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Landlord wins appeal against tenant in damages dispute

The Supreme Court has sided with the landlord of a residential flat, declaring that the landlord was not liable to pay the tenant damages for an injury sustained in using an accessway outside the building.

The case looked at the landlord's repairing obligations under section 11 of the Landlord and Tenant Act 1985 (LTA 1985).

The landlord, Mr Kumarasamy, was himself a tenant of the flat under a long lease. This lease granted access rights over common areas, including external pathways. Mr Kumarasamy had sub-let the flat on an assured shorthold tenancy to Mr Edwards, who sustained an injury when he tripped on an uneven paving stone in the pathway. This pathway was clearly in need of repair. But Mr Kumarasamy, as he was not in occupation of the flat, did not use it and was unaware of its state of repair.

The court had to decide whether Mr Kumarasamy had an obligation to keep the pathway in a good state of repair. If so, was his obligation absolute or was it conditional upon him being made aware of the state of disrepair?

Where a short-term lease is granted, the Landlord and Tenant Act 1985 implies a covenant by the landlord to keep the structure and exterior of a dwelling house in repair.  Where, as in this case, the letting is of part of a building, the implied repairing covenant extends to any part of the building in which the landlord owns an estate or interest. 

The Supreme Court found that the paved area could not be described as being part of the exterior of the building. Therefore, the landlord's repairing obligations did not apply and the tenant was not entitled to damages.

Although it did not need to decide the other two questions that had been posed, the court went on to do so.

One of these considered whether the landlord would only be liable under its repairing covenant if it had notice of the breach. Under the headlease, the freeholder covenanted to keep the common parts in repair. As is usual, it recharged tenants for the costs of doing this by way of a service charge.  The headlease, in this case, contained a qualification to the effect that the freeholder would only be liable for breaches of its repairing if it received notice of the breach and had time to remedy the disrepair.

So, whilst Mr Kumarasamy had a right over the common parts, it was the freeholder who was obliged to keep them in repair. The Supreme Court's view was that it would not be appropriate to imply an ancillary right to Mr Kumarasmy to go on to the common parts and repair them.  The court commented it would be different if the landlord owned the building and was in possession of the common parts.

Landlords will be relieved to see that the extension of the landlord's duties under sections 11-14 of the LTA 1985 following the Court of Appeal decision has been curbed. At least in relation to situations where the lease protected by the provisions of the LTA 1985 is a sublease.

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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