This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
The Message:
A landlord can be liable for injuries to his tenant even though the lease itself imposes no express obligation to prevent the disrepair that caused the injuries.
The Case:
Edwards v Kumarasamy [28 January 2015] concerned a landlord's responsibility for injuries to his tenant under an extended covenant implied by statute.
Edwards was the tenant of a second floor flat and Kumarasamy was his landlord. The tenant tripped over an uneven paving stone in the pathway between the front door of the block of flats and the car park's communal bins. The pathway was the essential means of access to the block. The tenant injured his knee and brought a claim against the landlord.
Kumarasamy, the landlord, was not himself the owner of the block of flats. He had a long lease of the flat that he sub-let to Edwards. His lease gave him the benefit of several rights including the right to use the entrance hall and staircase providing access to the flat, an access road, parking space and binstore. The owners of the block, his landlords, were obliged to keep the communal areas in good repair and passageways and footpaths in good condition. However, they were only liable under the lease to Kumarasamy if he had given notice of a defect and the owners had had a reasonable opportunity to remedy it. In relation to the particular defect at issue in this case, no notice had been given to the owners, nor by Edwards to Kumarasamy.
Edwards' lease from Kumarasamy was an assured shorthold tenancy, to which the implied repairing obligations in section 11 of the Landlord and Tenant Act 1985 (otherwise known as the "extended covenant") applied. They included a landlord's obligation to keep in repair the structure and exterior of the "dwelling-house" and of any part of the building in which the landlord (Kumarasamy) has an estate or interest.
Kumarasamy's right to use the hall, space and other facilities took effect as legal easements and he, therefore, had an estate or interest in the paved area where Edwards was injured. The Court of Appeal decided that the paved area was part of the structure or exterior of part of the building in which Kumarasamy had an estate or interest.
A leading case from the 1980s held that steps leading to the front door of a dwelling were part of the dwelling's exterior. Since the paved area was part of the essential means of access to the front hall in which Kumarasamy had an interest, it could properly be described as the exterior of the front hall. Therefore, in principle, the extended covenant applied.
The next question was whether Kumarasamy's liability was conditional on notice having been given, or whether liability arose as soon as the disrepair existed. The general rule is that a covenant to keep premises in repair imposes an obligation to keep them in repair at all times, so that there is a breach immediately a defect occurs. There is an exception where the obligation is the landlord's and the defect occurs in the let premises, in which case he is only in breach when he has information about the existence of the defect such as would put a reasonable landlord on enquiry as to whether repair is needed and he failed to carry out the necessary works with reasonable expedition afterwards.
The Court decided that Edwards did not need to give notice to Kumarasamy since the disrepair did not relate to a let area. Kumarasamy was, therefore, liable to Edwards for his injuries.
