Section 11 of the Landlord and Tenant Act 1985 implies repairing covenants into tenancies for the benefit of short-term residential tenants. It makes landlords responsible for repairing, but not improving, the structure and the exterior (and for maintaining certain basic installations in working order).
In Edwards v Kumarasamy [2016] UKSC 40 the occupier complained about uneven paving stones between the front door of a block of flats and the communal bins in the car park, which had caused him to trip and fall. The question was: did the paved area, which was approximately 12’ long and provided access to the building, form part of the “structure and exterior”?
The legislation does not explain what this phrase means. However, in Brown v Liverpool Corporation (1983) 13 HLR 1 the court held that steps leading to the front door of a dwelling were part of the exterior. By analogy with that case, the Court of Appeal had decided that the paved area also fell within the ambit of section 11, which extends to “any part of the building” in which landlords of flats “have an estate or interest”. The Supreme Court disagreed. It considered that the fact that land provides a necessary means of access to a building is not sufficient for it to constitute part of the exterior of it.
The court could have stopped there, but went on to consider whether liability was conditional on the landlord having notice of the defect. The position at common law is that notice is not a precondition to a landlord’s liability on its covenant to repair. A covenant to keep premises in repair requires the landlord to keep them in repair at all times: British Telecom plc v Sun Life Assurance Society plc [1995] 2 EGLR 66. However, the rules are less strict where the covenant is qualified by an express term, or if the defect is within premises that are in the possession of the tenant (when the landlord can be liable only if it has been informed of the defect, because the tenant sees and knows the condition of the premises that he occupies and the landlord does not).
Lord Neuberger considered that section 11 was to be interpreted and applied in the same way as a landlord’s contractual repairing covenant. He also took the view that landlords cannot contract out of section 11 by excluding liability for defects of which they have not been notified – but might be able to protect themselves to some extent by requiring tenants to notify them of any disrepairs.
Importantly, this case was concerned with the application of a landlord’s repairing covenant to common parts that were not in the possession of either the landlord or the tenant. The landlord had a long leasehold interest in the flat in question, but not in the building. Both parties enjoyed a right of way to the bin area – but the landlord had effectively disposed of his right to use the common parts to the tenant. The court agreed that, in these particular circumstances, a landlord would not be in breach of his statutorily implied repairing obligation until he had had notice of the disrepair.
Therefore, because the tenant had tripped and fallen in an area that did not form part of the “structure and exterior” of the building and had not notified the landlord of any defect, the landlord was not liable for the injury caused.
Allyson Colby is a property law consultant