Key points
- For short lets the Landlord and Tenant Act 1985 provides that landlords must repair the “structure and exterior” of the dwelling
- Where a flat is let, the landlord must repair other areas in which it has an interest but must have notice of any defect that requires repair
Repair obligations
A landlord who lets a residential property is usually responsible for its repair. This is because section 11 of the Landlord and Tenant Act 1985 implies repairing obligations into most short tenancies. These require a landlord to keep in repair the structure and exterior of the dwelling and certain installations.
The statutory obligations were extended by the Housing Act 1988 to deal with buildings such as a block of flats. If a flat is let, the obligations extend to other parts of the building in which the owner has an interest such as any common parts in the building (section 11 (1A) of the 1985 Act).
Edwards v Kumarasamy
The Supreme Court recently ruled on a number of issues relating to this repairing covenant in Edwards v Kumarasamy [2016] UKSC 40, [2016] PLSCS 204. Mr Kumarasamy had a long lease which demised the flat and granted access rights over the hall, the front entrance and a short pathway between the front entrance and a carpark. Under the lease, the freeholder is responsible for repairing the building, in the usual way, but Mr Kumarasamy was responsible to any subtenant for the flat and common areas under the 1985 Act.
Mr Kumarasamy sublet the flat to Mr Edwards under an assured shorthold tenancy which included the shared access rights conferred by the head lease. Mr Edwards suffered injuries when he tripped on a paving stone. He sued his landlord and he was awarded damages. (It was common ground that Mr Edwards had not given notice of any defect to his landlord). This finding was reversed by a circuit judge but Mr Edwards successfully appealed to the Court of Appeal. The court decided that the paved area formed part of the structure and the exterior of the front hall and as this was a common area, the notice rule did not apply.
Supreme Court ruling
The Supreme Court unanimously allowed the landlord’s appeal. Three issues had to be considered: could the paved area be correctly described as part of the exterior of the front hall; did Mr Kumarasamy have an estate or an interest in the front hall; and could he be liable when no notice of any defect was given?
On the first question the court reversed the conclusions of the Court of Appeal. A path leading from the car park to the entrance door could not “as a matter of ordinary language” be described as part of the exterior of the front hall.
The Court of Appeal had applied the reasoning in Brown v Liverpool Corporation [1969] 3 All ER 1345 where the front steps to a house were held to be part of the structure of the dwelling as an essential means of access to it.
This decision, ruled the Supreme Court, was wrong. The court preferred the reasoning in Hopwood v Cannock Chase District Council [1975] 1 WLR 373 where it was held that rear steps were not part of the building as they were not an essential means of access.
In light of this conclusion, it was not strictly necessary for the Supreme Court to consider the other two issues, but as they had been fully argued, it did. On the question of whether the landlord, Mr Kumarasamy, had a legal interest in the front hall, the court appeared to conclude that he had and therefore had rights and responsibilities under section 11(1A) of the 1985 Act.
Regarding notice of the disrepair, the Supreme Court started with the proposition in the leading case of British Telecommunications Plc v Sun Life Assurance Society Plc [1996] Ch 69. A repairing covenant operates as a warranty that the premises will be in repair. As soon as the premises are out of repair, the landlord is in breach of covenant whether it has had notice or not.
However, as a long line of authority shows, the landlord is not liable under such a covenant for premises which are in the possession of the tenant, unless it has notice of the disrepair. This is the case even though the landlord has the right to enter and to inspect the premises (McCarrick v Liverpool Corporation [1947] AC 219) and even if the defect is latent and unknown to either of the parties (O’Brien v Robinson [1973] AC 912).
As the tenant has exclusive possession of the demised premises (and the landlord does not) it is for the tenant to inform the landlord of any disrepair if the landlord is to be liable to deal with it.
How does this apply to the letting of a flat? Clearly the notice rule applies to the flat itself. But what of the other parts included in the letting, such as the hall? Here, the Supreme Court concluded that although the landlord had an interest in the hall and the passage leading to the entrance, he was not, having sublet, in possession of these areas and the notice rule therefore applied.
Although the landlord had an interest in the front hall way and the paved area for the purposes of section 11(1A)(a) of the 1985 Act, the paved area was not part of the exterior of the front hall. In any event the landlord could be liable only if he had notice.
Implications
This decision may have narrowed a landlord’s liabilities under the 1985 Act quite significantly. A paved area, for example is not, it appears, part of the exterior of the building, even if it is part of access to the building and the flat. The notice rule, it appears, applies to an area outside the demise of a flat in which the landlord has an interest.
James Driscoll is a solicitor and a writer
