Sometimes the most interesting cases arise from pretty ordinary events. In this case Mr Edwards fell over on his way to the dustbins in his block of flats, because of uneven paving. He can’t have been too badly hurt because the DDJ awarded him £3,750 in damages, but it started a chain of appeals all the way up to the SC, where the decision came out on 13th July. So it was obviously thought very important by a number of insurers, landlords and others. A link to the full report is here  UKSC 40.
Before I tell you about the decision you will need some background. Mr K had a long lease of a flat in a block of flats in Runcorn. Access was over a paved courtyard leading to the entrance into the communal hallway, and then on into the individual flats. Mr K sub-let his flat to Mr E in 2009, and one day in 2010 Mr E was crossing the courtyard to put out the rubbish in the dustbins when he tripped over an uneven paving slab and suffered the injuries from which he has no doubt long recovered.
Under s11 Landlord & Tenant Act 1985 a landlord of a residential lease for less than 7 years is liable for structual and exterior repairs. The obligation is extended in the case of flats etc to include other parts of the the building in which the landlord has an estate or interest. The wording is of some importance:
s 11 Repairing obligations in short leases
(1)In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—
(a)to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
(b)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
(c)to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
(1A)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—
(a)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
(b)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—
(i)forms part of any part of a building in which the lessor has an estate or interest; or
(ii)is owned by the lessor or under his control.
(1B)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.
So what mattered here was whether the paving was:
- part of the exterior of the building, or of the hallway;
- an area over which Mr K had an estate or interest; and
- whether it mattered that Mr K hadn’t been given notice of the defect in the paving before the accident, given the long-standing rule that a landlord is not liable to repair the let property unless the tenant has given him notice of the defect.
The DDJ found for the tenant. This was reversed by the Circuit Judge on appeal, but her decision was reversed again by the CA, and so we get to the SC.
The Supreme Court Decision
You might wonder why things got so far, given the comparatively minor injuries. The answer is that landlords, and their insurers, got seriously worried about the idea of being held liable for defects about which they had received no prior ntice, and could see a whole army of trip-and-slip cases coming their way, and were determined to do something about it if at all possible.
Lord Neuberger gave the judgment in the SC, with a very short comment by Lord Carnwath.
He dealt with the first point robustly: – external paving is not part of a building, being outside the walls and roof, especially as it was felt necessessary to include “drains, gutters and external pipes” in the definition, and you can’t interpret the section so as to get round this. The CA decision of Brown v Liverpool Corporation (1969) (on earlier legislation) to the contrary was wrong, and the CA decision in Campden Hill v Gardner (1977) (on different earlier legislation) was to be preferred.
That disposed of the appeal, but the court gave its views on the other points as well.
The second point looks impossible to dispute – Mr K had a right of way over the paving and this is an “interest” for conveyancing purposes, even if it doesn’t amount to an “estate”. Attempts by Mr E’s counsel to argue that he had lost the interest while the sub-tenancy was in existence got nowhere. It was also pointed out that s3A of the Act protects landlords from limitations in their powers:
(3A)In any case where—
(a)the lessor’s repairing covenant has effect as mentioned in subsection (1A), and
(b)in order to comply with the covenant the lessor needs to carry out works or repairs otherwise than in, or to an installation in, the dwelling-house, and
(c)the lessor does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs,
then, in any proceedings relating to a failure to comply with the lessor’s repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs.
The third point was the one which raised the greatest amount of heat. The SC started off by going through the cases starting in Moore v Clark (1813) and decided that it was clear that notice was required for the parts of the premises let to the tenant – especially the interior – but not for the parts that the landlord retained – eg the roof and external walls. The argument was that a landlord can’t go barging in to the tenant’s property on the off-chance that there is a defect, but is liable for his own parts, and this is a fair division of responsibilities given that the landlord has rights to inspect under s11(6):
(6) In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.
The position if the landlord had let other parts of the building to other tenants isn’t so clear, but on balance the landlord will be liable without notice.
It was argued that all s11 liability claims needed notice, but this was rejected: the general law would apply.
Finally Mr E’s counsel argued that as the paving was outside the flat the general rule meant that no notice was needed in this case. However, the court ruled that in the particular case the rights on the paving were the limited rights of a right of way and that Mr K would have no rights as against the freeholder to carry our repairs. And he had lost the right to exercise these for the duration of the tenancy. Hence Mr E, who was there every day, should have given him notice of the defect.
Mr K the landlord won the battle but the wider implications are not entirely clear. Landlords will be pleased that they aren’t liable for defects in outside paving, in these slightly unusual circumstances. And that notice of defects has to be given if they are going to be liable. In most cases. Some tenants may have to rely upon the more limited rights under the Defective Premises Act 1972. I suppose the lesson to all is to mind how you go.