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Edwards v Kumarasamy: Landlords Tripped Up - Andrew Brookes, Anthony Gold

10/12/15. The Court of Appeal in Edwards v Kumarasamy has extended the liability of landlords who own flats in blocks, even where the common parts are owned by a third party. Mr Edwards was a tenant of a flat in a block of flats. His landlord was Mr Kumarasamy although Mr Kumarsamy himself only owned one of the flats. The block was owned by a third party. There were common parts of the block. Mr Edwards tripped over an uneven paving stone in the pathway between the front door of the block and the communal bins in the car park. In Edwards the court found the landlord liable for personal injury caused to the tenant. The landlord was found liable despite the fact that:

  • The landlord did not own the pathway in question. The pathway was owned by the freeholder of the block. The landlord owned only one flat in the building (Mr Edwards’ flat) and that was on the second floor.

  • The landlord had no notice of the defect to the pathway.

S11 Landlord & Tenant Act 1985

The court came to this on the face of it surprising decision by application of s11 Landlord & Tenant Act 1985 and in particular s11(1A) which says:

(1A) If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to sub-s (1B), the covenant implied by sub-s (1) shall have effect as if (a) the reference in para (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest . . . .

. . .

(1B) Nothing in subsection (1A) shall be construed as requiring the lessor to carry out any works or repairs unless the disrepair (or failure to maintain in working order) is such as to affect the lessee's enjoyment of the dwelling-house or of any common parts, as defined in section 60(1) of the Landlord and Tenant Act 1987, which the lessee, as such, is entitled to use.

(3A) In any case where –

(a) the lessor's repairing covenant has effect as mentioned in subsection (1A), and

(b) in order to comply with the covenant the lessor needs to carry out works or repairs otherwise than in, or to an installation in, the dwelling-house, and

(c) the lessor does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs,

then, in any proceedings relating to a failure to comply with the lessor's repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs”



The first issue was whether the pathway formed part of the “building” for the purposes of s11(1A). Lewison LJ decided the pathway did form part of the building because:

  • Mr Kumarasamy had an “estate or interest” in the pathway as he had an express easement in his lease with the freeholder allowing him to use the pathway.

  • The pathway was part of the “building” because it formed part of the exterior, just as in Brown1 the steps leading to the front door of a dwelling were part of the exterior.

The second issue was whether Mr Edwards needed to give express notice of the defect for liability to arise. Lewison LJ discusses the common law position at length. He explains the common law position which is that, unless the defect occurs within the demised premises, the landlord is liable even though he has no notice of the disrepair from the tenant. The lead case on this is British Telecommunications plc v Sun Life Assurance Society2 . There is a breach immediately a defect occurs. The rationale is that a landlord is able to inspect the parts of the premises outside the demised premises as and when he wishes and is accordingly fixed with notice as soon as a defect occurs.

More controversially, the court also applied the common law principle that an express grant of an easement will carry with it an ancillary right on the part of the dominant owner to carry out repairs on the servient owner’s land in order to make the easement effective. Thus in the case of a grant of a right of way the dominant owner is entitled to repair the right of way3 .

Because the defect was outside the demised premises but still in the “building” the landlord was liable even though no notice had been given by the tenant. The landlord argued that s11(3A) was predicated on the basis that the landlord would have received notice of the defect before liability arose. The court disagreed and explained that, although s11(3A) might limit a landlord’s liability, it did not absolve the landlord of liability. The court said that, as housing disrepair claims often extend over lengthy periods, s11(3A) still had an important purpose. It would limit the landlord’s liability if, once he did have notice of the defect, he used reasonable endeavours to obtain the rights to have the works done.

In reaching his conclusion Lewison LJ disagrees with the authors of Dowding & Reynolds who consider that notice is required even for defects outside the demises premises for liability to arise4 .

Implications for Landlords

Edwards has potentially wide implications for landlords who own say just one or two flats in a larger block. Landlords may find themselves liable for defects occurring either inside the building or outside even though they had no notice of the defect. This is in situations where the landlord has an easement, either express or implied. That would normally apply to situations where there are rights of access to common entrance ways, hallways, pathways and bin store areas. How in practice can a landlord take advantage of a right to repair which might involve disruption to other residents and undermine the management of the block? Most freeholders would be surprised at the extent of the rights attached to easements granted to leaseholders. Edwards makes it clear that landlords can be liable for defects to parts of a building over which they have no practical control or management.

Implications for Personal Injury practitioners

In claims by tenants, personal injury practitioners will need to be aware that there may be more than one potential defendant for claims arising out of the condition of common parts of blocks of flats. Both the owner of the block and the immediate landlord of the tenant may be liable. Practitioners will have to review not just the tenant’s own tenancy agreement, but also the long lease owned by the landlord of the block. Practitioners will need to be able to spot and interpret legal easements. This will take some practitioners into unfamiliar territory.

Conclusion

It is perhaps not surprising that Mr Kumarasamy has been given permission to appeal to the Supreme Court, and this is unlikely to be the last word on the subject. 

Andrew Brookes
Anthony Gold
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020 7940 4080

1Brown v Liverpool Corporation [1969] 3 All ER 1345

2British Telecommunications plc v Sun Life Assurance Society plc [1995] 4 All ER 44. British Telecommunications was interpreted in the context of a residential lease in Passley v Wandsworth LBC (1998) 30 HLR 165

3Newcomen v Coulson (1877) 5Ch D 133

4 Dowding & Reynolds (5th edition para 20-37)

Image cc flickr.com/photos/ell-r-brown/6281253172

 

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