Edwards v Kumarasamy – The Final Decision
Last year, a concerning decision was made for landlords who rent out flats owned on a long lease in relation to their obligation to repair. This decision was made at the Court of Appeal in the case of Edwards v Kumarasamy.
The Court of Appeal overturned the accepted legal understanding about a landlord’s repairing obligations under s11 of the Landlord and Tenant Act 1985 (LTA 1985). This issue has now been resolved by the Supreme Court.
Landlord’s repairing obligations under s11 of the LTA 1985
This sets out the repairing obligation that for all tenancies for a term of less than seven years, landlords must ‘keep in repair the structure and exterior of the property and the installations for supply of water, gas, electricity and sanitation and for space and water heating’. This obligation applies to the majority of tenancies and can only be excluded by court order, which is a rare occurrence.
The Edwards v Kumarasamy case
Mr Edwards, the tenant, was injured when he tripped on a patsh leading to the bins to the rear of his block of flats. This path was not owned by the landlord (Mr Kumarasamy) and the he was totally unaware of any problems associated with the path. It was argued by Mr Kumarasamy that Mr Edwards did not have a successful claim because:
• The path was not part of his flat
• The Mr Kumarasamy had no legal right to repair it, this was the responsibility of the freeholder.
• Mr Edwards had not given Mr Kumarasamy notice of the problem.
However, Mr Edwards won his case at the Court of Appeal and Mr Kumarasamy was found liable for the repairs. The Court of Appeal’s reasoning was as follows:
1. The path was part of the exterior of the property and therefore fell within the landlord’s repairing obligations as it was a key part of the approach to the property which the Tenant could not avoid.
2. 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 an estate or interest as he had an implied easement to cross the offending area to reach his flat.
3. No notice is required for repairs which are outside the property, repair notices are only required within the property expressly demised to the tenant (i.e. inside the flat itself).
The decision by the Court of Appeal put leaseholder landlords in a very difficult position as they had no legal right to get these repairs done. Mr Kumarasamy appealed 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?
The Supreme Court decided no. It was far too removed from the property and could not form part of the exterior. It held there was a distinction between the actual outside surface of the property and a path which was removed from the property itself, even if that path was a key approach to the property.
1. Was there an ‘estate or interest’ in the path?
The Supreme Court said yes, but this is not important in view of their answer to the first question.
1. Did the landlord need to be given notice?
The court were not unanimous in their decision here. However, the majority agreed that the tenant was the person with the easiest opportunity to view the path and consider the state of repair. In addition, the landlord, while retaining a right of access has no right to do the repairs anyway.
Mr Kumarasamy was therefore held not liable for the disrepair which caused Mr Edward’s injuries as he could only be liable if the offending area was part of the exterior of the front hall and if he had had notice of the disrepair before the accident, which he had not.
Sharman Law Solicitors Bedford 01234 303030 Ampthill 01525 750750