Edwards v Kumarasamy

A path outside a building is not part of the building’s exterior merely because it provides necessary access. The expressions “structure and exterior” in Landlord and Tenant Act 1985, section 11, bear their ordinary meaning.

A legal easement is an “interest” for the extended repairing covenant in section 11(1A)(a). A headlessee retains that interest after granting a subtenancy.

A repairing covenant ordinarily operates as a warranty. Notice is nevertheless required where the disrepair concerns premises possessed by the tenant. The same requirement applies where a single-flat headlessee has effectively transferred to the subtenant the practical use of common parts: liability arises only after notice of their disrepair.

The appellant headlessee granted the respondent a subtenancy of a flat, together with rights to use the building’s common parts. The respondent was injured after tripping over an uneven paving stone on the short paved area between the building’s entrance and its car park. He claimed damages for breach of the repairing covenant implied by section 11 of the Landlord and Tenant Act 1985.

A deputy district judge upheld the claim and awarded £3,750. Her Honour Judge May QC allowed the landlord’s first appeal because the paved area fell outside section 11 and the landlord had received no notice of its disrepair. The Court of Appeal reversed that decision: [2015] EWCA Civ 20; [2015] Ch 484.

The Supreme Court considered whether the paving formed part of the exterior of the front hall, whether the headlessee’s easement gave him an estate or interest there, and whether liability required prior notice of the disrepair.

1. Appeal allowed unanimously. Lord Neuberger gave the judgment with which Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath agreed. The paved area was not part of the exterior of the front hall. A feature lying wholly outside the floors, ceilings, walls and doors enclosing the hall could not bear that description in ordinary English. A purposive construction did not justify giving the statutory words an unnatural width, particularly because section 11 imposed obligations beyond those contractually agreed.

2. Brown v Liverpool Corpn [1969] 3 All ER 1345, which treated access steps separated from a house by a path as part of its exterior, was wrong. Necessary access to a building does not make the access route part of its exterior. The natural construction adopted in Campden Hill Towers Ltd v Gardner [1977] QB 823 was correct.

3. Although unnecessary to the disposition on the first issue, the landlord had an “interest” in the front hall for section 11(1A)(a). A right of way is an interest in land, though not an estate. Granting the subtenancy did not extinguish the headlessee’s retained leasehold easement. There was no sufficient reason to give “interest” anything other than its ordinary property-law meaning.

4. A covenant to keep premises in repair generally operates as a warranty. Breach ordinarily occurs when disrepair arises, without notice or time to remedy it. An implied exception applies where the premises are possessed by the tenant rather than the landlord. In that situation, liability arises only when the landlord receives notice, because knowledge of the condition lies peculiarly with the tenant. This rule applies equally to a covenant implied by section 11.

5. The notice rule was applicable to the common parts in this case. The headlessee of a single flat had effectively transferred to the subtenant his practical right to use the hall and paving for the subtenancy’s duration. The subtenant used them whenever entering or leaving, while the headlessee lacked a corresponding opportunity to observe their condition. The assumed repairing obligation therefore arose only after notice. No notice had been given before the accident.

6. The Court declined to adopt a universal requirement of notice for every section 11 claim. Whether notice is required depends upon the basis for implying the term and the parties’ relationship to the relevant property. Lord Carnwath reserved his position on the broader observations about structures demised to other tenants or otherwise outside both parties’ possession.

7. The order of Her Honour Judge May QC was restored and the respondent’s claim was dismissed.

1. United Kingdom Supreme Court: allowed the landlord’s appeal unanimously, restored the first appellate decision and dismissed the tenant’s claim: [2016] UKSC 40.

2. Court of Appeal: allowed the tenant’s second appeal, holding that the paving fell within section 11 and that prior notice was unnecessary: [2015] EWCA Civ 20; [2015] Ch 484.

3. County Court, Her Honour Judge May QC: allowed the landlord’s first appeal. She held that the paving fell outside the statutory covenant and that liability would in any event require notice.

4. County Court, Deputy District Judge Gilman: upheld the tenant’s claim and awarded £3,750 damages.