19 July, 2016
Supreme Court Allows Landlord's Appeal in Edwards v Kumarasamy but doesn't decide all issues!
Edwards (Respondent) v Kumarasamy (Appellant)  UKSC 40
The Supreme Court has handed down its long awaited judgment unanimously allowing Mr Kumarasamy's appeal. The Court found that although Mr Kumarasamy had a sufficient "interest" in the front hallway and paved area for the purposes of section 11(1A)(a) Landlord and Tenant Act 1985 ("LTA"), he was not liable for the disrepair which caused Mr Edwards's injury, as he could only be liable if the paved area was "part of the exterior of the front hall", and if he had received notice of the disrepair before the accident.
In 2010, Mr Edwards was taking rubbish from his rented flat to the communal dustbins, when he tripped over an uneven paving stone on the paved area. As a result, he suffered personal injury. Mr Edwards (the sub tenant), issued proceedings against Mr Kumarasamy (the owner of the 199 year head lease). He contended that his injury was caused by Mr Kumarasamy's failure to keep the paved area in repair, in breach of the covenants implied into the sub tenancy by section 11(1)(a) and 11(1A)(a) LTA. The sub 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. Under the sub tenancy, Mr Edwards was under an obligation to repair the flat, excepting items which Mr Kumarasamy was responsible to maintain.
The appeal before the Supreme Court raised three important questions:
Section 11(1) LTA, implies a covenant by the landlord to keep in repair the structure and exterior of the property. Lord Neuberger found that as a matter of ordinary language it is not possible to describe a path leading from a car park to the entrance door of a building as part of the exterior of the front hall of that building. In the light of this conclusion, whilst the Supreme Court deemed that it was strictly unnecessary to consider the other two questions raised by the appeal, owing to the wider significance of the issues raised, Lord Neuberger continued to address the questions but on the assumption (contrary to what he had just concluded) that the paved area was part of the exterior of the front hall of the building.
There is an 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. Lord Neuberger could see no basis for departing from the rule when it comes to covenants implied by section 11.
The subsequent question raised is whether the above rule could be invoked when a landlord has covenanted with a tenant to repair the structure but is not in possession of the structure, for example because he has let it to another tenant as in this case. In such a case, the landlord is not normally entitled to notice in such circumstances. The rule only applies to property in the possession of the tenant.
It was noted by the Supreme Court that the present case was different because it concerned the application of a landlord's repairing covenant to property which was not in the possession of either the landlord or the tenant, although it is property over which they each have a right of way. Lord Neuberger came to the conclusion that the landlord's (assumed) obligation to repair the paved area is only triggered once he has notice of any disrepair for which the tenant would seek to make him liable. In so far as the landlord had any right over the hall and paved area, he had effectively disposed of that right to the tenant for the term of the sub tenancy, just as much as he had disposed of his right to use and occupy the flat to the tenant for the term of the sub tenancy. During the term of the sub tenancy, it is the tenant who uses the common parts, not the landlord, just as it is the tenant who occupies the flat, not the landlord. It is true that the tenant does not enjoy exclusive possession of the common parts, but he uses them every time he comes to or leaves the flat.
The appeal was therefore allowed.
Landlords will welcome this significant decision from the Supreme Court. As well as clarifying that a path leading from a car park to the entrance door of a front hall to a building is not part of the exterior of that building, 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.
What this judgment has not decided is whether notice would be required for an accident on common parts that were in the possession of the landlord. As Mr Kumarasamy was a lessee of the head lease, and not the owner of the building as a whole, he was not in possession of the area when the accident occurred any more than Mr Edwards, the tenant was. The Supreme Court did suggest that notice would not be required in circumstances where the landlord was in possession of the accident location but said it could not provide a concluded view on that as it was not an issue in the case.
For more information please contact Siobhan Hardy by email or by telephone 0113 386 2686.