Repairing obligations of landlords
The Court of Appeal, in the recent decision of Edwards v Kumarasamy , has interpreted section 11 of the Landlord and Tenant Act 1985 in such a way as to broaden the repairing obligations of landlords.
In that case, Mr Edwards (Mr Kumarsamy’s tenant under a standard assured shorthold tenancy) tripped on an uneven paving slab between the front door of the block of flats and the communal bin area. Since Mr Kumarasamy merely owned the leasehold of flat 10, a second floor flat, he claimed that he had no obligation to repair the path between the block and the bin area, since he did not own it.
The first ruling
However, section 11 provides that a landlord must ‘keep in repair, the structure and exterior of the dwelling house’ and that this obligation extends to any part of the building in which the landlord has an ‘estate or interest’. The Judge at first instance ruled that the pathway formed part of the structure and exterior and that the landlord’s easement over the pathway was enough to constitute an ‘interest’. That meant he had an obligation to keep it in repair.
The appeal judge reversed the decision, largely on the basis that, in order for the landlord to be bound by his obligation in section 11, he had to have been given notice of the defect. Applying its own 1973 decision (O’Brien v Robinson), the Court of Appeal said that the obligation of the tenant to notify the landlord of defects applies only to those within the dwelling house, i.e. only those which the tenant would be the first (and possibly the only) person to have knowledge of that defect.
On that basis, the Court of Appeal overruled the appeal judge’s decision and held that Mr Edwards’ claim for personal injury could stand against Mr Kumarasamy.
What does this decision mean for landlords?
Many landlords, particularly private landlords of flats, would not suppose they would be liable for defects arising outside of the block of flats, and would suggest that management companies (to which often large fees are paid) should instead be liable. However, this decision of the Court of Appeal means landlords should be wary of that supposition.
In a practical sense, landlords might wish to contact their own insurer to ensure that any such claim would fall within the remit of the public liability cover provided by own their home or landlord insurance policy. Interestingly the court did not consider whether Mr Kumarasmay might have a claim against the management company, potentially for breach of contract if they failed to carry out contracted inspections and repairs of the pathways, which is certainly a possibility. Another is that appropriate ‘block insurance’ would cover such a claim. Most block insurance policies would cover this risk, and it seems that the Management Company or Managing Agent may have dodged a sizable bullet in this instance, at the expense of the leasholder/landlord.
I have found this decision very interesting and in this case, I personally feel that the landlord has been let down by The Management Company/Freeholder, The Management Agent (if the is one that has been instructed) and the tenant as well. It takes one quick phone call following an inspection to rectify such a minor job. Working in this profession small things can be overlooked but to allow this to go to court shows a lack of communication or in the worst case scenario there was apathy from the parties involved.
Norton’s Professional Services – Torbay
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