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Tuesday, May 05, 2015

Landlord liable for tenant injuries despite not owning the freehold

A recent precedent set by the case of Edwards vs. Kumarasamy could affect landlord's insurance cover.

Landlord, Mr Kumarasamy was liable for the injuries to his tenant ( Mr Edwards) following his trip on a uneven paving stone on the way to put his rubbish in his dustbin.  incident when  the tenant was taking out his rubbish. The trip was caused by an uneven paving stone on an external path.

Despite landlord, Mr Kumarasamy  not owning the freehold of the shared property, and although the repairs to the external areas of the building were the responsibility of the freeholder / managing agent and not directly the landlord, Lord Justice Lewison decided it was still within the landlord's obligations as set out in section 11 of the Landlord & Tenant Act, 1985. 

Lord Justice Lewison's decision hinged on the interpretation of section 11 of the act, particularly the "implied covenant" of section 1A, which states that the lessor should keep in repair the structure and exterior of the dwelling house and that if the "dwelling house" is only a part of a building then this should take effect in areas where the lessor has an estate or interest.

In Lord Justice Lewison's view the accident happened on what was agreed to be an essential path in the tenants use of the property, deciding that Mr Edwards had sufficient "estate or interest" for the covenant to come into effect. He also concluded that although Mr Edwards had not reported the paths disrepair prior to the accident, as it was an area the landlord could freely gain access to, he felt their was no expectation for the tenant to have raised any concerns.

Liability Insurance for leaseholders

This case highlights how landlords who are leaseholders may still have responsibilities beyond their property boundary, meaning they can be sued in respect of areas of the property which they do not own themselves.

E.g. a private drive serving a property over which the landlord has a right of access or common areas of a block of flats. They need to monitor them regularly to ensure they're kept safe and in good condition. They also need to ensure that they have the correct insurance cover in the eventuality of a claim arising against them.

“This case has highlighted the need for leaseholders to have, as a bare minimum, Public Liability Insurance on their properties to protect them from expensive liability claims.” 

said Steve Cox, Account Executive at Alan Boswell Insurance Brokers. 

“We can provide quality cover at affordable prices, why not give us a try?”

Take advantage of our discounted landlord insurance rates


Unknown said...

But if the landlord is not the freeholder of that path, it is not his property, so he has no legal right to carry out a repair on it? Presumably, if he tried to do so he could be committing a tort of trespass or maybe even a criminal offence?

Hawkeye said...

Yes, I agree Robert. It seems an impossible situation.

My presumption is the landlord could not prove that he had made enough of an attempt to get the Freeholder to repair the path.

ie, Had no proof he had raised his concern over the issue.