When can tenants sue for disrepair?
I am the leaseholder of a flat on the top floor of a block of flats. I sublet it under a tenancy which began in October 2015 and ends in October 2017. I have been served with a claim by the subtenant, who says that in April 2017 there was a bad storm and some of the tiles on the pitched roof have broken, causing a leak into the flat, which has damaged the plaster finish of the walls and ceiling, as well as some of the subtenant’s belongings.
In addition, my subtenant says that when entering into the flat recently, he tripped and fell down a steep step that is hidden behind the front door. He says he has suffered serious injuries.
I did not know about the broken roof tiles, leak or any of the damage before I was served with the claim.
Am I liable to my subtenant for any of the damage?
You may be liable to your subtenant for the disrepair to the roof and the damage it has caused – even though you did not have notice of the broken tiles – if the roof was not part of the property in your subtenant’s possession, as the roof is likely to form part of the structure or exterior of the top-floor flat. It is unlikely you will be liable to your subtenant for injuries suffered because of his fall down the steep step because it does not appear that the step was in disrepair, even if it was dangerous.
A landlord who lets a dwelling for a term of less than seven years has an obligation “to keep in repair the structure and exterior of the dwellinghouse”: section 11(1)(a) of the Landlord and Tenant Act 1985 (the 1985 Act).
In a case similar to yours – Edwards v Kumarasamy  UKSC 40;  EGLR 51 – a flat was sublet on an assured shorthold tenancy to Samuel Edwards. He tripped over a paving slab, suffered injury and sued his landlord for damages. The landlord had no notice of the disrepair and it was the freeholder’s responsibility to keep the communal areas in good condition. The question was whether the intermediate landlord was liable for damages.
The landlord argued that he did not have a lease of the external area where his tenant fell and he had not received notice of the disrepair.
The Supreme Court considered whether (i) the paved area was part of the exterior of the front hall; (ii) the headlessee had an estate or interest in the front hall; and (iii) the headlessee was liable despite having had no notice of the disrepair before the subtenant’s injury.
First, you would need to consider whether the roof forms part of the “structure” or “exterior of the dwellinghouse”.
The Supreme Court thought, in Kumarasamy, that a path that led to the front hall of the building could not be described as part of the exterior of the front hall.
The roof is likely to form part of the structure or exterior of the top-floor flat if the ceiling and roof form one unit. However, the position is less clear if there is a void space or an uninhabited loft between the flat and the roof: Douglas-Scott v Scourgie  1 EGLR 40.
While the landlord in Kumarasamy succeeded on this point, it may be more difficult for you to say that the roof does not form part of the structure or exterior of the top-floor flat.
The second question arose in Kumarasamy because, under section 11(1A) of the 1985 Act, where a dwellinghouse forms part only of a building, a landlord’s repairing obligation includes any part of the building in which the landlord has an estate or interest. The Supreme Court rejected the landlord’s argument that he did not have any “estate or interest” in the front hall because the landlord had an easement over the common parts.
In your case, the question would be whether you hold an estate or interest in the roof. As a leaseholder of the top-floor flat in the block, it is likely that you would have an interest in the roof. However, you would need to review the terms of your lease.
In relation to the third issue, the court said it was well settled that notice is required to be given by a tenant to a landlord where the disrepair arises within the demised premises, but notice is not required where it arises in areas retained by the landlord. Likewise, where the disrepair is in an area not in the possession of the landlord or the tenant, notice is not required.
However, somewhat confusingly, in Kumarasamy, the court held that, although the disrepair did not arise within the demised premises, the landlord had effectively disposed of his rights over the front hall for the duration of the tenancy and that it would be the tenant who uses and occupies the common parts and would therefore have the best knowledge of their state of repair. Therefore, on the specific facts, the obligation to repair was only triggered once the landlord had notice.
The question is whether the roof is demised to your subtenant. If it is, you will not be liable for the disrepair. Likewise, you were not under an obligation to repair the damage to the plasterwork in the flat until you were given notice of it. Conversely, if the roof was not demised to the subtenant, it is likely that you would be liable for the damage caused, even though you did not have notice of the broken roof tiles, as the roof is not in the tenant’s possession.
Turning to the step, a similar scenario arose in Sternbaum v Dhesi  EWCA Civ 155;  PLSCS 91. In that case, the tenant slipped and fell as she walked up the stairs in a Victorian property. The tenant claimed damages arguing that, without a handrail, the stairs were in a dangerous condition.
The Court of Appeal commented that although the situation could be regarded as dangerous, the stairs were not in disrepair and to require the landlord to fit a handrail would amount to an obligation to improve the premises.
In the recent judgment in Dodd (widow and executrix of Paul Dodd) v Raebarn Estates Ltd and others  EWCA Civ 439;  PLSCS 135 the Court of Appeal followed Sternbaum and explained that the test is not one of functionality: part of a building may function inadequately but it does not follow that it is in disrepair.
Therefore, while the step may seem hazardous, your tenant is unlikely to succeed in arguing that the premises are in disrepair.
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