1905

Jan. 20, 23.

HARGROVES, ARONSON & CO. v. HARTOPP AND

ANOTHER.

Negligence Landlord and Tenant-House let in Flats-Liability of Landlord for Disrepair of Roof-Limits of Duty.

The plaintiffs were tenants of a floor in a building of which the defendants were landlords. A rain-water gutter in the roof, the possession and control of which was retained by the defendants, became stopped up. Notice of the stoppage was given by the plaintiffs to the defendants, but the defendants neglected to have the gutter cleared out till after the lapse of four or five days from the receipt of the notice, and in the meantime the plaintiffs had suffered damage by reason of rain-water having found its way into their premises in consequence of the stoppage :

Held, that the fact of the gutter being under the control of the defendants imposed upon them a duty to take care that it was not in such a condition as to cause damage to the plaintiffs, and that as they had notice of its being stopped up and neglected to clear it out within a reasonable time after the receipt of the notice, they were guilty of a want of due care, and were consequently responsible for the damage done.

APPEAL from the City of London Court.

By an agreement in writing dated November 14, 1902, the defendants, who were the owners of a building situate in Foster Lane, Cheapside, let the third floor of the building to the plaintiffs for a term of two years. In part of the premises so let to the plaintiffs the third floor was the highest floor of the building; in another part there was a fourth floor above the plaintiffs' premises. On October 22, 1903, the plaintiffs found that rain-water was coming into their premises through the roof, and they immediately gave the defendants notice of that fact. The defendants did not send any one to repair the leakage until October 27, when they found that it was due to a rain-water gutter having become stopped up by an accumulation of rubbish, the greater part of which had been thrown by the tenants of the floor above on to the roof below. In the meantime, however, considerable damage had been done to the plaintiffs' goods in consequence of the rain-water flowing into their premises. Neither the roof nor the gutters or rain-water pipes were demised by the plaintiffs, but were retained by them

ARONSON & Co.

v.

HARTOPP.

in their possession and control. The defendants had never 1905 caused the gutters and pipes to be periodically examined and HARGROVES, cleaned out, and the rubbish which caused the stoppage of the gutter was the accumulation of years. There had been a leakage in the roof in the preceding July. The plaintiffs' agreement of tenancy did not contain any express covenant by the defendants to repair the roof or gutters, but it contained a covenant for quiet enjoyment without disturbance by the landlords or any other person claiming through them.

The plaintiffs sued the defendants for breach of the contract of tenancy, and also for negligence in failing to clean the gutter out after notice. The judge gave judgment for the plaintiffs. The defendants appealed.

Holman Gregory, for the defendants. The judge has held that the defendants were liable for negligence in not cleaning out the gutter with sufficient speed after receipt of the notice. But to establish negligence it must first be shewn that there was a duty. The mere giving of notice could not create a duty. Notice could only be material as giving occasion for the discharge of a duty which already existed aliunde. Here no duty to keep the roof in proper condition arose from contract. There was no express covenant by the defendants to repair; nor can any covenant by the defendants to keep the roof and gutters in repair be implied. In Carstairs v. Taylor (1), where the nature of the letting was similar and the rain-water flowed from the roof on to the floor rented by the plaintiffs in consequence of a rat having gnawed a hole in a box into which the water was collected by the gutters, it was held (inter alia) that the defendant was not liable on the ground of any implied covenant. In the present case no doubt the agreement contained a covenant for quiet enjoyment; but that will not avail to support the plaintiffs' claim, for that covenant only applies to positive acts done by the landlords, not to omissions, and here the only positive act done, that of throwing the rubbish on to the roof, was the act of third persons, for whom the defendants were not responsible. Nor, apart from contract, (1) (1871) L. R. 6 Ex. 217.

1905

HARGROVES, ARONSON & Co.

v.

HARTOPP.

can any duty to keep the gutters clear arise by law from the fact of the defendants being in the possession and control of the gutter. The maxim "Sic utere tuo ut alienum non lædas" applies only to responsibility for acts of commission, not to mere omissions. The law in no case imposes a duty upon a landowner to prevent injury arising from a dangerous condition of things existing upon his premises, unless that condition of things was brought about by his active interference. And here it was not, but was the result of the acts of third persons. In the American case of Krueger v. Ferrant (1), where the plaintiff rented and occupied the lower story of the defendant's building, which was let out in floors to different tenants, and the roof, as here, was under the control of the lessor, who had notice. that it was defective and nevertheless neglected to repair it, it was held that he was not responsible to the plaintiff for damage which he suffered in consequence of that neglect by reason of rain-water coming through the roof. The Court there held that the maxim "Sic utere tuo" did not apply "to a mere omission to act, but rather to some affirmative act or course of conduct which amounts to or results in the invasion of another's right." That case is directly in point. The plaintiffs will rely on the case of Miller v. Hancock (2), where the lessor of a building let out in flats was held to be under a duty towards persons coming to visit tenants of the flats on business to see that the common stair of the building was reasonably safe. But there the duty held to exist was a duty towards third persons, not towards the tenants themselves, and the obligation was rested by the Court, not on any implied contract, but on an invitation to persons coming on business to use the stair. If tenants do not insist on getting a special covenant in their leases, they must take the risk of the roof getting out of repair.

Sturges, for the plaintiffs. There was a duty upon the landlords to take reasonable care that the roof which they retained under their control did not become a source of danger to their tenants. No doubt in the absence of a covenant by the landlord to repair he is under no duty to the tenant to (1) (1882) 43 Amer. Rep. 223; 29 Minn. 385. (2) [1893] 2 Q. B. 177.

1905

ARONSON

& Co.

V.

HARTOPP.

prevent those portions of the building which are demised, and control of which is parted with to the tenant, from getting HARGROVES, into a state of dangerous disrepair. But it is otherwise with respect to those portions of the building which he retains in his own possession. The case of Miller v. Hancock (1) is a direct authority in the plaintiffs' favour. There the Court assumed as an indisputable proposition that there was a duty on the landlord as towards the tenants to keep the staircase safe, and the only question was whether the benefit of that duty extended to third persons who were strangers to the contract of tenancy. Bowen L.J. said: "It appears to me obvious, when one considers what a flat of this kind is, and the only way in which it can be enjoyed, that the parties to the demise of it must have intended by necessary implication, as a basis without which the whole transaction would be futile, that the landlord should maintain the staircase, which is essential to the enjoyment of the premises demised, and should keep it reasonably safe for the use of the tenants." So here, as the premises cannot be enjoyed for the purpose for which they are demised unless the roof is maintained in a proper condition to keep out the rain, it must have been intended that the landlords should maintain it in that condition, and for that purpose should keep the gutters clear. The case of Carstairs v. Taylor (2) is not an authority against the present contention. What the Court there held was, not that there was not an implied covenant by the landlord to keep the gutters in repair, but that the covenant did not extend to provision against inevitable accident. Martin B. expressly said that Probably the defendant was under a liability to use reasonable care in keeping the roof secure." In Blake v. Woolf (3) the plaintiff became tenant of the ground floor in the defendant's house in which there was a cistern on an upper floor. The cistern leaked, and the defendant having notice of it employed a competent plumber to repair it. Owing to the negligence of the plumber an overflow occurred and damaged the plaintiff's goods. It was held that as he had instructed a competent (2) L. R. 6 Ex. 217.

(1) [1893] 2 Q. B. 177.

(3) [1898] 2 Q. B. 426.

1905

ARONSON & Co.

plumber to do the work he had exercised due care, and was not HARGROVES, bound to do more. But the ground of the decision shews that if he had not exercised due care the Court would have held him liable. The case of Krueger v. Ferrant (1) was wrongly decided. Gregory, in reply.

2.

HARTOPP.

LORD ALVERSTONE C.J. In this case, which raises a point of some interest, I have come to the conclusion that upon the facts as found by the county court judge we ought not to interfere with his decision. Those facts I understand to be as follows: The roof was not demised to the plaintiffs, but was retained in the possession and under the control of the defendants, and there was no evidence that the plaintiffs or any of the tenants had any right of access to the roof or any privilege to go upon it, or that they had in fact ever repaired it or cleaned out the gutter. In October, 1903, the damage which is complained of happened as the result of a gutter in the roof becoming stopped up. The plaintiffs gave the defendants notice of the leakage, but the defendants delayed five days before taking steps to have the stoppage removed. There was also evidence that there had been a previous leakage in the roof in the preceding July. The county court judge found that the gutter was not clear on that occasion, and that in fact the defendants had never inspected the gutters at any time; and under those circumstances he held that the defendants were liable for negligence in not periodically inspecting the gutters, and in not acting sufficiently quickly after receipt of the plaintiffs' notice in October.

Mr. Gregory has contended that the judge was wrong in holding the defendants liable for negligence; that in order to establish negligence it must first be shewn that there was a duty to take care; that there is no duty upon a lessor to take care that the roof is kept in a fit and proper condition unless he has covenanted to repair; that no covenant by the lessor to repair is to be implied; and that, apart from covenant, no duty to take care is imposed by law except in respect of acts of commission, under which

(1) 43 Amer. Rep. 223.