20 March 2015 by Michelle Footer

To Repair, or not to Repair?

The recent decision of the Court of Appeal in the case of Edwards -v- Kumarasamy [2015] may cause concern to residential landlords who unexpectedly find themselves liable for repairs to communal areas of a building which otherwise would not have been their responsibility to repair.

Most tenancy agreements will contain express repairing obligations by the landlord in relation to the condition of the property which is being let.  There are also statutory obligations binding on landlords which cannot be excluded by agreement, only by Court order which in reality rarely happens.

Pursuant to Section 4 of the Defective Premises Act 1972 residential landlords have a duty of care to anyone who might reasonably be affected by defects in the state of their properties.

In Edwards -v- Kumarasamy [2015] the Court considered  whether a residential  landlord was liable to his tenant for breach of the implied statutory obligation which requires the landlord to keep the structure and exterior of the building in which the property is situated in good condition.  The landlord in this case was a long residential leaseholder who did not own the freehold interest in the building and was not responsible under his own lease for the maintenance of any of the common parts of the building.  The tenant of this property had tripped and injured himself on some uneven paving whilst taking rubbish from the door of his property to the communal bin store.

The Court of Appeal noted that the headlease required the freeholder to keep all communal areas in good repair and condition if they were given notice of a defect. However, no notice had been given to either the freeholder or the intermediate landlord. Nevertheless, the Court decided that the intermediate landlord had a statutory obligation pursuant to the Landlord and Tenant Act 1985 to repair the communal area because the tenant had a right of access over it and it formed part of the building’s communal area.

This decision will be of concern to intermediate landlords who may find that the extent of their repairing obligations now extends to communal areas of a building even though the freeholder has an obligation to repair these. It will remind landlords to check the condition of their properties and the buildings in which they are situated and to consider whether they are complying with both their express and implied repair obligations.

The express repair covenants are set out within the lease and the statutory covenants are contained within Section 11 of the Landlord and Tenant Act 1985. The statutory covenants require the landlord to keep the following in repair and proper working order:

  • The structure and exterior of the dwelling-house including drains, gutters and external pipes;
  • The installations in the dwelling-house for the supply of water, gas and electricity;
  • The installations in the dwelling-house for sanitation including basins, sinks, baths and sanitary conveniences;
  • The installations in the dwelling-house for space heating and heating water. 

If a landlord is notified of an issue and chooses not to deal with it then it is open to the tenant to commence a claim against them using the Housing Disrepair Protocol. This permits the Court to either dismiss the tenant’s claim, make an order that the landlord carry out the works or make an order that the tenant is permitted to carry out the works and deduct the cost from the rent. The Court also has the power to award damages to the tenant for any inconvenience they have suffered.

If you are a residential landlord or agent and have any queries regarding  the above issues, then please contact Michelle Footer in our Property Litigation team on 0207 288 4782 or by email at michellefooter@boltburdon.co.uk

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