The Supreme Court, on the 13th July 2016, has delivered a judgement in a case which is concerned with the application of a landlord’s repairing covenant to property which is not in the possession of either the landlord or the tenant.

The judgement was in favour of the landlord and overturned a Court of Appeal decision.

The case (Edwards v Kumarasamy) concerned a tenant who, when taking rubbish from his flat to the communal dustbins, tripped over an uneven paving stone on the paved area outside the building which contained his flat.  He suffered injuries as a result and issued proceedings against his landlord, contending that his injury was caused by the landlord’s failure to keep the paved area in repair, in breach of covenants implied into the Subtenancy by section 11(1)(a) and 11(1A)(a) of the Landlord and Tenant Act 1985 (“the 1985 Act”).

The five law lords judged that the landlord’s obligation to repair the paved area is only triggered once he has notice of any disrepair for which the tenant would seek to make him liable.  They stated that, while it is true that the landlord has the right to use the common parts as against the freeholder, he has effectively lost that right for the duration of the Subtenancy to the tenant.  It is true that the tenant does not enjoy exclusive possession of the common parts, but he is present on them every time he comes to or leaves the flat and has the best means of knowing of any want of repair in them.

Further information on the case can be found by following the link below:

https://www.supremecourt.uk/cases/docs/uksc-2015-0095-press-summary.pdf