Edwards v Kumarasamy
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lord Wilson,Lord Sumption,Lord Reed,Lord Carnwath |
| Judgment Date | 13 July 2016 |
| Neutral Citation | [2016] UKSC 40 |
| Court | Supreme Court |
[2016] UKSC 40
Lord Neuberger, President
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath
Appellant
Philip Rainey QC Julian Gun Cuninghame Daniel Brayley
(Instructed on Direct Access Basis)
Respondent
John Benson QC Michael Armstrong
(Instructed by Quality Solicitors, Oliver & Co)
Heard on 5 May 2016
( with whom Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath agree)
This appeal concerns a repairing covenant implied into a subtenancy of a residential flat by section 11 of the Landlord and Tenant Act 1985. It raises two issues of interpretation relating to that section, and an issue of more general application as to the need for notice before a landlord can be liable under a repairing covenant.
By a lease ("the Headlease") dated 28 April 2006, the freeholder of a small block of flats known as Oakleigh Court, Boston Avenue, Runcorn ("the Building") let Flat 10 in the Building ("the Flat") for a term of 199 years from 1 January 2006 at a rent of £195 per annum, for a premium of £130,000. The extent of the Flat demised by the Headlease was defined by "the plastered coverings and plaster work" of the external and internal "walls and partitions" and ceilings, and "the floorboards and surfaces of the floors". Congruently, the demise expressly excluded any of main timbers and joists, and the "framework", of the Building, and it also excluded "the walls or partitions therein", except "the plastered surfaces thereof". The demise of the Flat also included certain rights "for all purposes incidental to the occupation and enjoyment of the Flat", and those rights included the right to use "the entrance hall lift staircases and landings … giving access to the Flat", the right to use an "access road" and a specific space in a parking area in the curtilage of the Building, and the right to use the communal dust bins.
As is normal under a long lease of a flat, the Headlease contained provisions whereby the freeholder covenanted to provide certain services, and provisions whereby the headlessee covenanted to pay a service charge for those services. Those services included "keeping in good and substantial repair" (i) "all entrances passages landings stairs fire escapes Bin Store (if any) and other parts of the Building intended to be enjoyed or used by the owners or occupiers of the Building in common with others", and (ii) other areas in the Building not "capable of being let as flats". However, "[i]n the case of any item of disrepair", it was stipulated that the freeholder "will not be liable for breach of this covenant until the [headlessee] has given written notice thereof to the [freeholder] and the [freeholder] has had a reasonable opportunity to remedy the same".
The Headlease is and has at all material times been vested in the appellant, Mr Kumarasamy. By a subtenancy dated 6 April 2009 ("the Subtenancy"), Mr Kumarasamy granted to the respondent, Mr Edwards, a tenancy of the Flat for a term expiring on 5 October 2009 (although the tenancy was liable to be continued as a periodic tenancy, as it was an assured shorthold tenancy, but nothing hangs on that for present purposes). The Subtenancy included a grant of "the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives" of the Building.
The Subtenancy contained a covenant by the subtenant, Mr Edwards, (i) to keep the Flat in good and tenantable condition, repair and decorative order, "items which the [Headlessee as] landlord is responsible to maintain … excepted", and (ii) to permit Mr Kumarasamy and his agents to enter the Flat after giving 24 hours' notice in order (a) to view its state of repair "and to execute repairs and other works upon the [Flat] or other properties" and (b) to show it to prospective new tenants or purchasers.
It is rightly common ground that section 11(1) of the 1985 Act, which cannot be contracted out of (see section 12(1)), applies to the Subtenancy. It is in these terms:
"… [T]here is implied [into "a lease of a dwelling-house granted … for a term of less than seven years] 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 …; and
(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water."
Subsection (6) of section 11 implies into any tenancy to which subsection (1) applies "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".
In Campden Hill Towers Ltd v Gardner [1977] QB 823, the Court of Appeal had to consider the application of the predecessor of section 11(1)(a), namely section 32(1)(a) of the Housing Act 1961, which was in effectively identical terms to section 11(1)(a), to a tenancy of a third floor flat in a large block of flats. Megaw LJ, giving the judgment of the court, said at p 834 that "[a]nything which, in the ordinary use of words, would be regarded as a part of the structure, or of the exterior, of the particular 'dwelling house' [sc the third floor flat], regarded as a separate part of the building, would be within the scope of paragraph (a)." However, as he went on to explain at pp 834–835, "other parts of the outside walls and other parts of the structure of the block" are "not 'of the dwelling house', and the paragraph expressly and deliberately uses the limiting words, as defined in the section itself, relating the paragraph to 'the dwelling house'". It has not been suggested on this appeal that this analysis is wrong; and in my view it is clearly right.
When Parliament repealed section 32 of the 1961 Act and replaced it with section 11 of the 1985 Act, it did not make any amendments of practical significance. However, section 116(1) and 116(2) of the Housing Act 1988 added some new subsections to section 11 of the 1985 Act, part of whose purpose would appear to have been to modify the effect of some of the reasoning in Campden Hill. In particular, new subsections (1A) and (1B) were added to the following effect:
"(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 … which the lessee, as such, is entitled to use."
The Building has a ground and two upper floors, and it appears that there are four flats on each floor, the Flat being on the second floor. The Building has a main entrance door which leads into a front hallway from which access can be got to the ground floor flats and to the lift and staircase which serve the two upper floors. The flats on the upper floors are accessed from hallways, leading from the lift and staircase. There is a car park in front of the Building, and, between the car park and the front door to the Building, there is a paved area, which is part of what is referred to in the Headlease as "the access road", which is the only or principal means of access to the Building. The paved area, which is between three and four metres in length, is covered by paving stones. The paved area is also used by occupiers as a means of access to the communal dustbins which are sited in the car park outside the Building.
On 1 July 2010, Mr Edwards was taking rubbish from the Flat to the communal dustbins, when he tripped over an uneven paving stone on the paved area. As a result, he suffered an injury to his right hand (which resulted in the exacerbation of pre-existing neuropathic pain for some 18 months) and to his right knee (which involved soft tissue injury lasting some four months). He issued proceedings against Mr Kumarasamy contending that his injury was caused by Mr Kumarasamy's failure to keep the paved area in repair, in breach of the covenants implied into the Subtenancy by section 11(1)(a) and 11(1A)(a) of the 1985 Act.
The claim was heard by Deputy District Judge Gilman, who accepted Mr Edwards's case both on the facts and on the law, and awarded him £3,750 damages. While he did not challenge the Deputy District Judge's conclusions on fact or quantum, Mr Kumarasamy appealed against the conclusion that he was liable to Mr Edwards under the statutory repairing covenant as a matter of law. Her Honour Judge May QC allowed his appeal on two grounds, namely (i) the paved area was not within the ambit of the section 11 covenant, and (ii) even it had been, Mr...
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