Richard Clarke and Oliver Park review a landlord’s query
Question
I am the landlord of a medium-sized block of flats. I am concerned the porters at the block are growing increasingly careless in their duties and complacent as to the building’s security. Should anything happen to any of the residential flats/the goods of the residential leaseholders, am I liable for the porters’ actions?
Answer
The extent to which a landlord will be liable for the porters’ actions is dependent on the factual and contractual matrix. It will depend, among other things, on who employs/contracts with the porters and the terms of the leases involved.
At one extreme, if a landlord covenants with a tenant to provide porter services and directly employs porters, the landlord is likely to be liable for the actions of those employees in carrying out their duties. In such a case, it would be prudent to take immediate steps to monitor and improve the porters’ performance.
At the other extreme, a headlessor which has the benefit of a covenant by the headlessee to make provision for porter services is unlikely to be liable. As for the liability of the headlessee to subtenants (say for instance, residents of flats), if the porters are independent contractors engaged by a management company, and the subleases disclaim any liability of the headlessee for their acts, the headlessee is unlikely to be liable for the porters’ negligent actions.
Many cases will fall between these two. In each case there is no substitute for a careful identification of the landlord’s (or other parties’) obligations to the tenants, any limitations or exclusions of liability and the basis on which the porters are engaged. It may also be sensible to ensure disclaimers of liability for the actions of porters are written into any new or varied leases of flats in the building going forwards and ensuring porters are independent contractors engaged at arm’s length by a management company to try and limit liability.
Explanation
A landlord’s liabilities could potentially arise in both contract and tort. To establish the potential liability of the landlord in contract, the specific terms of the leases and any other relevant documentation will need to be assessed.
The law may also impose concurrent duties on the landlord in tort. In assessing the landlord’s potential liability in tort, the starting point is that an employer is usually vicariously liable for the actions of its employees performed within the scope of their employment but that, ordinarily, vicarious liability does not extend to independent contractors.
However, this is not an absolute rule. For example, vicarious liability can potentially extend to relationships “akin to employment”.
In Nahhas v Pier House (Cheyne Walk) Management Ltd [1984] 1 EGLR 160, a management company was found to be directly liable in negligence for appointing a porter with a long criminal record for dishonesty who then stole items from the tenants.
A landlord can be liable for the negligence of those who are not their direct employees, if there is a duty of care owed. In Shamsan v 44-49 Lowndes Square Management Co Ltd [2024] EWCA Civ 436; [2024] PLSCS 89, the Court of Appeal considered whether a duty of care could be said to have arisen in circumstances where the landlord (Lowndes) had appointed an independent party (Farebrother) to fulfil its management obligations as its agent, which in turn (via companies Farebrother controlled) employed the porters, so as to make Lowndes liable for any negligent actions of the porters.
The individual flats were let on long subleases, with Lowndes as landlord, in which Lowndes covenanted to provide various services (which could include porters), the cost of which could be recovered via service charge. Those subleases (1) disclaimed Lowndes’s liability for any negligent actions of the porters and (2) contained a provision deeming the porters to be servants of the sub-tenants, not Lowndes. The appellant in the underlying claim occupied one of the flats on a short sub-underlease, to which Lowndes was not a party.
While it was not a question before the Court of Appeal, the court noted that there were a “number of authorities which would support a duty of care on the porters”.
The appellant claimed £7m against Lowndes on the basis that it was liable for the porters negligently handing over keys to her flat to a stranger who then stole jewellery, arguing that it owed her a duty of care in terms of the services it was to provide. The claim and appeal failed as the law did not impose a duty of care in this situation. In particular, the Court of Appeal explained that:
- A claim against Lowndes based on its vicarious liability for the porters had been abandoned at trial. Vicarious liability did not extend to independent contractors.
- It would be novel to recognise a duty of care on Lowndes for the negligence of an agent who was an independent contractor.
- Even if it was appropriate to impose a duty of care on the porters or Farebrother, there was no justification for further imposing the duty on Lowndes. It had no control over the porters and made no representations that it would do so beside appointing Farebrother. There had been no assumption of responsibility by Lowndes – indeed the contractual documentation made clear Lowndes did not accept any responsibility for the porterage services.
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Richard Clarke is a barrister at Landmark Chambers and Oliver Park is an associate at Charles Russell Speechlys LLP