Landlord and tenant: no liability for a tenant's injury where no prior notification of disrepair

The Supreme Court has handed down its judgement in Edwards v Kumarasamy [2016] UKSC 40. It has overturned the Court of Appeal and confirmed that a landlord is not liable for a tenant’s injury under section 11(1A) Landlord & Tenant Act 1985 (LTA) where there has been no prior notification of disrepair.

Landlords will welcome the Supreme Court’s decision as it has resolved concerns as to the extent of a landlord’s implied repairing obligations under section 11 LTA.

What was the dispute about?

Section 11 LTA incorporates implied repairing obligations into all leases of less than 7 years. The obligations extend beyond the demised premises to the “structure and exterior of any part of the building in which the lessor has an estate or interest“. It was this provision that came under scrutiny in this case.

Mr Edwards, who was an assured shorthold tenant of a flat, suffered injury when he tripped on a path leading to the communal bin area to the block of flats. He sued his landlord, Mr K, (a buy to let investor) who held a long lease within the block, for breach of the implied covenant to repair under section 11.

Both the County Court and the Court of Appeal upheld the tenant’s claim, finding that the path was part of the exterior of the property and fell within the landlord’s repairing obligations. The argument that the landlord was only liable if he was given notice of the defect was also rejected.

What did the Supreme Court decide?

The Supreme Court unanimously allowed the Landlord’s appeal, overturning the Court of Appeal’s decision and dismissing the tenant’s claim.

In doing so it considered 3 questions:

1. Could the paved area be described as part of the exterior of the front hall under section 11 LTA?
2. Did the landlord have an “estate or interest” in the communal hall?
   and
3. Was it necessary to give the Landlord prior notice of the disrepair?

The Supreme Court answered these questions as follows:

1. No. It was not possible as a matter of ordinary language to describe a path leading from a car park to the entrance of a building as part of the exterior of the front hall. 
2. Yes. The Landlord had a leasehold easement over the common parts of the block. However, this was not important, as the finding on point 1 was sufficient to allow the appeal. 
3. Yes (although the Court was not unanimous on this point); The tenant had the greater opportunity to view the state of repair of the common areas; the Landlord had no right to carry out repairs on the common parts and in any event had sub-let the rights he did have over the common parts to the occupying sub-tenant.

Discussion

The last point was discussed in most detail in the judgment. Lord Neuberger, giving the leading judgment, considered the extent of the general rule that a landlord is not liable to repair premises which are in possession of the tenant until he has notice of the disrepair. On reviewing the case law, the court upheld that notice is required where disrepair arises to premises in possession of the tenant. The court also agreed it is not necessary for notice to be given to landlords in relation to common parts that are under their, rather than the tenant’s, control.

However, in this case, neither the landlord nor the tenant had possession of the common parts of the block, as the landlord had sub-let his rights to the sub-tenant. There was no existing case law on this situation but, having considered the arguments each way, the court held that there was an implied term that the landlord must be given notice of the disrepair before he was liable for breach of a repairing covenant over those parts.

Whilst the arguments raised highlight potential complexities on giving notice for tenancies of flats, the decision will nevertheless be welcomed by landlords, particularly those in the buy to let sector.