Dilapidations Case Law Proudfoot v Hart – The Classic Meaning of “Good Tenantable Repair”

Dilapidations Case Law Proudfoot v Hart is one of the most-cited Victorian authorities on what a tenant’s promise to keep premises in “good tenantable repair” actually means. Although decided in 1890, the Court of Appeal’s formulation still anchors modern dilapidations practice: assess repair by reference to the age, character and locality of the building and the expectations of a reasonable tenant of the class likely to take it.

This dilapidations case law note on Proudfoot v Hart walks through the facts, the procedural path, the competing analyses in the Divisional Court and the Court of Appeal, and - most importantly - the practical rules that continue to shape schedules of dilapidations, expert evidence, and settlement strategy today.

Background - Dilapidations Case Law Proudfoot v Hart

The dispute arose from a three-year letting of a house in Caversham Road, Kentish Town. The tenant covenanted that he would “during the said term keep the said premises in good tenantable repair, and so leave the same at the expiration thereof.” At lease end, the landlord claimed for a range of items including repapering walls, repainting internal woodwork, cleaning and whitening ceilings and staircases, and replacing a kitchen floor that had existed at commencement. An official referee (Mr Ridley) assessed the tenant’s obligation under “tenantable repairs” and awarded damages to the landlord for these works, plus a modest sum for the period the house could not be let while works were done.

The tenant challenged that approach, arguing that “good tenantable repair” did not oblige him to renew or decorate items merely because previous finishes had worn out through ordinary use. This set up a fundamental question: what does “tenantable repair” require, and when does it stop short of renewal or decoration?

The Divisional Court (Cave J and Mathew J)

In the Divisional Court, Cave J delivered a characteristically practical analysis. He accepted that a tenant who promises “tenantable repair” must remedy both commissive waste (damage caused by positive acts) and permissive waste (failure to prevent deterioration), such as repairing broken windows or replacing slates lost in a storm. But he drew a firm line at renewal or redecoration merely because something is worn: painting, papering and whitewashing are generally decorative and not required simply because finishes have become shabby with age. Repainting would be required if failure to paint leads to deterioration of woodwork (i.e., to prevent decay), but not otherwise; repapering would be required only in unusual circumstances (for example, if paper was genuinely preserving the structure beneath). On this reasoning, he considered the referee’s view too expansive.

Cave J extended the same logic to whitewashing: ceilings naturally discolor; a covenant to keep in tenantable repair does not oblige a tenant to whiten them at lease end if they are merely grimy from ordinary occupation. The duty is to repair breaks and defects, not to represent the house as newly decorated.

On the kitchen floor, he acknowledged nuance. If a floor has reached the end of its natural life, the tenant is not obliged to replace it; patching may suffice where patching can reasonably make the floor serviceable. If replacement occurs, it is not because the covenant compels “new for old” but because, practically, the tenant may prefer to replace so he can use the premises; this is not a landlord-enforceable obligation to renew.

Mathew J agreed, capturing the tenant’s duty in a crisp negative formulation: the tenant is not bound to repair what is worn out by age nor to restore or replace anything worn out by age - a helpful rule-of-thumb to guard against sliding from “repair” into de facto renewal or rebuilding. The Divisional Court therefore sent the case back to the referee to reassess liability and quantum on the correct principles.

The Court of Appeal (Lord Esher MR and Lopes LJ)

On appeal, the plaintiff landlord argued for a broader view: that keeping and delivering up in “good tenantable repair” means putting and keeping the premises in that state, including renewal where reasonable occupants would expect it (e.g., papering and painting appropriate to the house and market). Importantly, the landlord also relied on the established rule from earlier authorities: if the premises are out of repair when the tenancy begins, a tenant who promises to “keep” in repair must first put them into repair.

Lord Esher MR’s lead judgment

The Master of the Rolls agreed on the preliminary point: under a covenant to keep and leave in repair, the tenant must put the premises into repair if they were not so at commencement. But he went further and set out the definitive test for “good tenantable repair,” synthesising earlier authorities into a single formulation:

Good tenantable repair is such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class likely to take it.

This test accomplishes three things:

Age tempers expectations: a 200-year-old house is not held to new-build standards.

Character calibrates the level of finish: palace vs. cottage - different fabrics and standards.

Locality recognises market norms: what satisfies in Grosvenor Square may exceed what is reasonable in Spitalfields.

Crucially, the test is not formalistic. It asks a simple, market facing question: would a reasonable tenant of the relevant class take the property in this state without objecting? If yes, it is tenantable; if no, works may be required.

Applying the test to the items in dispute

Papering: The tenant is not obliged to repaper merely because paper is worn; however, if paper is so degraded (e.g., peeling due to damp and lying on the floor) that a reasonable tenant of the relevant class would consider it unacceptable, repapering may be required to meet the tenantable standard. There is no duty to use the same quality or cost of paper - only a finish commensurate with the age, character and locality.

Painting: If paint is necessary to preserve woodwork from decay, repainting is required. More generally, in a high-status locality (Lord Esher contrasted Grosvenor Square with Spitalfields), leaving finishes at a level appropriate only to a lower market may breach the covenant. Paintwork must be adequate for the expected class of tenant - again, anchored to age, character and locality, not to a universal decorative ideal.

Whitewashing: Ceilings inevitably darken. If, despite discoloration, a reasonable tenant would still take the property, there is no obligation to whiten simply to restore a “just whitened” look. The covenant is not a decoration clause.

Floors and renewals: If a floor is rotten, the tenant must deliver the property in tenantable repair - which may require replacement if repair cannot achieve the standard. However, the measure of damages is the reasonable cost of achieving tenantable condition, not the cost of whatever higher-spec replacement the landlord chooses to install. If a new and different floor is put down, the tenant is not liable for the upgrade - only for the necessary works to meet the tenantable threshold.

Lopes LJ agreed and concisely restated the definition that has since become the canonical quotation from the case: the standard is what would make the premises reasonably fit for the occupation of a reasonably minded tenant of the class likely to take it, having regard to age, character and locality.

He reiterated that merely decorative repairs are not generally required, but papering and painting may be necessary either to prevent decay or to satisfy the reasonable tenant standard at lease end. The case was left to be reconsidered by the referee on these principles, and the landlord’s appeal was dismissed.

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What Proudfoot v Hart Means for Modern Dilapidations

Although Victorian, the Proudfoot test maps neatly onto modern dilapidations practice and expert methodology.

1) “Repair” vs “Renewal” and the “Age, Character, Locality” lens

The case cautions against upgrading or renewing under the guise of “repair.” The landlord’s claim must be filtered through the age/character/locality lens and assessed by reference to a reasonable incoming tenant for that market segment. This aligns with how practitioners frame expert evidence: identify the class of likely occupier, the market appropriate finish, and show how particular items fall below that standard.

2) Decorative finishes: not automatic, but sometimes necessary

Painting, papering, decorating are not per se part of “tenantable repair.” But they can be required where (i) omission would cause deterioration of fabric (e.g., unpainted wood decays), or (ii) the finish is so degraded that a reasonable tenant would not accept the premises in that state. The test is functional and market-led, not cosmetic for its own sake.

3) Start-of-term condition still matters - just not the way tenants hope

Where a tenant covenants to keep and leave in repair, he must first put into repair if the premises were out of repair at the start. This is why, in practice, parties often rely on a Schedule of Condition to limit the obligation to “no better than evidenced condition.” Absent such limitation, Proudfoot confirms that a tenant cannot shelter behind pre-existing disrepair.

4) Quantum: the necessary cost to reach the Proudfoot standard

On quantum, Proudfoot discourages betterment. A landlord may recover only the reasonable cost of works that would bring the property to tenantable condition for the likely class of tenant; he cannot charge the tenant for enhancements or an upgrade just because he chose to install them after lease end. That distinction often drives negotiations about specification and rates for redecoration and replacement.

5) Evidence and expert opinion

Because the test is contextual, evidence is king. Parties should collate market evidence of the likely occupier and comparator properties to show what that market expects. Experts should explain how age and character of the building influence repair choices (e.g., patch repair vs replacement), and why a given level of redecoration is (or is not) needed to satisfy a reasonable tenant. The persuasive schedule links each item to function and market acceptability, not simply to aesthetics.

Item by Item Guidance Inspired by Proudfoot

Practitioners frequently ask how Proudfoot plays out line-by-line. The case suggests:

Internal painting:

Required if necessary to prevent deterioration (e.g., unprotected timber).
Potentially required if finish is so poor that a reasonable tenant in that locality would not accept it.
Not required merely to remove normal scuffs or to “refresh” an otherwise serviceable finish.

Required if necessary to prevent deterioration (e.g., unprotected timber).Potentially required if finish is so poor that a reasonable tenant in that locality would not accept it.Not required merely to remove normal scuffs or to “refresh” an otherwise serviceable finish.

Wall papering / wall finishes:

Required if the existing finish is failing (peeling, damp-damaged) beyond what the relevant market would tolerate.
Not required simply because the paper is dated or faded; the covenant is not a redecorating clause.

Required if the existing finish is failing (peeling, damp-damaged) beyond what the relevant market would tolerate.Not required simply because the paper is dated or faded; the covenant is not a redecorating clause.

Ceilings and whitewashing:

Not required for mere discoloration from normal occupation.
Required only if the condition offends the reasonable tenant test or relates to fabric failure.

Not required for mere discoloration from normal occupation.Required only if the condition offends the reasonable tenant test or relates to fabric failure.

Floors:

If patching can achieve tenantable condition, patch;
If the floor is rotten or beyond economic patch repair, replacement to a standard the local market expects may be required - but not necessarily with a higher spec floor than that. Damages reflect the necessary work to reach the Proudfoot standard, not the landlord’s optional upgrade.

If patching can achieve tenantable condition, patch;If the floor is rotten or beyond economic patch repair, replacement to a standard the local market expects may be required - but not necessarily with a higher spec floor than that. Damages reflect the necessary work to reach the Proudfoot standard, not the landlord’s optional upgrade.

Broken or missing elements (windows, slates, etc.):

Repair/replace as necessary; allowing avoidable deterioration is permissive waste and breaches the covenant.

Repair/replace as necessary; allowing avoidable deterioration is permissive waste and breaches the covenant.

Positioning Proudfoot Among Earlier Authorities

The Court of Appeal situates its test within established law. It re-affirms Payne v Haine: a tenant who promises to keep and deliver up in repair must put into repair at the start if needed. It builds on earlier comments (e.g., Belcher v Mackintosh) that habitable/tenantable relates to reasonable safety and comfort for the intended occupier - not perfection. Proudfoot’s contribution is to codify the age/character/locality plus reasonable tenant test in a way that is both practical and enduring.

Why Proudfoot Still Matters

It anchors landlord claims and tenant defences in a market realistic benchmark.

It separates true repair from unrecoverable enhancements and cosmetic refresh.

It frames quantum: claim what is necessary to reach the tenantable standard for the target occupier, no more.

It encourages the use of a Schedule of Condition if tenants want to cap the initial “put into repair” duty.

It provides a shared language (“age, character, locality,” “reasonable tenant of the class”) that helps surveyors and lawyers calibrate scope, specification and price.

Key Takeaways - Dilapidations Case Law Proudfoot v Hart

The Proudfoot test: “Good tenantable repair” means the state of repair that makes the premises reasonably fit for occupation by a reasonable tenant of the class likely to take them, taking into account the age, character and locality of the property.

Put into repair if needed: A covenant to keep and leave in repair obliges the tenant to put the premises into repair at the outset if they were out of repair on day one. Consider a Schedule of Condition to limit this.

Decoration isn’t automatic: Painting, papering and whitewashing are not automatically recoverable. They are required only if (i) needed to prevent deterioration of fabric or (ii) the finish is so sub-standard that a reasonable tenant in that market would refuse the premises.

Repair vs renewal: The covenant does not require renewal or restoration of elements merely worn out by age. Patch where reasonable; replace only where patching cannot achieve the Proudfoot standard.

Quantum discipline: Damages reflect the necessary cost to reach tenantable condition, not the landlord’s chosen specification or upgrade.

Evidence is decisive: Frame each item against age/character/locality and the likely tenant; explain why the current state fails (or meets) that threshold.

Conclusion - Dilapidations Case Law Proudfoot v Hart

Dilapidations Case Law Proudfoot v Hart endures because it translates a bare contractual phrase - “good tenantable repair” - into a workable, market-aware test.

Rather than forcing tenants to redecorate or renew by default, Proudfoot insists on context: take the age and character of the building and its local market, and ask whether the reasonable tenant for that property would accept the premises in their current state.

The answer to that question directs scope (what works are truly required) and quantum (what is the reasonable cost), while drawing a principled line against betterment. That is why, more than a century later, Proudfoot still underpins how surveyors draft schedules, how experts give evidence, and how parties settle claims.

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