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Present: Akbar J.
SCHOKMAN ». RATNAYAKE.
3-52—C. R. Gaile, 7,903.
Landlord and tenant—Failure to effect repairs—House unfit for habita-tion—Tenant’s right to quit without notice.
Where a landlord fails to effect the necessary repairs to a housewhich becomes useless for the purpose for which it is hired,—Held, that the tenant was entitled to quit the premises withoutdue notice.
HE plaintiff sued the defendant to recover a sum of Rs. 70 asrent for a house and premises for the month of March, 1928.
The defendant denied his liability on the ground that he had givenreasonable notice of his intention to quit at the end of• February,,and on the ground that the house was in a state of disrepair whichentitled him to quit even without notice. The learned Commis-sioner of Requests gave judgment for the plaintiff.
A’. E. Weerasooria, for defendant, appellant.—The notice givenby the defendant is sufficient in law. Even if it is not, the housewas not in a tenantable condition. In such a case notice to quit isunnecessary. The landlord had been informed of the condition ;he had not "effected necessary repairs. A tenant' has in suchcircumstances the option of one of three remedies. He mayclaim an abatement while remaining in occupation ; he may quit
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without being liable for any rent alter quitting.; or he may continueas tenant and make the necessary repairs and set the costs offagainst the rent.
See Witte on Landlord and Tenant, 1910 ed.f pp. 273 to 275 ; Voet,XIX. 2, 23.
R. C. Fonseka, for plaintiff, respondent.—There is evidencethat the house was tenantable. It was in a condition similar toothers in the locality. Even if it was not, a tenant who doesnot give due notice can chum only an abatement of rent (seeMor ice English and Roman-Dutch Law, 2nd ed., pp. 158 and 159 ;Walter Pereira, 1913 ed, p. 671; Binsley v. Clearl).
Weercwooria, in reply.—The facts of Binsley v. Clear (supra)are not available. The extract shows that the word “ only ” refersto the extent of the abatement. The abatement claimed can onlybe to the extent to which he has been deprived of the means ofenjoying the premises or the expenses for repairs. The questionas to what remedies are available did not arise.
February 25,1929. Akbab J.—
This is an appeal by the defendant against the order of theCommissioner condemning him to pay Rs. 70, being rent due byhim to the plaintiff, his landlord, for the month of March, 1928, andcosts of action.
There were two issues in this case, namely, (1) did the defendantgive reasonable notice of his intention to quit at the end of February,1928, and (2) was the house in such a state of disrepair as to entitlethe defendant to leave it without notice.
As regards the first issue, I think the Commissioner came to aright conclusion. Even if plaintiff had received the notice to quitwhich the defendant alleges he had posted on January 27, 1928,yet, because the defendant stated in that letter that he may haveto leave the house by the end of February, unless the repairs areeffected, this cannot be construed as a valid notice to quit. It isnothing more than a request that the repairs should be effected,with a threat that the defendant would leave the premises if hisrequest was not complied with.
As regards the second issue, this is more difficult becauseMr. Weerasooria has attacked the finding of facts on this issue bythe Commissioner, by reason of the fact that the Commissionerhimself has given leave to appeal.
After listening to the evidence, the arguments of Counsel, andthe reasons given by the Commissioner, I regret that I cannotaccept the Commissioner’s finding on this issue. The defendantby his letter P 1 complained on December 21 that the househad not been given a coat of paint, and that of the other repairs,
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the most important was the cleaning of the water service pipes,as he did not get sufficient water even for household needs. Therewas no reply to this letter, so that it must be accepted that thedefects in fact existed. Then the defendant wrote a letter onJanuary 27 actually threatening to leave the house unless therepairs were effected. The Post Office receipt D 1 shows thatsuch a letter was actually posted. The plaintiff denied the receiptof such a letter. Thisdenial is, to say the least, very unaccountable.Then again by letter D 2, receipt of which is admitted, the defend-ant wrote stating that he would be leaving the house by the end ofthe month if the plaintiff did not put the roof in order and paintand whitewash the house. The plaintiff wrote P 5 in acknowledg-ment, in which he stated that he was “ jolly glad ” to hearthat the defendant was leaving the house. It is a nasty letter, butthe point is not its nastiness, but that there is no protest that thehouse did not need painting or whitewashing or that the roof wasnot leaking. This is significantin view of the plaintiff’s evidencethat he repaired all the leaks and whitewashed the whole of thehouse, including the roof, in the month of April before the letter.The plaintiff could very well have stated in his letter that he haddone so last April, and that the next repairs would be attended toin the usual course in April that year.
Then we have the positive evidence of the defendant that it wasimpossible for him and his family to have lived in the house becausethe roof was leaking badly ; the rafters and laths were rotten; thehouse was in a dangerous condition ; and further, the door hingeswere broken. He is corroborated by Mr. R. A. H. 'de Vos, whobought the house, and who stated that the leaking in one of therooms was very bad and that it was due to the guttering in theadjoining house not being in order. He further states that the roofwas leaking in other places also and that he replaced over 100“ reepers,” some partly and some wholly, that the roof over one ofthe rooms leaked badly, and that the hinges were rusty. In cross-examination he stated “ one of the bad leaks was in that part of theroof adjoining Ephraums’. Ephraums’ roof is much higher and thedrop heavy. I had to fix a galvanized zinc protector to protectthe roof from the drop from Ephraums It should be noted thatMr. de Vos got possession of the'house in March or April, 1928.Now this is very strong corroborative evidence, from an unimpeach-able witness, of the defendant’s story. It is no answer to say thatother houses in the Fort of Galle also leak. The fact that othertenants are long suffering is no answer in a question of contractbetween the plaintiff and the defendant.
The only question is whether under the law the defendant wasentitled to quit the house without notice under these circumstances.The law is stated clearly in Wille’s Landlord and Tenant in South
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Africa, p. 273 to 275. The tenant has got one of three remedieswhen there, is a default of the landlord. One of the remedies is thathe may quit without being liable for any rent at all for the periodafter quitting, provided that he can prove that the defectswere of so material a nature as to render the premises practicallyuseless for the purpose for which he had, to the knowledge ofthe landlord, hired them, and that he could not remain in thepremises without great inconvenience to himself. Mr. Fonsekaurged that this remedy was unknown in Roman Dutch law, andhe quoted an extract from a South African case from Morice, pp.158 and 159, which is copied in Mr. Walter Pereira’s book,p. 671. The word “ only ” in the sentence cannot be taken asrestricting the remedies of the tenant to the two other remediesmentioned in Wille’s book because the very case cited by Morice isgiven in Wille’s book at p. 274. It is unfortunate that the caseis not available here, but the word “ only ” can only have referenceto the extent of the abatement of rent.
I would, therefore, allow the appeal with costs and dismiss theplaintiff’s action with costs.
SCHOKMAN v. RATNAYAKE