22nd September 2016
The recent Supreme Court ruling in Edwards v Kumarasamy  considers landlords’ repairing obligations and the requirements of notice/knowledge of disrepair. Walker Morris’ Housing Litigation expert Karl Anders explains the judgment and offers practical advice for landlords.
Mr Kumarasamy was a buy-to-let investor. He held a long lease of a flat in a block, together with rights of access over a paved area which led to the main entrance of the block. He sublet the flat, along with the benefit of the right of access, to his assured shorthold tenant, Mr Edwards, for six months. When Mr Edwards tripped over an uneven paving slab on the access path and suffered an injury, he sued Mr Kumarasamy for breach of the landlord’s implied covenant to repair the structure and exterior of the dwelling under section 11 of the Landlord and Tenant Act 1985 (the LTA) . Mr Kumarasamy did not have a lease of the paved area, he was not in possession of premises at the building and he had not received notice of any disrepair in relation to the paved area.
The Supreme Court considered:
As to the first question, the Court applied the general principle that words used in a statute should be given their ordinary meaning and found that a path leading to a building is not itself part of the exterior of the building. The Supreme Court therefore held that the paved area was not caught by section 11 LTA and Mr Kumarasamy consequently had no liability.
Although it was not actually necessary to consider the matter any further, the Supreme Court went on to answer the second and third questions because of their wider significance.
As to the second question, the Supreme Court rejected Mr Kumarasamy’s argument that he did not have an estate or interest in the paved area which could give rise to section 11 liability. The court clarified that under section 1 of the Law of Property Act 1925, an easement such as a right of way is an “interest” in land and there is no reason not to interpret section 11 LTA in accordance with that general legal position.
The third question was the most difficult, but perhaps of the most interest to both landlords and tenants and their respective advisors. The Supreme Court noted that there is an established principle – which is not restricted to residential/section 11 LTA cases – that a covenant to keep property in repair is effectively a warranty that the property will be in repair, such that a breach occurs immediately any disrepair arises, regardless of whether or not the covenantor has notice. However, that principle is subject to exceptions, such as where the express terms of a covenant require the giving of notice of disrepair to trigger liability; or the common law rule that a landlord is not liable to repair premises which are in the possession of the tenant unless and until the landlord has notice of the disrepair.
The Supreme Court added that the key question in deciding whether a landlord must be given notice of disrepair before its repairing obligations arise under section 11 LTA is whether the property to which the repairing covenant relates is in the possession of the landlord or the tenant.
The Supreme Court concluded:
Regardless of contractual arrangements, if landlords periodically inspect their properties they should deal with any incidents of disrepair falling within their repairing obligations that are brought to their attention or would have been obvious as a result of a visual inspection.
If you have any queries in connection with this case, or if you would like advice or assistance with any residential tenancy issue, please contact Karl Anders or any member of Walker Morris’ Housing Management and Litigation team.
  UKSC 40
 Section 11 LTA imposes an obligation on landlords of residential leases of less than seven years to keep in repair the structure and exterior of dwelling-houses (including flats).
 although note that careful drafting will be required as section 12 LTA prohibits attempts to contract-out of section 11 repairing liability.