Edwards v Kumarasamy – the final decision. A legal update from Tessa Shepperson

Last year a really worrying decision for landlords renting out flats owned on a long lease popped up, the case of Edwards v Kumarasamy.

In this decision, the Court of Appeal overturned the accepted legal understanding about landlords’ repairing obligations under s11 of the Landlord & Tenant Act 1985.

However, this has now been resolved by the Supreme Court decision, published yesterday.

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Landlords repairing obligations under s11

This is the section which incorporates into all tenancies for a term of less than 7 years, the obligation to keep in repair the structure and exterior of the property and the installations for the supply of water, gas, electricity and sanitation and for space and water heating.

It applies to more or less all tenancies today as it cannot be excluded other than by the landlord getting a court order (which practically never happens).

The Edwards v Kumarasamy case

This case was all about a claim made by the tenant, Mr Edwards, who was injured when he tripped on the path leading down to the bins at the back of his block of flats. Prior to the Court of Appeal decision, the general understanding was he had no chance:

• The path was not part of his flat

• Mr Kumarasamy had no legal right to repair it – that was down to the freeholder, and

• Mr Edwards had not given Mr Kumarasamy notice of the problem.

However, at the Court of Appeal Mr Edwards won his case.

The Court of Appeal Decision

The Court of Appeal found for Mr Edwards on two bases:

• No notice is required for repairs which are outside the property – as Mr Kumarasamy could have spotted the problem for himself, and

• S11 says it applies to any area where the landlord has an ‘estate or interest’ (s11(1A)(a)) and under his lease, Mr Kumarasamy had access to the path where the accident took place.

So, the Court of Appeal concluded he was liable for the repairs. This put leaseholder landlords such as Mr Kumarasamy in a very difficult position as they had no legal right to get these repairs done.

Happily, Mr Kumarasamy was able to appeal the decision to the Supreme Court

The Supreme Court Decision

The Supreme Court said that there were three things they needed to consider:

1. Was the path part of the ‘exterior of the property’

2. Was there an ‘estate or interest’ in the front hall, and

3. Did the landlord need to be given notice?

This is what they decided:

1. Was the path part of the exterior of the property?

‘No’ said the Supreme Court. It was too far removed from the property – even though it was important. To quote Lord Neuberger (who gave the leading judgement):

“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.”

2. Was there an ‘estate or interest’ in the front hall?

Yes there was, said the Supreme Court. However, this was not important in view of their answer to the first question. And anyway the landlord was protected by the answer to the final question, as when he was given notice of disrepair he could pass it on to the headlessor.

3. Did the landlord need to be given notice

Here the Court was not unanimous. The main decision was largely on the basis that practically the tenant was the person with the easiest opportunity to view the path, and also the landlord had no right to do the repairs anyway.

So a sign of relief from Mr Kumarasamy and all landlords in his position.

The fifth Judge, Lord Carnwath, was a bit unhappy about this part of the judgement but as his concerns were not specifically related to this particular situation, he reserved his decision. He was outvoted anyway.

Conclusion

There is a nice summary at the end of Lord Neuberger’s judgement:

“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.”

The arguments relating to the third question were more complex than I have set out here and this may make the notice position for flats more complicated to work out in some circumstances.

However, the basic situation is that we are back where we were before the Court of Appeal decision was issued. It no longer need trouble us, and landlords can (largely) relax again

Tessa Shepperson

www.landlordlaw.co.uk

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