Notice Not Required Where a Defect Occurs in a Common Part

Article

03 March, 2015

Samuel Edwards v Baladas Kumarasamy (2015) [2015] EWCA Civ 20

In this recent case, a landlord was held to be liable for a personal injury sustained by his tenant under an extended covenant implied into the tenancy by the Landlord and Tenant Act 1985 s.11(1A). It was found that a landlord's liability on his covenant to repair only required notice where the defect was within the demised property itself.

The Claimant was carrying rubbish from his flat to the communal bins when he tripped on an uneven paving stone on the pathway to the communal front door of his block of flats. The Claimant had not provided notice of the defect to the landlord prior to the accident.

At first instance, it was found that the paved area was part of the structure and exterior of the flat and awarded the Claimant damages. On appeal, the Court held that the landlord was not liable under the extended covenant implied into the tenancy by the Landlord and Tenant Act 1985 s.11(1A) because it was a precondition to liability that notice of the defect had to be given. The Claimant proceeded to appeal the decision submitting that liability arose as soon as the disrepair existed and was not conditional on the landlord being on notice.

The Court of Appeal found that the landlord was obliged to keep the premises in repair at all times; there was a breach of the obligation as soon as a defect occurred. Where a defect occurred in the external part of the building that was not demised to the tenant, the landlord was liable even though he had not received notice of the disrepair.

Forbes Comment

The decisive distinction is between the property which is demised and the property which is not. When a defect occurs in the demised premises, a landlord will only be liable if it has received notice that a defect exists. Where a defect occurs in a common part (as long as it is part of the structure or exterior of the property), the landlord will be liable for the disrepair even if the tenant has not reported the defect and the landlord is not on notice that a defect exists.

For further information please contact Sarah Wilkinson on 01254 662831 or email sarah.wilkinson@forbessolicitors.co.uk

Back

Make an enquiry