They couldn’t be more wrong, says Stephen Moss, CEO of property investment search engine, Pring.co.uk.
Imagine that one dark night, a tenant with a standard assured shorthold tenancy of a flat, trips on an uneven paving stone outdoors, while making his way to the wheelie bins.
He falls awkwardly, injuring himself and has to take time off work. He takes advice and makes a significant claim against his landlord. His flat is some distance from the offending paving stone. Most landlords would assume that because they make a contribution to the centralised maintenance of the block through an external firm; it was their job to keep walkways in good order. Most would think they had no obligation to repair the path between the building and the bin area, anyway, because they don’t own it.
However a case earlier this year, contradicts this and should serve as a warning to all residential landlords.
In the case of Edwards v Kumarasamy, a tenant tripped on a path outside the block of flats where he rented a property, injuring his knee. The case went to court … or in fact, three courts.
Ruling 1. ‘You should have fixed it’.
The judge in the first hearing ruled that, under Section 11 of the Landlord and Tenant Act 1895, a landlord must ‘keep in repair, the structure and exterior of the dwelling house’ and that this applies to any part of the building in which the landlord has an ‘estate or interest’. The pathway formed part of the structure and exterior and the landlord’s easement over the pathway was enough to constitute an ‘interest’. That meant he had an obligation to keep it in repair.
The personal injury claim was allowed to stand. However, the landlord appealed.
Overturned on appeal. Ruling 2. ‘You’re not obliged to fix it’.
The appeal judge reversed the decision, largely on the basis that, in order for the landlord to be bound by his obligation in Section 11, he had to have been given notice of the defect.
A tenant is obliged to notify the absentee landlord of defects. If the landlord didn’t know about the defective paving, how could he (or the company he paid to be responsible for maintenance) be expected to take responsibility for fixing it?
The compensation claim was quashed and the matter was then taken to the Court of Appeal.
Court of Appeal. Ruling 3. ‘It is your obligation to fix it’.
Applying its own 1973 decision (O’Brien v Robinson), the Court of Appeal then said that the obligation of the tenant to give notice of defects applies only to those within a dwelling house, i.e. only in those circumstances where the tenant would be the first (and possibly the only) person to know about the defect.
Where a block of flats is concerned, apparently, numerous people would have had numerous opportunities to advise the landlord (or management company) about the defective paving.
On that basis, the Court of Appeal overruled the appeal judge’s decision and held that the compensation claim still stood.
The implications
The case has big implications for landlords and agents. Prior to this, many assumed landlords were only responsible for what they actually let out. This shows that this isn’t necessarily the case. All landlords should check with their insurer that such a claim would be covered by the public liability insurance on the property. Better check now, than be caught out further down the line.
