Supreme Court

Edwards v Kumarasamy

[2016] UKSC 40; [2016] WLR (D) 385

2016 May 5; July 13
Lord Neuberger of Abbotsbury PSC, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath JJSC

Landlord and tenant — Repairs — Covenant implied by statute — Landlord holding long lease of flat in block — Landlord letting flat to tenant — Tenant injured after tripping on uneven paving stone on pathway leading to main entrance of block — Landlord unaware of defect prior to tenant’s accident — Whether pathway exterior of part of building to which landlord having estate or interest so that statutory repairing covenant applying — Whether landlord’s liability under covenant in respect of defect outside demised property conditional upon his having notice of defect — Landlord and tenant Act 1985 (c 70), (as amended by Housing Act 1988 (c 50), s 116(1)), s 11(1)(1A))

Facts

The landlord held the head lease of a flat in a block of flats, under which he had the right to use the entrance hall and parking area. The landlord let the flat to the tenant under an assured shorthold tenancy. The tenant brought proceedings against the landlord, claiming damages for personal injury which he alleged that he had suffered when he had tripped on an uneven paving stone on the pathway leading from the main door of the block to the parking area. The tenant had not given notice of any defect to the landlord. Under section 11(1)(a) of the Landlord and Tenant Act 1985 there was implied into the tenancy agreement a landlord’s covenant to keep in repair the structure and exterior of the dwelling house, which by subsection (1A) as inserted included any part of the building in which the landlord had an estate or interest. The district judge allowed the claim. The circuit judge allowed the landlord’s appeal on the ground, inter alia, that it was a precondition to liability under the implied covenant that notice of the defect had been given. The Court of Appeal allowed the tenant’s appeal on the grounds that, on the findings of fact, the pathway on which the tenant had tripped could properly be described as the exterior of the front hall and thus of a part of the building in which the landlord had an estate or interest for the purposes of section 11(1A) of the 1985 Act and therefore the pathway was covered by the implied covenant and that it was not necessary for the landlord to have notice of a defect outside the demised property in order for him to be liable under the repairing covenant.

On the landlord’s appeal —

Held

Held, Appeal allowed. (1) The landlord’s implied covenant to keep the structure and exterior of the dwelling house in repair applied to the subtenancy. As a matter of ordinary language a path leading from a car park, which served a building and was within its curtilage, to the entrance door which opened directly on to the front hall of the building could not be described as part of the front hall. A feature which lay wholly outside the building, and in particular outside the floors, ceilings, walls and doors which encased the front hall was not in any normal sense part of the building. Although the paved area might be said to abut the immediate exterior of the front hall, it was not, as a matter of normal English, part of the exterior of the front hall. Accordingly the paved area which led from the front door to the car park was not part of the exterior of the front hall for the purposes of section 11(1)(a).

(2) As a matter of property law the defendant’s right of way over the front hall granted under the headlease constituted an interest in property so that he had an “interest” in the front hall within the meaning of section 11(1A)(a).

(3) The general principle in covenants to keep premises in repair was that the covenant operated as a warranty that the premises would be in repair, and as soon as any premises subject to such a covenant were out of repair, the covenantor was in breach irrespective of whether he had been given notice of the disrepair, or had had time to remedy it. However, an exception to that general principle was the rule, based on the normal principles upon which a term was implied into a contract, namely obviousness and necessity, that a landlord was not liable under a covenant to repair premises which were in the sole possession of the tenant and not of the landlord unless and until the landlord had been given notice of the disrepair. Parliament had not imposed an unrealistically demanding duty on landlords of a property which was in the possession of the tenant, who had the best means of knowing the condition of the common parts he used and of any want of repair, whereas the landlord was not in a position to have that knowledge, and the landlord’s statutorily implied obligation to repair was triggered only when he had been given notice of any disrepair.

(4) Therefore, although the landlord had sufficient “interest” in the front hallway and paved area for the purposes of section 11(1A)(a), he was not liable for the disrepair since the paved area was not part of the exterior of the front hall and he had not been given notice of the disrepair before the accident which caused the tenant’s injury occurred.

Per curiam

Per curiam (Lord Carnwath JSC dubitante). If the tenant is not in possession (and a fortiori, if the landlord is in possession) of part of the structure which is out of repair there is no reason for excluding the general principle that covenants to keep premises effectively operate as a warranty that the premises will be in repair. The rule that a landlord is not liable unless he has been given notice of the disrepair does not normally apply to premises which are not in the possession of the tenant

Appellate History

Decision of the Court of Appeal [2015] EWCA Civ 20; [2015] Ch 484; [2015] 2 WLR 1408 reversed.

Appearances

Philip Rainey QC, Julian Gun Cuninghame and Daniel Brayley (instructed on a direct access basis) for the defendant landlord.

John Benson QC and Michael Armstrong (instructed by Quality Solicitors, Oliver & Co, Chester) for the claimant tenant.

Reported by: Shiranikha Herbert, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.