Joshua Swirsky appears in the Court of Appeal in a case that could impact on the way leases are drafted in the future

10 March 2015

This case involved Mr Edwards who tripped over a raised paving stone and hurt his knee while taking the bin out to a bin store at the block of flats where he lived as an assured shorthold tenant. The flat was owned by investor Mr Kumarasamy who had never visited the property. Mr Kumarasamy had an easement under the terms of his lease to use the common area leading to the bin store. This right was also granted to Mr Edwards in his assured shorthold tenancy agreement. Mr Edwards sued Mr Kumarasamy for breach of the repairing covenant implied by s11 of the Landlord and Tenant Act 1985 and won. This was overturned on a first appeal by which time Mr Edwards was relying on the extended covenant implied by s11(1A). Mr Edwards was given permission to pursue a second appeal. The issue in this appeal was extremely narrow and related to notice with regard to the extended covenant. It is settled law that a tenant has to give notice to his landlord of any disrepair within his flat before the landlord will be liable under s11 . It is also settled law that a tenant does not have to give notice with regard to disrepair in any part of the building retained by the landlord. There was no authority with regard to disrepair to a right of way that was in an area that was not demised to the tenant but not retained by the landlord either; it was owned by the head landlord.

The only question was whether Mr Edwards had to give notice or not before he could sue for disrepair. The editors of Dowding & Reynolds on the subject said that he did, as did the judge on the 1st appeal. The Court of Appeal however said no – they ruled that there was no basis for reading a further exception into the clear words of the statute. The Court also rules that Mr Kumarasamy had a common law right to carry out repairs to the easement and thus could not rely upon s11(3A) as pointing towards a defence, ie that to avoid liability he would have to carry out repairs on someone else’s property.

The outcome, whilst a surprise to many, could have an impact on how owners of multi-flat commercial premises draft their leases as they may well wish to prevent the possibility of repairs being carried out to the common parts without permission by mesne landlords. The case also imposes a new burden on landlords of investment flats who it seems are under a duty to inspect the common parts to ensure that there is no disrepair that could affect their tenant’s enjoyment of the property.