Notice of disrepair: the exception, not the rule

Despite the Supreme Court judgment in Edwards v Kumarasamy [2016] UKSC 40 being handed down almost a decade ago, many practitioners and Judges consider that landlords are simply not ever liable for disrepair unless and until they have been notified of the disrepair. However, this is in fact an exception to the general principle that a covenant to keep in repair acts as a warranty that the premises would be in repair, such that as soon as any premises subject to such a covenant were out of repair, the covenantor (the landlord) was in breach irrespective of whether he had notice of the disrepair or time to remedy it.

This article aims to provide a succinct breakdown of the principles laid out by the Supreme Court in Kumarasamy and guidance on when notice of disrepair is required, and when it is not. Other matters were also considered within the judgment, but those fall outside the remit of this article.

Factual Background

In this case, the landlord Mr Kumarasamy held a lease of a flat within a block, which he then let to Mr Edwards under an assured shorthold tenancy. Mr Edwards bought a claim for personal injury on the basis that Mr Kumarasamy had breached the implied repairing covenant pursuant to section 11 of the Landlord and Tenant Act 1985 after he tripped on an uneven paving stone on the path leading to the block. This defect had not been reported to the landlord at any time.

This claim was allowed by the District Judge, but set aside by a Circuit Judge on appeal on the basis that the pathway did not fall within the ambit of section 11 and in any event it was a precondition to liability that notice of the defect had been given to the landlord. The tenant then appealed to the Court of Appeal which allowed the appeal on the basis that the pathway was part of the building in which the landlord had an estate or interest for the purposes of section 11 of the 1985 Act and that it was not necessary for the landlord to have notice of a defect outside the demised property in order for him to be liable under section 11.

The landlord then appealed to the Supreme Court.

Section 11 of the Landlord and Tenant Act 1985

Section 11 implies a covenant by the lessor:

1. to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
2. to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and
3. to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

Section 11(1A) expressly provides that “If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection (1) shall have effect as if—

1. the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest; and
2. any reference in paragraphs (b) and (c) of that subsection to an installation in the dwelling-house included a reference to an installation which, directly or indirectly, serves the dwelling-house and which either—
   1. forms part of any part of a building in which the lessor has an estate or interest; or
   2. is owned by the lessor or under his control.

Section 11(1B) goes on to provide that “Nothing in subsection (1A) shall be construed as requiring the lessor to carry out any works or repairs unless the disrepair (or failure to maintain in working order) is such as to affect the lessee’s enjoyment of the dwelling-house or of any common parts, as defined in section 60(1) of the Landlord and Tenant Act 1987, which the lessee, as such, is entitled to use.”

As such, when a “dwelling house” forms only part of the building, section 11 should effectively be read as imposing a covenant on the landlord as follows:

1. to keep in repair the structure and exterior any part of the building in which the lessor has an estate or interest (including drains, gutters and external pipes),
2. to keep in repair and proper working order the installations in any part of a building in which the lessor has an estate or interest for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and
3. to keep in repair and proper working order the installations in any part of the building in which the lessor has an estate or interest for space heating and heating water (see paragraph 14 of the Judgment).

Judgment

The Court ultimately considered that the path could not be considered part of the building for the purposes of section 11 of the Landlord and Tenant Act 1985 and the landlord could only be liable if he had notice of disrepair before the accident (which he did not), such that the decision of the Court of Appeal was reversed.

However, the Court did confirm the following relevant broad principles in respect of liability for disrepair:

1. The general principle is that a covenant to keep premises in repair operates as a warranty that the premises would be in repair (“the General Principle”). As soon as any premises subject to such a covenant were out of repair, the covenantor was in breach irrespective of whether he had notice of the disrepair or time to remedy it: paragraph 29.
2. However, there was an obviously necessary exception to that General Principle that a landlord was not liable under a covenant to repair premises which were in the sole possession of the tenant and not of the landlord unless and until the landlord had been given notice of the disrepair (“the Exception”): paragraph 30.
3. Both the General Principle and the Exception (which the judgment then confusingly refers to as “the rule”) applied to the covenant implied by section 11 of the Landlord and Tenant Act 1985: paragraph 46.
4. Where a part of the structure is included within the tenant’s demise, the Exception would apply to the landlord’s obligation such that the landlord would only be required to repair it when he has been put on notice of the same.
5. However, if part of the structure is excluded from the demise such that it is not in the possession of the tenant, the General Principle applies such that the landlord is liable immediately the disrepair to the structure occurs whether or not he had notice: paragraphs 39 and 40.
6. The Exception that a landlord is not liable unless he has been given notice of the disrepair does not normally apply to premises which are not in the possession of the tenant: paragraph 42. It is not normally open to a landlord who has agreed to repair the structure to invoke the Exception against a tenant of a flat in relation to disrepair of part of the structure which the landlord has let to another tenant or indeed which is not in the possession of the landlord for some other reason: paragraph 43.
7. Where a flat is let under a tenancy by a landlord who owns the building in which the flat is situated, it is likely that the statutory covenant in so far as it extends to repairing the common parts, would not normally be subject to the Exception, because the landlord would be in possession of the same while the tenant would not. It may also be the case that the Exception would not apply in any case where the landlord is the headlessee of more of the building that the single flat he has sublet to the tenant: paragraph 59.
8. However, where the landlord has a lease of a single flat in the building, then the Exception does apply and he is not liable until such time as he has notice of the disrepair: paragraphs 50 to 54. Effectively, notice is required of disrepair to the common parts which the tenant is entitled to use but which the landlord is not: paragraphs 51 and 52.

Applying this judgment

In normal language then, and as put pithily in argument by Mr Edwards' legal representatives: “the general rule is that notice to repair is not required. The exception is when the disrepair is within the demised premises.” 

Where the landlord owns the whole building, then he is liable immediately for disrepair outside the property which has been demised to the tenant but which has affected the tenant's enjoyment of the Property. In terms of how this might show up in cases, you may have a tenant who has rented a flat within a block owned by the landlord. That block may have disrepair to the roof or pointing which has resulted in water ingress to the tenant’s flat with resulting damp and mould. The roof and pointing have not been demised to the tenant but remain in the control of the landlord. The Exception does not apply such that the landlord is liable for the disrepair to the roof and pointing immediately, and also then for the resulting damage within the demise.

Another example is where the flat above is leaking water into the flat of the tenant below. If the landlord owns both those flats, he is liable to the tenant below immediately the leak occurred to the flat above and then for the resulting damage in the tenant below’s flat.

Of course, for a claim for disrepair, you will still need to demonstrate when the disrepair occurred, and this will usually be in the form of notice to the landlord of the leak, damp or mould. But provided you can evidence when the disrepair arose, it removes the need to demonstrate constant notice thereafter.