With NL away on his summer holidays I have picked up the Supreme Court judgement in Edwards v Kumarasamy [2016] UKSC 40
The case of Edwards v Kumarasamy has now seen a final decision from the Supreme Court with the Court overturning the decision of the Court of Appeal in two key areas.
Background
This case relates to the landlord’s obligation to repair in relation to flats. This is set out in S11, Landlord & Tenant Act 1985. The tenant was injured, not in the flat he had rented, but by tripping on a path outside the flat. This path was not owned by the landlord of the flat the tenant had rented and the landlord was totally unaware of any problems associated with the path.
The Court of Appeal held that the path was part of the exterior of the property and therefore fell within the landlord’s repairing obligations as it was a key part of the approach to the property which the tenant could not avoid. Additionally, it was an area in which the landlord had an estate or interest as he had an implied easement to cross that area in order to reach his flat. Finally, the Court of Appeal rejected the argument that the landlord was only liable if he was given notice of the defect, holding that this only applied to items of disrepair which were within the property expressly demised to the tenant, ie. within the flat itself. You can read more on the decision of the Court of Appeal here.
Supreme Court
Lord Neuberger gave the leading judgement with which most of the Court agreed. Lord Carnwath allowed the appeal but dissented from a part of Lord Neuberger’s judgement. The Supreme Court held that there were three separate questions to answer and the tenant would need to succeed on every one of them in order to win the case. These three questions were:
1. Was the path part of the exterior of the property?
2. Was there an implied easement over the path? and
3. Did the landlord need to be given notice of a want of repair of the path?
In the event the landlord succeeded in his appeal on the first question unanimously and on the third question by a majority with Lord Carnwath dissenting.
Question 1
This question was resolved squarely in the landlord’s favour. The court refused to agree that a path which was far removed from the property could form a part of its exterior. It held that there was a distinction between the actual outside surface of the property and a path which was removed from the property itself, even if that path was a key approach to the property. It found support for this in the wording of the Act which refers to repairs to the “structure and exterior … (including drains, gutters, and external pipes)”. That spoke to the Court of a scenario in which exterior was intended to refer to the physical outside of the structure rather than its approaches. Looking at a range of Court of Appeal cases the Supreme Court took the view that this better accorded with the breadth of Court of Appeal decisions, characterising the decision in Brown v Liverpool Corpn as wrong and the subsequent reliance on it by the Court of Appeal in this case as similarly in error.
The Court also preferred a relatively plain English meaning of the word exterior rather than the more strained version associated with a wide reading of the word “exterior”. As the section was also intended to import meaning into a contract which could be beyond that explicitly agreed between the parties there was a further reluctance to impose an overly onerous obligation.
Having resolved this question in the favour of the landlord the Court could have stopped but it decided to resolve the other questions, in part because it took the view that the Court of Appeal had made an incorrect decision in relation to one of them.
Question 2
The Supreme Court did not spend much time on this point. Again a normal legal meaning was preferred rather than any strained meaning. The landlord had argued that the interest had been disposed of to the tenant and so could not exist. However, this would have largely robbed it of any force at all in the context of s11. Undoubtedly the fact that the landlord had, in effect, already won, did not encourage the Supreme Court to push this issue very far.
Question 3
It was the answer of the Court of Appeal to this question that led the Supreme Court to continue beyond the answer to the first question. The Court of Appeal had refused to accept that the landlord could rely on a lack of notice. It had specifically refused to extend the requirement of notice outside the narrow confines of the property demised to the tenant so as to encompass the common areas.
The Supreme Court showed no such reluctance! After a review of the cases the Supreme Court made a very qualified extension of the basic rule to flats. Several scenarios were canvassed:
1. Where a landlord has agreed to repair the structure and exterior then the notification requirement will only apply if the entire demise is to the tenant. If the interior walls only are demised (as is often the case with flats) then the obligation to repair the exterior will apply without notice being required;
2. Where a landlord has a covenant to repair structure and exterior but that structure and exterior is demised to another tenant. In these cases the rule should not normally be applied and so a landlord will not normally be required to be notified.
3. The scenario in this case is where the area to be repaired is not demised to the landlord or the tenant and so is parallel to scenario 2 above. However, it is an area over which both landlord and tenant have a right of way. The landlord in this instant case however only is the landlord of one flat which he has let. He has accordingly also ceded access over the common areas on a practical day to day basis to the tenant. In this case the requirement of notice would apply.
Again the Supreme Court felt supported in this by a practical consideration. That the tenant had the easiest opportunity to view the state of repair of the common areas. In addition, the landlord, while still retaining a right of access as against the superior landlord had no right to effect repair and so his right of access was without value. It should be noted that if the landlord did also own the building the notification requirement would not apply, it is only if the landlord has given up control altogether.
Lord Carnwath dissented here and stated that he would prefer to reserve his position on question 3 as it did not need deciding.
So with questions 1 and 3 answered for the landlord the appeal was allowed.
Comment
This is good for the landlord but massively complicates the notice position in relation to flats. It also deprives some tenants of easy remedy for injury suffered in exterior areas as they will have to fall back on the less generous provisions of the Defective Premises Act.