Recently, in the Supreme Court, the five Supreme Court judges overturned the Court of Appeal decision in the Edwards V Kumarasamy case which decided that a leasehold landlord was liable to compensate his Assured Shorthold tenant for injuries caused to his knee as a result of tripping over a communal paving stone when taking his rubbish from the main door of a block of flats to the bin store.
Mr Edwards was suing his landlord for a breach under s11(1) (A) of the Landlord and Tenant Act 1985; however, Mr Kumarasamy did not own the block and his lease did not include the pathway where the accident happened, this was owned by the freeholder.
Mr Kumarasamy was unaware of the potential hazard and his long lease had an express proviso that the head-landlord (the freeholder) could only be liable for disrepair on notice. In this case the lessee (Mr Kumarasamy) and the head-lessee (the freeholder) were not aware of the hazard.
We had been monitoring the case for some time, with several twists and turns along the way, firstly being ruled by the District Judge in favour of Mr Edwards before HHJ May QC overturned that decision. Judge May’s decision was then reversed at The Court of Appeal, restoring the District Judge’s order. Mr Kumarasamy’s further appeal was allowed at the Supreme Court overturning the Court of Appeal and dismissing the claim.
Whilst Mr Kumarasamy was unaware of the potential hazard, as well as having no right to carry out repairs to the pathway belonging to the freeholder, landlords should consider the following:
- If you identify a potential hazard, or become aware of one, you should act straight away and document your actions.
- If the hazard is situated within the communal grounds and is the responsibility of someone else, do not ignore it. Give written notification to the freeholder and Block Management Company. Inform your tenant, consult your managing agent / seek professional advice and keep chasing the responsible party.
- You should also bear in mind that the Edwards V Kumarasamy case was based on a particular set of circumstances and the above information is intended as a very brief overview of the case. It does not mean a landlord cannot be held responsible for a tenant related accident, occurring on a communal part of the grounds, especially if the landlord was aware of the issue.
To fully understand this case in full context you should read the case details. There is a summary version for “lighter reading” https://www.supremecourt.uk/cases/uksc-2015-0095.html
As our managed landlords are aware, our tenancy agreements are updated on a regular basis to offer the most up to date protection. Following the original hearing of Edwards V Kumarasamy, we amended a clause in our tenancy agreements requiring the tenant to report, in writing, defects and damages at the property including those in communal areas.
The actual wording of the clause is of course more detailed than this, however we recommend landlords read their tenancy agreements, especially if purchased online and/or from a source which fails to regularly review and revise (with the help of tenancy law expertise) their documentation.
In April 2015, another case (Williams v Khan) resulted in a landlord making a claim for £4,500 in unpaid rent, to which the tenant made a successful counterclaim. The courts awarded in favour of the tenant, a sum in excess of £43,000. Admittedly in this case the evidence against the landlord was pretty significant.
In Bow Country Court, a case (Photis v Shamas, Uddin & Shamas) resulted in an award to the tenant of £7,000 due to a faulty front door, amongst others, posing a fire and security risk.
A great tip for landlords not employing a managing agent, is to read section 11 of the Landlord & Tenant Act 1985 (1) (a), (1) (b) & (1) (c), which is pretty simple reading. It will help a landlord understand their obligation under this section of the Act.
If you have any questions, please feel free to contact your Property Manager, or drop me an e-mail firstname.lastname@example.org