…and the risk of personal injury claims
In the case of Kumarasamy v Edwards, Kumarasamy held a headlease of a second floor flat which granted him the right to use the front hall and a pathway from the front door of the block to a communal bin store. The freeholder had covenanted to keep the pathway in good condition, subject to receiving notice of any defect and having a reasonable opportunity to correct the defect.
Kumarasamy then sublet the flat to Edwards, who tripped over an uneven paving stone when accessing the bin store causing injury to his knee. Edwards claimed that Kumarasamy was liable for his injury although no notice has been given by him to Kumarasamy, or by Kumarasamy to the freeholder. Edwards brought a claim against Kumarasamy and was successful.
Upon appeal, the County Court held that Kumarasamy was not liable because it was a pre-condition to liability that notice of the defect had to be given. Edwards then appealed this decision.
The Court of Appeal restored the order of the District Judge and found that Kumarasamy was liable. However, the Supreme Court held that the injury which Edwards had suffered had not been caused by the appellant’s failure to keep that area in repair, in breach of covenants implied into the subtenancy by the Landlord and Tenant Act 1985.
The judgment is interesting as it shows the outcome of the case varying at each stage of the appeal process. The judgment is helpful in clarifying the extent of implied repairing covenants in short leases where the landlord is himself only a tenant of a flat. It is also of great assistance in explaining when notice of disrepair is and is not required. The court pointed out that where the demise is internal and non-structural, the application of the rule means that the tenant will not have to have given notice where disrepair arises in structural parts of the flat that are not demised.
The final decision of the Supreme Court will bring comfort to those in a similar position to Kumarasamy such as buy-to-let landlords, as it may not always be clear when a tenant should give notice of a defect. The position may however be considered from case to case on the facts, but in this case, it was summarised that a landlords liability was conditional of notice of disrepair from the tenant.