Landlord and tenant – Repairs – Breach of covenant – Assured shorthold tenancy – Implied repairing covenant under section 11 of Landlord and Tenant Act 1985 – Extended covenant in section 11(1A) – Respondent tenant sustaining injury by tripping over uneven paving stone on path outside block of flats – Whether appellant landlord liable under extended covenant for failure to repair path – Whether path constituting “exterior” of part of building in which appellant having estate or interest – Whether liability under section 11(1A) arising only once landlord given notice of disrepair – Appeal allowed
The respondent was the tenant of a second-floor flat which he held on an assured shorthold tenancy from the appellant landlord. While taking out the rubbish one evening, he injured his knee when he tripped over an uneven paving stone in a pathway which ran for about 10ft from the front door of the block of flats to the communal bins in the car park. He brought a claim for damages against the appellant in respect of that injury.
The appellant did not own the whole block of flats but merely had a long lease of the second-floor flat, along with rights under that lease to use the entrance hall, lift and staircases, an access road and parking space and the bin store. The respondent’s tenancy likewise included a right to use any shared rights of access, stairways, communal parts, paths and drives of the building. The respondent had not previously notified the appellant of any defect with the paving stone.
A decision by a deputy district judge, allowing the respondent’s claim and awarding damages of £3,500, was reversed by a judge but was subsequently reinstated by the Court of Appeal. The central issue was whether the appellant was liable under the extended covenant implied into the tenancy by section 11(1A) of the 1985 Act, under which the landlord’s responsibility under section 11(1)(a) for repairing “the structure and exterior of the dwelling-house” extended not merely to the flat itself but also to any other part of the building in which the landlord had an estate or interest. The Court of Appeal found that: (i) since the appellant had an easement over the front hall, it was accordingly a part of the building in which he had an estate or interest for the purposes of section 11(1A); (ii) the pathway could properly be described as part of the exterior of the front hall since it formed the essential means of access to it; and (iii) the fact that the appellant had no notice of the defect in the pathway was not a bar to liability, since any requirement for notice was confined to defects within the demised property itself and was not a pre-condition to liability under section 11(1A) in respect of areas falling outside the demise: see [2015] EWCA Civ 20; [2015] EWCA Civ 20. The appellant appealed.
Held: The appeal was allowed.
(1) It was not possible as a matter of ordinary language to describe a path, leading from a car park serving a building to an entrance door opening directly onto the front hall of that building, as part of the exterior of the front hall. It was hard to see how a feature that was not, in any normal sense, part of a building and that lay wholly outside it, and in particular that lay outside the floors, ceilings, walls and doors that encased the front hall of the building, could fairly be described as part of the exterior of that front hall. The paved pathway might be said to abut the front hall but was not a part of its exterior as a matter of normal English. The fact that a piece of property was a necessary means of access to a building could not be sufficient for it to constitute part of the exterior of that building.
Unless the natural meaning of the words of a statutory provision produced a nonsensical result, or a result that was inconsistent with the intention of the legislation concerned, as gathered from admissible material, then the words should be given their ordinary meaning. There was some force in the argument that one might have expected parliament to intend those parts of a building or its curtilage which were not included in an individual residential demise, and were not in any way enjoyed by the tenant in question, to be within the ambit of the landlord’s statutory repairing covenant. However, the fact that one might have expected words in a statute to cover a particular situation was not a sufficient reason to justify giving an unnatural meaning to those words in order to ensure that they did so. Given that section 11(1A) of the 1985 Act imposed obligations on a contracting party over and above those that had been contractually agreed, the courts should not be too ready to give an unnaturally wide meaning to any of its expressions. Such a wide reading would be very difficult to reconcile with the wording of section 11(1A)(a), especially in the light of the limitation to “the building”. Further, the fact that section 11(1)(a) was specifically extended to cover “drains, gutters and external pipes” tended to support the notion that, when it referred to the “exterior”, the word was to be given a natural, rather than an artificially wide, meaning: Campden Hill Towers Ltd v Gardner [1977] QB 823; [1977] 1 EGLR 23 applied.
(2) Had the pathway been part of the exterior of the front hall, the appellant would have had a relevant “estate or interest” in the front hall for the purposes of section 11(1A). The appellant’s right of way over the front hall, under the terms of his lease, was an interest in the land as a matter of property law. The appellant retained his leasehold easement over the front hall notwithstanding that the grant of the tenancy to the respondent had effectively deprived him of any practical benefit from the easement so long as the tenancy continued: Niazi Services Ltd v van der Loo [2004] EWCA Civ 53; [2004] 1 WLR ; [2004] 1 EGLR 62 distinguished. There would have to be a powerful reason not to give to the word “interest” its ordinary meaning in law where it appeared in a property statute. Moreover, it was not easy to find a satisfactory way that it could be cut down that was consistent with the general policy of section 11. The only possible way of excluding the common parts of the building from the ambit of the appellant’s statutory liability to the respondent would be to limit the word “interest” to an interest in possession, which would involve reading words into a statute that were not necessary and would also be inconsistent with the liability of a landlord under section 11(1)(a) and 11(1A)(a), which imposed repairing obligations for items demised to the tenant and which therefore were not in the possession of the landlord.
(3) Where a landlord or a tenant covenanted to keep premises in repair, the general principle was that the covenant effectively operated as a warranty that the premises would be in repair: British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69 applied. Accordingly, as soon as any premises subject to such a covenant were out of repair, the covenantor was in breach, irrespective of whether he had had notice of the disrepair, or whether he had had time to remedy the disrepair. However, that general principle was subject to exceptions, which were based on normal principles applicable to the interpretation of contracts. One was the rule that a landlord was not liable to repair premises that were in the possession of the tenant and not of the landlord, unless and until the landlord had notice of the disrepair.
It was not normally open to a landlord who had agreed to repair the structure to invoke the rule against a tenant of a flat in relation to disrepair of a part of the structure which the landlord had let to another tenant, or which was not in the possession of the landlord for some other reason. The rule did not normally apply to premises that were not in the possession of the tenant. Once it was determined that the rule only applied to property in the possession of the tenant, there was no warrant for implying it to any other property, unless it was justified by the terms of the particular tenancy and the surrounding circumstances. In light of section 12(1) of the 1985 Act, that could not be done in relation to the covenant implied by section 11.
There was no reason, as a matter of principle, for departing from the rule when it came to covenants implied by section 11. Accordingly, a landlord could not invoke the rule, and so escape liability for defects of which he had no notice, in every case where a tenant relied on a covenant implied by section 11. 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, with the result that, until the landlord had notice of disrepair, he should not normally be liable for disrepair of property in so far as it was in the possession of the tenant: Morgan v Liverpool Corporation [1927] 2 KB 131, McCarrick v Liverpool Corporation [1947] AC 219 and O’Brien v Robinson [1973] AC 912 applied.
The instant case was different from the others that had so far been decided, because it was concerned with the application of a landlord’s repairing covenant to property that was not in the possession of either the landlord or the tenant, although it was property over which they each had a right of way. The reasoning on which the rule was based meant that it should be extended to such a case. So far as the appellant landlord had any right over the hall and paved pathway, he had effectively disposed of that right to the respondent for the term of the latter’s tenancy, in the same way as he had disposed of his right to use and occupy the flat. While the respondent did not enjoy exclusive possession of the common parts, he was present on them every time he came to or left the flat. The appellant as landlord had effectively lost the right to use the common parts and the tenant had acquired that right, for the duration of the tenancy. It was therefore the respondent who had the best means of knowing of any want of repair in the common parts, and the landlord was not in a position to know: Tredway v Machin (1904) 91 LT 310, Murphy v Hurly [1922] 1 AC 369 and Morgan applied. Accordingly, in a case such as the present, the landlord would not be in breach of his statutorily implied repairing obligation until he had notice of the disrepair. The potential harshness on a head lessee of a single flat of imposing a covenant to repair the common parts, when he had effectively transferred to the tenant his right to use them, was mitigated by the need for notice of any disrepair before the covenant became activated.
(4) It followed that the appellant was not liable for the disrepair which caused the respondent’s injury, because he could only be so liable if: (i) the paved area was “part of the exterior of the front hall”, which it was not; and (ii) he had notice of the disrepair before the accident, which he did not.
Per curiam: Where a flat was let under a tenancy to which section 11 applied, by a landlord who owned the building in which the flat was situated, it was likely, so far as the statutory covenant extended to repairing the common parts, that it would not normally be subject to the rule, because the landlord would ordinarily be in possession of the common parts.
Philip Rainey QC, Julian Gun Cuninghame and Daniel Brayley (instructed by direct access) appeared for the appellant; John Benson QC and Michael Armstrong (instructed by Quality Solicitors Oliver & Co, of Chester) appeared for the respondent.
Sally Dobson, barrister
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