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.
In Edwards v Kumarasamy the Court found itself considering s11, Landlord and Tenanct Act 1985. This piece of legislation is of vital importance to landlords and letting agents becuase it inserts a clause into any tenancy agreement specifying the repairing obligations of the landlord. This is usually replicated in most tenancy agreements for reasons of clarity but the basic obligation comes from s11.
It has been a general assumption among landlords (and lawyers!) that s11 only applied to the parts of a property which were actually rented to the tenant and also only to the main property and not exterior areas such as gardens. There was also a view that a landlord was never liable until such time as they had been notified of the want of repair.
These beliefs are no longer strictly correct. 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 which the landlord did not own but which served the block and took a disrepair claim under s11.
Starting with the exterior. S11 states that it applies to the structure and exterior and also to any area which the landlord has an "estate or interest" in. Here the landlord must have held an easement over the path and indeed over parking areas and such other parts as served the property to allow him to access it. Therefore he did indeed have an estate or interest in the property. That meant that he had an obligation to ensure that it was kept in repair.
The second issue was notice. The landlord argues that he had not been notified of the problem with the path. In fact s11 says nothing about notice. Case law has implied a requirement of notice into s11 for reasons of practicality where the dispreair is inside the parts of the property which are actually rented to the tenant. The Court actually questioned whether such a requirement continued to be necessary but did not interfere with it. However, there is no case which implies such a requirement of notice for areas not rented to the tenant and 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.
So what does this mean for landlords and agents? This is a big deal and will have serious consequences. Any landlord can now be sued for disrepair to areas that serve his or her 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, however other matters should also be considered. This will mean that landlords will need to be active in chasing those they have easements from such as their superior landlords to keep items in repair in common areas. The local authority may be able to help here using their powers under the HHSRS.
Agents who are doing property inspections should also widen their inspection to not just include the property itself but also areas over which the landlord has rights such as paths and driveways. There is no obligation on the tenant to report disrepair so it is up to the landlord or his agent to identify it and act to get it resolved.