the premises demised, such as a roof or staircase, the maintenance of
which in proper repair is necessary for the protection of the demised
premises or the safe enjoyment of them by the tenant, the lessor is under
an obligation to take reasonable care that the premises retained in his
occupation are not in such a condition as to cause damage to the tenant or
to the premises demised.

40. In Hargroves & Co v Hartopp (supra), the plaintiffs were tenants of a floor in a building of which the
defendants were landlords. A rainwater gutter in the roof became stopped up and the defendants failed
to clear it out for a few days after receiving notice of the stoppage. They were held to be in breach of a
duty of care to the plaintiffs and liable for the damage done. In Cockburn v Smith (supra) the facts were
similar and the defendant landlords were held liable to the tenant for damage suffered by her as a
result of defects in the guttering of the roof of the building of which the landlord retained control.

41. Scrutton LJ considered that the landlord's duty was based on 'that modified doctrine of Rylands v
Fletcher, which is applicable where he retains in his control an artificial construction which becomes a
source of danger to the tenant' (see [1924] 2 KB at p 133). Bankes LJ and Sargant LJ preferred not to
decide whether the relevant duty arose out of a contract between the parties or whether it was an
instance of the duty imposed by law upon an occupier of premises to take reasonable care that the
condition of his premises does not cause damage (see ibid at pp 130 and 134). But they expressed no
doubt that the relevant duty existed.

42. Mr Lewison forcefully submitted that in the present case the plaintiffs have retained in their possession
and control something ancillary to the demised premises, that is the landlords' part of the green drain,
the maintenance of which in proper repair is necessary for the proper protection of the demised
premises and the safe enjoyment of them by the defendant. Accordingly, he submitted, the plaintiffs
are under a duty to take reasonable care that the landlords' part of the green drain is not in such a
condition as to cause damage to the demised premises. It matters not, in his submission, whether the
duty is properly to be considered as arising at common law, having regard to the principles governing
the torts of nuisance or negligence, or in contract, having regard to the duty of the landlords not to
derogate from their grant or to interfere with the tenant's quiet enjoyment of his premises (as to which
see clause 5 of the lease). Whichever be the right way of looking at the matter, in his submission the
duty exists, as a legal consequence of the relationship between the plaintiffs and the defendant, quite
irrespective of clause 2(IV) of the lease. True it is that a servient owner is normally under no liability to
repair the subject-matter of the easement. However, Mr Lewison contended, the position is different
where a landlord and tenant relationship subsists. He referred by way of analogy to the decision of this
court in Hilton v James Smith & Sons (Norwood) Ltd (1979) 251 ESTATES GAZETTE 1063 as
illustrating that landlords may be under a positive duty to their tenants to prevent obstruction of a right
of way.

43. Mr Lewison's argument was very well presented and we found it an attractive one. Nevertheless, we
are not persuaded by it. To explain our reasons, we begin by emphasising that this is not a case such
as Hargroves v Hartopp or Cockburn v Smith (and a number of others in the same line of authority)
where there has been an escape of some dangerous, noxious or unwelcome substance from the
landlords' premises to the demised premises. The situation in the present case is quite different. Here
the essence of the defendant's complaint is that because of the lack of repair of the green drain, he has
been prevented from discharging noxious water from his own premises on to the landlords' premises
through the green drain. It is the water from the tenant's own premises which has caused the demised
premises damage.

44. However, in the absence of a specific right enjoyed by his neighbour, there is no general duty on a
landowner to receive noxious water flowing from his neighbour's land. In the present case, it is the
tenant's easement of drainage which alone entitles him to discharge noxious water into the plaintiffs'
land through the landlords' part of the green drain.

45. In these circumstances, the obstacles in the way of the tenant in seeking to establish liability on the
part of the landlords to repair the landlords' part of the green drain, on the basis of cases such as
Hargroves v Hartopp, are in our judgment insuperable. To establish such a liability, he has to establish
the requisite duty on the part of the landlords to repair the drain. In the absence of any express or
implied covenant in the lease, however, this he cannot do. The general law of easements applies and,
as we have already pointed out, clearly imposes no such obligation on the landlord. On the contrary the
tenant himself, though theoretically under no obligation to repair the landlords' part of the green drain,
could find himself in practice obliged to do so, in order to avoid committing a trespass against the
landlords by the escape of water through that part (see Gale on Easements, 14th ed at pp 45-46;
Jones v Pritchard [1908] 1 Ch 630 at pp 638-639 per Parker J). The fact that the relevant easement
happens to have been granted to the tenant under a lease does not assist him in any way. If, at the
time of the grant of the lease, he wished to impose on the landlords in relation to any easements
granted to him more onerous duties than would be implied under the general law, it was in our
judgment incumbent on him to ensure that the lease so provided.

46. In addition to holding the plaintiffs liable to the defendant on the bases of implied covenant and the
principle of Hargrove v Hartopp, the learned deputy judge also held them liable specifically on the
bases of breach of covenant for quiet enjoyment or derogation from grant. As to the latter heads, he
relied on the decision of this court in Booth v Thomas [1926] Ch 397. In that case a landlord, whose
predecessor in title had enclosed a natural stream in an artificial culvert which was incapable of
retaining it, was held liable to the tenant for injury suffered by the demised premises as a result of the
outflow of water consequent upon the culvert falling into disrepair. The Court of Appeal, without finding
it necessary to decide whether liability arose on other grounds also, considered that it arose under an
express covenant for quiet enjoyment contained in the lease. This decision shows that a mere act of
omission on the part of a landlord is capable of constituting a breach of the covenant for quiet
enjoyment, if, but only if, there is a duty to do something (see, for example, at p 403 per Sir Ernest
Pollock MR, and at p 410 per Sargant LJ). In that case 'it was the duty of the owner of this culvert
which, if neglected, might cause damage to the adjacent property, to prevent such damage by taking
reasonable precautions' (see at pp 403-404 per Sir Ernest Pollock MR). In the present case, for the
reasons given earlier in this judgment, we are of the opinion that no relevant duty fell on the landlords.
The express covenant for quiet enjoyment and implied covenant against derogation from grant cannot
in our opinion be invoked so as to impose on them positive obligations to perform acts of repair which
they would not otherwise be under any obligation to perform.

47. It follows that this appeal must succeed. In conclusion we would make three unconnected
observations:
First, while in the course of this judgment we have frequently used the
single word 'repair' in connection with the green drain, it should, where the
context permits, be read as including references to cleansing and
unblocking this drain.
Secondly, we think that the present case well illustrates that a tenant who
contemplates that his landlord shall carry out repairs to property retained by
the landlord over which the tenant is granted easements will ordinarily be
well advised to demand an express covenant to this effect.
Thirdly, in this court we have clearly had the benefit of a much fuller
argument on the relevant law than did the learned deputy judge, at least in
regard to the law of easements. We get the impression from his judgment
that this important aspect of the case was not specifically ventilated in
argument before him at all, because the word 'easement' appears nowhere
in his judgment.

48. As things are, respectfully differing from his conclusion, we must allow this appeal. We will set aside his
judgment and declare in effect that on the true construction of the lease the plaintiffs are under no
obligation to the defendant to keep the green drain in repair and unobstructed. We will hear argument
as to the precise form which the declaration should take.
The appeal was allowed with costs in the Court of Appeal and below. Declarations were made to the
effect that the plaintiffs were not under the repairing obligations or under the duty of care for which the
tenant had contended. Leave to appeal to the House of Lords was refused.