Milo Butler & Sons Investment Company Ltd v Monarch Investments Ltd
| Jurisdiction | Bahamas |
| Judge | Allen, J. |
| Judgment Date | 18 September 1998 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 10 of 1989 |
| Date | 18 September 1998 |
Supreme Court
Allen, J.
No. 10 of 1989
Mr. Anthony McKinney with Mr. Damian Gomez for the plaintiff.
Mr. Ferron Bethel with Mrs. Rhionda Godet for the defendant.
Real property - Landlord and tenant — Plaintiff claimed the sum of $40,900.00 for rent due to it by the defendant for the quarterly period ending 31 March 1997 — Court found that the plaintiff was in breach of its covenant to repair the roof and that the defendant was entitled to effect the repairs which it did and to deduct the costs of the same from rent due thereafter.
The plaintiff claims the sum of $40,900.00 for rent due to it by the defendant for the quarterly period ending the 31st March, 1987.
The plaintiff let to the defendant all that building and store premises known as New Supermarket Building situated in the Central Business District in Mall Section 2, Freeport, Grand Bahama, by a lease dated the 31st January, 1983, (hereinafter “the lease”) which contained the following covenant in clause 3 (b): “That the Landlord will throughout the demise hereby created keep and maintain the main structure and all exterior parts of the demised premises including the roof ( Emphasis mine) thereof as well as all main sanitary and water drains and conduits and all main lighting plant equipment and apparatus serving the demised premises together with window plate glass damage covered by the Landlord's insurance herein required in good and tenantable repair and condition and the exterior of the demised premises in a good decorative state at all times destruction or damage caused thereto or to any part of the same (PROVIDED ONLY THAT the Landlord shall fully perform its covenants of insurance hereinafter contained) by fire hurricane storm tempest seawave thunderbolt explosion bursting and overflowing of tanks and pipes flood and malicious damage alone excepted and upon receipt by the Landlord from the tenant of a complaint in writing specifying any lack or omission of good and tenantable repair in respect of any of the matters aforesaid not resulting from damage or destruction which is hereinbefore in this Clause excepted that the Landlord will forthwith at its expense remedy and restore such lack or omission of repair as aforesaid and if the Landlord shall unreasonable (sic) delay to so remedy and restore then that the Landlord will suffer the Tenant to remedy and restore the same the cost whereof to the Tenant may then and in such circumstances be deducted by the Tenant from the rent which falls due to be paid under this Lease after the date of such remedying or restoring.”
During the currency of the term of the lease, namely on the 29th February 1984, counsel for the defendant wrote to the plaintiff in the following terms:
“We refer to paragraph 3 sub-paragraph 3 of the sub-Lease now in force between Yourselves and Monarch Investments Limited and confirm that our clients request that we give you notice of the following repairs which require your urgent attention:–
(1) The canopy of the roof is in urgent need of repair, as the tar is flaking off and probably requires resurfacing.
(2) Portion (sic) of the roofing surfaces are bubbling or cracking.
(3) Portions of the roof flashing are corroded.
(4) The septic tank servicing the premises is backing up.
Should you require any further particulars of these repair requirements please contact Mr. Joseph Young, the Manager of the Store, in that regard.
We look forward to your early advice in respect to what steps you intend to take to solve these problems.”
To that communication, Mr. Franklyn Butler, the president of the plaintiff, replied by letter dated the 6th March, 1984 acknowledging the same and promised that someone from his establishment would be in contact with Mr. Joseph Young on or about the 10th March, 1984. There is some dispute whether that contact was made.
Nothing further was done by the plaintiff as a result of the above complaint and the defendant gave notice by letter of the 15th August, 1984 of its intention to effect repairs to the roof and to deduct the cost of the same from the rent. That letter reads in part:
“As of the date hereof, and despite several previous notices to you and discussions between representatives of your company and Mr. Joseph Young, Manager of the subject store premises, I am advised that the roof of this store continues to be in very poor condition and not in the ‘good and tenantable repair and condition …’ As contemplated by the Lease.
As far back as March 6th 1984, Mr. Franklyn A. Butler, President of your company, acknowledged to our local counsel, Terence R.H. Gape, Esquire, receipt of Mr. Gape's February 29th, 1984 notice concerning the need for repairs. In that letter of March 6th, Mr. Butler stated …
Despite the previous acknowledgment by the Landlord of the need for roof repairs, the Landlord has apparently elected not to perform its obligations under the Lease and has failed to make the necessary roof repairs. The Tenant cannot and will not tolerate any longer the Landlord's repeated failure to perform its obligations.
PLEASE BE ADVISED that if, within seven (7) days following receipt of this letter, the roof is not placed in good and tenantable repair acceptable to the Tenant, as required under the Sub-lease, the Tenant may pursue whatever rights a are available to it, both at law and equity, including without limitation, the right to perform the necessary repairs, in which event the Tenant will deduct all costs incurred from rent thereafter to be paid under the Sub-lease.”
Despite receipt of the above communication, the plaintiff made no effort to effect repairs, but wrote to the Grand Bahama Port Authority (hereinafter “the Port Authority”) requesting them to have the roof repaired under a guarantee given by the roofing contractors in respect of certain work done to the roof in 1981. In this regard, it wrote to the Port Authority on the 20th August, 1984. That letter reads in part:
“As you are aware, when we purchased these buildings, we were advised that the roofs were only recently repaired and there was a guarantee in existence which was passed on to us. Our attempts to have the leaks in the roofs repaired have not met with success thus far. We wish that you would use your good offices to have these roofs repaired immediately in accordance with the guarantee given us regarding the roofs at the time we purchased …”
By letter of the 28th August, 1984, the plaintiff copied its letter of the 20th August, 1984 to the defendant.
The Port Authority replied by letter of the 5th September, 1984 informing the plaintiff that it had already been supplied with the guarantee agreement and referred it to the roofing contractors. Yet, on the 11th September, 1984 the plaintiff again wrote to the Port Authority informing them that it did not have the papers and asked the Port Authority to advise the contractors to repair the roof. That letter reads in part:
“Our tenants, Winn Dixie and Pantry Pride Supermarkets, have complained bitterly over the leaking roof problem. We have not been able to take up the case strongly with Buerger Roofing & Sheet Metal Ltd., as we do not have the necessary back up papers, such as the guarantee or agreement, etc., as mentioned in your letter of 12th May, 1983 to the contractors. We would very much appreciate if you advise the Contractors to attend to the leaking roof problem immediately in terms of their guarantee and also to send us the copies of those papers so that we may be able to deal with them.”
There was no follow-up to the letter of the 11th September, 1984 by the plaintiff and the foregoing was the only action taken by the plaintiff in response to the defendant's notice of the 15th August, 1984.
Sometime around April 1985, more than a year following the complaint, the defendant had work done in accordance with the following specifications at a cost of $40,900.00:
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(a) Put on a new roof over entire area and canopy;
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(b) Cut out all blisters and bad insulation and install new insulation where needed;
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(c) Mop one (1) layer of 33# Double Coated 30 over area with hot asphalt;
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(d) Install one(1) layer of %2” Rigid Insulation over Roof and Canopy imbedded in hot asphalt;
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(e) Mop three (3) layers of #15 Felt solid with hot asphalt;
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(f) Flash up against wall with 3” Cant strip and 90# Felt;
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(g) Install all new pitch pan around air-condition and Freezers;
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(h) Refill with hot asphalt;
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(i) Flash all curves and fans with 90# felt;
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(j) Put on all galvanized metal flashing around eaves
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(k) Pour heavy with asphalt and push pea-rock;
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(l) Replace all guttering and down-spout on existing roof and canopy.
Some two years after the aforementioned work was done, namely, in April 1987, the defendant deducted the cost thereof from the rent then due, pursuant to the said clause 3(b). This action is to recover the amount deducted.
The plaintiff acknowledged it's responsibility to keep and maintain the roof in good and tenantable repair and condition and admitted in its Reply to Defence that at the relevant time, some repairs to the roof were necessary, but only to the extent of $1,500.00, which sum it says was tendered to the defendant on the 18th July, 1988. Since then, the plaintiff conceded the cost of those repairs to be in the sum of $5,000.00.
It contends however that it cannot be held liable for the cost of replacing the roof because the replacement of the roof was not necessary, alternatively, that if such replacement was necessary, the same was not due to ordinary day to day or reasonable use, but rather, by the acts of the defendant in cutting holes in the roof, moving around and dragging heavy equipment on the roof during the installation of air-conditioning units and by the traffic on the...
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