Leasehold landlords beware the outcome of Edwards v Kumarasamy

Landlords, breathe a sigh of relief. For a brief period over the summer, it seemed that a new legal case could set a precedent meaning landlords’ duties would become more onerous, with repairing obligations for parts of properties they do not own or control. Thankfully, the Supreme Court held that the landlord involved in the case was not responsible for additional repairing responsibilities.

The case: Edwards v Kumarasamy

The case in question concerned a personal injury claim made by a tenant, Mr Edwards, who had an assured shorthold tenancy of a flat whose leasehold was owned by Mr Kumarasamy.

The tenancy agreement was subject to s11 Landlord and Tenant Act 1985, which incorporates an obligation for landlords to keep in repair the structure and exterior of a property let for less than seven years, including installations for the supply of water, gas, electricity, sanitation and heating systems. This term cannot be excluded from a tenancy agreement.

Refuse from the flats was placed in rubbish bins at the rear of the property. Mr Edwards tripped and fell on an uneven paving slab on the path leading to the bins from the block of flats, injuring his hand and knee. He sought to bring a claim against Mr Kumarasamy for failing to keep the path in good repair.

The previous approach to s11

Until Edwards v Kumarasamy, the established legal approach to interpretation of s11 meant that the tenant’s claim had little chance of success. This was because the path was not part of the flat, Mr Kumarasamy had no legal right to repair it (this was the right of the freeholder, whereas Mr Kumarasamy was only the leaseholder of a flat) and Mr Edwards had given his landlord no notice of there being a problem with the path.

The established approach was that s11 applies only to common parts of a building, rather than surrounding grounds; for example, it would apply to entrance halls, stairs, lifts and corridors in an apartment building.

The Court of Appeal decision

The initial finding of the court was that the pathway was part of the structure and exterior of the leased property and that the landlord had a right to access the path, which constituted an interest, meaning he was responsible for its repair.

The case went to the Court of Appeal. The appeal judge held that the landlord was liable for the repair but on a different legal basis; the tenant had not notified the landlord of the defective path, but notice was only required for s11 where the defect was within the property and the tenant would likely be the first person to identify the problem. The judge held that as Mr Kumarasamy had access to the path, he could be held liable for its repair. 

The decision of the Supreme Court

The case went on to the Supreme Court, which held that the path was not part of the exterior of the property. Lord Neuberger, one of the judges sitting on the case, said: “It is not possible, as a matter of ordinary language, to describe a path leading from a car park to the entrance door of a building as part of the exterior of the front hall of that building.”

The court also found that the tenant was the person who would find it easiest to give the landlord notice of the uneven path, and that Mr Kumarasamy had no right to carry out repairs anyway; he could simply request them from the freeholder.

Meeting your obligations as a landlord

While the landlord was not found to be liable for a defective path in this particular case, it is important to understand your responsibilities if you rent out property. It is also vital to take out insurance to provide protection in the event of a claim.

As a landlord you will be responsible for maintaining the rented property, any common parts of the property such as stairwells and hallways and other parts of a property that are expressly included within the terms of the tenancy agreement. Regular inspections are an important way to detect whether repairs need to be carried out – before they give rise to a claim.

In addition to legal liability under s11 Landlord and Tenant Act 1985, there are many other areas of responsibility you face as a landlord. You could face a claim as a result of being negligent, failing to prevent a nuisance such as a water leak or mould growth, or under the Defective Premises Act 1972. If you let a home as a house in multiple occupation (HMO), there are additional rules about maintenance and safety.

Do you have the insurance protection you need? Why not talk to Stride about how we can help?

Sources:
http://www.landlordlawblog.co.uk/2016/07/14/edwards-v-kumarasamy-final-decision/?inf_contact_key=8cf4ffb0f345838f9a148c13344ef847e4c0a4f78f8ef35f4b43056749675e31&doing_wp_cron=1473951211.6181190013885498046875

http://cornerstonebarristers.com/cmsAdmin/uploads/edwards-v-kumarasamy-1-1.pdf

http://www.woodfines.co.uk/blog-repairing-obligations-landlords

https://www.citizensadvice.org.uk/housing/repairs-in-rented-housing/disrepair-landlord-and-tenant-repair-responsibilities/disrepair-what-are-the-landlord-s-responsibilities/

Published: 9th August 2017
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