Ms Oliver was the tenant under a lease of a flat which she had acquired under the right-to-buy scheme. The landlord was Sheffield City Council. The council proposed to replace all the windows in the block of flats in which Ms Oliver's flat was situated.

The question arose as to who was responsible for the repair of Ms Oliver's windows. The lease provided that the landlord was obliged to keep "the structure and exterior of the demised premises and the building" in repair (such a covenant would have been implied in any event under the right-to-buy legislation). The tenant was obliged to contribute to the cost of this via the service charge.

However, the description of the demised premises in the lease specifically included the windows. The tenant's repairing covenant also expressly extended to the windows.

In Irvine v Moran [1991] the High Court held that the structure of a dwelling-house was not limited to load-bearing items, but included elements in the overall construction which were material or significant. Consequently the windows in the dwelling-house were held to form part of the structure of that dwelling-house. The judge in that case went on to find that the outer part of the windows also formed part of the "exterior" of the property.

The court in Sheffield City Council v Oliver applied Irvine v Moran, holding that the windows formed part of the structure and the exterior. It reached this conclusion in the context of the landlord's obligation to repair set out in the right-to-buy legislation, but did not think that a different conclusion would be reached on the interpretation of the lease itself. There was no reason why some limitation on the scope of the landlord's repairing covenant should be derived from the demise.

The council could therefore replace the windows and re-charge the cost to the tenant through the service charge.

Things to consider

The conclusion that the fact that the windows were expressly included in the tenant's demise had no bearing on the interpretation of the landlord's repairing covenant might be seen as surprising, given the usual principles of construction which would look at the document as a whole.

The cases discussed involve residential property. The court was careful to say that there may be circumstances in which windows would not form part of the structure or exterior of a dwelling, although seemed to suggest that this would be exceptional. It is implicit in Irvine v Moran that commercial buildings may be subject to different considerations in relation to what is considered to be part of the structure.

Nonetheless, this case is a useful reminder of the importance of including a detailed description of the demise in a lease of part of a building, and of ensuring that the responsibility for repairing particular items is firmly placed on one party or the other.

Sheffield City Council v Oliver