Background to the case
We previously reported the significant Court of Appeal ruling Edwards v Kumarasamy  EWCA Civ 20.
The appellant landlord (Mr Kumarasamy) held a long lease in a larger block of several flats. The lease gave the landlord the right to use the entrance hall lift staircases and landings … giving access to the Flat”, the right to use an “access road” and a specific space in a parking area in the curtilage of the Building, and the right to use the communal dust bins.
The landlord sublet to the respondent tenant on an assured shorthold tenancy (Mr Edwards) from 5 October 2009. That Subtenancy included a grant of “the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives” of the Building.
Under section 11 Landlord and Tenant Act 1985 the landlord is required to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes) (amongst other things) by way of an implied term into every tenancy under 7 years. Where the letting is for part of a building, the landlord is only liable if the landlord has an “estate or interest” in the parts in disrepair. Section 11 provides (as far as relevant for the time-being):
- Repairing obligations in short leases.
(1) In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and
(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
(1A) If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection
(1) shall have effect as if—
(a) the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest; …
On 1 July 2010, Mr Edwards was taking rubbish from the Flat to the communal dustbins, when he tripped over an uneven paving stone on the paved area. As a result, he suffered an injury to his right hand (which resulted in the exacerbation of pre-existing neuropathic pain for some 18 months) and to his right knee (which involved soft tissue injury lasting some four months). He issued proceedings against Mr Kumarasamy contending that his injury was caused by Mr Kumarasamy’s failure to keep the paved area in repair, in breach of the covenants implied into the Subtenancy by section 11(1)(a) and 11(1A)(a) of the 1985 Act.
Earlier Court of Appeal Ruling
In the earlier Court of Appeal ruling from which this appeal has proceeded, the tenant was successful as against the landlord where it was held:
(i) The paved area was “part of the exterior” and therefore fell under section 11 repairing obligations.
(ii) The landlord had sufficient rights under the headlease to repair the path himself
(iii) Notice from the tenant about the disrepair was not required because the disrepair was not “within the demise” and the landlord had full access to all the shared parts equally with the subtenant.
As a result of the above, the landlord was held liable to the tenant for damages and compensation due to the breach of the repairing obligations.
An appeal was lodged to the Supreme Court by the landlord against that earlier decision. This was handed down today (13 July 2016) – Edwards v Kumarasamy  UKSC 40.
There were essentially three questions to be answered by the Supreme Court:
The first is whether, …, “the paved area which leads from the front door to the car park [can] be described as part of the exterior of the front hall” within section 11(1A)(a). The second question is whether Mr Kumarasamy had an “estate or interest” in the front hall within section 11(1A)(a). The third question is whether Mr Kumarasamy could be liable to Mr Edwards for the disrepair in question notwithstanding that he had had no notice of the disrepair in the paved area before Mr Edwards’s accident.
The first question: is the paved area part of the exterior of the front hall?
This was decisively answered by Lord Neuberger at para 17:
In my view, it is not possible, as a matter of ordinary language, to describe a path leading from a car park (which serves the building and can be said to be within its curtilage) to the entrance door which opens directly onto the front hall of a building, as “part of the exterior of the front hall”. It is hard to see how a feature which is not in any normal sense part of a building and lies wholly outside that building, and in particular outside the floors, ceilings, walls and doors which encase the front hall of the building, can fairly be described as part of the exterior of that front hall. The paved area may be said to abut the immediate exterior of the front hall, but it is not part of the exterior of the front hall, as a matter of normal English.
In an earlier case – Brown v Liverpool Corpn  3 All ER 1345, where the premises consisted of a terraced house to which access was obtained from the street through a gate, down some steps and along a two metre path which led to the front door of the house, The court held that the steps were part of the exterior of the dwelling-house for the purpose of section 32(1)(a) of the 1961 Act. Lord Neuberger held this was wrongly decided at para 21:
In my view, that decision was wrong. The fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the exterior of that building. Steps separated from the outside of a building by a two metre path cannot, as a matter of ordinary English, be said to be part of the exterior of that building.
As the paved area in the present case was not regarded as part of the “exterior” and therefore not covered by the section 11 repairing obligations, it wasn’t necessary to consider the other two questions as the landlord has essentially won the case at this point. However, they were answered because of their importance.
The second question: was there an “estate or interest” in the front hall?
At para 23 it was said (highlights added by author):
Under the Headlease, Mr Kumarasamy was granted a right of way over the front hall, and, as a matter of property law, a right of way over land constitutes an interest in that land, although it does not constitute an estate in that land – see subsections (1), (2)(a) and (3) of section 1 of the Law of Property Act 1925. It is true that the subsequent grant of the Subtenancy effectively deprived Mr Kumarasamy of any practical benefit from the easement so long as it continued. However, that does not alter the fact that, just as he retained his leasehold interest in the Flat, he retained his leasehold easement over the front hall, even though he had sublet the Flat and the easement to Mr Edwards (and any doubt about this is put to rest by section 1(5) of the 1925 Act). Therefore, there is obvious force in the argument, which Lewison LJ had little hesitation in accepting, that Mr Kumarasamy had an “interest” in the front hall (and indeed in the paved area), within the meaning of section 11(1A)(a).
Just as a reminder though, the fact that the landlord had an “interest” in the paved area didn’t materially affect the case. As it had already been decided the pavement was not part of the “exterior”, the section 11 repairing obligation was not triggered.
As we pointed out in our comments to the previous Court of Appeal decision dealing with the present case, the tenant is protected for getting works done in an area where the landlord has an “interest” but not necessarily control over those parts by way of section 11(3A) (highlights added):
(3A) In any case where—
(a)the lessor’s repairing covenant has effect as mentioned in subsection (1A), and
(b)in order to comply with the covenant the lessor needs to carry out works or repairs otherwise than in, or to an installation in, the dwelling-house, and
(c)the lessor does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs,
then, in any proceedings relating to a failure to comply with the lessor’s repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs.
It is important to note that it’s not a defence to simply notify somebody else to get the works done within these areas but to “obtain such rights as would be adequate to enable him to carry out the repairs”.
The third question: is notice of disrepair required?
We have already reported on O’Brien and Another v. Robinson  2 W.L.R. 393 House of Lords HL which held that before repairing obligations are triggered “within the demise”, notice of the defect must first be provided to the landlord.
However, does this apply outside the demise such as this case where the alleged disrepair is on a shared path? The Supreme Court had to decide whether “the rule” requiring notice of the defect in cases such as O’brien should be extended from just the demise, outwards to common areas. Lord Neuberger held at para 49:
The present case is different from the cases which have so far been decided in relation to the rule, because it is concerned with the application of a landlord’s repairing covenant to property which is not in the possession of either the landlord or the tenant, although it is property over which they each have a right of way as discussed in paras 23-28 above. However, in my judgment, the application of the reasoning upon which the rule is based justifies the conclusion that the landlord’s (assumed) obligation to repair the paved area is only triggered once he has notice of any disrepair for which the tenant would seek to make him liable.
And continues at paras 50 – 52 …
- As explained above, the landlord, Mr Kumarasamy, has a lease of a single flat which includes the right to use the front hall and paved area, and he has effectively sublet his right to use and occupy the flat and to use the hall and paved area to the tenant, Mr Edwards. In so far as the landlord had any right over the hall and paved area, he has effectively disposed of that right to the tenant for the term of the Subtenancy just as much as he has disposed of his right to use and occupy the Flat to the tenant for the term of the Subtenancy. During the term of the Subtenancy, it is the tenant who uses the common parts, not the landlord, just as it is the tenant who occupies the flat, not the landlord. It is true that the tenant does not enjoy exclusive possession of the common parts, but he is present on them every time he comes to or leaves the flat. The present issue is concerned with the relationship between a particular landlord and a particular tenant, and the landlord has effectively lost the right to use the common parts and the tenant has acquired the right to use them, for the duration of the Subtenancy.
- It is true that the landlord has the right to use the common parts as against the freeholder, but that is irrelevant for present purposes, in the same way as the fact that he has the right to occupy the Flat as against the freeholder does not prevent him from invoking the rule against the tenant in relation to any part of the demised which he has covenanted to repair. It is also true that the landlord has the right to use the front hall to get access to the Flat in order to inspect and repair it, but that cannot deprive him of the right to invoke the rule, any more than his right to visit the Flat itself for those purposes would deprive him of the right to invoke the rule in relation to his repairing obligations in relation to the Flat.
- To use the words of Collins MR in Tredway 91 LT 310, 311, as against the landlord, the tenant “has the best means of knowing of any want of repair” in the common parts, or, to adapt what Lord Atkinson said in Murphy  AC 369, 385, the tenant “has a full opportunity of seeing and knowing the condition of the [common parts he uses] … and their need of repair, while the landlord has no such opportunity”. To adapt Atkin LJ’s formulation in Morgan  2 KB 131, 150, the landlord “is not in a position to know whether the [common parts are] in repair or out of repair”, whereas the tenant is, or, per Lawrence LJ in the same case at p 153, “the tenant [using the common parts] is generally in a far better position to know of any want of repair”.
There was a word of warning for landlords who let out property they “own” though at para 59 (highlights added):
Finally, I should say that, where a flat is let under a tenancy to which section 11 applies, by a landlord who owns the building in which the flat is situated, it seems to me likely that, in so far as the statutory covenant extends to repairing the common parts, it would not normally be subject to the rule [to require notice from the tenant of disrepair]. That is because such landlord would ordinarily be in possession of the common parts. Indeed, it may be that the rule would not apply in any case where the landlord is headlessee of more of the building than the single flat he has sublet, as he would have exercisable rights over the common parts in his capacity of headlessee of property other than the flat in question. However, those issues have, understandably, not been even touched on in argument, and it would be wrong to express a concluded view on them.
Therefore, it is possible that where a landlord lets bedsits on a room-by-room basis, notice of disrepair may not be required for any repairing obligations to be triggered in common parts. Another reason why granting a tenancy of a house on a single joint and several tenancy as apposed to individual rooms could be better in general.
The case is nicely concluded in a single paragraph at para 60:
I would therefore allow this appeal, on the ground that, although he had a sufficient “interest” in the front hallway and paved area for the purposes of section 11(1A)(a), Mr Kumarasamy was not liable for the disrepair which caused Mr Edwards’s injury, as (i) he could only be liable if the paved area was “part of the exterior of the front hall” and it was not, and (ii) he could only be liable if he had had notice of the disrepair before the accident and he did not.