John Benson QC acted for the Respondent tenant in Edwards v Kumarasamy [2016] UKSC 40, in which the Supreme Court clarified landlords’ obligations to repair in relation to flats.

Mr Kumarasamy was the lessor of a second floor flat in a block of flats. He let his flat to Mr Edwards. On the 1st July 2010 Mr Edwards was taking rubbish from his rented flat to the communal dustbins, when he tripped over an uneven paving stone and was injured. He issued proceedings against his landlord, Mr Kumarasamy, contending that his injury was caused by Mr Kumarasamy’s failure to keep the paved area in repair, in breach of covenants implied into the tenancy by sections 11(1)(a) and 11(1A)(a) of the Landlord and Tenant Act 1985. The tenancy included a grant of the “right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives” of the building.

His claim was successful at first instance, with Mr Edwards being awarded £3,750 in damages. However, Her Honour Judge May QC allowed Mr Kumarasamy’s appeal on the basis that (i) the paved area was not within the ambit of the section 11 covenant and (ii) in any event, Mr Kumarasamy was not on notice of the disrepair and could not therefore be held liable. That decision was subsequently overturned by the Court of Appeal, which held that the path was part of the exterior of the demised property as it formed part of the exterior of the demised flat. Further, it was an area in which the landlord had an estate or interest as he had an implied easement to cross that area in order to reach his flat, regardless of whether he owned the path. Finally, the Court of Appeal rejected the argument that the landlord was liable only if he had notice of the defect, holding that this applied only to disrepair within the property expressly demised to the tenant – that is, within the flat itself.

Three questions were referred to the Supreme Court:

(i) whether, in the light of the wording of sections 11(1)(a) and 11(1A)(a) of the 1985 Act, the paved area could be described as part of the exterior of the front hall;

(ii) whether Mr Kumarasamy had an “estate or interest” in the front hall for the purposes of section 11(1A)(a); and

(iii) whether Mr Kumarasamy could be liable to Mr Edwards for the disrepair to the path notwithstanding that he had had no notice of it before Mr Edwards’ accident.

The first question was resolved squarely in the landlord’s favour, the Court declining to agree that a path which was far removed from the property could form part of its exterior: instead, it held that there was a distinction to be drawn between the actual outside surface of the property and a path which was removed from the property itself, even where that path was a key approach to the property.

It is the Supreme Court’s ruling on the third question, however, which has been most eagerly awaited by those acting for tenants and landlords alike. Having conducted a thorough review of the authorities in his area, the Court settled on a very qualified extension to the established rule that a landlord is not liable to repair premises which are in the possession of the tenant unless and until he or she has notice of the disrepair in question. Where a landlord agrees to repair the structure and exterior of a flat, the rule would apply 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; where a landlord has a covenant to repair the structure and exterior but that structure and exterior is sublet to another tenant, the rule would not normally be applied, with the effect that notice of the defect to the landlord would not normally be required. In this case, the Court was concerned with a scenario whereby the area to be repaired was not demised to the landlord or the tenant, but was one over which both landlord and tenant had a right of way. The Supreme Court held that in such a scenario, the requirement of notice would apply. Not only was the tenant in a better position to be aware of the state of disrepair of the common areas, but in addition, the landlord’s right of access was effectively without value because he had no right of repair as against the superior landlord (Practitioners should note that if the landlord also owned the property, the notification requirement would not apply).

To read the judgment, click here.