Mr Edwards tripped on an uneven paving stone outside his block of flats and sued his landlord for breach of the repairing covenant implied by section 11 of the Landlord and Tenant Act 1985. The Supreme Court held that the landlord was not liable: the paved area was not part of the exterior of the front hall, and liability for such disrepair would in any event have required prior notice, which had not been given.
The accident and the claim
Mr Kumarasamy held a long lease of a flat in a small block. The flat itself was demised only as far as its internal plastered surfaces; the structure of the building was excluded. He granted Mr Edwards a short assured shorthold subtenancy, together with rights to use the shared access and communal parts.
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The building was entered through a front hall. A paved area a few metres long lay between the car park and the front door, and was also used to reach the communal dustbins. On 1 July 2010 Mr Edwards tripped on an uneven paving stone there while taking rubbish out, and was injured. He claimed that the disrepair breached the landlord’s covenant, implied by section 11 of the Landlord and Tenant Act 1985, to keep in repair the structure and exterior of the dwelling.
A deputy district judge awarded him damages. On appeal Her Honour Judge May QC held that the paved area was outside the statutory covenant and that, in any event, the landlord had received no notice of the disrepair. The Court of Appeal reversed both conclusions. Mr Kumarasamy appealed to the Supreme Court.
The statutory repairing covenant
Section 11(1)(a) implies into a lease of a dwelling-house for less than seven years a covenant by the lessor to keep in repair the structure and exterior of the dwelling-house. Where the dwelling-house is only part of a building, section 11(1A)(a) requires that covenant to be read as extending to any part of the building in which the lessor has an estate or interest. Section 11(1B) limits the obligation to disrepair that affects the tenant’s enjoyment of the dwelling-house or of common parts he is entitled to use.
Mr Edwards could succeed only if three questions were all answered in his favour: whether the paved area was part of the exterior of the front hall; whether Mr Kumarasamy had an estate or interest in the front hall; and whether he could be liable without notice of the disrepair.
The paved area was not part of the exterior
Lord Neuberger, with whom the other members of the Court agreed, held that the paved area could not, as a matter of ordinary language, be described as part of the exterior of the front hall. It lay wholly outside the building, and outside the floors, ceilings, walls and doors enclosing the hall. It might abut the immediate exterior of the hall, but it was not part of that exterior.
A wider, purposive reading had some attraction, because one might expect parts of a building or its curtilage enjoyed by the tenant to fall within the landlord’s obligation. The section, however, imposes duties beyond those the parties have agreed, so its expressions should not be given an unnatural meaning. The express extension of section 11(1)(a) to drains, gutters and external pipes also supported giving “exterior” its natural meaning. An earlier Court of Appeal decision treating steps separated from a house by a short path as part of the exterior was wrong: being a necessary means of access does not make a feature part of the exterior of a building.
The landlord’s interest in the front hall
Although the first answer was enough to decide the appeal, the Court considered the remaining issues on the assumption that the paved area was part of the exterior of the hall. Under the headlease Mr Kumarasamy had a right of way over the front hall. A right of way is an interest in land, even though it is not an estate. The later subtenancy deprived him of any practical benefit from the easement while it lasted, but it did not extinguish the interest itself. The word “interest” in a property statute should receive its ordinary legal meaning, and there was no satisfactory way of cutting it down that fitted the policy of section 11.
If a headlessee had no liability to his subtenant for disrepair in the common parts, the subtenant would have no contractual remedy against his own landlord. A claim under the Defective Premises Act 1972 against a superior landlord would be of very limited value. By contrast, a headlessee who was liable could normally pass the claim on. He was also protected by section 11(3A): if he lacked sufficient rights to carry out the necessary works, it was a defence that he had used all reasonable endeavours to obtain them but failed.
Notice of the disrepair was required
A covenant to keep premises in repair generally operates as a warranty that they are in repair, so breach occurs as soon as they are out of repair, whether or not the covenantor knows. An established exception is that a landlord is not liable under a covenant to repair premises in the tenant’s possession until he has notice of the disrepair. The exception is an implied term, based on the tenant’s peculiar means of knowledge and the landlord’s lack of it. It applies to covenants implied by statute as well as to express covenants, and it is not displaced merely because the landlord has a right to enter and inspect.
The paved area was not in the exclusive possession of either party. Even so, the reasoning behind the exception applied. For the term of the subtenancy Mr Kumarasamy had effectively disposed of his right to use the common parts, just as he had disposed of his right to occupy the flat. Mr Edwards used those parts whenever he came or went, and was therefore far better placed to know of want of repair. The landlord’s right to use the common parts as against the freeholder, or to cross them in order to inspect the flat, did not put him in a position to know of the disrepair, any more than his right to enter the flat itself would have done.
Section 11(3A) showed that Parliament was concerned not to impose an unrealistically demanding duty, which gave some further support to requiring notice. The need for notice was not excluded merely because Parliament had not restated it when extending section 11. The landlord’s limited rights of access, even if a right to repair the way could be implied, would not remove the requirement.
Accordingly, even if the paved area had been within the covenant, Mr Kumarasamy could not have been liable unless he had had notice of the disrepair before the accident. He had not.
Verdict: The Court unanimously allowed Kumarasamy’s appeal and dismissed Edwards’s claim. Kumarasamy held a sufficient interest in the common parts, but the paving was outside the relevant statutory description. In any event he had received no notice of the defect.
