David Smith of Anthony Gold solicitors reports on a new Court of Appeal decision that will seriously affect landlords and agents.
As a landlord or letting agent you probably thought:
- That landlords are not liable to keep in repair external areas such as gardens, communal halls and pathways, and that
- The landlords are not liable until they have been notified of any repair issues by the tenant
However a new Court of Appeal decision, Edwards v Kumarasamy , now says that these views are wrong.
The legal obligation for landlords to keep the ‘structure and exterior’ of rented properties in repair comes from the section 11 of the Landlord & Tenant Act 1985.
In this new case Mr Edwards, who rented a flat from Mr Kumarasamy, was injured when he tripped on an uneven paving stone on the path leading the communal bins and car park.
He sued for compensation and the case looks at whether the landlord is liable in these circumstances.
1. Liability for repairwork to external areas
S11 states that it applies to the structure and exterior and also to any area which the landlord has an “estate or interest”. Mr Kumarasamy was merely a leaseholder of the flat and did not own the whole block or the exterior area.
However under his lease he had a legal ‘easement’ or right of access to the path where Mr Edwards had his accident. Therefore, said the Court, this complies with the s11 requirements. So the landlord had an obligation to ensure that it was kept in repair.
2. The need for the tenant to give notice
What about the question of notice? There is case law which says that this is required.
However (the Court said) section 11 itself does not actually say that notice is required. This was implied in the case law in circumstances where the disrepair was inside the proeprty, and so was where the landlord would not normally see it.
However the landlord was able to access the exterior path himself and so could ensure it was kept in repair without needing to be told about it first.
The significance of this case for landlords and agents
This is a very important decision for landlords and letting agents. It means that landlords can be sued in respect of areas of the property which they do not own themselves. For example
- a private drive serving a property over which the landlord has a right of access or
- common areas of a block of flats
This means that landlords will need to be active in contacting their own landlords (the freeholder or headlessor) to ensure that these areas are kept in proper repair. Local Authorities may be able to help here using their powers under the HHSRS.
So far as agents are concerned, they will need to widen the areas covered by their inspections to include paths, communal areas and the like.
As there is now no obligation on tenants to report damage, they will have to be vigilant in identifying potential problems and getting them sorted.