A tenant was not required to give notice of a defect to a landlord for the latter to be liable under section 11(1A) of the Landlord and Tenant Act 1985 for injury or loss to the tenant resulting from the failure of the landlord to keep in repair any part of the building in which the landlord had an interest.
The Court of Appeal so held when allowing an appeal by the tenant, Samuel Edwards, against an order by Judge May QC that the landlord, Baladas Kumarasamy, was not liable under an extended covenant implied by section 11(1A) of the 1985 Act into the assured shorthold tenancy between the parties for a knee injury suffered by the tenant from tripping over an uneven paving stone in the pathway which provided access to the block of flats.
Section 11 of the Landlord and Tenant Act 1985 provides, so far as is material:
“(1) In a lease to which this section applies … there is implied a covenant by the lessor— (a) to keep in repair the structure and exterior of the dwelling house (including drains, gutters and external pipes) …
“(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 …
“(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, as defined in section 60(1) of the Landlord and Tenant Act 1987, which the lessee, as such, is entitled to use.”
LEWISON LJ said it was important to note that section 11 of the Act concerning repair obligations worked by implying a covenant into a tenancy agreement i e a compulsory contract term. If read in the modified way that section 11(1A) required, the covenant provided in the tenancy provided that there was a covenant by the landlord to keep in repair the structure and exterior of a dwelling and the structure and exterior of any part of the building in which the landlord had an estate or interest. The pathway could properly be described as the exterior of the front hall of the block. Therefore, the extended covenant applied in principle to the tenancy between the parties. As to whether the landlord’s liability was conditional on notice having been given or whether liability arose as soon as the disrepair existed, Lewison LJ said it was striking that Parliament had not included any requirement of notice in section 11. The landlord said that liability under the extended covenant only applied where the disrepair affected the tenant’s enjoyment of the dwelling or common parts. It was ultimately common ground that that test was to be objectively applied. The landlord also said that in practice the tenant was likely to be the first person to become aware of the existence of defects falling within the landlord’s obligation so as to affect the tenant’s enjoyment of the dwelling or common parts pursuant to section 11(1B) of the Act and that it would be right to interpret the covenant as requiring the giving of notice before the landlord’s liability arose. His Lordship, although recognising that to be a pragmatic way of limiting a landlord’s liability, could not find the landlord’s interpretation in the wording of section 11(1A). Necessity rather than mere reasonableness was the touchstone when in the territory of implied terms. Accordingly, the appeal would be allowed.
SIR TERENCE ETHERTON C and CHRISTOPHER CLARKE LJ agreed.
Anthony O’Toole (instructed by Oliver & Co, Chester ) for the lessee; Joshua Swirsky (instructed by MacLeod James & Goonting ) for the lessor.