Summary

The "main structure" of a modern block of residential flats was to be construed as including not only the bare concrete shell of the building but also whatever additional surfaces were created by the landlord in order to make that shell a complete and effective structure for the purpose of maintaining the physical integrity of the flats within it.

Facts

Appeal by the claimant tenant ('H') from the decision of Deputy Master Weir dismissing his application for summary judgment in an action for specific performance and/or damages against the defendant ('the landlord'). H was the tenant of a flat ('the flat') on the seventh floor of a modern block of residential flats ('the building'). The ceiling of, inter alia, the bedrooms of the flat was made up of a horizontal concrete slab, the underside of which was plastered to form the bedroom ceilings. Above the slab were various layers of block insulation, polythene membrane, sand and cement screed and asphalt, on top of which had been laid tiles which formed the floor surface of a roof terrace to one of the flats on the eighth floor of the building. It was common ground that the asphalt layer had failed, and that as a consequence water and damp were percolating through the various layers below and into the bedrooms of the flat. Clause 5.4 of the lease between H and the landlord contained a covenant on the part of the latter to "maintain and keep in good and substantial repair and condition ... the main structure of the building including ... the roof of the building ... (and) all other parts of the building not included in the foregoing ... and not included in ... the demise of any other flat or any other part of the building". The landlord conceded that the concrete slab above the bedrooms of the flat was within the term "main structure", but contended that the layers above it were properly to be construed as part of the demise of the flat above.

Held

(1) When considering how the eighth floor terrace fitted into the scheme of the lease it had to be remembered that it fulfilled two different functions. Unlike the lower floors, the eighth floor had no roof cover. It was open to the elements and provided protection from them to the floors below. The roof terrace had been constructed with layers of asphalt and external tiles in order to provide the necessary weatherproofing for the porous concrete slab beneath. (2) It followed that the "main structure" of the building was to be construed as including not only its bare concrete shell, but also whatever additional surfaces were created by the landlord in order to make that shell a complete and effective structure for the purpose of maintaining the physical integrity of the flats within it.

Appeal allowed. Summary judgment for H for specific performance and damages.