Posts Tagged ‘notice’

Landlord’s repairing covenant: tenant must give the landlord notice of a defect in the property in the tenant’s possession

September 14, 2016

In Edwards v Kumarasamy ([2016] UKSC 40) the UK Supreme Court had to consider the landlord’s liability in respect of physical injury caused to his tenant. The lease was of the interior of a flat in a block of flats. The landlord (K) was himself a tenant of the flat and had the benefit of the right to use the entrance hall to the flats, the car park and the paved area between the front door and the car park. K sub-let the flat together with these ancillary rights to E. E injured himself when he tripped over an uneven paving stone in the paved area.

The primary question was whether the paved area was part of the exterior of the building of which the flat formed part. If it was, then K would be liable to T under the covenant imposed on landlords by section 11 of the Landlord and Tenant Act 1985. Lord Neuberger held that the paved area was not part of the exterior of the building. The natural meaning of the words of a statute should be applied unless they produced a nonsensical result or one which was inconsistent with the intention of the legislation. Here the natural meaning of the ‘exterior’ did not extend to the paved area ([17]).

That effectively meant that the case was decided in K’s favour. Lord Neuberger went on, however, to look at another, more general issue. He referred to the rule that, ‘a landlord is not liable under a covenant with his tenant to repair premises which are in the possession of the tenant and not of the landlord unless and until the landlord has notice of the repair’ ([30]). This is an implied term. It does not normally apply where the premises to be repaired are not in the tenant’s possession ([42]). If the landlord had been subject to a covenant to repair the paved area, did the tenant have to serve notice of disrepair on him before the landlord was under any liability to repair?

The distinguishing feature of this case was that the premises to be repaired were in the possession neither of the landlord nor the tenant but was property over which they both had a right of way. The premises were the paved area over which the landlord had been granted a right of way which he had effectively passed on to the tenant. The landlord had effectively disposed of his right to use the paved area to the tenant ([50]). Lord Neuberger held that the rule requiring the tenant to give notice of the disrepair applied to this case (49]).

Michael Lower

 

 

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Making time of the essence for completion

September 9, 2015

In Many Gain Investment Ltd v Chan Fai Ho ([[2015] HKEC 1553, CFI) P, a property developer agreed to buy a property from D. P raised a requisition about D’s title and there was a dispute as to whether or not it had been properly answered. This dispute continued up to the contractual completion date of 31st May 2011. The parties agreed to extend the completion date to 14th June 2011. The next day, 15th June, D’s solicitors wrote to P’s solicitors requiring completion by 20th June. Despite this, on 16th June, D entered into an agreement to sell the property to another buyer. P now withdrew the requisition and sought specific performance. The question was whether P’s delay in completing amounted to a repudiatory breach entitling D to rescind.

Time was not expressly of the essence for completion and Anthony To J found that time was not impliedly of the essence in this case ([23]). The question then was whether the letter of 15th June made time of the essence (see United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904). As a matter of construction it did not. Anthony To J preferred P’s interpretation which was that the letter was no more than a demand that P should withdraw the requisition within 5 days ([24] – [27]).

For the sake of completeness, Anthony To J considered whether, if the letter were to be construed as a notice making time of the essence, the 5 day period it specified constituted reasonable notice. He held that it could have amounted to reasonable notice had D taken the necessary steps to make completion possible (including notifying P of the amounts of the split cheques that would be required on completion). The only other step to be taken within that time was that P had to decide whether or not it would insist on the requisition. As D had not taken the steps to make completion possible within 5 days, the 5 day period would not amount to reasonable notice ([33]).

P was granted the order of specific performance that it sought.

Michael Lower

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

February 24, 2015

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

Obligations to repair and reinstate on the expiry of the term: written notice needed?

May 31, 2014

In L Batley Pet Products Ltd v North Lanarkshire Council ([2014] UKSC 27) L was the intermediate landlord and T was sub-tenant. The head-lease and sub-lease contained full repairing covenants and the terms of the head lease were incorporated in the sub-lease. Both leases required all notices to be in writing. L and T had entered into a Minute of Agreement authorising T to make alterations. The Minute required T to reinstate the property at the end of the term at the request of L and did not expressly require such notice to be in writing. The Minute stated that its terms should be deemed to be incorporated into the sub-lease.

L argued that oral notice that it required the alterations to be removed and the property to be reinstated at the end of the term was sufficient. T argued that it had no obligation to deal with dilapidations (breaches of the repairing covenant) nor to remove the alterations and reinstate the property because it had not received written notice before the end of the term.

Lord Hodge (with whom the rest of the Supreme Court agreed) dealt first with the dilapidations point. A repairing covenant in the form used here ‘imposes a continuing obligation on the tenant which does not require any notice for the landlord to activate it.’ ([14])

L should also be allowed to proceed with its claim concerning the removal / reinstatement. It was a question of the construction of the Minute of Agreement and he referred to the accepted approach to contractual interpretation ([18] – [19]). Looking at the clause in question in the context of the document as a whole and of the factual matrix he preferred the straightforward approach to the construction of the clause which did not expressly require notice to be in writing.

Michael Lower