The Supreme Court has held that an intermediate landlord was not responsible for the disrepair of property over which he had only shared rights of access.

In Edwards v Kumarasamy, K was the owner (of a long lease) of a residential flat which he had sublet to E using an assured shorthold tenancy (AST). The sublease granted E similar rights to those in K's lease, namely a right to use shared communal parts of the building, including an external paved area. Those communal areas were not included in either K's long lease or E's AST and so remained in the possession of the freeholder.

When E was taking rubbish out of the flat to the communal dustbins he tripped over an uneven paving stone and injured himself. He sued his landlord K, claiming that K was in breach of covenant. The covenants that he relied on were those implied into short residential lettings by the Landlord and Tenant Act 1985. In essence these require a landlord who lets a property that comprises part only of a building to 'keep in repair the main structure and exterior of any part of the building in which [he] has an estate or interest'.

The court at first instance found in favour of E. On appeal, the judge found for K. The Court of Appeal found for E but the Supreme Court has now given its decision in favour of K.

The reasons the Supreme Court found for K were, principally, that it was just not possible to interpret the shared pathway as being an area over which K owed a duty of repair as it did not form part of the 'main structure' and exterior of the building. Such a wide interpretation could not be reconciled with the wording in the 1985 Act. But the court went on to consider the other arguments put before it by E.

Of most interest is the court's consideration of whether a landlord who would otherwise be liable for repair could escape that liability because it had no notice of the disrepair.

The general rule is that where a person covenants to keep property in repair, the covenant effectively operates as a warranty that the premises will be in repair. One exception to this is a rule that a landlord will not be liable to repair premises which are in the possession of the tenant unless and until it has notice of the disrepair. The logic here is that the tenant will become aware of the problem before the landlord will.

In this case the court was considering the application of that exception to the case where the property in question - the paved area - was in the possession of neither the landlord nor the tenant, although both had rights of way over it. The property in question was in the possession of a third party, the freeholder.

The court decided that if K, the landlord, were under an obligation to repair the paved area, that obligation should only be triggered once he had notice of the disrepair from E. This is a logical conclusion.

During the term of the sublease, it was E who occupied the flat and who used the communal areas. Although he did not have exclusive use of those areas, he used them every time he went to or left the flat. Therefore, he was in a much better position than K to know of any want of repair.