Up the Garden Path

One summer evening in 2010, Mr Samuel Edwards was taking rubbish out of the second floor flat which he and his partner rented from the leaseholder of the flat, Mr Kumarasamy. Unfortunately, Mr Edwards slipped on uneven paving stones and hurt his knee. He sued Mr Kumarasamy.

Now Mr Kumarasamy did not own the path but at first instance, the Deputy District Judge at Bow County Court decided that the path was part of the structure of the accommodation and thus caught by s.11 Landlord & Tenant Act 1985. He awarded Mr Edwards £3750. The Circuit Judge reversed that decision and in January 2015, the Court of Appeal considered Mr Kumarasamy's appeal in Edwards v Kumarasamy EWCV Civ 20

It found that the path was indeed caught by s.11 but not because it was part of the structure but because s.11 implies a covenant by the lessor-

Lord Justice Lewison said that Mr Kumarasamy must have had an easement over the area in front of the building or he would not be able to have gained access to it. That easement was the path. He thus had an 'estate or interest' in it. It follows from that that Mr Kumarasamy's legal easement over the front hall means that the front hall is a part of a building in which he has an estate or interest.

The second issue considered by the Court was one of notice. It was common ground that Mr Edwards had not given notice. But the Court cited the general rule that the landlord's liability on his covenant to repair requires notice only where the defect is within the demised property itself. In other words, a landlord has to keep an eye on all those elements which he owns or has an 'estate or interest in'; he cannot just wait for his tenants to give him notice that something is not right.

Comment This case is significant: hitherto, courts looking at disrepair cases have routinely ignored paths and gates and gardens. But that looks as if it is going to change.