Disrepair: whether footpath is part of exterior

Friday 15 July 2016

Edwards v Kumarasamy [2016] UKSC 40, 13 July 2016

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Edwards v Kumarasamy [2016] UKSC 40, 13 July 2016

Mr Edwards was the assured shorthold tenant of Mr Kumarasamy. He resided in a second floor flat of which Mr Kumarasamy was the leaseholder. Under the terms of the lease the flat shared a number of communal parts with the rest of the block in which the flat was located, including a communal bin area and a pathway leading from the bin area to the front door.

One night Mr Edwards tripped over an uneven paving slab on the pathway to the car park injuring his knee. He issued proceedings against Mr Kumarasamy seeking compensation for his injury, arising from Mr Kumarasamy’s failure to repair the defective pathway. It was common ground that Mr Edwards had not notified Mr Kumarasamy of the defect at any point prior to his injury.

At first instance the Deputy District Judge found for Mr Edwards, holding that the pathway was part of the structure and exterior of the flat within the meaning of s11(1) Landlord and Tenant Act 1985. This decision was overturned by a Circuit Judge on appeal.

On the appeal, a further argument was raised by Mr Edwards to the effect that liability could alternatively arise under s11(1A) Landlord Tenant Act 1985. The Circuit Judge rejected this argument on the footing that notice had not been given.

The Court of Appeal ([2015] EWCA Civ 20) allowed Mr Edwards’ appeal. The pathway fell within the ambit of s11(1A) since it was the exterior of the entrance hall within the block: an area in which Mr Kumarasamy had an estate or interest in the form of a legal easement. And since the defect was not within the demised premises (i.e. it was not within the flat itself) the obligation to repair it arose as soon as the defect occurred. Notice was not required.

The Supreme Court allowed Mr Kumarasamy’s appeal. Although it was correct that Mr Kumarasamy retained an interest in the front hall, the path was not a part of the exterior of the front hall.

Finally – extending and developing the legal principles applicable in this area – where land is not in the possession of either landlord or tenant but each has a right of way over it, notice is required as an ingredient of liability.

Click here for the judgment.

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