Meaning of 'structure' in s.11 Landlord and Tenant Act 1985 (Collatory Case)

INTRODUCTION

Section 11(1) of the Landlord and Tenant Act 1985 implies into qualifying leases, a lessor's covenant, to perform 3 repairing and/or maintenance type obligations. These are: 

'(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.'

Each of these have been the subject of judicial consideration. The focus of this article, is on the phrase 'structure...of the dwelling house' in (a) above (being s.11(1)(a) of the Landlord and Tenant Act 1985 ('LTA 1985'))

The meaning given to this phrase will be considered, in light of the following cases:

(1) Irvine's Estate v Moran [1990] 5 WLUK 203; (1992) 24 HLR 1; [1991] 1 EGLR 261 ('Irvine's Estate'), High Court (QBD) (Recorder Thayne Forbes QC sitting as Deputy High Court Judge) on 16.5.90; 

(2) Ibrahim v Dovecorn Reversions Ltd (2001) 82 P. & C.R. 362; [2001] 2 EGLR 46 ('Ibrahim'), High Court (Rimer J) on 9.3.01; 

(3) Marlborough Park Services Ltd v Rowe [2006] EWCA Civ 436; [2006] HLR 541 ('Marlborough'), Court of Appeal (Tuckey LJ; Sedley LJ; Neuberger LJ) on 7.3.06;

(4) Sheffield City Council v Oliver LRX/146/2007, unreported ('Sheffield City'); Lands Tribunal (President of the Lands Tribunal - George Bartlett QC)), on 18.8.08;

(5) Grand v Gill [2011] EWCA Civ 554; [2011] 1 WLR 2253 ('Grand'), Court of Appeal (Rimer LJ; Lloyd LJ Thomas LJ) on 19.5.11;

(6) CQN RTM Co Ltd v Broad Quay North Block Freehold Ltd [2019] HLR 9 (2018) ('CQN RTM'), Upper Tribunal (Lands Chamber) (HHJ Hodge QC) on 31.7.18;

Irvine's Estate is the seminal case in this area (though it was wrong on whether or not internal plaster comes within the meaning of 'structure' here). Irvine's Estate set down some principles which have later been described by the Neuberger LJ in Marlborough as, generally, a 'good working definition'.

STATUTORY PROVISIONS 

Section 11 of the Landlord and Tenant Act 1985 

Section 11 of the LTA 1985 is entitled 'Repairing obligations in short leases' and s.11(1) reads:

'In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor-

(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.' [bold added]

Section 11 of the LTA 1985 is provided, in full, in a footnote[2]. 

Statutory predecessor - s.32 of the Housing Act 1961 

It is helpful to appreciate that section 11 of the LTA 1985's immediate statutory predecessor was s.32 of the Housing Act 1961 ('HA 1961'). Section 32 of the HA 1961 (now obsolete) was entited 'Repairing obligations in short leases of dwelling-houses' and s.32(1) read (as originally enacted)(so far as potentially material):

'(1) In any lease of a dwelling-house, being a lease to which this section applies, there shall be implied a covenant by the lessor-

(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes); and

(b) to keep in repair and proper working order the installations in the dwelling-house-

(i) for the supply of water, gas and electricity, and for sanitation (including basins, sinks, baths and sanitary conveniences but not, except as aforesaid, fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(ii) for space heating or heating water,

and any covenant by the lessee for the repair of the premises (including any covenant to put in repair or deliver up in repair, to paint, point or render or to pay money in lieu of repairs by the lessee or on account of repairs by the lessor) shall be of no effect so far as it relates to the matters mentioned in paragraphs (a) and (b) of this subsection.'

As will be apparent (and ignoring the last paragraph (the bit starting 'and any covenant by the lessee') for a moment): 

(1) s.32 is, in substance, the same as s.11 of the LTA 1985; 

(2) s.32 and s.11 are different, merely in that:

(a) in subsection 1: 'In any lease of a dwelling-house, being a lease to which this section applies...' is now 'In a lease to which this section applies (as to which, see sections 13 and 14)...' and

(b) s.32, subsection 1(b) contained 'except as aforesaid,' whereas that does not appear in the equivolent part of s.11 (namely, s.11(1)(b)).

(c) there is some different framing of the section/subsections. Section 11(1) has 3 subsections (a)(b)(c), replacing s.32 and its use of subsections (a)(b)(i)(ii)).

Importantly, for the focus of this article, there is the same phrase 'to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)' in both. With the wider section context, in substance the same. 

CASELAW 

Irvine Estate

Irvine's Estate:

(1) a landlord and tenant entered into a lease dated 18.10.1978, wherein, the landlord demised to the tenant, a term of 7 years, from 1.9.1978 (the 'Lease') (paragraph 1)

(2) it was common ground that s.32 of the HA 1961 applied to the Lease (paragraph 1)[3], though by 1990, the date of judgment, it had been long repealed (paragraph 1);

(3) the landlord brought a claim for damages against the tenant, alleging that the tenant had failed to comply with certain repair and decoration covenants in the Lease (paragraph 1; summarised as 'imposing upon the [tenant] extensive repairing and decorating obligations.' (paragraph );

(4) 2 preliminary issues were listed for determination (paragraphs 1 to 3):

(a) ‘Which items fall within the landlord's implied covenants under section 32 of the Housing Act 1961? In particular, but without limitation to these matters, to what extent do the garage, gates, driveway, gardens and grounds, windows including sashes, cords, frames, glazing and furniture, internal wall plaster and door furniture, fall within the section?' (note the first word 'furniture' needs to be read in context[4])

(b) 'Do the tenant's covenants to paint and decorate the exterior of the dwellinghouse and other relevant installations, such as radiators, remain wholly or partially in effect on a true construction of s.32(1)?'

Both preliminary issues was said to be addressed to the same question: '...to what extent the repairing and decorating obligations by the defendant (the tenant) as set out in those various clauses of the lease to which I have referred, have been cut down by the implied covenant to repair imposed upon the landlord by section 32 of the Housing Act 1961. It will be recalled that part of subs.(1) of that section expressly provides that, to the extent that there is a covenant by the lessee to carry out various works to the premises of repair, decoration and the like, those covenants shall be of no effect so far as those covenants on the part of the tenant relate to the matters mentioned in paragraphs (a) and (b) of the subsection. The practical effect is that, to the extent that section 32 has imposed upon the landlord certain implied obligations to repair, those obligations must be subtracted from the tenant's express obligations under the lease to see what residual obligation the tenant has for repair, redecoration and the like after the landlord has fulfilled his statutory repairing obligations.' (paragraph 7)

Focusing on preliminary issue No.1, the Judge in Irvine's Estate said it directed his attention to:

'...determining to what extent certain aspects of the demised premises can be said to be either part of the structure of the dwellinghouse, or part of the exterior of the dwellinghouse, because it is in relation to the structure and exterior of the dwellinghouse that the landlord's implied repairing covenants arise. Also, it is to certain specified installations in the dwellinghouse that his obligations are addressed by the section. I am asked to consider in particular the garage, the gates, the driveway, the gardens, the grounds, the windows and so forth, the internal plaster and door furniture. I am asked to give a ruling in relation to those as a matter of law. The preliminary issue also asks me to rule upon the landlord's implied covenants without limiting my ruling to those items, although those are the ones of prime concern to the parties.' (paragraph 8)

The Judge added that there was very little authority on point:

'It is of interest, and somewhat surprising, that there is very little authority on this matter at all and so I have to decide this preliminary issue without significant assistance from the authorities.' (paragraph 8)

The Principles 

The Judge in Irvine's Estate then formulated the general principles to be applied, to the general question: what is the structure of the dwellinghouse?

(a) he considered that 'structure' must be construed within its context and that 'the structure of the dwellinghouse' means something less than the dwellinghouse as a whole/the overall dwellinghouse itself. He said, at paragraph 9 (page 5):

'The first thing that I have to address my mind to is what is meant by section 32(1)(a) as keeping in repair the structure and exterior of the dwellinghouse. I think that ... the word “structure” in subs.(1)(a) should not be construed in isolation but should be construed as part and parcel of the overall expression “the exterior of the dwellinghouse”. In my judgment, it is clear that the legislature did not intend by the use of the word “structure” in that subsection to mean the entire dwellinghouse, or the entire constructed building. Had the legislature intended to give the very wide meaning to “structure” that [counsel for tenant] argued for, then...the words that we find in paragraph (a) of subsection (1) in parenthesis “including drains, gutters and external pipes” would be mere surplusage and totally unnecessary. ...by using the words “the structure of the dwellinghouse” and “the exterior of the dwellinghouse” the legislature in both cases was referring to something less than the dwellinghouse as a whole. The structure of the dwellinghouse is something less than the overall dwellinghouse itself.'

(b) he considered that the 'structure of the dwellinghouse' consisted of those elements of the overall dwellinghouse which give it its essential appearance, stability and shape, but does not extend to the many and various ways in which the dwellinghouse will be fitted out, equipped, decorated and generally made to be habitable. The Judge in Irvine's Estate said:

'Of course, the difficulty that is posed is deciding to what more limited aspects of the overall dwellinghouse the word “structure” is addressed. I have come to the view that the structure of the dwellinghouse consists of those elements of the overall dwellinghouse which give it its essential appearance, stability and shape. The expression does not extend to the many and various ways in which the dwellinghouse will be fitted out, equipped, decorated and generally made to be habitable.' (paragraph 9)

(c) he considered that to come within the expression 'the structure of the dwellinghouse', the aspect under consideration does not need to be load bearing - in the sense that term is used by engineers. But in order to be part of the structure of the dwellinghouse, the particular element in question, must be a material or significant element in the overall construction. The Judge in Irvine's Estate said:

'I am not persuaded by [counsel for the landlord] that one should limit the expression “the structure of the dwellinghouse” to those aspects of the dwellinghouse which are load bearing in the sense that that sort of expression is used by professional consulting engineers and the like; but what I do feel is, as regards the words “structure of the dwellinghouse”, that in order to be part of the structure of the dwellinghouse a particular element must be a material or significant element in the overall construction.' (paragraph 9)

(d) recognising that every case will turn on a degree of fact, and, an inability to produce a full definition, the Judge in Irvine's Estate said:

'To some extent, in every case there will be a degree of fact to be gone into to decide whether or not something is or is not part of the structure of the dwellinghouse. It is not easy to think of an overall explanation of the meaning of those words which will be applicable in every case and I deliberately decline to attempt such a definition. I am content for the purposes of this case to say that I accept [counsel for the landlord's] submission that “structure of the dwellinghouse” has a more limited meaning than the overall building itself and that it is addressed to those essential elements of the dwelling-house which are material to its overall construction.'

That I think is as far as I am able to go.' (paragraphs 9 and 10)

In reaching this conclusion/formulation, the Judge in Irvine's Estate said (paragraph 10):

(1) he had been guided to some extent, and had sought to follow, Megaw LJ's suggested approach Campden Hill Towers Limited v. Gardner [1977] 1 Q.B. 823, 834F[5];

(2) he was not assisted by Pearlman v. Harrow School [1979] QB 56 at 79, taking the view that, '...it would be very dangerous to try and extrapolate from definitions referable to the word “structural” any meaning which would enable me to be satisfied that I was properly interpreting a different concept, namely, “the structure of the dwellinghouse”. It seems to me that “structural” as an adjective has acquired a very much more limited meaning...' (paragraph 10)

Application of principles

Applying those principles to individual items connected to the dwellinghouse, the Judge 

(1) noted some Tenant concessions - that 'the gardens and grounds and driveway are not within section 32' (paragraph 11)[6]

(2) said that 'the natural approach' (for which he say no reason not to follow) meant that 'a separate garage and separate gates do not ordinarily...form part of the dwellinghouse.' (paragraph 12);

(3) then turned to 'internal wall plaster' and 'door furniture'. Before continuing, it is right to note here that the Judge's determination as to 'internal wall plaster' was expressly disapproved in a later Court of Appeal case of Grand (discussed below).

Returning to Irvine's Estate, and with that caveat about Grand's disapproval of his determination on internal wall plaster (only), the Judge in Irvine's Estate:

(a) held that both 'internal wall plaster' and 'door furniture' did not 'form part of the structure of the dwellinghouse, bearing in mind I have held that those words mean something less than the overall construction.' (paragraph 13); and

(b) said 'As I have said, section 32(1)(a) and the words “structure of the dwellinghouse” mean something less than the dwellinghouse overall and are limited to the essential material elements that go to make up the structure of the dwellinghouse.' (paragraph 13) and 'It seems to me that internal wall plaster is more in the nature of a decorative finish and is not part of the essential material elements which go to make up the structure of the dwellinghouse'

(4) turned to windows. As to whether windows are with the phrase 'structure ... of the dwellinghouse', the Judge in Irvine's Estate said: 'I have come to the conclusion that windows do form part of the structure of the dwellinghouse.' (paragraph 14; though he said his view might be different in relation to '...windows in, let us say, an agricultural building' (paragraph 14) - attributing this to 'The essential material elements may change, depending on the nature and use of the building in question' (paragraph 14))

'In the case of a dwellinghouse, it seems to me that an essential and material element in a dwellinghouse, using ordinary common sense and an application of the words “structure of the dwellinghouse” without limiting them to a concept such as “load-bearing”, must include the external windows and doors. Therefore I hold that windows themselves, the window frames and the sashes do form part of the structure. It follows that, since these are sash windows, it would be invidious to separate the cords from the sashes and the essential furniture from the frames. So, in my judgment, the windows including the sashes, the cords, the frames and the furniture are part of the structure of the dwellinghouse.

Again, there is room for factual differences. For example, though it has not been suggested that such is the case here, there could be furniture which is added to a window which is not essential for the operation of that particular window. In such circumstances I think that it would be doubtful if such non-essential furniture were to be regarded as part of the structure. However, I do not have to consider such nice questions as that and so I do not make any specific ruling on it. In this case, it not having been suggested that there is any circumstance which does not justify the particular furniture being placed on the particular windows, I am satisfied that the windows together with their various accoutrements are part of the structure.'

The Judge in Irvine's Estate found that external windows would also come within the 'exterior of the dwelling house'[7]. The Judge also dealt with the other preliminary issue[8].

Ibrahim + Sheffield City

In both Ibrahim and Sheffield City, extracts from Irvine's Estate were quoted. In Ibrahim, Rimer J quoted paragraph 9 from Irvine's Estate (quoted above)[9], and applied it, holding that the phrase 'main structure' (so not quite the same phrase as in s.11(1)(a) of the LTA 1985) included joists (and other layers) between a roof terrace and the flat below- as this part: (a) made a material contribution to the "essential appearance, stability and shape" of the building and (b) served the vital function of a roof for the top floor flats)

Marlborough

In Marlborough, the issue was whether certain parts of a building were within the term "main structures" in a covenant to repair. Neuberger LJ, having quoted a central passage from Irvine Estate, said, at paragraph 17:

'While I accept, as I have emphasised, that words such as 'structure' or 'main structures' must take their meaning from the particular document, lease or statute in which they are found, and from the surrounding circumstances, and although it can be said that any attempt to define them will, to an extent, raise as many questions as it answers, it seems to me that that is a good working definition to bear in mind, albeit not one to apply slavishly.'

Grand 

In Grand, the Court of Appeal:

(1) accepted Irvine's Estate provided a "a good working definition", but,

(2) disagreed with a specific determination in Irvine's Estate, namely that the (internal) plaster was not to be regarded as part of the structure. As to this, Rimer LJ in Grand said, at paragraph 25:

'For myself, whilst I would accept and adopt [the Judge in Irvine's Estate's] observations as to the meaning of 'the structure … of the dwelling house' as providing for present purposes, as Neuberger LJ put it, a good working definition, I am respectfully unconvinced by his holding that the plaster finish to an internal wall or ceiling is to be regarded as in the nature of a decorative finish rather than as forming part of the 'structure'. In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an essential part of the creation and shaping of the ceiling or partition wall, which serve to give a dwelling house its essential appearance and shape. I would also regard plasterwork generally, including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the 'structure'. I would accordingly accept that the wall and ceiling plaster in Ms Grand's flat formed part of the 'structure' of the flat for the repair of which Mr Gill was responsible.'

Agreeing with Rimer LJ, Lloyd LJ in Grand said, at paragraph 33 to 34: 

'Like Rimer LJ, I would respectfully differ from [the Judge in Irvine's Estate] on this point, not as regards the…first passage…in which he sought to identify a principle on which to decide the point, but rather as regards his application of that principle to the particular case of plaster…As Rimer LJ says, in the case of the use of plaster in ways which are now perhaps historic rather than current (but of which examples are certainly still to be found) such as lath and plaster construction, the plaster is clearly part of the structure. The expert's second report suggests … that this technique may have been used in parts of the premises relevant to this case.

I would not limit my reasoning, however, to cases where the wall or ceiling is of lath and plaster or similar construction. I agree that plaster as applied to even a solid wall or ceiling is not 'in the nature of a decorative finish', as [the Judge in Irvine's Estate] said, and that it is to be regarded as a part of the wall or ceiling upon or to which a decorative finish, of whatever kind, may be applied. Accordingly, I would hold, as a general proposition, that plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises.'

In Grand, Thomas LJ agreed with both judgments, holding that the reasoning and conclusion of Judge in Irvine's Estate in relation to wall plaster were not correct. Plaster forming part of or applied to walls and ceilings was part of the structure of the relevant premises.

See on this, CQN RTM (considering the meaning of 'structurally detached' in s.72(2) of the Commonhold and Leasehold Reform Act 2002), at paragraphs 37 to 40.

Collatory Case Series

The Collatory Case Series, is an series of bulletins, designed to report that one case (perhaps, with a few extra authorities), which collates the essential principles/propositions of law, for a particular doctrine/area of law. It is not designed as a deep and comprehensive review of an area of law, but to provide that quick 'go to' case.

SIMON HILL © 2026*

BARRISTER 

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole, or the Copyright holder. No attempt has been made to provide an exhaustive review/account of the law in this area. *Copyright is owned by Barrister Search Limited.