Court Success: Summary and guidance - landlord’s repairing obligations
- Claimant tripped on uneven paving stone whilst taking rubbish to the outside communal dustbins
- Last year Lord Neuberger gave the Supreme Court’s decision in this case
- This Note is an endeavour to summarise Lord Neuberger’s Judgment and to give practical guidance
Guidance Note – Edwards v Kumarasamy
Last year Lord Neuberger gave the Supreme Court’s decision in this case in a magisterial review of the landlord’s repairing obligations under Section 11 of the Landlord and Tenant Act 1985 (“LTA 1985”) and, more particularly, the question of notice. The guidance is most welcome because of the complexity of the law:
The Legal challenge
In this particular case the Claimant won before the District Judge, lost before the County Court Judge, successfully appealed to the Court of Appeal and eventually lost in the Supreme Court. Given the divergence of opinion amongst the judiciary, it is perhaps unsurprising that there is still some confusion with regard to the law and this Note is an endeavour to summarise Lord Neuberger’s Judgment and to give practical guidance.
The facts of the case
The Claimant tripped on an uneven paving stone whilst taking rubbish to the outside communal dustbins. He argued that the paved area formed part of the exterior or structure of the front hall of his block of flats. He did so in order to bring himself within Section 11(1A) of the LTA 1985.
Mr Edwards sought to rely on the general principle within the LTA 1985 to the effect that any landlord who covenants to keep premises in repair will, under that covenant, warrant that the premises will be in repair. This is effectively a form of strict liability because, once the premises are out of repair, there is a breach regardless of any notice or available time to remedy the disrepair.
The exterior of the front hall of the block of flats and the building generally were clearly caught within the LTA 1985. However, Lord Neuberger was clear that the outside paved area might abut the exterior of the building but it was not part of it. A piece of property (whether a path or another paved area) might be a necessary means of access to a building but that was irrelevant, it was not part of the structure.
That effectively was the end of the case for Mr Edwards. He could not succeed under the LTA 1985 or otherwise.
Concern had been expressed following the Court of Appeal decision in this case which appeared to impose strict liability in respect of external areas leading to either blocks of flats or, even, individual houses. Those concerns were firmly allayed in this very helpful section of the Judgment of Lord Neuberger.
Notice in respect of disrepair claims
However, in fairness to the detailed arguments put before him in the Supreme Court, Lord Neuberger went on to consider two other issues. One is irrelevant to this Note but the other is of great relevance to landlords responsible for social housing, namely the question of notice in respect of disrepair claims where damage is alleged.
The starting proposition is that pursuant to the LTA 1985 a landlord covenants with a tenant to keep the property in repair. As a consequence, as soon as any premises subject to the covenant are out of repair, the landlord is in breach of the covenant, irrespective of whether the landlord has notice of the disrepair or has had time to remedy it. Simply put, liability is strict for any damage subject to any exception to the general rule.
The most important exception is (and always has been) the notice defence. If a defect occurs within the tenant’s own demised flat and the landlord has not been given notice of the defect, then all things being equal, the landlord has a defence to any claim for property damage. The leading authority is O’Brien v Robinson , a House of Lords case. The landlord was obliged to keep the Claimant’s premises in repair. The Claimant’s ceiling collapsed, probably as a result of the activities of tenants in the flat upstairs three years earlier, but as the landlord had had no notice of any defect in the ceiling the claim failed.
Lord Neuberger explained why this defence (as an exception to the LTA 1985) was fair. The reason is that a landlord cannot usually discover a defect in premises demised to a tenant. The tenant is in actual occupation and he/she is in a better position to know what repairs, if any, are needed and to report them to the landlord. So if there is no reporting by the tenant of an obvious defect then generally, the landlord will not be liable. The same reasoning applies even where neither tenant nor landlord could have known of the defect, as in O’Brien itself. The law therefore is unchanged in this scenario.
This Note now considers two other relevant scenarios by which a tenant may suffer damage to their property and seek to bring a claim. For the purpose of this guidance note, we shall take as our example the most common type of claim, namely escape of water.
The first scenario is where the defect arises in a non-demised area, namely one where the landlord has sole responsibility. The law in that respect is clear and contained within the authority of Passley &
Prince v London Borough of Wandsworth  Court of Appeal, where a frozen pipe in the roof of a block of flats burst.
The lack of notice and inclement weather were held by the Court to be irrelevant, liability attached to the Council. Of interest however in that case was that two of the judges considered that, if the pipe had been damaged by an occurrence from outside the property that was completely outside the landlord’s control (such as a falling tree), then there might be an exception to the strict rule. For our part, we are cautious because the Court of Appeal found liability for the frozen pipe despite the weather being beyond the control of Wandsworth.
The more problematic scenario however is where water escapes from disrepair in one flat (occupied by Tenant A) and the damage is suffered by another flat (occupied by Tenant B, the prospective Claimant). The question arises as follows: in the absence of any notice should a landlord be strictly liable for breach of covenant under the LTA 1985 when the landlord has no means of regularly accessing to inspect or repair installations in the flat of Tenant A? Is it fair to impose liability strictly upon a landlord for premises over which the landlord has no effective regular control?
Lord Neuberger decided that the law from the line of authorities was clear: if a defect occurs in the flat of Tenant A and as a consequence the flat of Tenant B is damaged then the landlord cannot rely upon the lack of notice of the defect as a defence to a section 11 claim. Lord Neuberger undertook a balancing exercise. Whilst Tenant B would ordinarily have no right whatsoever of access to Tenant A’s flat, a landlord has more control albeit strictly limited.
‘Directly or indirectly serving’
It appears from the Judgment that Lord Neuberger felt it fairer to impose liability on the landlord than the tenant, for economic reasons. He did however argue persuasively that he saw no reason to depart
from the usual rule applying to covenants, that is to say where you have covenanted to keep something in repair, once it falls into disrepair there is an immediate breach of the covenant and the potential for immediate liability.
Most importantly, however, Tenant B still has to prove that the defect in the flat of Tenant A constitutes a breach of the section 11 covenant in Tenant B’s lease. So the installation that is out of repair in the flat of Tenant A must serve “directly or indirectly” the flat of Tenant B. If it does not (i.e. the installation serves only the upper flat) then Tenant B cannot bring a Section 11 claim for breach of covenant.
In many social housing blocks the individual flats have their own boilers. If there is a leaking boiler in the flat of Tenant A and it only serves that flat then Section 11 will not be breached in relation to Tenant B. (Tenant B might however have a claim under Section 4 of the Defective Premises Act 1972, as a person “who might reasonably be expected to be affected by defects” in the state of Tenant A’s flat, but it is a requirement of that section that the landlord has notice of the defect.)
The same principle should apply in respect of sinks and baths if the defect arises from defective sanitary equipment. However, if the defect is from a common water pipe serving the whole block or is a spur serving both flats, then liability is strict. Liability is almost invariably strict in respect of drains, gutters and pipes because they are for the benefit of more than one flat.
The Judgment of Lord Neuberger is impressive and comprehensive. However, it cannot be expected to cover all situations. It would appear that Lord Neuberger’s Judgment was based upon the scenario that installations out of repair would serve most or all flats in the relevant block. That may be relevant, for example, in blocks where there is communal heating but not where there are individual boilers.
It will be appreciated therefore that these cases can be acutely fact sensitive. This makes the handling of these claims difficult. The claims are often of low value and the claimants are unrepresented as a consequence. Great care therefore needs to be taken to establish the factual basis for each claim and this needs to be explained carefully to claimants in the context of the law as set out in the LTA 1985 and applied by Lord Neuberger.
Frequently asked questions
Q: A burst pipe occurs in Flat A and damages both Flat A and Flat B below. The pipe only serves Flat A and has no other purpose. The landlord was not on either direct or constructive notice of any problem with the pipe before the burst.
A: The claim can be defended. If however the pipe served both Flat A and a number of other flats in the building then the landlord would be liable.
Q: The contents in a Tenant’s flat are damaged by a back surge of foul water from a blocked stack pipe. The pipe runs through the inside of the block and services a number of flats. The Landlord was not aware of the blockage until the damage was reported by the claimant.
A: As the Stack System is a communal system that directly serviced the tenant’s flat and others in the block, the Landlord could not defend the claim due to a lack of notice. A breach of Section 11 1(b) would have occurred as soon as the pipe fell into disrepair.
Q: The sink in Flat A leaks and the water runs through the ceiling into Flat B below? The tenant in Flat B makes a claim against the Landlord.
A: The sink does not directly or indirectly service Flat B and therefore a claim can be defended unless it was a defect the Landlord knew of and therefore a claim under the Defective Premises Act 1972 may be successful.
Q: There is damage to the external brickwork of Flat A enabling water to leak through into the wall cavity. This water damages the contents in Flat A but also runs through the wall into Flat B below causing damage to the contents.
A: Any claim by a Tenant in Flat A can be defended as the leak occurred within the demise and in accordance with O’Brien v Robinson the Landlord would require notice. In accordance with the balancing Act considered by Lord Neuberger, despite the lack of notice, any claim by a Tenant in Flat B would have to be settled as the Landlord would have breached their Section 11 duty to the tenant of Flat B to keep the exterior and structure in repair.
This note is a necessarily summary exposition of a complex area of the law. It will be appreciated from the history of this case that the judiciary have not always agreed as to the application of the law.
Whilst the Judgment of Lord Neuberger is hugely helpful, there are areas which may still be capable of differing interpretations. For our part, we shall be very pleased to discuss any points arising from this note and more generally.