An important new decision has emerged from the Court of Appeal, which will have an impact on many landlords and the way they manage their properties, and particularly on landlords with flats.
What’s happened?
In Edwards v Kumarasamy [2015] EWCA Civ 520, the court considered the implied repairing obligation in short leases created by section 11 of the Landlord and Tenant Act 1985.
In this case, the tenant was occupying a flat owned by the landlord. The landlord had a long lease of the flat concerned, but he did not own the block. The tenant tripped on a path outside the block which provided the primary access to it. Crucially, the landlord did not own the path, but it served the block and he had an easement for its use. It was common ground that the tenant had not reported the problem with the path to the landlord. As the landlord was not aware of the disrepair, he had not prevailed on the freeholder to fix it.
The landlord argued at first instance that he was not on notice of the disrepair, and that he had no obligation to repair something that was not part of the structure or exterior of the property. He lost and duly appealed to a circuit judge, who set aside the original judgment. The tenant then appealed to the Court of Appeal.
By the time the case reached the Court of Appeal, the focus of argument had altered slightly and the main issues were around sub-sections 1 and 1A of section 11. These read:
”(1) In a lease to which this section applies … there is implied a covenant by the lessor—
a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes) …
(1A) If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection (1) shall have effect as if—
a) the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest …”.
Access
The Court of Appeal held that the path was part of the essential access to the front hall of the block, and was therefore part of the exterior. The front hall itself was a part of the building over which the landlord had a legal right or easement. He must have had such a right in order to be able to access his own flat. Thus, due to the wording of section 11(1A)(a), the front hall was part of the dwelling house and the path was part of the exterior of the front hall. Therefore, the path was part of the exterior of the dwelling house and accordingly fell within the landlord’s repairing obligations.
Notice
The court then turned to the issue of notice. Section 11 says nothing about notice and so “there is a breach of the obligation [to repair] immediately a defect occurs”. There is an implied requirement of notice on the part of the tenant where the disrepair is inside the parts of the property which are actually demised to the tenant. In that situation, the breach of obligation does not occur until such time as the landlord has been reasonably put on notice that a want of repair might exist and has had a reasonable time to remedy it.
However, the landlord was effectively arguing for an extension to the implied notice requirement to include areas that were outside the demised premises, but were brought within his repairing obligations. There is no case which explicitly implies such a requirement of notice for areas not demised to the tenant. The court was not prepared to create such an implied requirement, presumably on the basis that the landlord could access these areas without the tenant’s consent anyway, and so could ensure that they were in repair.
Why is it important?
Section 11 of the Landlord and Tenant Act 1985 inserts a clause into any residential tenancy agreement of less than seven years specifying the repairing obligations of the landlord. It is section 11 which permits tenants to make financial claims against their landlords for breach of contract when their properties are not in a good state of repair. Therefore changes in its interpretation are of great import to the majority of residential landlords and tenants in the private and social sectors.
How does this fit into existing law and practice?
This case largely overturns the current understanding of the law. The Court of Appeal noted this, quoting a passage from the leading textbook in the area, Dowding & Reynolds , which states that notice is required both inside and outside the demised premises. The Court of Appeal expressly disagreed with this statement.
Accordingly, landlords will not be liable for disrepair within premises demised to tenants until notice has been given. They will, however, be liable for disrepair in areas which are part of the dwelling by virtue of the fact that the landlord himself enjoys a right over them, irrespective of any notice of disrepair.
In what ways does this affect practitioners?
Initially, practitioners will want to make sure that clients who might be affected are aware of the issue. The consequences could be far-reaching, especially in relation to flats.
Any landlord can now be sued for disrepair to areas that serve their property, irrespective of ownership. This may be a private drive serving a property over which the landlord has a right of access, or common areas of a block of flats. Clearly, the main concern will be disrepair, which creates trip and slip hazards and could cause injury, although other matters should also be considered.
Additionally, where a want of repair exists, then practitioners will want to consider the best means of dealing with this. Superior leases may require explicit notice to be given in writing to make the superior landlord liable. As section 11 does not apply to leases in excess of seven years, that wording will be effective to limit the superior landlord’s liability, so it will be necessary to act to ensure that they are on notice and liable for any potential claim that might arise.
Those acting for tenants will want to be careful to ascertain whether the disrepair they are complaining of is in the demised part or some additional area to which the landlord has an easement. The question of notice can then be considered in light of that information.
It should be noted that at the current time, the landlord has sought permission to appeal this decision, so this may not be the final instalment of the story.
