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Notice of disrepair - s11

Section 11 of 1985 Act

Landlord’s obligation – structure - notice

Edwards v Kumarasamy
[2016] UKSC 40

Summary

The Supreme Court held that a path leading from a car park to the entrance door of a front hall to a building was not part of the “structure and exterior of the dwelling-house” under the Landlord and Tenant Act 1985, s11(1A) – and so the landlord’s statutory re-pairing obligation was not engaged.

Relevant statutory provisions

Section 11(1) of the Landlord and Tenant Act 1985 provides as follows:
    "[T]here is implied [into "a lease of a dwelling-house granted ... for a term of less than seven years] a covenant by the lessor -
    (a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)..."
Further where the dwelling-house only forms part of a building, section 11(1A) provides, broadly, that:
    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;
Facts

Mr Kumurasamy (T) was the tenant of a second floor flat in a small block of flats under a head-lease for a term of 199 years. The head-landlord covenanted to provide services including "keeping in good and substantial repair" (i) "all entrances passages landings stairs fire escapes .. and other parts of the [block] intended to be enjoyed or used by the owners or occupiers .. in common with others", and (ii) other areas in the Building not "capable of being let as flats", subject to written notice being given.

T then granted a 6-month assured shorthold tenancy to S/T. It included "the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives" of the block. Subsequently, S/T was taking rubbish out and tripped over an uneven paving stone in the pathway between the front door of the block and the communal bins in the car park. As a result of this he injured his knee.

S/T then sued his landlord, T, for breach of the implied landlord covenant to repair under s11(1A) of the Landlord and Tenant Act 1985. The District Judge allowed T’s claim. This was overturned by the High Court, which was, in turn, overturned by the Court of Appeal. The case was appealed to the Supreme Court.

Issues before the Supreme Court

(1) As the external paved area was not part of a building, could it be said to be part of “the exterior of the front hall”?
(2) Whether T had an “estate or interest” in the communal hallway of the block of the flats?
(3) If the statute did apply to the external paved area, whether the statutory obligation depended on notice of disrepair?

Decision

The Supreme Court allowed the appeal and found for T. As to the above issues the Court held as follows.

(1) As a matter of ordinary language, it was not possible to treat a path leading from a car park and bin store to the front door of the block as "part of the exterior of the front hall". The decision in Brown v Liverpool Corporation [1969] 3 All ER 1345 was wrongly decided.
(2) T had an easement over the front hall of the block and so an interest in land that fell within the ambit of s11(1A). The fact that, having sub-let the property, he no longer had any practical benefit from the easement did not matter. However, he could only be liable if the paved area was "part of the exterior of the front hall" and it was not.
(3) Case authority is clear that a landlord is not liable to repair premises which are in the possession of the tenant and not of the landlord, unless and until the landlord has notice of the disrepair. However, where a landlord has covenanted with a tenant to repair the structure but is not in possession of the structure, for example because he has let it to another tenant the notice rule does not normally apply. Here, however, the property is not in the possession of either the landlord or the tenant. The Supreme Court decided that the landlord should be given notice in these circumstances as it is the tenant that has the easiest opportunity to view the state of repair of the common areas. However, Lord Carnwath expressed reservations about setting a general rule about notices.

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