Kumarasamy V Edwards
Published on Fri, 6th May 2016 12:43
English Justice at its best.
On Thursday May 6th I attended a hearing at the highest court in the land, the Supreme Court. I have been to court before, including the High Court, but this is a different process again, where 2 sides debate a matter in front of a panel of law lords, who then retire to consider their views of the debate.
It is all very gentlemanly and I urge everyone to see the process in action, as all courts are open to all – as was demonstrated by several people dropping by the visitors’ gallery, before they decided it was extremely boring!
The reason I was there was to see first-hand the latest, and hopefully last, chapter in the Kumarasamy V Edwards case.
For those of you who are not aware this case is thus:-
- Mr Kumarasamy is the owner and landlord of a leasehold second floor flat. Mr Edwards was the tenant ;
- The tenant tripped on a loose paving slab in the path on a visit to the bin’s located outside;
- In March 2013 tenant sued landlord for his injuries, and was awarded £3,750 on the basis that the pathway formed part of the “structure and exterior of the dwelling-house” to which the landlord was obliged to keep in repair under Section 11 (1) of the 1985 Landlord and Tenant Act;
- The case went to appeal in the County Court in September 2013, and it was accepted by both sides that the trial judge had applied the wrong subsection of section 11 of the 1985 Act (section 11(1) relates to houses and section 11(1A) relates to flats). The decision was reversed on the basis that the paved area outside the front door was not part of the structure and exterior of the common parts and on the basis that the common parts were like the interior of the flat in that the landlord required notice from the tenant of disrepair (it was agreed that no such notice had been given), and the landlord had no right to carry out repairs in the common parts that belonged to the freeholder;
- January 2015 the case went to the Court of Appeal. Where the argument was whether this problem fell within the meaning of Section 11 (1A) of the Act, which states the landlord has:-
to keep in repair the structure and exterior of any part of the building in which the lessor has an estate or interest …
The case revolved around whether the path was the exterior of the hall of the building, whether the landlord had an estate or interest in the hall of the building and whether notice of disrepair was required. Eventually the Court of Appeal ruled that the path was part of the exterior of the hall because it was an essential means of access to the hall, the landlord had a right of way over the hall and paved area, which he was entitled at common law to repair and notice of disrepair was only required within the demised premises (ie the flat).
Complicated, I know, and I am sorry. But the upshot of that was that as the ruling stood all owners/landlords of leasehold properties could be found liable for repairs to their communal areas, even if they had not received notice of a problem.
Mr Kumarasamy bravely took the decision to take this to the Supreme Court, and the SLA felt that as such an important principle was at state we would support him as much as we could. To this end we launched an appeal and were help with some small part of his costs.
Hence why I was at the court.
How did it go? Well at this moment no-one knows, as the 5 Supreme Court judges listened to the arguments on both sides, and have retired to consider. It is anticipated that they will make their decision known between the end of May and the end of July - but the timing is up to them.
The barristers for Mr Kumarasamy (Philip Rainey QC, Julian Gun Cuninghame and Daniel Brayley) argued three main points:-
- “estate or interest” is referring to legal estate or equitable interest and not to an interest in land, such as an easement.
- If a is wrong, as an AST gives the tenant exclusive right of way over the common parts, the landlord has not retained any interest (as referred to in section 11(1A) of the common parts);
- In fact, Mr Kumarasamy in his AST to Mr Edwards had specifically demised (terminated to you and me) his rights to the easement (the right to pass over) the path.
The landlord’s right to use the common parts during the AST to collect rent or inspect the flat is not an easement under the long lease, which he has given up to this tenant, but an implied licence that anyone has to walk up to a front door and knock on it;
- a long lessee only has a “last resort” right to repair the common parts if the freeholder or management company fails to carry out repairs and the common law rule that the owner of a right of way has a right to repair the way is a rule of necessity because normally a landowner subject to a right of way has no obligation to repair the way, but in a landlord and tenant context this rule of necessity has no application.
- Mr Kumarasamy’s barristers argued that the path could not be the exterior of the hall, as had been decided by the Court of Appeal and not covered by the Act because it stretched the meaning of exterior too far and this was an issue of law and not an issue of fact and degree, as the Court of Appeal decided;
- As a matter of existing law, notice of disrepair in the common parts was required to be given by the AST tenant to the AST landlord because the landlord had no possession or control of the common parts. If this is not the law (there is no case on this point), the Supreme Court should find that this is the law as it is impractical for a landlord to know about faults in the common areas, whereas the tenant uses the common parts on a daily basis, and is more likely to know than the landlord of any disrepair, and should thus have to give notice of any problems.
Further, section 11(1B) only requires a landlord to carry out works if the disrepair affects the tenant’s enjoyment of the flat and only the tenant knows whether his enjoyment of the flat is being affected. Further, section 11(3A) gives the landlord a defence to any claim by the tenant that he used all reasonable endeavours to obtain, but was unable to obtain, a right to carry out repairs in the common parts and this defence is predicated on the landlord being given notice by the tenant of disrepair.
The tenant’s barrister basically relied on the reasoning of the Court of Appeal, that the path was a an essential means of access to the common parts and was the exterior of the hall, Mr Kumrasamy shared the easement over the common parts with his tenant and the requirement of notice of disrepair only applied to disrepair of the flat, not the common parts, and the common law allowed Mr Kumarasamy to make the repairs because he had an easement over the common parts .
I can tell you I was right confused at the end. However, I was very impressed with the lead judge, Lord Neuberger – he had a complete understanding of the case, and had obviously read all the case notes.
I offer this resume for those of you who have recognised the importance of this case, and have been following it. It is not intended as a lesson in law!!
Finally, thank you to the many landlords who contributed. To those still wishing to contribute, to help Mr Kumarasamy with his large legal bill, they can by ringing the SLA on 01732 56 56 03.