Supreme Court Limits Landlords Liability For Disrepair

The recent Supreme Court decision in Edwards v. Kumarasamy [2016] UKSC 40 will come as a relief to buy-to-let landlords concerned about their liability for disrepairs in common parts. The Supreme Court, in the context of section 11 of the Landlord and Tenant Act 1985 (Section 11), reviewed and extended the application of an implied term that a landlord will only be liable for breach of its repairing covenant where it has had prior notice of the disrepair.

Background

Mr Kumarasamy (K) was the long leaseholder of a second floor flat. The demise included a rights of access over the entrance halls, staircases and landings of the building in which the flat was situated (the Building) and also across an external paved walkway (the Path) leading to communal bins.

In 2009 K sublet the flat to Mr Edwards (E) by way of an assured shorthold tenancy. In July 2010 E was taking rubbish out to the communal bins when he tripped on an uneven slab forming part of the Path thereby injuring himself. E sought compensation from K based upon Section 11:

s.11(1) "...[T]here is implied [into a lease of a dwelling-house ... for a term of less than seven years] a covenant by the lessor -

to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)" On appeal there were three issues before the Supreme Court.

1. Was the Path part of the "exterior of the dwelling-house" for the purposes of s.11(1) of the 1985 Act?

   The Supreme Court concluded the Path did not form part of the exterior of the dwelling-house of the Building for the purposes of Section 11:

   in the words of Lord Neuberger, "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 be fairly described as part of the exterior of that front hall"; this view was supported by the fact that the legislators had felt the need to include the words "including drains, gutters and external pipes" at the end of Section 11; and Section 11 should not be widely construed given that its effect is to place one contracting party under a burden that it had not expressly agreed with the other contracting party. The decision on this point alone would have been sufficient to defeat E's claim however, as the other points had been fully argued the Supreme Court went on to consider the same.

2. Did K have an...