Landlord’s repairing covenant: the scope of the rule in O’Brien v Robinson

Edwards v Kumarasamy ([2015] EWCA Civ 20, CA (Eng)) is a decision of the English Court of Appeal. Although the context is the English Landlord and Tenant Act 1985, it raises a general question as to when landlords must have notice of a defect before they can be in breach of their repairing covenant.

K granted a lease of a flat to E. K owned the flat but no other part of the building. K also had the benefit of certain easements over common parts including the entrance hall to the flats. E tripped over an uneven paving stone in a paved area just outside the entrance hall and injured his knee. He relied on the repairing covenant implied by section 11 of the Landlord and Tenant Act 1985. The Court of Appeal (Lewison LJ giving the main judgment) held that the paved area was part of the exterior of the building (and so within section 11) and that the easements granted to K gave him a sufficient interest for him to be liable for defects in the paved area under the terms of the covenant implied by section 11.

The question was whether K’s liability was conditional on E giving notice of the defect to K. Ordinarily, landlords are in breach of a repairing covenant as soon as a defect occurs and whether or not they have notice of it ([9]). The rule in O’Brien v Robinson, however, is an exception to this. In British Telecommunications plc v Sun Life Assurance Society plc ([1996] Ch 69), Nourse LJ explained the rule thus:

‘ … where a defect occurs in the demised premises themselves, a landlord is in breach of his obligation to keep them in repair only when he has information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether  works of repair to it are needed and he has failed to carry out the necessary works with reasonable expedition thereafter.’

Here the implied repairing covenant imposed on K an obligation to keep the paved area in repair but the paved area did not form part of the demise. The crucial distinction for the rule in O’Brien v Robinson is whether the defect occurs in the demised premises. Since this defect was outside the demised premises, K was liable even though he had no notice of the defect.

Michael Lower

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