Repairing Obligations: Legal Update Tilly Bailey & Irvine LLP Helen Lyneand Gemma Smith

Introductions Helen Lyne is a solicitor who qualified in Helen specialises in commercial litigation and has a broad experience of advising both small and large organisations. Contact Helen at: Gemma Smith is a solicitor who qualified in Gemma also specialises in commercial litigation and advises in a range of disputes. Contact Gemma at:

Repairing Obligations - Overview  Legal update on Landlord’s repairing obligations  Why?  Landlord and Tenant Act 1985 (“LTA”)  Recent developments  S.13 LTA- applicability and s.13(2) LTA- a way around this?  S.11 LTA- Implies a clause into Tenancy Agreements specifying the repairing obligations of Landlord.  S.12 LTA- Cannot exclude or modify statutory implied obligations (unless by Court Order/ s.13(2) LTA).

Repairing Obligations- Overview  Recent Case Law- Edwards v Kumarasamy [2015] EWCA Civ 20  Breach of repairing obligation  Breach of statutory duty  Breach of express term of tenancy  Common law nuisance/negligence claim  Damages?

Section 11 LTA 1985  Repairing obligations- Statute  Obligation to keep in repair the structure and exterior of the property. (A "dwelling-house" is not limited to a house, it also includes a flat (section 16, LTA 1985)).  Obligations to keep in repair and proper working order the installations for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences  Obligation to keep in repair and proper working order the installations for space heating and heating water.

Landlord and Tenant Act 1985  If the lease is of a dwelling-house that forms only part of a building, then the landlord's obligation to repair applies to the parts of the building in which the landlord has an estate or interest (section 11(1A), LTA).  S11(2) LTA- Exceptions to repair duties where Landlord not responsible  S11(3) LTA- Standard of Repair required  S8 and s10 LTA- Fit for Human Habitation?  Previous understanding:  “Landlords are not liable to keep in repair external areas such as gardens, communal halls and pathways”, (ie outside of the demise of the property let to the tenant) and  Landlords are not liable until they have been notified of any repair issues by the tenant”.

Edwards v Kumarasamy [2015] EWCA Civ 20  Was an intermediate Landlord in breach of the statutory covenant to keep the structure and exterior of the property in repair pursuant to s11 LTA 1985?  K sublet his second floor flat to E under an AST.  E tripped on an uneven paving slab when taking out the rubbish to the communal bins.  Under the Lease the freeholder was responsible for keeping the communal areas in good condition, subject to being given notice of the defect.

Edwards v Kumarasamy [2015] EWCA Civ 20 cont.  Neither the Landlord or the freeholder received notice of the defect.  The Court of Appeal held that the intermediate Landlord (K) was still in breach of his implied statutory obligation to repair under s11 LTA 1985 even though he had received no notice of the uneven paving.  K had a legal easement (right of way) over the pathway which formed part of the exterior to the front hall in which he had an estate/interest. As such the implied repairing covenant applied.

Practical Implications  Property inspections vs. Quiet Enjoyment.  Repair Promptly.  Impossible obligation.  Concern to buy to let Landlords-may unexpectedly find yourself liable for repairs to communal areas, even though a head Landlord is responsible for their upkeep and you have no notice of any defect.  Cant exclude or modify implied statutory covenants.  Insurance.  Inventory.

New Measures- 13 March 2015  Renting a safe home- A guide for tenants- published March 2015  Guide for tenants when renting their home/ signs of a ‘poorly’ managed properly  Said to flush out the small majority of rogue landlords, but more ‘red tape’?  Examples include: testing windows and doors lock correctly, recognising health hazards such as damp and mould.  Building an effective case in court.  Recent guides to ‘empower’ tenants:  How to Rent Guide  Publishing a model tenancy agreement

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