HC Deb 25 June 1974 vol 875 cc1293-7

Where in any instrument creating a leasehold interest or tenancy of a flat comprising part of a flat, block (or house converted into flats) the landlord has covenanted for the benefit of more than one tenant of flats in the said block or house to carry out works of repair, replacement, redecoration or maintenance of the said block or house or any part thereof, including the common parts thereof, or where under the provisions of any statute such covenants are implied or similar obligations are imposed, any tenant entitled to enforce proceedings may in accordance with the rules of court to be made by the prescribed authorities be entitled to an order for the specific performance of such covenant by the landlord any rule of law or equity to the contrary notwithstanding '.—[Mr. Douglas-Mann.]

Brought up, and read the First time.

7.30 p.m.

Mr. Douglas-Mann

I beg to move, That the clause be read a Second time.

The object of the clause is to give tenants, whether leasehold tenants, weekly tenants or periodical tenants, the right to obtain, at the discretion of the courts, specific performance of the obligation to repair which is contained in legislation or which is implied by statute. The clause differs from the one that was introduced in Committee in that there is an express reference to the repairing obligations implied by statute, particularly Section 32 of the Housing Act 1961.

It is the common experience of tenants of all kinds of property, particularly in recent years, that where the landlord has been running into financial difficulties, which may have become more acute with the collapse of the Stern empire, they have found it impossible to compel the landlord to carry out the repairing obligations which are contained in their leases. When a tenant rents or buys a property from a landlord there is often contained within the agreement an undertaking by the landlord to carry out certain essential repairing obligations, yet when the time comes for those obligations to be put into effect it is frequently impossible to get the landlord to carry them out.

For 160 years, since the decision in Hill v. Barclay in 1810, it has been believed to be the law that a tenant is not able to obtain specific performance of the repairing covenants in a lease. That view was recently challenged in the case of Jeune v. Queens Cross Company Ltd., reported in 1973(3) All England Reports, page 97, in which Mr. Justice Pennycuick decided that the tenant could obtain an order for specific performance.

It may be said by my hon. Friend when he replies that in view of that decision it is not necessary to have a clause which provides for specific performance, the power already existing in law. However, I draw the attention of my hon. Friend to two matters. First, in the case of Jeune the landlord did not put up an argument. In effect, it was a case which went by default. Of course, the tenant had to satisfy the judge under the law as it stood that the judge had the power to make the order that in fact he made. Nevertheless, the opposite argument was not presented to the judge and it is possible that in a different case or in different circumstances, and perhaps on appeal, a different decision would apply.

The learned judge emphasised that he made his decision with some reservations, but he ruled that the obligation was so clear, so precise and so specifically spelt out in the lease that it was an obligation which gave the tenant remedy in damages. That is not a satisfactory position in which to leave the law. It is desirable that we should make the law clear. We should emphasise to everyone who is a tenant and a beneficiary of a repairing obligation, whether by the terms of his lease or by the provisions of Section 32 of the Housing Act 1961 or in any other way, that he is entitled, subject to the overriding discretion of the court, to the remedy of specific performance.

Many blocks of flats are falling into disrepair. For example, there are many lifts that do not work, there is faulty electrical apparatus falling into a dangerous state and there are gas pipes which need to be repaired and which are a source of danger to life and health. At present, no remedy is available to the tenant unless the decision in the case of Jeune is upheld on appeal. None of those matters is capable of being enforced against the landlord unless that case is upheld. The new Clause would provide an effective remedy, which would enable the courts, in their discretion, to make an order for specific performance. That is the only satisfactory remedy that is available. It would create a situation in which tenants who were suffering from the neglect of their premises by their landlord would be able to get them repaired.

Mr. Costain

There is a point that I would like the hon. Gentleman to clarify. In areas such as my constituency there are widows who have been left houses by their husbands and who have become landlords in the hope of getting some income from their property. Unfortunately, in the present situation that is not always possible. What would be the position under the new clause if, for example, an old lady of 82 could not carry out certain repairs, she being unable to find a builder to do them? What penalties would be inflicted on the old lady?

Mr. Douglas-Mann

The hon. Gentleman has illustrated the great disadvantage of having old ladies of 82 carrying out the difficult task of providing housing accommodation. They could, of course, get out of their difficulties by transferring the accommodation to the local authority or to a housing association. The new clause relates to a legal obligation and, perhaps unwittingly, many old ladies have undertaken that obligation. It is an obligation that is expressed or implied in the contract that has been created or in law.

At present the tenant's remedy if the old lady does not carry out the repairs is to sue her for damages, but either she should get out before she is incapable of doing the job that is needed or she should transfer the accommodation. There is no reason why the tenant should be incapable of compelling the old lady to repair the property. There is no reason why the landlord should not be compelled to carry out what is a legal obligation, and there is no reason why the courts should not have the power to compel him to do so.

The clause which was introduced in Committee in a slightly different form by the hon. Member for Hampstead (Mr. Finsberg)—who, unfortunately is not here—was, I understand, referred to the Law Officers. I hope that my hon. Friend will have had the report of the Law Officers and that he will be able to accept the new clause.

Mr. Freeson

As my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) has said, this clause is in much the same terms as a new clause tabled by hon. Members in Committee. The purpose of the clause is to remove beyond doubt the ability of the courts to grant orders for specific performance and thus ensure that landlords can be compelled to carry out their repairing obligations. During the course of discussions in Committee I quoted the case of Jeune v Queens Cross Properties where a court had made such an order, and argued the case that no longer was it the fact in law that orders for specific performance could not be made by the courts.

However, during discussion it became clear that we were all sympathetic to the idea of enshrining in legislation the right of the court to make orders of this kind. I gave an undertaking that I would see what could be done to devise a Government amendment with that aim in view Unfortunately, it has not been possible for me to table such an amendment at this stage, but I am glad to be able to tell the House that instructions have been prepared for parliamentary counsel and I see no reason to doubt that a clause to meet the purposes set out here will be introduced in another place. In view of that assurance I hope that my hon. Friend will agree to withdraw the clause.

Mr. Douglas-Mann

In view of that welcome assurance, I shall have pleasure in withdrawing the new clause. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Mr. Deputy Speaker (Mr. George Thomas)

The new schedule printed as Amendmen No. 85 on page 3 of the Notice Paper was intended to be a new clause. Mr. Speaker has selected it to be moved as a new clause.

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