Edwards v Kumarasamy [2016]:

The Supreme Court considers the extent of a landlord’s implied repair covenant.

The background

A residential flat was let to the Appellant, Mr Kumarasamy, by a lease for a term of 199 years, situated within a building accessed by a paved pathway which leads into a front hallway. The Appellant further sublet the flat to Respondent and occupational tenant Mr Edwards, including within the lease rights to “use, in common with others, any shared rights of access, stairways, communal parts, paths and drives”.

The Respondent covenanted to keep the flat in repair, save for the areas for which the Appellant was responsible. The Respondent tripped on a loose paving stone on the path, resulting in injuries for which the Respondent sought damages, arguing that the Appellant had failed to keep the paved pathway in repair.

The law

The Respondent’s case was successful at first instance. He was awarded damages of £3,750; the case then went to its first appeal, which was allowed on the grounds that the paved pathway did not form part of the Appellant’s covenant to repair and that, if it had fallen within his obligations to repair, the absence of any notice of disrepair freed him from liability.

The Court of Appeal allowed the Respondent’s appeal and the case then moved to the Supreme Court, which considered three key areas:

• whether the paved pathway could be viewed as forming part of the exterior of the front hallway of the premises;
• whether the Appellant had any ‘estate or interest’ in the front hallway; and
• whether the Appellant was liable to the Respondent for the disrepair.

S.11 of the Landlord and Tenant Act 1985 implies covenants by landlords to keep the structure and exterior of a dwelling in repair, including all parts of a building in which a landlord has an estate or interest. The Court held that a pathway leading to the entrance of a building could not be construed as forming part of that entrance.

The Appellant enjoyed a right of way over the front hallway, which in itself is an interest in the property. Arguments on this point which focused on whether the Appellant enjoyed any practical benefit in the right of way were rejected.

Finally, a landlord is generally not liable to repair premises where they are within the tenant’s possession and the landlord has not received any notice of disrepair. Because in this instance the disrepair affected an area outside of the immediate demise of the lease, this implied rule could not apply, as the tenant is not in possession of the area.

The decision

The Supreme Court allowed the Appellant, Mr Kumarasamy’s appeal.

The Supreme Court held that the landlord’s implied covenant to repair under the Landlord and Tenant Act 1985 could only apply where notice of any disrepair is given by the tenant to the landlord. On grant of the underlease to the Respondent, the Appellant lost its right to exercise the right of way and the Respondent is regularly using the easement instead. As a result, he is better-placed to advise as to wants of repair and must trigger the landlord’s covenant.

J B Leitch’s Stuart Miles comments on the case:

“This case importantly finds that a landlord can only be liable for injuries suffered as a result of disrepair within the demise of their property, in circumstances where the landlord is given notice of the disrepair. Once a landlord has knowledge that the demise of their property is in a state of disrepair, then it is of critical importance that action is taken to ensure that the disrepair is dealt with in a timely fashion in order to avoid being found responsible for injuries suffered as a result of the disrepair. The decision in Kumarasamy also provides useful clarity as to what exterior parts of the premises form part of the landlord’s responsibility to repair. Landlords should take legal advice if in doubt about which areas fall within their responsibility to repair.”