UK: Supreme Court Limits Landlords Liability For Disrepair

Last Updated: 5 September 2016
Article by Charlie Gothold, Emma Broad and Thomas Nolan

The recent Supreme Court decision in Edwards v. Kumarasamy [2016] UKSC 40 will come as a relief to buy-to-let landlords concerned about their liability for disrepairs in common parts. The Supreme Court, in the context of section 11 of the Landlord and Tenant Act 1985 (Section 11), reviewed and extended the application of an implied term that a landlord will only be liable for breach of its repairing covenant where it has had prior notice of the disrepair.


Mr Kumarasamy (K) was the long leaseholder of a second floor flat. The demise included a rights of access over the entrance halls, staircases and landings of the building in which the flat was situated (the Building) and also across an external paved walkway (the Path) leading to communal bins.

In 2009 K sublet the flat to Mr Edwards (E) by way of an assured shorthold tenancy. In July 2010 E was taking rubbish out to the communal bins when he tripped on an uneven slab forming part of the Path thereby injuring himself. E sought compensation from K based upon Section 11:

s.11(1) "...[T]here is implied [into a lease of a dwelling-house ... for a term of less than seven years] a covenant by the lessor –

  1. to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)"

On appeal there were three issues before the Supreme Court.

1. Was the Path part of the "exterior of the dwelling-house" for the purposes of s.11(1) of the 1985 Act?

The Supreme Court concluded the Path did not form part of the exterior of the dwelling-house of the Building for the purposes of Section 11:

  • in the words of Lord Neuberger, "it is hard to see how a feature which is not in any normal sense part of a building and lies wholly outside that building, and in particular outside the floors, ceilings, walls and doors which encase the front hall of the building, can be fairly described as part of the exterior of that front hall";
  • this view was supported by the fact that the legislators had felt the need to include the words "including drains, gutters and external pipes" at the end of Section 11; and
  • Section 11 should not be widely construed given that its effect is to place one contracting party under a burden that it had not expressly agreed with the other contracting party.

The decision on this point alone would have been sufficient to defeat E's claim however, as the other points had been fully argued the Supreme Court went on to consider the same.

2. Did K have an "estate or interest" in the front hall as required by s.11(1A)(a)?

It was accepted that the right of way over the entrance hall, staircases and landings amounted to an easement and therefore an interest in land. K however argued that since he had sublet the flat to E, including the right of way, K had effectively been deprived of any practical benefit from the easement and therefore no longer had any interest in the land. The Supreme Court dismissed this argument. K still retained an interest in the front hall by virtue of the easement.

3. Was notice of disrepair required?

Lord Neuberger outlined the following principles derived from previous case law:

  • where a party covenants to keep premises in repair, that amounts to a warranty. Consequently as soon as those premises fall into disrepair the covenantor becomes liable to the covenantee for breach of covenant (the General Principle);
  • the General Principle may be expressly qualified by the parties; and
  • in some cases the General Principle may be qualified by an implied obligation on the tenant to give notice of the disrepair before any liability for breach arises under the landlord's repairing covenant (the Rule).

The rationale for the Rule is that where a landlord has let premises, it is the tenant who is best placed to determine what state and condition they are in; a landlord may have no means of knowing what state and condition they are in unless put on notice by the tenant.

Considering how the Rule would apply to the letting of flats, such as this, there were two preliminary questions:

  • where the landlord of a flat agrees to repair the structure and exterior, does the applicability of the Rule to the repair of the structure and exterior depend in some cases on whether or not the demise is an internal demise only? Yes. In the words of Lord Neuberger, "the rule would apply but only to the extent that the structure is included in the demise". He acknowledged however that this "may seem a rather technical, or in some cases an almost capricious distinction"; and 
  • can the Rule apply to property that has not been demised to the tenant? Lord Neuberger concluded "the rule does not normally apply to premises which are not in the possession of the tenant".

With the exception of Lord Carnwath who expressed reservations about laying down general rules for the applicability of the Rule, the other Judges agreed with Lord Neuberger.

This case differed from previous ones insofar as the area that had fallen into disrepair was not in the possession of the landlord or the tenant. Neither the front hall nor the Path had been demised – K and E only had rights over the same by virtue of the headlease and the assured shorthold tenancy respectively. The Supreme Court nevertheless held that the Rule applied. In the words of Lord Neuberger, "[i]n so far as [K] had any right over the hall and paved area, he has effectively disposed of that right to [E] for the term of the Subtenancy just as much as he has disposed of his right to use and occupy the Flat to [E] for the term of the Subtenancy. During the Subtenancy it is the tenant who uses the common parts, not the landlord, just as it is the tenant who occupies the flat, not the landlord".

Where does this leave us?

If the previous decision of the Court of Appeal in this case had stood, it would have meant that a landlord's liability on its repairing covenant could only be qualified by an implied covenant for the tenant to give notice where the disrepair related to the premises actually let. Instead, while the Supreme Court decision acknowledges that an implied covenant to give notice will generally not arise where the disrepair is of premises outside the tenant's actual demise, it found that this was not an absolute rule and there may be exceptional circumstances where this is not the case.

Here, the fact that the landlord had effectively disposed all right to use the common parts to the tenant justified an implied obligation on the tenant to give notice to the landlord of the disrepair within the common parts prior to any liability arising under the landlord's repair covenant. This, together with Lord Neuberger's restrictive interpretation of what is meant by "exterior" for the purposes of Section 11, will come as a welcome relief to buy-to-let owners.

However, the case does leave some uncertainty as to where the line will be drawn in respect of disrepairs in areas not let to the tenant concerned. Lord Neuberger reflected that previous case law suggests that "it is not normally open to a landlord who has agreed to repair the structure, to invoke the rule [i.e. the implied covenant to give notice of disrepair] against a tenant of a flat in relation to disrepair of part of the structure which the landlord has let to another tenant...". Further, in an aside, Lord Neuberger commented that where a landlord owns the whole of the building in which a flat is let (as opposed to merely a headlease of the flat itself), its Section 11 liability to repair the common parts is unlikely to be qualified by an obligation on the tenant to give notice of disrepair.

While we are left wanting clarity as to when an obligation to give notice will be implied where there is disrepair to premises other that those which have been demised, landlords and tenants alike should approach each case with caution and always consider whether they would be better served by including an express obligation to give notice of disrepair.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
14 Dec 2017, Seminar, Frankfurt, Germany

Partners from across Europe and the US will converge for a round-table discussion on hot topics relating to investigations. Our particular focus will be CEE and Russia.

Take the opportunity to schedule personal meetings with us before or after the conference, tailored to the topics and geographies that are most important to your company. This format allows us to engage in in-depth discussion of the issue that confronts all of us, namely how to conduct investigations effectively and efficiently.

7 Jan 2018, Seminar, London, UK

Join us for a review of legal developments during 2017 and a look forward to what is on the horizon. We will be looking at legislative and case law developments and what they mean for companies and transactions.

23 Jan 2018, Conference, Munich, Germany

On 23 + 24 January 2018 Dentons Europe LLP will participate at the Iran Trade and Investment Forum in Berlin – one of the biggest events related to Iran in Germany. The conference will target a lot of German and international companies and also involves lectures by four Dentons lawyers.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions