Head tenant held liable for disrepairs outside demise

A residential long leaseholder may be liable without notice to his subtenant under the Landlord and Tenant Act 1985 for disrepairs to communal areas outside his demise by virtue of having a right over those areas.

In Edwards v Kumarasamy (2015) Mr K was the long leaseholder of a flat in a residential block.  Mr K’s lease gave him the right to use the block’s communal hall, pathway and other facilities.  The freeholder of the block covenanted to keep the communal areas in good repair but its liability was restricted to cases in which it had notice of the defects and failed the remedy the defects.  Mr K rented the flat to Mr E under an assured shorthold tenancy.  One evening, Mr E tripped oven an uneven paving stone on the communal pathway and was injured.  He was awarded damages against Mr K.

The question arose on appeal whether section 11 of the Landlord and Tenant Act 1985 was of application to the situation.  Section 11 implied into the tenancy an obligation on Mr K “to keep in repair the structure and exterior of the dwellinghouse … [and of] … any part of the building in which the lessor has an estate or interest.”  Mr K argued that section 11 did apply to the external communal pathway since it was neither part of the “dwellinghouse”, i.e., the area demised to Mr E under the AST, nor part of a “building”.  He further argued that his liability was conditional upon notice of the disrepairs and no such notice had been given to him by Mr E.

The Court of Appeal disagreed.  It said that Mr K’s right to use the communal path was a legal easement and therefore he had an estate or interest.  The path was not part of the building but it was, the Court said, part of the exterior of the building, and it relied upon the decision of Brown v Liverpool Corp (1983) in which steps up to a front door were held to be part of the exterior of a dwelling.

As for the notice argument, the Court said that the general rule was that a covenant to repair obliged a landlord to keep in repair at all times, so there was a breach immediately a defect occurred but that there was an exception where the defect occurred in the demised premises themselves, in which case the landlord would be in breach only when it had information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair were needed and it failed to do the necessary works with reasonable expedition.  The same approach was to be applied to the statutory covenant implied by section 11 and, in any event, the qualification about notice was not expressed in the statutory covenant.  As the defect was outside Mr E’s demise, no notice condition applied and Mr K was liable for Mr E’s injury

Milton McIntosh

Milton is a Consultant Property Litigation Solicitor with Excello Law. Milton deals with all aspects of real estate disputes, including the full range of landlord and tenant matters. Milton has particular expertise in dilapidations, being a former member of the RICS Dilapidations Working Group and involved in the writing of previous editions of the RICS Guidance Note on Dilapidations. Milton advises clients and writes regularly on the area of dilapidations.