In Edwards v Kumarasamy, the Supreme Court held that the landlord of a leasehold flat was not liable for the injury of his tenant sustained outside the block of flats he was renting. The Court of Appeal decision which caused so much concern to landlords of flats has been overturned.
A summary of the case and the Court of Appeal decision can be read here.
The Supreme Court held that there were three questions to consider and answer and the tenant would need to succeed on every one of them in order to win the case. The three questions were:
1. Was the path part of the exterior of the property?
2. Was there an implied easement over the path? and
3. Did the landlord need to be given notice of a want of repair of the path?
Question 1
The Court resolved this question in the landlord’s favour. The Court refused to agree that a path which was far removed from the property could form part of its exterior. It held that despite the fact that the path was a key approach to the property, there was a distinction between the actual outside surface of the property and a path which was removed from the property itself. The court preferred the plain English meaning of ‘exterior’ as opposed to the strained meaning adopted by the Court of Appeal.
Question 2
Once again the Supreme Court adopted a plain English meaning here and agreed that the there was an implied easement. However, in light of the answers to Question 1 and 3 the Supreme Court did not dwell on this question.
Question 3
The Supreme Court decided, by a majority, that the landlord should be given notice. The Court held that it is the tenant that had the easiest opportunity to view the state of repair of the common areas. Furthermore, that while the landlord retained a right of access as against the freeholder, he had no right to actually effect repair.
Comment
This decision will come as some relief to landlords of flats who were facing the need to inspect the common areas of these properties and were potentially liable for the failures of the freeholder. While the Supreme Court has simplified things a great deal the issue of notice is not closed and is likely to raise its head again.
