Property & Real Estate Barristers
Kumarasamy v Edwards [2016] UKSC 40
13th July 2016
The case concerned an assured shorthold tenant of a flat, Mr Edwards, who tripped over a raised edge of a paving slab when taking his rubbish from the main door of a block of flats to the bin store. He suffered some personal injury. He sued his landlord, Mr Kumarasamy, for breach of the implied covenant to repair under s.11(1A) of the Landlord and Tenant Act 1985. But Mr Kumarasamy was a buy-to-let investor. He only had a long lease of the flat itself, together with rights of access. He did not own the block. He did not have a lease of the external area where Mr Edwards fell. And he had not had notice of the disrepair to the paving. So he defended the claim. (Mr Kumarasamy was also unable to sue the head landlord as a third party, because Mr Kumarasamy’s long lease of his flat had an express proviso that the head-landlord could only be liable for disrepair on notice, which of course Mr Kumarasamy had not given because he himself had not had notice from Mr Edwards).
The District Judge allowed the claim and awarded Mr Edwards damages. HHJ May QC overturned that decision. The Court of Appeal then reversed Judge May and restored the District Judge’s order. Today the Supreme Court allowed Mr Kumarasamy’s further appeal, overturned the Court of Appeal and dismissed the claim.
As usual, the issues for decision became refined as the case rose through the appellate process, until there were three issues for the Supreme Court to decide.
First, was the external paved area “the exterior of the front hall”? Secondly, did Mr Kumarasamy have an “estate or interest” in the communal hallway of the block of the flats? Those two issues arose because, under s.11(1A) of the 1985 Act, a landlord’s implied repairing obligation extends beyond the demised premises and includes obligations over the “structure and exterior of any part of the building in which the lessor has an estate or interest”
Thirdly, if the statutory implied obligation applied to the external area where Mr Edwards fell, then was that obligation itself subject to an implied requirement that his landlord Mr Kumarasamy had notice of the disrepair?
The Court decided the first issue in Mr Kumarasamy’s favour. The Court held that it simply was not possible, as a matter of ordinary language, 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”. No unnaturally wide meaning was appropriate (see Campden Hill Towers v Gardner [1977] QB 823 (CA)). An earlier Court of Appeal decision, Brown v Liverpool Corpn [1969] 3 All ER 1345, which was inconsistent with this interpretation, was held to be wrongly decided.
That was enough to dispose of the appeal in Mr Kumarasamy’s appeal, but the Court considered the other two issues.
On the second issue, the Court found against Mr Kumarasamy. He had a leasehold easement over the common parts of the block. An easement is an interest in land as defined in s.1 of the Law of Property Act 1925. Again, on the ordinary meaning of the words of s.11(1A) of the 1985 Act, Mr Kumarasamy had an interest in the front hallway of the building. For this purpose it did not matter that, having sub-let with exclusive possession to Mr Edwards, Mr Kumarasamy could derive no practical benefit from his easement for the time being.
The Court’s treatment of the third issue is very interesting.
The Court first of all rejected an argument based on O’Brien v Robinson [1973] AC 912 and the textbook Dowding & Reynolds that notice of disrepair is always required in respect of the implied covenants under section 11. Having reviewed the history and origins of the “notice” rule and its exceptions, including a number of House of Lords decisions including Murphy v Hurly [1922] 1 AC 369, McCarrick v Liverpool Corp [1947] AC 219 as well as O’Brien v Robinson the Court pointed out that it was well settled that notice of disrepair is required to be given by a tenant to a landlord where the disrepair arises within the demised premises, and that notice is not required* where it arises in areas retained by the landlord (British Telecom v Sun Life [1996] Ch 69 (CA)). But the Court also accepted that no case had directly considered what the position was in a case where the landlord did not own an area over which he had repairing obligations.
* Unless of course there is an express contractual notice requirement, as there was in the head landlord’s covenants in Mr Kumarasamy’s long lease of his flat.
The Court considered the position where a landlord, such as a freeholder, does have a legal estate in retained parts and could be said to have possession except for the fact that he has demised those parts by another lease, for example, where the common parts of a block of flats are demised to a management company under a management lease. The Court held that generally speaking notice of disrepair would not be required to be given to the freeholder in that situation, despite the common parts lease.
But in a case like this one – which is very common given the growth in buy-to-let – neither the landlord nor the tenant have possession of the common parts of a block, and the landlord has effectively sub-let his limited rights over the common parts to the occupying sub-tenant. In this situation the Court held there is an implied term that the landlord must have had notice of the disrepair before he can be liable for breach of a repairing covenant over those parts. The reasons for importing a notice requirement were, in summary (1) the landlord had effectively disposed of all his rights over the common parts for the duration of the sub-tenancy (2) it is the tenant who uses and occupies the common parts and has the best means of knowing of any want of repair (3) this dovetails with the s.11(3A) statutory defence available to landlords who have no rights to carry out repairs (4) contrary to what the Court of Appeal had decided, in circumstances where there is a head-landlord who has covenanted to repair common parts it follows that a flat lessee’s implied right to use the common parts of a block of flat does not carry with it an implied right to carry out repairs (save, perhaps, as a last resort as suggested in Metropolitan Properties v Wilson [2003] L&TR 226).
That last point is interesting in the context of easements generally, because it is often wrongly assumed that any right of way carries with it an implied right to enter and repair the way. This appeal shows that such an ancillary right only arises where it is necessary. In a modern scheme of development with complex interlocking repairing covenants, there is little room for such an implication.