Smith v Marrable (1843) 11 M & W 5
The lease of a furnished house includes an implied term that the house will be reasonably fit for habitation
Facts
The defendant, Sir Thomas Marrable, took a lease on a furnished house in Brighton for a term of five or six weeks from the claimant, John Smith, for a rent of eight guineas per week. The defendant and his family entered the house on 15th September and the day after, Lady Marrable complained to the claimant that the house was infested with bugs. The claimant then sent a person around to remove the infestation. When the attempt to remove the infestation failed, Lady Marrable wrote to Mrs Smith, informing her that her family would be leaving the house as soon as they were able to find suitable alternative accommodation and would pay one week’s rent when returning the keys. The keys were returned on 22nd September and the rent paid as stated. The claimant sued for the remainder of the rent. At the first trial the jury was directed that a lease contained an implied term that the property would be reasonably habitable and that the infestation may constitute a nuisance sufficient to raise a defence to the claim. The claimant sought a second trial on the basis that nuisance was not a defence to the action because it was only a cause of action and, even if it was a defence, it should have been specifically pleaded.
Issues
The issue in this circumstance was whether a there existed an implied term in a lease that a furnished property should be reasonably fit for habitation and if this term was breached, whether a tenant could summarily terminate the lease.
Decision/Outcome
It was held that all leases of furnished properties contained an implied term that the property would be fit to be inhabited. Where a property was not fit to be inhabited, the tenant could terminate the lease without notice and the cause of the breach, which could be described as a nuisance, would give rise to a defence for a claim made by the landlord.
Updated 21 March 2026
This article accurately describes the decision in Smith v Marrable (1843) 11 M & W 5, which remains good law as a common law authority for the implied term of fitness for habitation in leases of furnished properties.
Readers should note, however, that the legal landscape in this area has developed significantly through statute. The Landlord and Tenant Act 1985, as amended by the Homes (Fitness for Human Habitation) Act 2018, now imposes a statutory implied covenant in most residential tenancies in England that a dwelling must be fit for human habitation at the outset of the tenancy and throughout. This statutory regime is broader in scope than the common law rule in Smith v Marrable, which applies only to furnished lettings. The 2018 Act provisions came into force for new tenancies from 20 March 2019 and for existing periodic tenancies from 20 March 2020. The case therefore remains relevant primarily as a foundational common law principle and for historical and comparative analysis, but students should be aware that statutory protections now provide a more extensive framework for residential tenants.
