Tenant who tripped on path not owned by landlord wins case

| David Smith

An important new case has major implications for letting agents who manage properties and for landlords.

It may also have implications for insurance.

In the case of Edwards v Kumarasamy, the tenant tripped on a path outside the block of flats where he lived on the second floor, injuring his knee.

The landlord did not own the path and did not own the block. However, the landlord did own a flat within the block and the path was the essential means of access to the block.

Until now, it has always been assumed that repairing obligations only apply to what the landlord actually rents out to the tenant, and also that the landlord cannot be held liable if they have not been notified of the need for a repair.

However, in this case, the tenant took a disrepair claim under Section 111 of the Landlord and Tenant Act 1985 and, at the Court of Appeal, won his case.

Solicitor David Smith, of Anthony Gold, says this is “a big deal” for agents and landlords, and will have “serious consequences”.

Smith warns that as a result of the case, any landlord can now be sued for disrepair to areas serving their property, irrespective of ownership.

It also means that agents doing property inspections should look not just at the property itself but also at areas over which the landlord has rights, such as paths and drives.

There is, says Smith, no obligation on the tenant to report disrepair, so it is up to the landlord or agent to identify it and resolve it.

This particular case also raises another question, although one not dealt with by the Court of Appeal: paving stones that are merely uneven, rather than being in a state of disrepair.

The full case is reported here

David Smith’s commentary is here

* David Smith, who has an outstanding reputation for his knowledge of housing law, joins Eye as our new expert contributor and we are delighted to welcome him.

His contributions will include a range of original articles especially written for Eye, plus we will be linking to new articles on the Anthony Gold site which he – and we – consider especially important, as with this case.

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19 Comments

  1. Mark Reynolds
    February 2, 2015 at 07:26

    I enjoy ready Eye but having David on board will make it even more pleasureable.

    Reports like this are invaluable to agents and landlords to raise awareness so well done PIE getting David on board!

    Report
  2. dave_d
    February 2, 2015 at 08:11

    I could understand if it were a house but a block of flats??! What is the world coming to..

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  3. 1Elliswinters
    February 2, 2015 at 08:34

    At what point does the tenant become responsible for their own actions and look where they are going?

    If the person who tripped was an owner rather than a tenant would the law be different?

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  4. fpe
    February 2, 2015 at 08:52

    It is shocking however not surprising that leaseholders who let their flats to tenants and letting agents seem to think that their responsibility towards the tenant only starts at the door of the flat when in fact access to and egress from is also part of their responsibility. The health and safety at work act 1974 covers duty of care and therefore if you let your flat out or have visitors or workmen to your flat you are duty bound to ensure your tenants, visitors or workmen's safety. It is all to common for leaseholders to blame the landlord who may not visit the property much so would need to be told of repair issue by the leaseholder who also holds these responsibilities.

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  5. Peter
    February 2, 2015 at 09:01

    Presumably, the landlord will now have to sue the freeholder, citing Section 111 of the Landlord and Tenant Act 1985, to recover their costs/fine.

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    1. fpe
      February 2, 2015 at 09:48

      It is not just the freeholder's responsibility it is also the leaseholders duty of care to their tenants to bring these repairs to the landlord or managing agent notice. Their duty of care doesn't just start at the front door of their flat.

      Report
  6. Paul H
    February 2, 2015 at 09:04

    I'm struggling to see what measures the landlord could have taken to prevent this accident taking place. Bonkers decision.

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  7. smile please
    February 2, 2015 at 09:18

    Yet another poor landlord who is out of pocket for no fault of their own. Bet Shelter are rejoicing in their hemp jumpers whilst sipping organic tea this morning!

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  8. MF
    February 2, 2015 at 09:28

    Big welcome to David Smith – excellent addition to the EYE panel!!

    As for this article, I do hope the leaseholder is able to get recompense from the freeholder and/or their block management agent.

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  9. TheLondonAgent
    February 2, 2015 at 09:31

    Oh my god, could the legal system show any more disregard for landlords in the PRS. They should team up with the government to just kill it off. We need specialised qualified judges to rule on housing matters. Rodrigues v Superstrike is another momentous ruling with a complete lack of understanding. It creates tonnes more administration while the government considers banning administration fees. A government that still offers nothing other than voluntary regulation to much of our sector. How can this unfair ruling be upheld by anyone. It's just silly.

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    1. smile please
      February 2, 2015 at 09:46

      Banning Admin fees is so short sighted, They will just be "Hidden" elsewhere. Be it landlords putting up rent as they are charged a fee or even Agents charging applicants for viewings! – The fees are not that high. The majority of a fee is taken in deposit and first months rent. Then its just a few hundred quid to move. Compared to the cost of fees buying a property its nothing. Why not charge a tax by the government such as stamp duty every time somebody rents a new property (this tax is unfair on owners). Given that more and more tenants seem to think renting a property means a maintenance free home for themselves i think fees should go up!

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  10. Neilw
    February 2, 2015 at 09:40

    Does the same ruling include the Management Company or factor who is responsible for the common parts. Are the co owners also implicated because they failed to repair their property. What happens if you do identify issue and other owners or factor refuse to co-operate?

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    1. Woodentop
      February 2, 2015 at 13:24

      Well spotted Neilw. I do hope that David Smith will answer this point and it doesn't get ignored for the ruling does appear to be at odds with liability and landlords right to make changes to another's property.

      Report
  11. 1stTimeBuyer
    February 2, 2015 at 11:42

    Pathetic. Injured himself, he should of looked where he was going. Some people disgust me.

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    1. Peter
      February 2, 2015 at 13:10

      Could have been blind or maybe happened at night.

      Report
      1. Woodentop
        February 2, 2015 at 18:10

        Or "Injury Lawyers for You" were in a queue. I note they said the path wasn't defective other than slabs were not level and refused to hear that part again as it wasn't raised in the first appeal process. The consensus at this end is that the ruling would make all the landlords and owner/occupiers of the property liable and need to share the cost and those that don't cough up, pursued through the courts by those that do. An absolute minefield and open to argument between parties, particularly those that don't get on. However right to tamper with another's property will hopefully be answered by David Smith.

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  12. Happychappy
    February 7, 2015 at 16:09

    Well that is the court of appeal for you.  What it means in legal terms is that person fought all the way from the lower courts to COA.  Though if they have enough money they can always go to the Supreme Court.  I wonder who got the costs.  You can win your case but if you do not get costs then you have effectively lost your case.

    It seems to be an odd decision.

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  13. wayneleecarson
    February 9, 2015 at 15:36

    A terrible verdict but not unsurprising, common sense does not apply in the law but the neighbor principle does. The definitions of duty and neighbor still apply. There is a case for vicarious liability to the management company as they take onus of responsibility for managing repairs and upkeep surely?

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  14. Robin
    February 10, 2015 at 06:14

    A typical verdict in our increasingly litigious society – I can’t understand this decision unless the landlord had already been told about this defective path and then failed to do anything about it.  Surely he could not be held negligent if he knew nothing about the defect?   Even the managing agent should not be responsible unless a resident had brought the path to their attention?  Liability should follow from wilful neglect not innocent lack of information.  How often does the law expect the person with responsibility to search for and examine all the possible dangers that await the innocent tenant – weekly? Daily?  Hourly….?   In cases where cars have been damaged by potholes I have heard that councils refuse to take liability unless the pothole has already been reported to them – has anyone had any experience of this?  Anyway it all makes more work for the lawyers and yet some of them have the cheek to imply that we are the ones overcharging….

    Should we all be rewriting our tenancy agreements?

    Report
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