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rate unless the state of the premises in consequence of dirt or non-repair is a
nuisance of which he has had notice, and it was in his power to abate the nuisance
by putting an end. to the tenancy. None of these conditions are appended to the
bye-law.
(C) Under the Public Health (London) Act, 1891, and the Public Health
Act, 1875, the following state of things must exist before any obligation additional
to the common law can be cast upon the owner (the equivalent of the landlord under
the bye-laws): —
(1) A nuisance injurious to health, and (2) (a) Inability to find the person by
whose act, default or sufferance the nuisance exists; or (b) structural defect the cause
of the nuisance. Any legislation attempted beyond this is therefore repugnant to
the Public Health Statute.
" (D) The bye-law is unreasonable because (1) the code of which it forms a part
is inconsistent. A concurrent liability to cleanse an exclusive staircase (Bye-law 11)
is placed upon the lodger and to cleanse a common staircase upon the keeper (Bylaw
13), yet in the case of the lodger's own room, which is the most private part of
the house, the landlord is exclusively liable. As an illustration of the absurdity
of this arrangement, if a lodger, in removing filth under Bye-law 10, spill it upon
his staircase, he as well as the landlord can be prosecuted for failing to cleanse, but
if the mess which the lodger may cause is in his private room he can call upon the
landlord to perform the office, and prosecute him under the bye-laws if he fail. (2)
Even if the bye-law would be otherwise good in making the landlord responsible, it
is unreasonable because it does not cast a primary or at least a concurrent liability
upon the lodger to cleanse his rooms, and also relieves the keeper, who has more
immediate control of the premises than the landlord, from all liability in the matter
either concurrent or prior so far as the rooms and exclusive staircases, etc., are concerned.
(3) The position of the landlord is such that the bye-law generally is unreasonable.
The necessity for cleansing a room arises from hour to hour and day
to day, and it would be impossible for a landlord to exercise such vigilance and
control that, whenever a lodger's private room requires cleansing, he must be on
the spot to perform the operation. He may derive no profit whatever from the
lodging-house business, in fact, the house may be so let against his wishes. In the
absence of express covenants he has no right beyond that which the bye-law may
confer to enter the premises, and in order to comply with the bye-law he must first
arrange with the keeper to enter the house, and secondly with the lodger to enter
the room. The performance by a stranger of the delicate task of cleansing another
person's furnished room would inevitably lead to friction and difficulty, especially as
the landlord has no liability or even right with regard to the furniture. It is impossible
to cleanse a room effectually unless the furniture forms part of the same
operation.