Share it

On 5 May 2016, the Supreme Court will consider whether an intermediate landlord is in breach Lucinda_Richardson_ph[1]of the repairing obligations implied into short leases under the Landlord and Tenant Act 1985, s 11 in respect of the structure and exterior of a dwelling house, or, alternatively, whether lack of prior notice of any defect from the tenant acts to absolve the landlord from liability.

Background facts

Mr Kumarasamay is a long leaseholder of a flat situated on the second floor of a residential building that he sublet to Mr Edwards under an assured shorthold tenancy agreement to which the implied repairing obligations under s 11 of the 1985 Act applied. Under the terms of the headlease, Mr Kumarasamy had the right to use communal areas including the entrance hall, front door, a bin store and a pathway connecting the store to the building. The pathway is the essential means of access to the block. The freehold owners of the property covenanted to keep such areas in good order and condition but qualified their obligation (under the head lease) by making it conditional on notice from Mr Kumarasamay of any defects and being provided with a reasonable opportunity to remedy any such damage.

On using the pathway to deposit rubbish in the bin store, Mr Edwards tripped over an uneven paving stone and sustained an injury to his knee. Mr Edwards had given no notice of the defective paving to Mr Kumarasamay and Mr Kumarasamay had given no notice to the ultimate head lessors. Mr Edwards claimed Mr Kumarasamay was liable for his injury.

High Court decision

In the first instance, Mr Edwards was awarded damages amounting to £3,750 by DDJ Gilman on the basis that the pathway formed part of the “structure or exterior of the dwelling-house” to which the repairing covenant applied (s 11(1) of the 1985 Act). On appeal before HH Judge May QC in the Bow County Court, it was argued that Mr Kumarasamay was liable under the extended covenant implied by s 11(1A), namely that where a lease is of a dwelling-house forming only part of a building, the repairing covenant extends to include “any part of the building in which the lessor has an estate or interest”. HH Judge May QC reversed the decision of DDJ Gilman regarding the pathway forming part of the structure or exterior of the dwelling house, and ruled that Mr Kumarasamay could not be liable as he had not received notice of any defect, and that notice of the defect was a precondition of liability. The case was appealed to the Court of Appeal.

Issues the Court of Appeal considered

(1) Does the extended covenant apply?

It was submitted by Mr Kumarasamay that the extended covenant did not apply as it would only apply to a part of the building in which he has an estate or interest and the pathway would fall outside of any such definition. Lewison LJ agreed that the pathway did not comprise part of the building but that the relevant statutory question was whether the pathway formed part of the structure or exterior of part of the building in which Mr Kumarasamy has an estate or interest. Lewison LJ referred to the decision in Brown v Liverpool Corporation (1983) 13 HLR 1 in which steps leading to the front door of a dwelling-house were deemed to be the “means of access” and therefore part of the exterior, before concluding that the pathway was the essential means of access to the front hall and would therefore constitute part of the exterior by the same logic. The extended covenant was found to apply.

(2) Is liability conditional on notice having been given?

The general rule is that a covenant to keep premises in repair requires the covenantor to keep them in repair at all times; the obligation is therefore breached immediately a defect occurs. However, LJ Lewison (giving the leading unanimous judgment) referred to an exception in that where a defect occurs within the demised premises and the repairing obligation is the landlord’s, the landlord will only be in breach where he has received information of the defect and has not  remedied the defect with reasonable expedition thereafter (British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69). Notice is therefore only a pre-condition to a landlord’s liability where the defect occurs within the demised premises. As the uneven pathway was not demised to Mr Edwards, LJ Lewison concluded that lack of notice regarding the defect would not therefore operate to absolve Mr Kumarasamy from liability.

Implications of the decision

Prior to the Court of Appeal’s decision, it was understood by leading authorities that notice was a precondition of liability in relation to the implied repairing covenant. If the decision is upheld by the Supreme Court, it will be of concern to intermediate landlords as it is impossible to exclude the implied covenant from a short-term tenancy agreement and they may therefore be found liable for repairs to communal areas even where they have not received any information as to defects.