Samuel Edwards v Baladas Kumarasamy  EWCA Civ 20
The Appellant, (Edwards) rented a 2nd floor flat by way of an assured short hold tenancy from the Respondent (Kumarasamy). The Respondent was not the owner of the block of flats but had a long lease of the particular flat let to the Appellant. The Appellant suffered injury when he tripped over an uneven paving stone in the pathway ,between the front door of the block and the communal bins. The Respondent had received no notice of the defect prior to the accident. This was accepted.
A Deputy District Judge at first instance found that the paved area was part of the structure or exterior of the flat and awarded the Appellant damages for his injury. The Respondent appealed the DDJ’S decision.
On appeal the Judge held that the Respondent was not liable under the extended covenant implied in to the tenancy by virtues section 11 (1a) of the Landlord and Tenants Act 1985 because he believed it was a condition precedent for such a claim to succeed that the landlord had notice of the defect.
The Appellant appealed that decision arguing that liability arose as soon as the disrepair existed and notice was not, as the Judge had found, a condition precedent of such a claim.
The Court of Appeal allowed the appeal.
The Court of Appeal distinguished between a landlord’s liability when a defect occurred within the demised premises itself. In those circumstances a landlord would only be in breach of the repairing covenant (and therefore liable to compensate for injury) when they had actual notice as to the existence of the defect. However, where a defect occurred to the external part of the building,, which was not demised to the tenant, the landlord was liable, even though he had no notice of the disrepair.
It’s not uncommon for Defendant Insurers to reject such claims on the basis that the landlord had no notice of the defect. Such a defence should only operate successfully when the defect which caused the accident existed within the tenants actual property. This is common sense, given that in the absence of a complaint or a situation where the landlord had the opportunity to inspect the inside of the property, there is no reason why the landlord should know of the defect. However if the defect occurred outside the tenants property i.e. to a common part, such as a stairwell or an access path, then providing it can be deemed part of the structure or exterior, the landlord will be liable for any injury even in the absence of notice.