For residential leases for a term of less than seven years, there is an implied covenant under section 11 of the Landlord and Tenant Act 1985 (“LTA 1985”) to keep in repair the structure and exterior of a dwelling-house or flat. The landlord’s obligation applies to all parts of a building in which the landlord has an “estate or interest”, where the dwelling only forms part of a building. An estate could mean a right to possession (eg. of the common parts) or an interest could mean that a right of way.
The covenant effectively operates as an agreement that the premises will be in repair. Accordingly, as soon as any premises are out of repair, the landlord is in breach, irrespective of whether he has had notice of the disrepair. There are, however exceptions based on ordinary contractual principles, such as an express provision in the lease requiring notice to be given by the tenant; or in its absence, a potential implied term.
The case of Edwards v Kumarasamy [2015] EWCA Civ 20 dealt with a number of issues to do with the requirement of notice of repair and whether a landlord has an implied repairing obligation.
Facts
The freeholder of a purpose built block of flats granted a headlease of a second floor flat with a long leasehold interest to Kumarasamy (“the landlord”). The landlord sublet the flat to an assured shorthold tenant, Edwards (“the tenant”). The landlord had the right to use the front hall and a paved pathway from the front door of the block to a communal bin store. The tenant tripped over an uneven paving stone near the bins store, injuring himself, and claimed damages from the landlord under section 11 of the LTA 1985. The freeholder and the landlord had no notice of the defect.
The Court of Appeal found that the landlord’s rights over the paved area were sufficient to give rise to a repairing obligation, and that the liability subsisted despite the fact that the landlord had no notice of the defect.
The landlord appealed.
The questions before the Supreme Court were:
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Was the pathway part of the “exterior dwelling of the house”, so could be caught by the implied repairing obligation?
- As an intermediate landlord, did the landlord, as opposed to the freeholder have an interest which could trigger the legislation?
- Must a landlord be given notice before it is obliged to carry out works under section 11?
Decision
The Supreme Court ruled that the pathway did not form part of the exterior dwelling of the house but that, had it done, the landlord did have an “estate or interest” in the pathway because his headlease granted him an express right of way. Therefore, the landlord did have an obligation to repair the pathway under section 11 and was liable to the tenant for its breach. On an ordinary meaning of the language, a path could not be described as being part of the exterior. The pathway abutted the exterior but was not part of it.
The key issue as to whether or not an implied notice provision would be inserted into the lease was whether the subject matter of the repairing covenant (in this case the path) was in the possession of the landlord or the tenant.
So, as the path was not demised to the tenant, the landlord would not require notice to repair it.
However, the court was reluctant to set this as the “general rule” in such cases.
With Edwards v Kumarasamy, the position was slightly more complex. Neither the landlord nor the tenant had any right of possession in the path (such possession remaining with the freeholder as one of the common parts of the block of flats), although, as referred to above, the landlord did have rights over it. For this reason, and on the facts of this case, the court decided that the landlord did require notice of the disrepair.
Practical Considerations
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This case will be a relief to investor landlords who typically might have fallen foul of the implied repairing obligation.
- Landlords and tenants will both want to ensure that they have sufficient express provisions in a lease so that they are adequately protected.
- What is considered to be the “exterior of a dwelling-house” for the purpose of section 11 will be taken on its usual meaning.
Autumn 2016
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