Write a case note on Liverpool City Council v Irwin  AC 239. The appeal at the House of Lords came up on, February 16th, 17th, 18th and on the 31st of March 1977. Liverpool City council had brought an action against the defendants, Leslie and Maureen Irwin who were tenants in a 15-story block, owned by the plaintiff. It was located on Hai Heights, in the district of Everton, Liverpool. The defendants occupied a maisonette on the 9th and 10th floors of the building.
The contract of tenancy had been a form, which basically were conditions of tenancy that set out obligations of the tenants and none of the landlord. The form did not contain the signature of the Landlord, only the tenants signed, Therefore this can be referred to as an incomplete or one-sided contract. This lacuna in the “tenancy document” is what invites the courts to fill in the blanks in determining the intentions of the parties, and then imply terms without which the contract would fail.
Thus, the courts imply terms to give business efficacy to the contract. There are a few other tests that have been put forward for why a court would want to imply terms into a contract that is incomplete, or one that is complete but necessarily needs the input of the courts to even out the rights and obligations of both parties. Such that no one side bears the hazards, losses or gains of the transaction. The landlord brought an action for possession to the county court, when the defendants discontinued paying their rent.
The tenants counterclaimed for nominal damages. Claiming that the plaintiffs were in breach of section 32(1) of the Housing Act 1961, to keep in “proper working order” installations in the “dwelling house”, the implied covenant to maintain common parts in the possession of the landlord viz the lighting, the stairs, the lifts, the rubbish chutes built into the apartment building and also, quiet enjoyment which they were to be entitled to in any tenancy agreement. The court did an inspection of the premises and found it in a deplorable condition.
The court had no controversy in awarding nominal damages to the defendants as the counter claim succeeded on all grounds stated. The landlord was granted possession but told to pay the nominal damages of ? 10. The Liverpool City Council appealed to the court of appeal, contending that they were not under any contractual obligation to maintain and repair common parts, not in breach of any statutory laws in section 32(1) of the housing act and not in breach of the tenants implied right to quiet enjoyment.
The appeal was allowed, and the court found that the plaintiff was not in breach of section 32(1) and that there was no contractual obligation to keep common parts in repair. The court was also of the opinion that to imply such a term was not reasonably necessary to effect business efficacy of the contract. Lord Denning was the dissenting judge. He felt the test should be what a reasonable man would do. Had the plaintiff taken reasonable steps to see that the common parts were maintained or repaired?
Denning along with other justices found that the plaintiff was not in breach of this. The Irwin’s went ahead to appeal this judgment in the House of Lords contending that the landlord had an “absolute” obligation with regard to the common parts to maintain and repair. Also the Irwin’s contended that the landlord was in breach of section32 (1) of the housing act, as, there was a cistern in the house of the Irwin’s which would flood when flushed. The Irwin’s contended that this system cannot be construed to be in “proper working order.
At the trial the issues were many and varied but the ones that stand out are as follows: – •Landlord brings action for possession on grounds of non-payment of rent. •Tenants bring counter-claim for nominal damages for the utter neglect of the building by the council. The tenants continued that the rubbish chutes were blocked, the stairs were not lit and the lifts were not in working order. •Breach of implied covenant for quiet possession. •Breach of section 32(1) housing act “to keep in proper working order, appliances in the dwelling house. The tenants in Milter V Hancock relied on these grounds. In this case the court found that a visitor to the demised property could sue the landlord for failing to maintain common parts particularly the stairs. The plaintiff’s visitor was injured due to the lack of maintenance of the stairs, hence his action. The court held that the defendant was responsible to maintain the staircase so far as necessary for reasonable enjoyment of the demised property, though overruled now this case is still cited for it’s common purpose.
The court in Liverpool City Council V Irwin similarly granted in favor of the tenant and relying on the site inspection they had done, granted all the tenants counter claims. On appeal to the court of appeal the majority of the judges found on careful examination of case law and from the facts of the case the defendant cannot be held obligated to repair and maintain common parts by an implication from the court where such term was not expressly imputed into the tenancy agreement as it is not necessary to do this to give business efficacy to the contract and would be too burdensome to the landlord to do so.
The landlord was also found not in breach of section 32(1) of the housing act. Lord Denning gave a significant dissenting judgment with regard to the common parts, he was of the opinion that, landlords must be held liable to maintain and repair common parts. He felt that a duty of care was required of the landlord towards the tenants, to take reasonable care to ensure that “common parts” were maintained. He however held that the landlord had not been proved not to have exercised the duty of care and so reached the same conclusion as the other judges, that the landlord was not liable.
The issues that came to the House of Lords from the tenants appeal is as follows: – •The contract between the parties if any need to be interpreted. •What is the contract? •With regards to “common parts” there is implied an easement as from the particular cases of landlord and tenants of multi storey buildings the contract of tenancy would be useless without the grant of these easements which come with legal rights of way regarding legal easements •What is the extent of the obligation of the landlord with regard to the repair and maintenance of the common parts? •Is the standard reasonable care or stricter?
On the issue of the relationship that exists between Liverpool City Council and the Irwin’s, Justice Salmon humbly submits that it is clear that a contractual relationship exists between them with legal obligations on both sides. This can be gleamed from the fact of possession in an incomplete contract such as this case. The blanks can be filled by looking at the actions of the parties says Lord Wilberforce. In looking at the action of the parties we see here that the tenant was granted possession since 1966 and the landlord maintained the control of the common areas viz the lifts, staircases and rubbish chutes.
The circumstances here would be that the tenants live on a maisonette on the 9th and 10th floors, the relationship is that of landlord and tenant with its corresponding duties and liabilities. Where a tenancy exists one must necessarily imply access to easements for the tenant. There is implied a license from the landlord says Lord Salmon, for the tenants of the 15-storey block to use the lifts and stairs. There are two schools of thought on the issue of easements. One is that the liability of the landlord be limited or relate to ensuring safety of those using it, that the staircase e. . be seen by the landlord to be safe for use. Liverpool City Council strenuously denies liability for repair and maintenance. They only concede as regards safety quoting the safety occupiers act of 1957, also stating that if at common law they don’t even need to rent out a dwelling that is habitable, similarly it would be a stretch to say that they should repair and maintain the right of way enjoyed by the tenant. The second school implies a duty for the landlord to repair and maintain the common areas such that it is always available for use by the tenants and his visitors.
In Miller V Hancock, Lord Wilberforce believes that the test should be necessity. The common parts being necessary to the tenancy the landlord is under an obligation to keep them in reasonable repair and suitability. The majority of his lordships decided that the duty was one to take reasonable care and since the landlord was not being charged with not having taken reasonable care, but charged with an absolute duty to maintain, repair and keep staircases lit, the appeal must fail on grounds of lifts and stairs. The tenant relied heavily on Moorcock in the courts.
The Moorcock was a case in which the plaintiffs were ship-owners and entered into an agreement with the defendants who were jetty operators, to use their facilities for the loading and offloading of its goods. There was a low tide and the plaintiffs boat ran aground while berthed at the defendant’s jets. The defendants, who collect tolls and fees for the services, contended that the bed through which one has to pass before one can use their jetty was in the control of the conservation SOC and therefore they were not liable.
The court observed that the ship-owners could not be said to be aware of any low or high tide which could do damage to their ship, all that information was in the hands of the jetty owners who had access to this knowledge, therefore they owe a duty of care to their customers to warn them of any impending danger. The defendant was therefore found to be liable in damages to the plaintiff. In the instance of Liverpool City Council, the counsel for the tenant (Mr.
Godfrey) contends that in this case, the stairs and lift remain in the control of the landlord. LCC must necessarily be responsible for the repair and maintenance of such easements, as this is needed to make the contract work. Another issue on the appeal was the ubiquitous section 32(1)(b) of the Housing Act 1961 and its importation into the otherwise silent tenancy agreement as a default rule.
Section 32(1)(b) states “in any lease of a dwelling house, being a lease to which this section applies, there shall be an implied covenant by the leaser to keep in repair and proper working order the installations in the dwelling house” It was the contention of the Irwin’s that the water listern in their apartment was faulty as it had the tendency to flood the entire floor when flushed. Following from the above stated, the Irwin’s contended that the Liverpool city council were in breach of this section. Mr.
Godfrey (counsel for the Irwin’s) further submitted which submission was not objected by Mr. Francis (counsel to the Liverpool city council) that in lettings of this kind (15 story buildings etc) general law confers not only easement of access but legal remedy if denied, therefore the servient owner must do repairs though the dominant owner is the one directly enjoying the easement as any other finding would be absurd or lead to absurdity. Lord Edmund –Davies found that, the only way a flat of this kind can be used is if Liverpool city council were to maintain common parts.
His lordship also felt the need to clarify whether or not this implied term should be absolute or qualified. Going by Miller V Hancock there is a tendency to give an absolute, which would not be correct but thankfully to the latter case of Dunstar V Hollis. It stresses that implication of obligation to maintain and repair common parts only arises in tenancies when the demised property is a multi-story building. Section 32 continued in appeal, it was held that the appeal be allowed and a nominal fee of ? 5 was awarded the tenants.
In coming to this decision Hancock V Miller was used as well as Lister V Rumford threw more light on weather the landlords duty to repair is contractual or statutory. The whole working of section 32(1) of the housing act has taken away from the realm of the contractual to statutory where the parties provide expressly for it, then it can be said to be contractual but, instances in which the agreement is silent, section 32(1) of the housing act will then come cross as a default land to fill the gaps. Liverpool City Council V Irwin is known as the contrast between implied terms of law and implied erms of fact In the evolution from when it was first mentioned to when it got to the House of Lords LCC V Irwin became a case in point for implied terms of law. An implied term in law is one, which comes about so often in a re-occurring case of a similar kind. For example, the mutual trust and confidence rule in employer/employee contracts of employment is one such rule. Implied terms of fact are those, which come about because of the need by the court to determine the presumed intention of the parties to that transaction.
Cases in point of implied terms of fact are the Moorcock case. Implied terms of fact are those ones that are said to work within the will or mind of the contracting parties because an implied term in law is often times imposed on the parties in other to effect business efficacy of the transaction, because If an opportunity to question the parties arises and he or she is asked whether what the plaintiff seeks is what the defendant intended he would reply. So it is not always a matter of what is necessary but what is reasonable with regards to the circumstances.
A duty of care of what is reasonably necessary, Lord Denning humbly postulates. LCC V Irwin raises the question that though the preponderant of legal opinion is leading towards the view that landlords should not be liable for common parts as an absolute obligation, a distinction should be made were the landlord/tenancy agreement has a demise subject matter in the nature of the multi storey premises. The contention was that an implied term operates in this area to guide Landlord/tenant relations such that the duties of care emanates from the landlord regarding common areas.
A duty of care to reasonably keep the common areas reasonably well for the enjoyment of the tenants. It is a reasonable right and not an outright one. So, though at first instance it was unreservedly granted in the counter-claim in LCC V Irwin the other courts were not as liberal to do so, and eventually in the house of lords the standard was set necessary to effect business efficacy. Also, another test that seems to be coming up is the wider consideration, were the reasonable expectations of the parties was used instead of necessity. It seems a lower standard.
Sometimes, a matter will not fall to fact or law and therefore no implication can be made in that regard. Lord Denning found it difficult to cage Liverpool City Council V Irwin into law or fact but the preponderance of all the other justices classifies it into implied terms of law. Bibliography 1) Housing Act 1961- Section 32(1) 2) Housing Act 1961- Section 32(1)(b) 3) Lister v. Romford Ice and Cold Storage Co. Ltd.  A. C. 555;  2 W. L. R. 158;  1 All E. R. 125 4) Miller V Hancock  2 Q. B. 177, C. A. 5) Moorcock, The (1889) 14 P. D. 64
Cite this Case Note on Liverpool City Council
Case Note on Liverpool City Council. (2016, Dec 24). Retrieved from https://graduateway.com/liverpool-city/