Cases - Sotheby v Grundy

Record details

Name

Sotheby v Grundy

Date

[1947]

Citation

2 AII ER 761

Legislation

Metropolitan Building Act 1855

Keywords

Dilapidations case law

Summary

A lease of a newly-erected house, made in 1861 for a period of 99 years, contained a covenant by the tenant to 'repair uphold support maintain' the property 'with all necessary reparations and amendments whatsoever'. In 1944 the walls were bulged, fractured and overhanging, and the house was condemned as a dangerous structure under the London Building Acts and was demolished. The expenses incurred by the council were recovered from the landlord who sought to recover them from the tenant as damages for breach of the repairing covenant. The evidence showed that, contrary to the Metropolitan Building Act 1855, which was then in force, the main walls of the house were built entirely without, or on defective, footings and there was every likelihood that what happened would happen as a result of the settling of the foundations, and that the only way in which this could have been avoided would have been by underpinning, which would have meant shoring up the property, the removal of existing foundations, stage by stage, and the substitution of a new foundation in the way of footings and concrete. The court decided that the expenses were incurred because of the inherent nature of the defect in the property, and, therefore, did not come within the terms of the repairing covenant, with the result that the landlord was not entitled to recover them from the tenant.

The judge said that the question was:

'whether it can be said that this was a building which, by its own inherent nature would, in course of time, fall into a particular condition. I am sure that that is so, but the matter does not end there, because, in view of some of the other authorities to which I have been referred, particularly Anstruther-Gough-Calthorpe v McOscar, it seems to me that it must be a question of degree in each case. It may be that the inherent nature of a building may result in its partial collapse. One can visualise the floor of a building collapsing, owing to defective joists having been put in ... In those circumstances, in my opinion, the damage would fall within the ambit of the covenant to repair, but, as I say, it must be a question of degree in each particular case ... That, in my view, would, in effect, be asking the tenant to give the landlord something different in kind from that which had been demised. The premises demised here were premises with insecure foundations. What the tenant would have had to do would be to put in a new foundation which would alter the nature and extent of the property demised, turning a building which, as originally constructed, would not last more than some 80 odd years into a building that would last for probably another 100 years.'