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Supreme Court reviews Section 11 of the Landlord and Tenant Act 1985

Valuable Guidance on Interpretation

In Edwards v Kumarasamy [2016] UKSC 40, the Supreme Court has given valuable guidance on the interpretation of subsections 11(1) and 11(1A) of the Landlord and Tenant Act 1985 (“the 1985 Act”) and the requirement of notice by the tenant to the landlord of breaches of covenants implied into the parties’ tenancy agreement by those subsections.

The freeholder (“F”) of a small block of flats (“the Building”) let one of the flats (“the Flat”) on a long lease (“the Lease”) to the Appellant (“K”). K sublet the Flat on a 6-month assured shorthold tenancy (“the AST”) to the Respondent (“E”). The Flat was on the second floor of the Building.

There was a paved area outside the front door to the Building, which was the only or principal means of access to the Building. The Building had a main entrance door leading into a front hallway from which access could be got to the lift and staircase leading to the Flat.

The Lease granted K easements giving him the right to use the paved area and the hallway to access the Flat. The AST granted similar rights to E.

Subsection 11(1)(a) of the 1985 Act implied into the AST a covenant by K to keep in repair the structure and exterior of the dwelling-house let to E. Furthermore, as K had let a dwelling-house (the Flat) which formed part only of a building (the Building), subsection 11(1A)(a) modified the covenant implied by subsection 11(1)(a), such that the reference to “the dwelling-house” included a reference to any part of the Building in which K has an estate or interest.

On 1 July 2010, E tripped on an uneven paving stone on the paved area. As a result, he suffered personal injury. He issued a claim against K claiming that his injury was caused by K’s failure to keep the paved area in repair, in breach of the covenants implied into the AST by subsections 11(1)(a) and 11(1A)(a).

The Deputy District Judge found for E. On appeal, the Circuit Judge found for K. On a second appeal, the Court of Appeal unanimously found for E. On a further appeal, the Supreme Court unanimously found for K. Given that a clear pattern appears to be emerging, E may be rather upset that there is no superior court to which he can now appeal.

The appeal to the Supreme Court raised three issues:

  1. Did the paved area fall within subsection 11(1A)(a) as part of the exterior of the front hall of the Building?
  2. Did K have an estate or interest in the front hall within the meaning of subsection 11(1A)(a)?
  3. Could K be liable to E for disrepair to the paved area in the absence of notice of disrepair?

Issue 1

The Supreme Court held that the paved area was not part of the exterior of the front hall of the Building. The key reason for the decision was that it was not possible, as a matter of ordinary language, to describe a path leading from a car park to the entrance door which opens directly onto the front hall of a building as “part of the exterior of the front hall”. While it might be said that the paved area abutted the immediate exterior of the front hall, it could not fairly be described as the exterior of the front hall, as a matter of normal English.

The court rejected the argument that a purposive approach to subsection 11(1A)(a) justified the court’s given its words a wide effect. In doing so, it noted that the subsection imposes obligations on a contracting party over and above those expressly agreed.

In reaching its conclusion on the first issue, the court held that Brown v Liverpool Corpn [1969] 3 All ER 1345 was wrongly decided. In that case, the Court of Appeal decided that some steps leading to a two-metre path to the front door of a terraced house were part of “the exterior” of the dwelling-house for the purposes of subsection 32(1)(a) of the Housing Act 1961 (the predecessor to subsection 11(1)(a) of the 1985 Act). The Supreme Court concluded that the fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the exterior of the building.

In light of the conclusion on the first issue, it was strictly unnecessary to consider the other two issues. However, since they were both fully argued and of some significance, the court addressed them.

Issue 2

Contrary to the Court of Appeal, the Supreme Court found that K did have an interest in the front hall for the purposes of subsection 11(1A)(a). The reason was that F had granted K a right of way over the front hall which, as a matter of property law, constituted an interest in land (section 1 of the Law of Property Act 1925).

The fact that K had deprived himself of any practical benefit of the use of the easement by the grant of the AST to E did not alter the fact that K retained a leasehold interest over the front hall. The court rejected an argument that, at least for the purposes of subsection 11(1A)(a), K no longer had an “interest” in the front hall once he had effectively disposed of that right of way to E in the AST.

Issue 3

The court noted that where a landlord covenants to keep premises in repair, the general principle is that the covenant effectively operates as a warranty that the premises will be in repair. Accordingly, as soon as such premises are out of repair, the landlord is in breach whether or not he has had notice of, or time to remedy, the disrepair. However, one exception to the general principle is the rule (“the Rule”) that a landlord is not liable under a repairing covenant to repair premises which are in the possession of the tenant until the landlord has notice of the disrepair.

The Supreme Court rejected K’s argument that the Rule applies in every case where the tenant seeks to rely on a breach of the repairing covenant implied by section 11 even if the disrepair relates to property in the possession of the landlord. The argument was supported by a passage from Dowding and Reynolds, Dilapidations: The Modern Law and Practice (5th Ed.), which passage the court concluded was incorrect. The repairing covenant implied by section 11 is to be interpreted and applied in precisely the same way as a repairing covenant expressly agreed by the landlord. As a result, a landlord should not normally be liable for disrepair to property in so far as it is in the possession of the tenant until the landlord has notice of the disrepair.

The present case differed from prior authority on the Rule, as it concerned the application of the landlord’s repairing covenant to property which was neither in the possession of the landlord nor the tenant; although it was property over which they each had a right of way. Differing from the Court of Appeal, the Supreme Court held that the Rule was not confined to disrepair within the demised premises themselves. The application of the reasoning upon which the Rule was based justified the conclusion that the landlord’s obligation to repair the paved area was only triggered once he had notice of any disrepair for which the tenant would seek to make him liable. During the term of the AST, it was E who used the common parts, not K, just as it was E who occupied the Flat and not K. While E did not enjoy exclusive possession of the common parts, he was present on them every time he came to or left the Flat. The potential harshness on a headlessee of a single flat of imposing a covenant to repair the common parts, which he has effectively transferred to the tenant his right to use, is mitigated by the need for notice of any disrepair before the covenant becomes activated.

The court made clear that the third issue concerned the relationship between a particular landlord and a particular tenant, in which the landlord had effectively lost the right to use the common parts and the tenant had acquired the right to use them for the duration of the AST.

Conclusion

E’s claim was therefore dismissed as, although K had sufficient interest in the front hallway and paved area for the purposes of subsection 11(1A)(a), he could not be liable for E’s injuries as the paved area was not part of the exterior of the front hall (i.e. he had not covenanted to repair it) and in any event E had not notified him of the disrepair.

The decision should be welcome news to landlords. The narrow (or perhaps simply common-sense?) interpretation that the Supreme Court has given to “the exterior” of the dwelling-house let under a short lease for the purposes of subsection 11(1)(a) of the 1985 Act will restrict the extent of the repairing covenant imposed upon landlords by the subsection. Furthermore, the Supreme Court has confirmed that the Rule – a helpful exception to the landlord’s otherwise automatic obligations – can apply to disrepair of premises outside the demise.

 

Winston Jacob / 14th Jul 2016


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