Landlord and tenant – Repairs – Breach of covenant – Assured shorthold tenancy Implied covenant under section 11 of Landlord and Tenant Act 1985 – Appellant tenant sustaining injury when tripping over uneven paving stone on path outside block of flats – Whether respondent landlord liable under section 11 for failure to repair path – Whether liability arising only once landlord given notice of disrepair – Appeal allowed
The appellant was the tenant of a second-floor flat which he held on an assured shorthold tenancy from the respondent landlord. While taking out the rubbish one summer evening, he tripped over an uneven paving stone in the pathway that ran for 10-to-12ft from the front door of the block of flats to the communal bins in the car park. In doing so, he injured his knee. He brought a claim for damages against the respondent in respect of that injury.
An issue arose as to whether the respondent was responsible for the maintenance of the pathway. He did not own the whole block of flats but merely had a long lease of the second-floor flat which he let to the appellant, along with various rights granted under that lease including the right to use the entrance hall, lift and staircases, an access road and parking space and the bin store. The owner of the block covenanted to keep the communal areas in good and substantial repair, and to keep passageways and footpaths forming part of the building in good order and condition, but with liability was limited to cases in which the tenant had given notice of the defect and the building owner had had a reasonable opportunity to remedy the defect. No notice of the uneven paving stone had been given either by the appellant to the respondent or by the respondent to the building owner.
Allowing the claim, the deputy district judge held that the paved area between the front door of the block and the car park was part of the structure or exterior of the respondent’s flat. He awarded damages of £3,500 accordingly. That decision was reversed by a judge, who also rejected the appellant’s new argument based on the extended covenant implied into the tenancy by section 11(1A) of the 1985 Act, under which the respondent’s responsibility 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 he had an estate or interest. The judge held that the respondent was not liable under that extended covenant since it was a precondition to liability that notice of the defect had been given. The appellant appealed on that point.
Held: The appeal was allowed.
By virtue of section 11 of the 1985 Act, a covenant was implied into the appellant’s tenancy, as a compulsory contractual term, that the lessor would keep in repair the structure and exterior of the “dwelling-house” plus the structure and exterior of any part of the building in which the lessor had an estate or interest. The respondent’s right to use the front hall, the car parking space, the bin store and the other facilities provided by his own landlord took effect as legal easements, such that he had an estate or interest in the paved area where the appellant had suffered his accident. That was sufficient to bring the extended covenant into play. Although the paved area was not part of the “building” according to the ordinary dictionary meaning of a “structure with a roof and walls”, the statutory question was whether it formed part of “the structure and exterior” of part of the building in which the respondent had an estate or interest. The respondent had an estate or interest in the front hall of the building by reason of his legal easement over it. Where there had been an express grant of an easement, the grant would 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. In the case of a right of way, the dominant owner was entitled to repair the way: Newcomen v Coulson (1877) 5 Ch D 133 applied. The short paved area was part of the essential means of access to the front hall in which the respondent had an estate or interest. It could therefore properly be described as the exterior of the front hall, with the result that the extended covenant in principle applied: Niazi Services Ltd v van der Loo [2004] EWCA Civ 53; [2004] 1 WLR 1254; [2004] 1 EGLR 62 and Brown v Liverpool Corporation (1984) 13 HLR 1 applied.
The application of the extended covenant did not depend on notice of the disrepair being given to the respondent but arose as soon as the disrepair existed. The general rule was that a covenant to keep premises in repair obliged the covenantor to keep them in repair at all times, so that there was a breach of the obligation immediately a defect occurred. An exception applied where the defect occurs in the demised premises themselves, in which case the landlord would be in breach only once it had information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair were needed and it had failed to carry out the necessary works with reasonable expedition thereafter. However, where the defect appeared in an external part of a building that was not demised to the tenant, and possession of which was retained by the landlord, the landlord was liable even though it had no notice of the disrepair.
Moreover, while the scope of a landlord’s covenant to repair at common law was defined by the lease itself, the application of the statutory covenant depended on the facts. Whether something was part of the structure and exterior of a dwelling house was a matter of fact and did not depend on the extent of the demise. The qualification about notice was not expressed in the statutory covenant. It should be introduced only by way of necessary implication to qualify the landlord’s liability in relation to defects within the demise. The fact that the covenant extended beyond the demise therefore did not disturb the general principle of interpretation that the landlord’s liability on its covenant to repair required notice only where the defect was within the demised property itself: British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69, Murphy v Hurly [1922] 1 AC 369 and Campden Hill Towers Ltd v Gardner [1977] QB 823; [1977] 1 EGLR 23 applied; O’Brien v Robinson [1973] AC 912 distinguished.
Anthony O’Toole (instructed by Oliver & Co, of Chester) appeared for the appellant; Joshua Swirsky (instructed by MacLeod-James & Goonting) appeared for the respondent.
Sally Dobson, barrister
