Housing Bulletin No 14 – Disrepair decision reversed by the Supreme Court Edwards V Kumarasamy [2016] UKSC 40

Welcome to this, the fourteenth bulletin from the Housing Team.

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On 13th July 2016 the Supreme Court handed down judgment in this case where a tenant (Mr Edwards) in a block of flats in Runcorn, Cheshire, tripped on an uneven paving stone as he was taking out his rubbish.

This case is unusual because neither the freehold owner of the block of flats nor Mr Kumarasamy (the Appellant and long-leaseholder) occupied the flat. Mr Edwards, who was Mr Kumarasamy’s sub-tenant and Respondent in the appeal, occupied the flat.

THE BACKGROUND

Mr Edwards injured himself on the uneven paving and issued proceedings against his landlord (Mr Kumarasamy). His argument was that the path should have been kept in repair by his landlord, and therefore covenants implied into his tenancy by section 11(1) (a) and 11(1A) (a) of the Landlord and Tenant Act 1985 had been breached.

As stated, the freeholder of the block had let one of the flats to Mr Kumarasamy under a long lease, and Mr Kumarasamy had let that flat to Mr Edwards who was the sub-tenant. He enjoyed a grant of shared rights of access, stairways, communal parts, paths and drives.

Mr Edwards had not told Mr Kumarasamy about the uneven paving, and Mr Kumarasamy had not told the freeholder.

HISTORY OF THE LITIGATION

At first instance, the Deputy District Judge found for Mr Edwards and awarded him damages of £3,750.

Mr Kumarasamy successfully appealed. Her Honour Judge May QC found, firstly, that the Section 11 covenant did not cover the paved area but, secondly, that even supposing that it did come within that section there was no liability for Mr Kumarasamy because he had not had notice of the disrepair.

The Court of Appeal allowed Mr Edwards’ appeal in January 2015, who disagreed with both of those grounds.

Mr Kumarasamy appealed again, and now the Supreme Court has overturned the Court of Appeal’s decision. Lord Neuberger gave the leading judgment.

THE QUESTIONS

The Supreme Court considered the construction of sections 11(1) (a) and 11(1A) of the Act.  They identified the appeal as raising three questions, all of which had to be answered positively for the Appeal to be decided in Mr Edwards’ favour:
(a) Whether or not the paved area or path could be described as part of the exterior of the front hall, and

(b) Whether or not as a leaseholder Mr Kumarasamy could be considered to have an estate or interest in the front hall, within the meaning of section 11(1A)(a), and lastly

(c) Whether or not Mr Kumarasamy could be liable to Mr Edwards for the disrepair when he had not been told about it prior to the accident.

THE LAW

Section 11(1) (a) provides that:
In a lease to which this section applies, there is implied a covenant by the lessor-
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
Section 11(1A) (a) provides that:
If a lease to which this section applies is a lease of a dwelling house which forms part only of a building, then subject to subsection (1B) the covenant implied by subsection (1) shall have effect as if –
(a) the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest;

THE SUPREME COURT’S FINDINGS

• The Judges decided the main questions as follows: The path led from a car park to the entrance of the building.  It would be inconsistent with the wording of the Act to describe the path as part of the exterior of the front hall of the building.  Section 11(1A) (a) refers specifically to just ‘the building’ and the word ‘exterior’ in 11(1) (a) is only and specifically extended to include ‘drains, gutters and external pipes’.  The word ‘exterior’ should be given a natural meaning, rather than an artificially wide meaning.  The conclusion was that the path was not part of the exterior of the building.
• There was a grant of a right of way over the front hall from the freeholder to Mr Kumarasamy as leaseholder under the Headlease, and that did amount to an interest in the land, within the meaning of section 11(1A).  The common parts could not be excluded from Mr Kumarasamy’s liability, even though he did not have any practical benefit of the easement because he had sub-let the flat.
• If a landlord covenants to keep premises in repair, generally, the covenant acts as a warranty and as soon as premises are out of repair the landlord is in breach.  However, there are exceptions — for example, where the covenant is qualified by an express term.
  a. In this case the covenant in the Headlease stipulated that: the freeholder ‘will not be liable for breach of this covenant until the [headlessee] has given written notice thereof to the [freeholder] and the [freeholder] has had a reasonable opportunity to remedy the same.’
  b. A further exception is the rule that a landlord is not liable under a covenant to repair, until the tenant who is in possession of the premises has given the landlord notice of the disrepair.

Lord Neuberger considers the issue of notice at some length, from paragraphs 29 to 59 and it is worth reading through to see how the question has been dealt with in different cases.  For this case, the Supreme Court’s conclusion is that the tenant should have notified Mr Kumarasamy in order for his landlord to be liable for his accident and injuries.  At paragraph 46, Lord Neuberger explains that: ‘until he has notice of disrepair, a landlord should not normally be liable for disrepair of property in so far as it is in the possession of the tenant…’Mr Edwards of course was the tenant in possession of the premises, and Mr Kumarasamy was not using the common parts during Mr Edwards’ tenancy.  Mr Edwards had not told Mr Kumarasamy of the uneven path.

In conclusion, Lord Neuberger summarises that although Mr Kumarasamy did have a sufficient interest in the front hallway and paved area, he was not liable for the disrepair because the paved area was not part of the exterior of the front hall and, further, he had not been told about the disrepair before the accident.

Angela Piears is a member of the 42 Bedford Row Property Team, and specialises in all aspects of Housing Law.

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Angela Piears

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21.07.2016