Where a lease is a lease of a dwelling-house which forms part only of a building, then, under section 11 (1A) of the Landlord and Tenant Act 1985 there is implied into the tenancy agreement a compulsory contractual covenant by the lessor to keep in repair the structure and exterior of the dwelling-house and the structure and exterior of any part of the building in which the lessor has an estate or interest (including drains, gutters and external pipes).
In Edwards v Kumarasamy [2015] Mr Kumarasamy’s assured shorthold tenant of his Flat 10, Mr Edwards, had tripped on an external paved area forming part of the apartment block’s common parts. Although he did not own them, Mr Kumarasamyh had a legal easement to use the front hall, the car parking space and Bin Store and other facilities provided by the head landlord.
The Court of Appeal found that this gave him an “estate or interest” in the paved area where Mr Edwards sustained his accident.
Was that enough to bring the extended covenant into play?
The Court of Appeal said Mr Kumarasamy’s legal easement over the front hall meant that the front hall was a part of a building in which he had an estate or interest.
In Brown v Liverpool Corporation [1983] the Court of Appeal held that steps leading to the front door of a self contained dwelling were part of the exterior of the dwelling.
In the current case, the paved area which led from the front door of the apartment block to the car park was not part of the exterior of Flat 10. However, the paved area was both short and also part of the essential means of access to the front hall in which Mr Kumarasamy did have an estate or interest because of his easement to use it. So the court ruled that the paved area could properly be described as the exterior of the front hall.
Mr Kumarasamy said Mr Edwards should have given him notice of the uneven paving stone and a reasonable opportunity to fix it but the court said such a qualification could not be implied here because the defect was outside the property actually let to Mr Edwards.
So the extended Landlord’s covenant applied to the paved area and Mr Kumarasamy was liable to Mr Edwards under it for the defect.
The Supreme Court has, in Edwards v Kumarasamy [2016] , overturned the Court of Appeal decision:
“….. that decision was wrong. The fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the exterior of that building. Steps separated from the outside of a building by a two metre path cannot, as a matter of ordinary English, be said to be part of the exterior of that building.”
So it was strictly unnecessary to consider the other issues raised by the appeal.
However the Supreme Court agreed with the Court of Appeal that Mr Kumarasamy had an “estate or interest” in the paved area where Mr Edwards sustained his accident. But said that the repairing covenant implied by section 11 was to be interpreted and applied in precisely the same way as a landlord’s contractual repairing covenant. The rule in relation to such covenants was that, until he has notice of disrepair a landlord should not normally be liable for disrepair of property.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.
Original article: Flat Landlord not responsible for Tenant fall in Common Parts.