Kumarasamy v Edwards [2016] UKSC 40

Mr Edwards rented a second floor flat from Mr Kumarasamy who was the leaseholder of the flat. Mr Kumarasamy did not own any other part of the property but his lease granted him the right “to use on foot the entrance hall, lift and staircases giving access to the flat; the right to use an access road and parking space and the right to use the Bin Store (which is part of the communal areas as defined) and other facilities provided by the landlord.  Regulations forming part of the lease in fact require all domestic rubbish to be placed in the Bin Store.”

The freeholders covenanted under the lease to keep the communal areas in good and substantial repair and to keep the passageways and footpaths forming part of the building in good order and condition.  The lease also included a clause which limited the freeholder’s liability for any defect unless Mr Kumarasamy had given notice of the defect and the freeholder had been given reasonable time to carry out the repairs.

Whilst Mr Edwards was taking the rubbish out to the Bin Store he tripped over an uneven paving stone on the pathway between the front door of the block of flats and the communal bins in the car park.  Mr Edwards injured his knee.  Mr Edwards had not given prior notice to Mr Kumarasamy of the uneven paving stone and Mr Kumarasamy has not given prior notice to the freeholder either.  The pathway was the main access to the block of flats.  Mr Edwards claimed that Mr Kumarasamy was responsible for the defect under Section 11 Landlord and Tenant Act 1985.

The District Judge found that the path was part of the exterior and structure of the flat and did therefore come under Section 11 and damages were awarded to Mr Edwards, however on appeal the Circuit Judge found it was not part of the structure and exterior.  Mr Edwards had put forward a new argument that Mr Kumarasamy was liable for the path under section 11 (1A) but the Circuit Judge decided that there had not been any notice of the defect so there could be not liability.

The case was referred to the Court of Appeal: