March 22, 2018/in Case Summaries, Contract Law /by Vivek Khanna LLB, LLM, Barrister at Law
Liverpool City Council v Irwin  AC 239
• L owned block of flats in which I was a tenant
• Because of the state of disrepair in common parts of the flats, tenants including I implemented a rent strike
• Action for eviction was brought against I for non-payment of rent contracted
• I countered by claiming L was in breach of an obligation to repair. However, the tenancy agreement did not mention any obligation to repair.
• The tenancy agreement only imposed obligations on the tenant and made no reference to the obligations of the landlord.
• I asked the court to imply a term that the council had an obligation to repair the common parts of the block of flats.
• HC: Implied term. L in breach
• CA: No implied term. Appeal Allowed
• HL: Implied term, but no breach. Appeal dismissed
Plaintiff/Respondent: Liverpool City Council
Can an implied term be inferred from a tenancy agreement even if it does not contain express obligations for the landlord?
i. Where there is, on the face of it, a complete, bilateral contract, the courts are sometimes willing to add terms to it, as implied terms; this is very common in mercantile contracts where there is an established usage; in that case the courts are spelling out what both parties know and would, if asked, unhesitatingly agree to be part of the bargain. (Wilberforce LJ)
ii. There must be implied (i) an easement for the tenants and their licensees to use the stairs, (ii) a right in the nature of an easement to use the lifts and (iii) an easement to use the rubbish chutes. (Wilberforce LJ)
iii. it is not enough for the court to say that the suggested term is a reasonable one the presence of which would make the contract a better or fairer one; it must be able to say that the insertion of the term is necessary to give – as it is put -‘business efficacy’ to the contract and that if its absence had been pointed out at the time both parties – assuming them to have been reasonable men – would have agreed without hesitation to its insertion. (Wilberforce LJ)