Edwards v Kumarasamy

The Supreme Court considered the scope and operation of the repairing covenant implied by section 11 of the Landlord and Tenant Act 1985, as extended by subsections (1A) and (1B) added by the Housing Act 1988. Two statutory interpretation questions were central: whether a paved area leading from the car park to the building entrance was "part of the exterior" of the front hall for the purposes of section 11(1A)(a); and whether the headlessee of a single flat retained an "estate or interest" in the common parts sufficient to bring them within that subsection. The court also considered the general rule that a landlord is not liable to repair premises in the tenant's possession unless and until the landlord has notice of the disrepair.

The court held that, as a matter of ordinary language, the paved area was not part of the exterior of the front hall and therefore did not fall within section 11(1A)(a). The court further held that the headlessee did possess an "interest" in the common parts for the purposes of section 11(1A)(a), but that even where an interest exists the landlord's repairing obligation is ordinarily triggered only once the landlord has notice of the disrepair. On those grounds the appeal was allowed and the respondent's claim dismissed.

Background and nature of the claim:

• The respondent, Mr Edwards, as a subtenant of a flat, sued his headlessee, Mr Kumarasamy, for personal injury damages after tripping on an uneven paving stone in a paved area used to access the building and communal dustbins. He relied on the repairing covenant implied into his subtenancy by section 11(1)(a) of the Landlord and Tenant Act 1985, read with section 11(1A)(a) as inserted by the Housing Act 1988.

Procedural posture:

• The claim succeeded before a deputy district judge who awarded damages. The headlessee succeeded on appeal to a circuit judge (Her Honour Judge May QC). The Court of Appeal reversed and allowed the respondent’s appeal ([2015] EWCA Civ 20 / [2015] Ch 484). The headlessee appealed to the Supreme Court.

Issues framed by the Supreme Court:

• Whether the paved area was "part of the exterior" of the front hall such that section 11(1A)(a) applied;
• Whether the headlessee retained an "estate or interest" in the front hall/common parts sufficient to engage section 11(1A)(a); and
• Whether a landlord/headlessee can be liable under a repairing covenant for disrepair of common parts without prior notice of the defect.

Reasoning and subsidiary findings:

• On the first issue the court preferred the ordinary meaning of "exterior" and concluded that a paved area outside and separable from the walls, floors and doors enclosing the front hall could not sensibly be described as part of the exterior of that hall. The court rejected an artificially wide purposive reading that would have absorbed curtilage paving into the hall's "exterior".
• On the second issue the court held that a right of way constitutes an "interest" in land under the Law of Property Act 1925 and that the headlessee therefore did have an interest in the front hall and the paved area for the purposes of section 11(1A)(a). The court rejected arguments that the word "interest" should be read down to exclude such rights on policy grounds.
• On the third issue the court reviewed longstanding authorities establishing the rule that a landlord is not normally liable under a covenant to repair premises in the tenant's possession unless the landlord has notice of the disrepair. The court extended the rule to this case of common parts that were in the tenant's practical control during the subtenancy, concluding that the headlessee could only be liable if he had prior notice of the defect. The court considered but rejected rival arguments that the statutory extension in section 11(1A) displaces the notice rule.

Relief sought: Damages for personal injury (respondent sought recovery for injuries resulting from the trip); the Supreme Court dismissed that claim against the headlessee.

Wider comment: The court addressed the scope of section 11 in relation to common parts and confirmed the continued relevance of the notice rule in many situations, noting that the point can have practical consequences for headlessees of single flats who have effectively transferred practical control of common parts to subtenants.

Appeal allowed. The Supreme Court held that the paved area was not part of the exterior of the front hall for the purposes of section 11(1A)(a) of the Landlord and Tenant Act 1985 and, in any event, a headlessee will not be liable under the statutory repairing covenant for disrepair of common parts which are in the tenant's practical control unless the headlessee had notice of the disrepair. Although the headlessee did have an "interest" in the common parts, absence of notice and the ordinary meaning of "exterior" meant the claim failed.

First instance: Deputy District Judge Gilman found for Mr Edwards and awarded damages. On appeal Her Honour Judge May QC allowed Mr Kumarasamy's appeal and dismissed the claim. The Court of Appeal reversed and allowed Mr Edwards's appeal ([2015] EWCA Civ 20; reported at [2015] Ch 484). The matter then proceeded to the Supreme Court ([2016] UKSC 40), which allowed Mr Kumarasamy's appeal.