It is unusual for the higher courts to consider s11 of the Landlord and Tenant Act 1985 (s11) but the last year has seen a significant decision by the Supreme Court, albeit one which is bad news for residential tenants.

S11 sets out an implied repairing obligation for all tenancies for a term of less than seven years. Landlords must 'keep in repair the structure and exterior of the property' (in the absence of a rare exclusion by court order).

The case of Edwards v Kumarasamy concerned a property let on a long lease to Mr Kumarasamy. There was a car park, which contained dustbins, and a paved area between it and the front door, over which Mr Kumarasamy had a right of way. The freeholder agreed to maintain the common parts but would only be liable for a breach of this covenant if given notice of any defect.

Mr Kumarasamy granted an assured shorthold tenancy (AST) of one flat to Mr Edwards. He was on the path to the dustbins when he tripped and fell, injuring his hand and knee, and sued his landlord. The question was whether the paved area fell under the landlord's repairing obligations in the lease.

The Supreme Court considered that the 'exterior of the property' should be given its ordinary meaning and too wide a meaning should not be given to a landlord's obligations. The exterior of a building stops at its outside walls and does not extend to rights of way attaching to the property.

Whilst bad news for tenants, this case concerned s11: many leases expressly place responsibility for maintaining outside areas on the landlord.

Was it relevant that Mr Kumarasamy had not noticed the uneven paving stones? Are landlords obliged to repair the common parts of a building within their control if they are not on notice of the disrepair?

The court confirmed that notice is required, in the absence of express provisions to the contrary. Mr Kumarasamay's right to walk the path became Mr Edwards' under the AST. The tenant had the best opportunity to spot the disrepair despite the landlord's right to inspect the flat.

The case confirms the need for tenants to give their landlords notice of any defects before accidents occur in order to be able to hold them liable.

Originally published 26 June 2017

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