Edwards v Kumarasamy

Section 11(1A) of the Landlord and Tenant Act 1985 extends a landlord’s repairing covenant to the structure or exterior of a part of a building in which the landlord has an estate or interest. A legal easement may provide that interest, and an essential access path may constitute the exterior of the relevant building part. The notice qualification applies only to disrepair within the demised premises. For disrepair outside the demise, liability may arise without prior notice. The statutory limits concerning enjoyment and reasonable endeavours do not justify implying a notice requirement where necessity, rather than mere reasonableness, is required.

Mr Edwards, an assured shorthold tenant, injured his knee after tripping on an uneven paving stone on a short access path leading from the block’s front door to communal bins. The landlord held a long lease of one flat and had easements over the front hall, access areas and bin store.

The Deputy District Judge awarded Mr Edwards damages. On appeal, Her Honour Judge May QC held that the path was not part of the structure or exterior of the landlord’s flat and, in any event, that notice of the defect was a precondition to liability under section 11(1A) of the Landlord and Tenant Act 1985. There was no appeal against the first issue. The central issue before the Court of Appeal was whether notice was required for disrepair outside the demise.

Appeal allowed. Lord Justice Lewison gave the leading judgment. Lord Justice Christopher Clarke and the Chancellor of the High Court agreed.

1. Section 11 of the Landlord and Tenant Act 1985 implies a compulsory contractual repairing term. Under section 11(1A)(a), the relevant question is whether the defect concerns the structure or exterior of a part of the building in which the lessor has an estate or interest. It is not necessary for the area itself to be a separate building. The landlord’s easements gave him an estate or interest in the front hall, and the short path forming an essential means of access could properly be treated as its exterior. The extended covenant therefore applied.
2. At common law, a repairing covenant generally imposes liability when disrepair occurs. The exception requiring notice applies where the defect is within the demised premises, because the landlord lacks ordinary means of knowing their condition. The distinction is between what is demised and what is not. The same approach governed the statutory covenant. Defects outside the demise could therefore give rise to liability without prior notice. This was consistent with the reasoning in O’Brien v Robinson [1973] AC 912, as explained in British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69 and applied in Passley v Wandsworth LBC (1998) 30 HLR 165.
3. The objective enjoyment qualification in section 11(1B) did not imply a notice requirement. Implied terms require necessity, not mere reasonableness. Section 11(3A) was not rendered useless by liability arising without notice: in cases of continuing disrepair it could prevent liability from continuing to accrue once the landlord had used all reasonable endeavours to obtain the necessary rights. An express easement also carried an ancillary right to carry out repairs needed to make it effective, as explained in Newcomen v Coulson (1877) 5 Ch D 133.
4. The argument that the paving stones were merely uneven and not in disrepair was raised too late. It had not been pleaded or argued below. The appeal was accordingly allowed.

• Court of Appeal (Civil Division) — The appeal was allowed: [2015] EWCA Civ 20.
• Bow County Court, Her Honour Judge May QC — Reversed the Deputy District Judge’s decision on whether the access path formed part of the relevant structure or exterior and held that notice of the defect was required under section 11(1A) of the Landlord and Tenant Act 1985. There was no appeal against the first issue.
• Bow County Court, Deputy District Judge Gilman — Treated the paved area as part of the structure or exterior of flat 10 and awarded Mr Edwards £3,750 in damages.