Landlords' repairing obligations and notice requirements: Supreme Court ruling

22nd September 2016

The recent Supreme Court ruling in Edwards v Kumarasamy [1] considers landlords’ repairing obligations and the requirements of notice/knowledge of disrepair.  Walker Morris’ Housing Litigation expert Karl Anders explains the judgment and offers practical advice for landlords.

Facts and legal issues

Mr Kumarasamy was a buy-to-let investor. He held a long lease of a flat in a block, together with rights of access over a paved area which led to the main entrance of the block.  He sublet the flat, along with the benefit of the right of access, to his assured shorthold tenant, Mr Edwards, for six months.  When Mr Edwards tripped over an uneven paving slab on the access path and suffered an injury, he sued Mr Kumarasamy for breach of the landlord’s implied covenant to repair the structure and exterior of the dwelling under section 11 of the Landlord and Tenant Act 1985 (the LTA) [2].  Mr Kumarasamy did not have a lease of the paved area, he was not in possession of premises at the building and he had not received notice of any disrepair in relation to the paved area.

The Supreme Court considered:

1. Was the paved area caught by section 11 LTA, i.e. was it part of the exterior of the building in which the landlord had an interest?
2. Where the lease in question is of a dwelling-house/flat that forms part of a building, whether the landlord’s repairing obligation arises only in respect of that part of the building over which the landlord has an “estate” or “interest” (section 11(1A) LTA). Also, did Mr Kumarasamy have the requisite estate or interest in respect of the paved area?
3. Must a landlord be given notice of disrepair before the landlord’s repairing obligations arise?

Supreme Court ruling

As to the first question, the Court applied the general principle that words used in a statute should be given their ordinary meaning and found that a path leading to a building is not itself part of the exterior of the building.  The Supreme Court therefore held that the paved area was not caught by section 11 LTA and  Mr Kumarasamy consequently had no liability.

Although it was not actually necessary to consider the matter any further, the Supreme Court went on to answer the second and third questions because of their wider significance.

As to the second question, the Supreme Court rejected Mr Kumarasamy’s argument that he did not have an estate or interest in the paved area which could give rise to section 11 liability. The court clarified that under section 1 of the Law of Property Act 1925, an easement such as a right of way is an “interest” in land and there is no reason not to interpret section 11 LTA in accordance with that general legal position.

The third question was the most difficult, but perhaps of the most interest to both landlords and tenants and their respective advisors. The Supreme Court noted that there is an established principle – which is not restricted to residential/section 11 LTA cases – that a covenant to keep property in repair is effectively a warranty that the property will be in repair, such that a breach occurs immediately any disrepair arises, regardless of whether or not the covenantor has notice.  However, that principle is subject to exceptions, such as where the express terms of a covenant require the giving of notice of disrepair to trigger liability; or the common law rule that a landlord is not liable to repair premises which are in the possession of the tenant unless and until the landlord has notice of the disrepair.

The Supreme Court added that the key question in deciding whether a landlord must be given notice of disrepair before its repairing obligations arise under section 11 LTA is whether the property to which the repairing covenant relates is in the possession of the landlord or the tenant.

The Supreme Court concluded:

• Where the entire structure has been let to the tenant and so the landlord is not in possession, the landlord’s repairing liability will not arise unless and until it has received notice of disrepair.
• Where the property in question is outside the tenant’s demise and the landlord has retained possession of that part (such as a block of flats where the landlord of the assured shorthold tenant owns the block and controls all services and common parts) the landlord’s repairing liability arises without notice.
• Where the subject property that is in disrepair is not in the possession of the landlord or the tenant, or where the property is in the possession of another person, the answer to the notice question will depend on the facts of the case and may turn on who has the best means of knowing the existence of the want of repair.

Practical advice

• This Supreme Court decision will be welcomed by landlords to the extent that it dilutes the position under Court of Appeal’s earlier judgment, which had put landlords at risk of repairing liability in circumstances where they had no idea that works were needed.
• There does however remain the grey area mentioned in the third scenario above where the imposition of liability will depend on the individual facts.
• Landlords should attempt to limit their exposure by including express requirements in tenancy agreements for their tenants to give notice of any disrepair before liability is triggered [3].

Regardless of contractual arrangements, if landlords periodically inspect their properties they should deal with any incidents of disrepair falling within their repairing obligations that are brought to their attention or would have been obvious as a result of a visual inspection.

If you have any queries in connection with this case, or if you would like advice or assistance with any residential tenancy issue, please contact Karl Anders or any member of Walker Morris’ Housing Management and Litigation team.

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[1] [2016] UKSC 40
[2] Section 11 LTA imposes an obligation on landlords of residential leases of less than seven years to keep in repair the structure and exterior of dwelling-houses (including flats).
[3] although note that careful drafting will be required as section 12 LTA prohibits attempts to contract-out of section 11 repairing liability.