Old repairing issues considered anew

Timothy Fancourt QC and Nathaniel Duckworth consider the decision in
Edwards v Kumarasamy on the scope of a landlord's repairing obligations

Edwards v Kumarasamy [2016] UKSC 40 concerned the repairing obligations implied by section 11 of the Landlord and Tenant Act 1985 and the circumstances in which notice of disrepair must first be given to a landlord. Those advising clients acquiring buy-to-let properties, in particular, should take heed.

Mr Kumarasamy held a long lease of a flat, which granted him rights over the common parts of the building, including the right to pass over a paved walkway that led from the front hallway
to the car park at the front of the building.

Kumarasamy sub-let the flat
to Mr Edwards on terms that included the right to use the walkway. The sub-tenancy imposed on Kumarasamy the repairing obligations implied
by section 11 of the 1985 Act.

Unhappily, Edwards later tripped on an uneven paving stone on the walkway and suffered serious injuries. His claim for damages for breach of Kumarasamy's repairing obligations raised the following three issues.

Structure and exterior

Sections 11(1)(a) and 11(1A) of the 1985 Act require the landlord of a flat 'to keep in repair the structure and exterior of the [flat]' and of 'any part of the building [containing the flat] in which the lessor has an estate or interest'.

In disagreement with the Court of Appeal, the Supreme Court concluded that although the walkway abutted the building, it did not, as a matter
of ordinary language, form part of the building itself.

Estate or interest

Although strictly academic in the light of the answer to question 1, the Supreme Court went on to consider whether, if the walkway had been part of the structure and exterior of the building, Kumarasamy, who merely had a right of way over the walkway, had an 'estate or interest' in it for the purposes of section 11.

Although it was perhaps surprising that parliament should have intended to impose repairing obligations on an intermediate landlord in respect of parts of the building that were not actually demised to him, the Supreme Court held that Kumarasamy's right of way over the walkway was an 'estate or interest' for the purposes of the legislation.

A right of way was an interest in land under section 1 of the Law of Property Act 1925 and there was no obvious reason for giving the word 'interest' some more restricted meaning in section 11.

Moreover, if an intermediate landlord were not required to maintain the structure and exterior of the common parts
of the building, the sub-tenant would be left without a contractual remedy in respect of any disrepair. The intermediate landlord would be protected to some degree by the need (discussed in question 3) for him to have notice of any disrepair.

Notice of disrepair

The Supreme Court went on to consider whether, if the walkway was part of the structure and exterior of the building, the intermediate landlord's obligation to repair was only an obligation on notice of disrepair. The Supreme Court unanimously answered that question in the affirmative.

Lord Neuberger examined the rationale for the 'rule' that a landlord's obligation to repair part of premises demised to a tenant is interpreted as an obligation to repair on notice. This was that the tenant has the means of knowledge of the disrepair peculiarly in his own possession, and the landlord - by reason of the tenant's occupation - does not, or at least the tenant is in a better position to know (see O'Brien v Robinson [1973] AC 912, where the rule was held to apply equally to a statutorily implied repairing obligation).

But should the requirement of notice be extended to include the present situation where the disrepair occurred, not within the flat itself, but within the common parts? The Supreme Court held that it should because the intermediate landlord 'has effectively disposed of that right [to use the common parts] to the tenant for the term of the Subtenancy just as much as he has disposed of his right to use and occupy the Flat to the tenant for the term of the Subtenancy. During the Subtenancy, it is the tenant who uses the common parts, not the landlord, just as it is the tenant who occupies the flat, not the landlord.'

The fact that the sub-tenant did not enjoy exclusive possession of the common parts, and that the intermediate landlord would have ready access to the common parts, was held to be irrelevant, as was the latter's entitlement to use the flat or the common parts as against the head landlord.

Although strictly obiter, the Supreme Court decided the second and third questions after full argument and with very
full reasoning, referring to all
the historic case law, so its conclusions are likely to be treated as authoritative.

Timothy Fancourt QC and Nathaniel Duckworth, pictured, are barristers practising from Falcon Chambers @FalconChambers1 www.falcon-chambers.com