S.11 repairing obligations in the Supreme Court

The Supreme Court has confirmed two key points in relation to a landlord’s potential liability under section 11 Landlord & Tenant Act 1985.

Edwards (Respondent) v Kumarasamy (Appellant) [2016] UKSC 40

Executive summary

The Supreme Court has confirmed two key points in relation to a landlord’s potential liability under section 11 Landlord & Tenant Act 1985 (the Act). Firstly, the ‘structure and exterior’ definition is to be given its ordinary meaning. Secondly, a landlord will generally require notice of a defect in premises that are in possession of the tenant.

Background

Whilst there were issues about leases and sub-leases, for all practical purposes the claimant was the tenant and the defendant was his landlord. The tenancy included a grant of “the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives” of the building. The flat was situated on the second floor accessed via stairs from a communal hallway. Outside the main building was a paved pathway that led to the front hallway. The claimant tripped on an uneven paving slab on the pathway leading to the front entrance. He brought a claim for injury damages against the defendant alleging breach of the s.11 repairing duty.

At the case’s last stop before the Supreme Court, the Court of Appeal allowed the claim on the basis that the path was part of the structure and exterior of the property and, whilst the landlord had no notice of the defect, this was only relevant when the defect was in the tenant’s property.

Judgment

The landlord’s appeal was unanimously allowed. The Supreme Court held that the claim should have fallen at the first hurdle. The pathway lay wholly outside the main building and could not be described as part of the structure and exterior. The fact it was a means of access was irrelevant (Brown v Liverpool Corp [1969] 3 All ER 1345 overruled). The Supreme Court also reaffirmed the basic principle that a landlord is not liable for disrepair to premises which are in the possession of the tenant, unless and until the landlord has notice of the disrepair. The rule was well-principled on the basis of not only the landlord's inability to know of the disrepair, but also the tenant's advantageous position in this regard.              

Comment

The Court of Appeal judgment, especially in relation to liability without notice, was cause for some concern amongst landlords. The Supreme Court judgment affords welcome clarification. It also lays to rest the rather artificial proposition that a pathway to a front door equates to the structure and exterior of a building. Alongside other recent judgments affirming the Alker v Collingwood principle that the s.11 duty is a duty to put in repair and not to make safe, landlords have the benefit of judicial clarity on these important issues. For anyone interested in landlord and tenant liability the Kumarasamy judgment merits reading in full.

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