Unnoticed

Another Court of Appeal disrepair judgment! I can barely contain myself. And on a fairly important issue too. So..

Edwards v Kumarasamy [2015] EWCA Civ 20

Mr Edwards rented a second floor flat from Mr Kumarasamy. Mr K was the leaseholder of that flat, but did not own any other part of the property. Mr K’s lease granted him “the right to use on foot the entrance hall, lift and staircases giving access to the flat; the right to use an access road and parking space and the right to use the Bin Store (which is part of the Communal Areas as defined) and other facilities provided by the landlord. Regulations forming part of the lease in fact require all domestic rubbish to be placed in the Bin Store.”

While the freeholders of the block covenanted under Mr K’s lease to “keep the Communal Areas in good and substantial repair, and to keep passageways and footpaths forming part of the building in good order and condition”, but the lease also contained a clause limiting the freeholder’s liability for any defect unless the tenant (Mr K) had given notice of it and freeholder had had a reasonable time to carry out repairs.

Mr E was taking rubbish out to the Bin Store when he tripped over an uneven paving stone in the pathway between the front door of the block and the communal bins in the car park and injured his knee. It is worth noting that this paved path was the principal means of access to the whole block of flats. It was common ground that Mr E had not given previous notice of the uneven slab to Mr K, nor had Mr K to the freeholder.

Mr E brought a claim under s.11 Landlord and Tenant Act 1985 against Mr K.

At first instance, the DDJ found that the path was part of the structure and exterior of the flat, so fell under Section 11(1). Damages of £3750 were awarded. This was overturned on appeal to a Circuit Judge, who found it was not part of the structure and exterior. However, a new argument was raised by Mr E before the CJ, that Mr K’s liability for the path fell under s.11(1A). The CJ found that this liability was not engaged because there had been no notice of the defect.

Hence to the Court of Appeal.

S.11 Landlord and Tenant Act 1985 (as amended) provides – as far as relevant:

(1) In a lease to which this section applies …there is implied a covenant by the lessor—
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)…
(1A) If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection (1) shall have effect as if—
(a) the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest…

(1B) Nothing in subsection (1A) shall be construed as requiring the lessor to carry out any works or repairs unless the disrepair (or failure to maintain in working order) is such as to affect the lessee’s enjoyment of the dwelling-house or of any common parts, as defined in section 60(1) of the Landlord and Tenant Act 1987, which the lessee, as such, is entitled to use.
(3A) In any case where—
(a) the lessor’s repairing covenant has effect as mentioned in subsection (1A), and
(b) in order to comply with the covenant the lessor needs to carry out works or repairs otherwise than in, or to an installation in, the dwelling-house, and
(c) the lessor does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs,
then, in any proceedings relating to a failure to comply with the lessor’s repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs

There were two key issues before the Court of Appeal.

i) Were the paving stones part of the ‘building’ for the purposes of s.11(1A)?
ii) Did liability under s.11(1A) arise only on notice of the defect?

Firstly – and very interestingly – the Court of Appeal found that Mr K’s “right to use the front hall, the car parking space and Bin Store and other facilities provided by the landlord take effect as legal easements. He therefore has an estate or interest in the paved area where Mr Edwards sustained his accident”. This will be of wider effect, as any leaseholder landlord in a block will usually have similar rights to common parts, access ways etc.. So s.11(1A) will apply in respect of those areas, given that a right to use them is to be taken to be equivalent to ‘an interest’ in those parts.

The answer to i) was fairly brief. The ‘building’ in s.11(1A) must be understood as ‘structure and exterior of the building’ (Niazi Services Ltd v van der Loo [2004] EWCA Civ 53). The paved path, as the entrance way to the building, should be considered as part of the exterior (Brown v Liverpool Corporation (1983) 13 HLR 1). It was the ‘exterior of the front hall’.

On ii) the Court of Appeal (rightly) observed that the common law position was that liability for lack of repair commenced as soon as the defect arose. “The general rule is that a covenant to keep premises in repair obliges the covenantor to keep them in repair at all times, so that there is a breach of the obligation immediately a defect occurs”. The exception to this rule is where the defect arises in the demised premises themselves, in which case liability arises only when the landlord “has information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and he has failed to carry out the necessary works with reasonable expedition thereafter” (British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69).

In terms of this case, there is also a common law principle on easements, where “there has been an express grant of an easement the grant will carry with it an ancillary right on the part of the dominant owner to carry out repairs on the servient owner’s land in order to make the easement effective. Thus in the case of the grant of a right of way the dominant owner is entitled to repair the way.” On this principle, Mr K did have the right to repair the path, something that the Judge below had considered that he did not.

The interrelation of common law and s.11(1A) had been dealt with by the Court of Appeal in Passley v Wandsworth LBC (1998) 30 HLR 165, where pipes on the roof of a block had fractured in a cold snap, flooding Mr P’s flat. Wandsworth were found to be liable under the covenant irrespective of notice.

The landlord’s covenant to repair under the statutory covenant depended on the facts, whether the defect was part of ‘the structure or exterior’. This was regardless of the extent of the demise (Campden Hill Towers Ltd v Gardner [1977] QB 823). [Though this was a pre 1985 Act case, and how does it sit with Lucie Marie-Antoinette Campbell v Daejan Properties Ltd [2012] EWCA Civ 1503 – though that lease did distinguish between ‘house'(building) and ‘premises'(demise) – NL]

Campden Hill was decided after O’Brien v Robinson [1973] AC 912, which concerned the predecessor to s.11 had had found that the repairing obligation only arose on notice (but was a case concerned with the interior of the demise). The lack of any reference in Campden Hill to O’Brien should be taken to mean that the principle that notice requirements only applied to the demised premises, not the broader ‘structure and exterior’ was approved, at least tacitly.

Lastly, there was no provision for notice in, or attached to s.11(1A) in statute, despite the pre-existing common law position.

S.11(1A) did not only apply to defects that in the structure and exterior of the building that affected the demise:

Although this might be a pragmatic way of limiting the landlord’s liability I cannot find it in the words of the statute. An argument of this nature would have been equally applicable to the landlord’s covenant considered in Sun Life, and indeed a similar argument was advanced on the landlord’s behalf. But in Sun Life, as we have seen, the critical division was between what was demised and what was not. Moreover, as I have said we are in the territory of implied terms, and necessity rather than mere reasonableness is the touchstone.

S.11(3A) was not rendered useless by immediate liability, contra Mr K’s argument. While the landlord might not have have the chance to use ‘reasonable endeavours’ to get the superior landlord to carry out works without notice, it would still operate to limit liability over an extended period:

I acknowledge that a conclusion that liability arises without notice does mean that section 11 (3A) has a lesser effect than it might otherwise have had. But it is by no means useless. It is a commonplace that a liability to repair is frequently a continuing liability and many tenants make claims for loss and discomfort sustained over lengthy periods. In the Niazi case, for instance the complaint lasted for the best part of three years. In such a case section 11 (3A) would enable the landlord to stop liability from continuing to accrue.

With a brief, polite disagreement with Dowding & Reynolds (5th ed para 20-37) on notice being required for the extended covenant, the Court of Appeal concludes. A last ditch argument by Mr K that the paving stones were uneven, not in disrepair had not been raised below and could not be considered now.

Appeal allowed.

Comment

In some part, this is simply a confirmation of Passley v Wandsworth principles on immediate liability on the defect arising, without notice. But there are some very interesting additions.

The disrepair to ‘structure and exterior’ under the extended S.11(1A) covenant does not have to directly affect the tenant’s demised property.

The landlord’s ‘interest’ in the part of the ‘building’ – construed as ‘structure and exterior’ – can be a right of use or passage granted under the lease, in effect an easement.

The common law right of the dominant owner of an easement to carry out repairs to the subservient owner’s property – in situations where the claimant’s landlord is a leaseholder, this could well be of significance.

There is a lot worth thinking about here in respect of disrepair claims, both under section 11, and, in respect of the easement right to repair point, perhaps some disrepair claims by leaseholders too, where there is an intermediate head leaseholder (as s.11 doesn’t apply).

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Disrepair, Housing law - All and tagged , , .

6 Comments

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  3. So when a Leaseholder (a Tenant holding a Long Lease) of a residential block of flats decides to sub-let their leasehold flat and take on the statutory “Section 11 Repairing Obligations” for the structure and exterior of the block (including roof, gutters, drains, etc.) so far as they form part of, or serve, their flat where does this leave the Freeholder of the block so far as their contractual repairing covenant for those same parts of its building?

    It seems that Section 11 gives rise to a dual-responsibility for keeping in repair a flat being sub-let. On the one hand the Freeholder has a contractual repairing obligation (but at the cost of all Leaseholders via their service charge liabilities) whilst on the other hand you have the Leaseholder who has decided to sub-let their flat and become the immediate Landlord of that flat and who has agreed to accept the statutory responsibility to keep that flat in repair including its external structure and the remainder of their “Estate and Interest”.

    How should this dual-responsibility be managed? Which responsibility should take priority over the other? Surely you should not have two people making arrangements to repair the same thing?

    For example, would it still be considered fair and reasonable in the context of incurring a reasonable service charge liability upon all Leaseholders of the block if a Freeholder was to embark on repairing a leak in the roof (including costs incurred as a consequence of “Section 20 Consultation”) whilst the Leaseholder of the Top Floor Flat of which the roof forms a part is under the statutory repairing obligation to repair the roof for the benefit of their own Tenant; particularly when that Leaseholder should be able to effect the repair much quicker than the Freeholder for not being delayed or hampered in having to comply with a service charge regime (consultation, specification, tender, raising funds via service charge provisions, etc.)?

    It seems to me that the statutory “Section 11 Repairing Obligation” imposed upon any individual leaseholder when sub-letting their flat effectively frustrates the original contractual intention and ongoing commercial purpose of the leasehold scheme at the block so far as the Freeholder’s repairing obligations are concerned with regards to that flat (and its structure)…frustration of the Freeholder’s contractual repairing obligation occurring much like when a Right-To-Manage Company acquires the repairing obligations under statutory provisions.

    What a mess! Any thoughts/comments would be gratefully appreciated.

    • I think your hypothetical – and sense of the issue – are a bit astray.

      It is not usually a dual responsibility. The intermediate landlord inevitably owes their AST tenant the s.11 duties insofar as they affect the flat, but that is not to say that the intermediate landlord has any right to carry out repairs to the structure and exterior. Instead, the intermediate landlord typically has to rely on the repairing covenants in their lease with the superior landlord. This was always the position. (So if the tenant sued the intermediate landlord, the intermediate landlord could possibly rely on the repairing provisions in their lease to bring a Part 20 claim for indemnification against the freeholder, depending on what those clauses said.).

      However, Edwards v Kumarasamy suggests that the broader s.11(1A) duty could apply where the intermediate landlord had a right of use or access – as an easement. So communal parts, hallways, entry paths etc.. The easement being an interest in the land sufficient to engage s.11(1A). And further – and I’m not sure about the correctness of this – that the easement carries with it a right to repair to make the easement effective. So the intermediate landlord could, hypothetically, carry out repairs to a communal hallway. There may be a dual right to carry out repairs in these particular cases. But it is not an obligation on the intermediate leaseholder to repair that the freeholder or any other leaseholder could enforce. It is a right, not a duty – except to their tenant under s.11(1A).

      Would this extend to a roof of the building? I doubt it very much, but I suppose it may depend on lease terms.

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