Edwards v Kumarasamy [2016] UKSC 40

A subtenant tripped on an uneven paving stone on a path between the block of flats and the car park, suing his immediate landlord (a headlessee of one flat) under section 11 of the Landlord and Tenant Act 1985. The Supreme Court held the landlord was not liable.

Facts

By a headlease dated 28 April 2006, the freeholder let Flat 10 in a small block, Oakleigh Court, to the appellant, Mr Kumarasamy, for 199 years. The headlease demised only the internal plastered surfaces and floorboards of the Flat, excluded the main structure, and granted rights of way over the entrance hall, staircases, landings and access road. The freeholder covenanted to repair the common parts, subject to a notice requirement.

By a subtenancy dated 6 April 2009, Mr Kumarasamy sublet the Flat to the respondent, Mr Edwards, with rights to use the shared access ways. On 1 July 2010, Mr Edwards tripped on an uneven paving stone on a paved area lying between the block’s front door and the car park, while taking rubbish to the communal bins, suffering hand and knee injuries. He sued Mr Kumarasamy under the covenant implied by section 11(1)(a) and 11(1A)(a) of the Landlord and Tenant Act 1985.

The Deputy District Judge found for Mr Edwards and awarded £3,750. HHJ May QC reversed on two grounds. The Court of Appeal restored the judgment. Mr Kumarasamy appealed to the Supreme Court.

Issues

Three issues arose: (i) whether the paved area was part of the “exterior” of the front hall within section 11(1A)(a); (ii) whether Mr Kumarasamy had a relevant “estate or interest” in the front hall, given that he had sublet the Flat and the associated easement; and (iii) whether, in any event, Mr Kumarasamy could be liable absent prior notice of the disrepair.

Arguments

For Mr Kumarasamy (Mr Rainey QC), it was contended that the paved area was not part of the exterior of the front hall; that following the subletting, he retained no relevant interest in the common parts; and that, even if section 11 applied, the established rule requiring notice of disrepair before a landlord could be liable applied to all section 11 cases, or at least to a case such as this.

For Mr Edwards (Mr Benson QC), it was argued that the paved area, being the necessary means of access, formed part of the building’s exterior; that the right of way constituted an interest in land; and that the notice rule had no application beyond disrepair within the demised premises themselves.

Judgment

First issue: exterior of the front hall

Lord Neuberger held that, as a matter of ordinary language, a paved path lying wholly outside the building’s walls and doors could not be described as part of the “exterior” of the front hall. While the paved area abutted the exterior, it was not part of it. Statutory words should be given their natural meaning unless this produced absurdity or conflicted with legislative intent. The express extension in section 11(1)(a) to “drains, gutters and external pipes” reinforced a natural reading of “exterior”. The decision in Brown v Liverpool Corpn [1969] 3 All ER 1345 (steps as part of exterior) was wrongly decided; the approach in Campden Hill Towers Ltd v Gardner [1977] QB 823 was preferred.

Second issue: estate or interest

The Court rejected the appellant’s submission. A right of way is an interest in land under section 1 of the Law of Property Act 1925, and Mr Kumarasamy retained his leasehold easement notwithstanding the subletting. There was no good reason to depart from the ordinary meaning of “interest” in section 11(1A)(a), and limiting it to interests in possession would be inconsistent with the wider scheme of section 11, which imposes obligations on landlords for items not in their possession.

Third issue: notice

The Court reviewed the established rule (drawn from Makin v Watkinson, Tredway v Machin, Murphy v Hurly, Morgan v Liverpool Corpn, McCarrick v Liverpool Corpn and O’Brien v Robinson) that a landlord is not liable under a repairing covenant for disrepair in property in the tenant’s possession until notified. Rejecting Mr Rainey’s broader submission that notice is always required for section 11, the Court nonetheless held that the rationale of the rule applied here. Mr Kumarasamy had effectively transferred his rights over the common parts to Mr Edwards for the term of the Subtenancy; the tenant was the party in a position to observe disrepair when using those parts; and subsection (3A) supported a concern not to impose unrealistic duties on landlords. Accordingly, liability was conditional on prior notice, which had not been given.

The Court also disagreed with the Court of Appeal’s reliance on Newcomen v Coulson to imply an ancillary right of repair, observing that such rights only arise where necessary, and were not necessary here because the freeholder was obliged to repair.

Implications

The decision clarifies several aspects of section 11 of the Landlord and Tenant Act 1985. First, the word “exterior” in section 11(1)(a) and 11(1A)(a) bears its ordinary meaning and does not extend to features lying outside the walls and doors of the building, even where they constitute the necessary means of access. Brown v Liverpool Corpn should no longer be followed.

Secondly, a headlessee of a single flat who has sublet retains an “interest” in the common parts via the leasehold easement, and thus is potentially within section 11(1A)(a). This matters particularly to investors and buy-to-let headlessees, who may face liability to subtenants for common-part disrepair, although they will normally be able to pass claims to the freeholder.

Thirdly, and importantly, the notice rule extends beyond the demised premises themselves. Where the disrepair is in property which neither party possesses but which the tenant uses (such as common parts subject to a shared right of way), the landlord’s liability is conditional on prior notice. This mitigates the harshness of imposing an absolute liability on a headlessee of a single flat who has effectively transferred the use of the common parts to the subtenant.

The judgment leaves open whether the notice rule would apply where the landlord owns or holds a wider interest in the building, with Lord Neuberger suggesting that, in such cases, the rule would not normally apply because the landlord would be in possession of the common parts. Lord Carnwath reserved his position on the more general observations regarding the application of the rule where parts of the external structure are included in a demise. The decision is significant for practitioners advising on residential subletting, particularly in mixed leasehold structures, and reinforces a cautious, textually-grounded approach to statutory repairing covenants.

Verdict: Appeal allowed. Mr Kumarasamy was not liable to Mr Edwards: although he had a sufficient “interest” in the front hallway and paved area for the purposes of section 11(1A)(a), (i) the paved area was not part of the “exterior” of the front hall, and (ii) in any event he had no notice of the disrepair before the accident. Mr Edwards’s claim was dismissed.

Source: Edwards v Kumarasamy [2016] UKSC 40