In the recent Court of Appeal case of Samuel Edwards v Baladas
Kumarasamy, a landlord was held liable when a tenant tripped on an
uneven paving stone in a communal area of a block of flats.
This decision will be of concern to buy-to-let and other
intermediate landlords who may unexpectedly find themselves liable
for repairs to communal areas even though the head landlord is
responsible for their upkeep and they have had no notice of any
defect.
A landlord of a residential lease granted for a term of less than
seven years has certain repairing obligations implied by statute
(section 11, Landlord and Tenant Act 1985 (LTA 1985)). These
obligations include an obligation to keep the structure and
exterior of the property in repair.
If the lease is of a dwelling house or flat that only forms part of
a building, then the landlord's obligations to repair applies
to the parts of the building in which the landlord has an interest
ie the common areas.
Facts
K had a long headlease of a second floor flat in a block.
K's lease granted K the right to use the front hall and the
pathway from the front door to a communal bin store. The freehold
owner had covenanted in the headlease to keep the pathway and
communal areas in good order and condition subject to K giving
notice of any defects so that the freeholder had a reasonable
opportunity to remedy the defect.
K sub-let the flat to E on an assured shorthold tenancy. E tripped
over an uneven paving stone when taking rubbish out to the bin and
injured his knee. No notice of any defect had been given by E to K
or by K to the freeholder. E claimed K was liable for his
injury.
Decision
K's right to use the pathway and bin store was a legal
easement. K therefore had an interest in the paved area where E had
his accident. It was held that the paved area formed part of the
'structure or exterior' of the part of the building in
which K had an interest.
As K had benefitted from an express grant of an easement, it had
the ancillary right to be able to repair the right of way.
The Court of Appeal decided that liability arose as soon as the
disrepair existed and was not conditional on notice having been
given. Giving of a notice was a pre-condition to a landlord's
liability to repair only where the defect was within the demised
property itself.
Warning
Therefore intermediate landlords may find themselves liable for
repairs to communal areas even though the head landlord is
responsible for their upkeep and they have had no notice of any
defect.
Intermediate landlords may find that they are liable to repair
certain external areas which are the head landlord's
responsibility, simply because these areas are immediately outside
a communal part of the building over which they are allowed to
pass.
It would be more practical if the Court of Appeal had decided that
notice would need to be given even in the case of defects outside
of the demise, before a landlord would be liable. However,
landlords seem to be stuck with this decision now unless statute is
amended or the Supreme Court overrules this decision.