In May this year the Supreme Court handed down judgment in the case of Edwards v Kumarasamy  UKSC 40 concerning a landlord's responsibility under section 11 of the Landlord and Tenant Act 1985 (“the 1985 Act”) for injuries caused to his tenant. The legal obligation for landlords under section 11 is to keep the ‘structure and exterior’ of rented properties in repair together with any area in which the landlord has an “estate or interest”.
Mr Edwards was the sub-tenant of a second floor flat pursuant to an assured shorthold tenancy granted by his landlord, Mr Kumarasamy. Mr Kumarasamy himself was the head lessee of the flat and did not own the block of flats or the exterior area. There was a pathway leading between the front door of the block of flats and the communal bins, over which Mr Edwards would walk in order to take his rubbish out. On one such occasion, Mr Edwards tripped on an uneven paving stone and injured himself. He then sued Mr Kumarasamy and the question arose as to whether Mr Kumarasamy was in breach of his implied covenant to keep the structure and exterior of the property in repair, pursuant to section 11 of the 1985 Act.
At first instance, it was held that the pathway formed part of the “structure or exterior of the dwelling-house” to which the repairing covenant in section 11 of the 1985 Act applied and Mr Kumarasamy was therefore liable. However, the High Court decided that notice of the defect in the paving was a pre-condition of liability and, since Mr Kumarasamy had not received any notice of the uneven pathway, he could not be held liable.
The case was appealed to the Court of Appeal who considered that the pathway formed “part of the structure or exterior of part of the building in which Mr Kumarasamy has an estate or interest” and no notice was required. On the basis that the pathway was the essential means of access to the front door, it was held to constitute “part of the exterior”, and section 11 was found to apply. This decision was bad news for landlords and letting agents who had to ensure they were active in contacting their own landlords (the freeholder or headlessor) to ensure that areas which they did not own were kept in proper repair.
As to the question of notice, the Court of Appeal decided that express notice of the disrepair is only a pre-condition to a landlord’s liability where the defect occurs within the demised premises, on the basis that it is harder for a landlord to spot such defects. As the uneven pathway was not demised to Mr Edwards under the AST, Lord Justice Lewison concluded that a lack of notice regarding the defect would not operate to absolve Mr Kumarasamy from liability.
On 5 May 2016, the case came before the Supreme Court. Lord Justice Neuberger, who delivered the judgment, agreed with the High Court’s approach and found that Mr Kumarasamy was not liable for the disrepair to the pathway which caused Mr Edwards injury. The Supreme Court held that Mr Kumarasamy could only be liable if the pathway in question was “part of the exterior of the front hall”; which it was not. Furthermore, Mr Kumarasamy could only be liable if he had prior notice of the disrepair before the accident; no such notice had been given.
This case will be of interest to buy-to-let landlords, who will no doubt be relieved by the Supreme Court’s decision. The financial and tax advantages of buy-to-let properties may have been under threat of late, but at least intermediate landlords need not lose too much sleep over potential defects in, or on, communal areas that they do not own, where no express notice has been provided by their tenants.