The Supreme Court considers a landlord’s implied repairing covenant
In the recent Court of Appeal case of Edwards v. Kumarasamy , judgment was given on the interpretation and application of s.11 of Landlord and Tenant Act 1985 which relates to repairing obligations of landlords.
Landlord’s repairing obligations under s11 of the LTA 1985
This sets out the repairing obligation that for all tenancies for a term of less than seven years, landlords must ‘keep in repair the structure and exterior of the property and the installations for supply of water, gas, electricity and sanitation and for space and water heating’. This obligation applies to the majority of tenancies.
The Edwards v Kumarasamy case
The case concerned a landlord, Mr Kumarasamy, who held the head lease of a block of flats. Mr Edwards, an assured shorthold tenant of a flat, sued for damages relating to personal injury. This was allegedly suffered from tripping on an uneven paving stone on a pathway leading from the main door of the block to the parking area.
In this case, which had been subject to two earlier appeals, the Supreme Court held that the landlord of a leasehold flat was not liable for the injury of his tenant sustained outside the block of flats he was renting. The Court of Appeal decision which caused so much concern to landlords of flats has been overturned.
The Supreme Court held that there were three areas to consider and the tenant would need to succeed on every one of them in order to win the case. The three questions were:
- whether the paved pathway could be viewed as forming part of the exterior of the front hallway of the premises;
- whether the Appellant had any ‘estate or interest’ in the front hallway; and
- whether the Appellant was liable to the Respondent for the disrepair bearing in mind he had no notice of it.
The Court held that a pathway leading to the entrance of a building could not be construed as forming part of that entrance under s.11 of Landlord and Tenant Act 1985.
The Appellant enjoyed a right of way over the front hallway, which in itself is an interest in the property. Arguments on this point which focused on whether the Appellant enjoyed any practical benefit in the right of way were rejected.
Finally, a landlord is generally not liable to repair premises where they are within the tenant’s possession and the landlord has not received any notice of disrepair. Because in this instance the disrepair affected an area outside of the immediate demise of the lease, this implied rule could not apply, as the tenant is not in possession of the area.
Final comments and views on the case
As a result, Mr Kumarasamy was held not liable for the disrepair which caused Mr Edward’s injuries. He could only be liable if the offending area was part of the exterior of the front hall and if he had had notice of the disrepair before the accident.
This decision will come as some relief to landlords of flats who were facing the need to inspect the common areas of these properties and were potentially liable for the failures of the freeholder. While the Supreme Court has simplified things a great deal the issue of notice is not closed and is likely to raise its head again. Lord Neuberger in his judgment went on to state:
“I would therefore allow this appeal, on the ground that, although he had a sufficient “interest” in the front hallway and paved area for the purposes of section 11(1A)(a), Mr Kumarasamy was not liable for the disrepair which caused Mr Edwards’s injury, as (i) he could only be liable if the paved area was “part of the exterior of the front hall” and it was not, and (ii) he could only be liable if he had had notice of the disrepair before the accident and he did not.”
The Supreme Court has also reaffirmed the established rule that a landlord is not liable to repair premises which are in the possession of the tenant and not of the landlord, unless and until the landlord has notice of the disrepair. Where a landlord agrees to repair the structure and exterior of a flat, the rule would apply but only to the extent that the structure is included in the demise and the tenant is accordingly in possession of that part of the structure.
Our property management specialist, Naveed Ansari, is available to assist with any property management issues. He can be contacted on 01905 730467 or firstname.lastname@example.org.