Few would find it surprising that a buy-to-let owner is liable for an injury sustained by a sub-tenant of his flat under an assured shorthold tenancy (“AST tenant”) where the injury is as a result of a dangerous defect within the flat itself. What though is the situation where an injury is sustained by an AST tenant in the common areas of a block of flats that falls outside of the control of the flat owner? Naturally the freeholder will be liable but will the flat owner be also?
In the Court of Appeal case, Edwards v Kumarasamy [2015] EWCA Civ 20, the decision was that the implied repairing covenant in s11 of the Landlord and Tenant Act 1985 requires the flat owner as AST landlord to keep the flat in repair and also such common parts of the development in which the flat was located as could reasonably be regarded as parts over which the AST tenant had rights of access. In this particular case Kumarasamy was sued by his AST tenant, Edwards, as a result of injuries sustained by Edwards when he tripped over uneven paving on his way to the communal bin store.
Kumarasamy had not been notified of any defect in the paving but nonetheless the Court of Appeal considered that the statutory duty to repair in s11 of the 1985 Act applied and he was liable for the injury sustained by Edwards. Whatever the terms of the long lease that Kumarasamy had under which he owned the flat he had an implied right to go on to the common areas and repair any defect that made it dangerous to use those common areas. Where the flat was sub-let that right became a duty.
The decision will be greeted with surprise from both legal commentators and AST landlords alike. It makes it essential that AST landlords regularly inspect not only the flat that they are letting but all communal facilities that the landlord of the block provides for use of the tenant.
It would be prudent for AST landlords to review the wording of their AST agreements and seek to curtail the AST tenants’ rights to access non-essential common areas and so restrict the scope of the AST landlord’s liability but clearly there will always be exposure to liability in respect of key common areas such as the main points of access to the flat, which out of necessity will have to be made available for the use of the AST tenant. AST landlord will also want to check the scope of their insurance policies to ensure that defects in common areas are covered.
Thankfully for AST landlord if they ever find themselves in this situation then they should usually be able to claim an indemnity from the freeholder. If the freeholder is insolvent then it should ordinarily have block insurance in place but the AST landlord should be aware of the serious risk posed by the Kumarasamy case and make appropriate regular checks as to the state and condition of the common areas, the financial status of the freeholder and the status of the block insurance.
For further information on this case or any aspect of residential landlord and tenant legal issues please contact David Eminton on 023 8048 2284 or Robert Payne on 023 8048 2323.