The case concerned an assured shorthold tenant of a flat, Mr Edwards, who tripped over a raised edge of a paving slab when taking his rubbish from the main door of a block of flats to the bin store. He suffered some personal injury. He sued his landlord, Mr Kumarasamy, for breach of the implied covenant to repair under s.11(1A) of the Landlord and Tenant Act 1985.
Mr Kumarasamy was a buy-to-let investor. He only had a long lease of the flat itself, together with rights of access. He did not own the block. He did not have a lease of the external area where Mr Edwards fell. And he had not had notice of the disrepair to the paving.
Mr. Kumarasamy was unable to sue the head landlord as a third party, because Mr Kumarasamy’s long lease of his flat had an express proviso that the head-landlord could only be liable for disrepair on notice, which of course Mr Kumarasamy had not given because he himself had not had notice from Mr Edwards.
Mr Kumarasamy defended the claim.
ROUTE TO THE SUPREME COURT
· The District Judge allowed the claim and awarded Mr Edwards damages.
· HHJ May QC overturned that decision.
· The Court of Appeal then reversed Judge May and restored the District Judge’s order.
· On 13th July 2016 however the Supreme Court allowed Mr Kumarasamy’s further appeal, overturned the Court of Appeal and dismissed the claim.
QUESTIONS FOR THE SUPREME COURT TO DECIDE UPON:
1. Was the external paved area “the exterior of the front hall”?
2. Did Mr Kumarasamy have an “estate or interest” in the communal hallway of the block of the flats? Under Section 11(1A) of the 1985 Act, a landlord’s implied repairing obligation extends beyond the demised premises and includes obligations over the “structure and exterior of any part of the building in which the lessor has an estate or interest”
3. If the statutory implied obligation applied to the external area where Mr Edwards fell, then was that obligation itself subject to an implied requirement that his landlord Mr Kumarasamy had notice of the disrepair?
WHAT DID THE SUPREME COURT DECIDE?
Question One:
The Court decided the first issue in Mr Kumarasamy’s favour. The Court held that it simply was not possible, as a matter of ordinary language, to treat a path leading from a car park and bin store to the front door of the block as “part of the exterior of the front hall”.
Question Two:
The Court found against Mr Kumarasamy. He had a leasehold easement over the common parts of the block. An easement is an interest in land as defined in s.1 of the Law of Property Act 1925. Again, on the ordinary meaning of the words of s.11(1A) of the 1985 Act, Mr Kumarasamy had an interest in the front hallway of the building. For this purpose it did not matter that, having sub-let with exclusive possession to Mr Edwards, Mr Kumarasamy could derive no practical benefit from his easement for the time being.
Question Three:
The Court accepted that no case had directly considered what the position was in a case where the landlord did not own an area over which he had repairing obligations.
The Court considered the position where a landlord, such as a freeholder, did have a legal estate in retained parts and could be said to have possession except for the fact that he has demised those parts by another lease, for example, where the common parts of a block of flats are demised to a management company under a management lease. The Court held that generally speaking notice of disrepair would not be required to be given to the freeholder in that situation, despite the common parts lease.
But in a case like this one – which is very common given the growth in buy-to-let - neither the landlord nor the tenant have possession of the common parts of a block, and the landlord has effectively sub-let his limited rights over the common parts to the occupying sub-tenant. In this situation the Court held there is an implied term that the landlord must have had notice of the disrepair before he can be liable for breach of a repairing covenant over those parts.
HEALTH WARNING:
This last point is interesting in the context of easements generally, because it is often wrongly assumed that any right of way carries with it an implied right to enter and repair the way.
This appeal shows that such an ancillary right only arises where it is necessary. In a modern scheme of development with complex interlocking repairing covenants, there is little room for such an implication.
Yashmin Mistry is Partner and Property Practice Group Leader at JPC Law.
For information and advice on this case, please contact:
E: ymistry@jpclaw.co.uk
T: 020 7644 7294
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