Case Comment: Edwards v Kumarasamy  UKSC 40
07 Monday Nov 2016
Following an appeal heard on 5 May 2016, the Supreme Court handed down judgment on 13 July in the case of Edwards v Kumarasamy.
The facts of this case are laid out in further detail in the Case Preview, but in summary, it concerns the operation of the Landlord and Tenant Act 1985, s 11 and (a) whether an intermediate landlord has an implied obligation to repair common parts; and (b) whether notice of disrepair must be given to the intermediate landlord.
Mr Kumarasamy is a long leaseholder of a flat. Under the terms of the lease, Mr Kumarasamy was granted the internal demise together with access rights over the common parts including rights of use over the entrance hall, lift, staircases and landings, the access road itself and the communal bins. The freeholder covenanted to maintain the common parts but would not be liable for breach of this covenant unless the lessee, Mr Kumarasamy, provided written notice of any defect and gave the freeholder a reasonable opportunity to remedy any disrepair.
In April 2009, Mr Kumarasamy granted an assured shorthold tenancy to Mr Edwards under which Mr Edwards had “the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives“.
In July 2010 Mr Edwards, while taking rubbish to the communal dustbins, tripped over an uneven paving stone injuring his right hand and knee. He issued proceedings against Mr Kumarasamy on the grounds that Mr Kumarasamy was in breach of the repair covenants implied by s 11(1A)(a) of the 1985 Act. S 11(1A)(a) extends a landlord’s repairing obligations beyond the demised premises, to also cover the “structure and exterior of any part of the building in which the lessor has an estate or interest” (emphasis added).
Mr Edwards’ case was accepted at first instance by Deputy District Judge Gilman, who awarded him £3,750 in damages. On appeal to the High Court, Mr Kumarasamy’s appeal was allowed by Her Honour Judge May QC on two grounds: (i) the paved area was not within the ambit of the repairing covenant contained in s 11; and (ii) even if it had been, the fact that Mr Kumarasamy was not given notice of the disrepair meant he could not have been held liable. Mr Edwards appealed the decision and the Court of Appeal overturned the High Court’s decision on both grounds. Mr Kumarasamy’s appeal was therefore brought before the Supreme Court and heard before a panel of five Supreme Court Justices.
The Supreme Court
The case fell on three issues for the Supreme Court to decide:
1. Was the paved area “part of the exterior of the front hall”?
The Court held that a path leading from a car park to the entrance door could not be “part of the exterior of the front hall”. Lord Neuberger (with whom Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath agreed) held that “the fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the exterior of that building“.
Consequently, Mr Kumarasamy was not in breach of the repair covenants implied by s 11(1A)(a) of the 1985 Act. Whilst this conclusion was enough to dismiss the appeal, the Court went on to consider the following two questions:
2. Did Mr Kumarasamy have an “estate or interest“ in the front hall?
Lord Neuberger confirmed that even once Mr Kumarasamy had granted a sub-tenancy to Mr Edwards, he still held an “interest” in the front hall in the form of a leasehold easement. In this instance, it did not matter that Mr Kumarasamy could not benefit from his easement having sub-let with exclusive possession to Mr Edwards.
3. Did Mr Kumarasamy need to be given notice of the disrepair before the accident occurred in order to be liable to Mr Edwards?
Whilst landlords generally covenant to keep premises in repair, the court held that there is a “rule” that the landlord must have had notice of the disrepair before he can be held liable for breach of a repairing covenant. Applying, Tredway v Machin (1904) 91 LT 310, 311, Lord Neuberger quoted Sir Richard Collins MR, who noted that the tenant “has the best means of knowing of any want of repair”. In contrast, a landlord would not be in a position to have knowledge of such disrepair and thus the landlord’s statutory implied obligation to repair is only triggered when he is given notice of such disrepair.
Thus, although the intermediate landlord did indeed hold a sufficient interest in the front hallway and paved area, he was not liable for the disrepair in question. The primary reason was because the paved area did not form part of the exterior of the front hall and therefore was not subject to the repairing covenant in s 11(1) of the 1985 Act. The case is also significant in that it confirms the requirement for a tenant to give his landlord notice of any disrepair before an accident occurs in order to be able to hold him liable. Even though Mr Edwards did not enjoy exclusive possession of the common parts, he was present on them every time he came to or left the flat, and therefore he had the best means of knowing whether any repair work was required.