A review of landlord and tenant case law

At the time of writing, practitioners (especially those who advise buy-to-let landlords) are awaiting the decision in the Supreme Court of Edwards v Kumarasamy (UKSC 2015/0095). The hearing took place on
5 May 2016 and has significance for all landlords, but especially those who let properties that they do not then intend to inspect (or have inspected) regularly.

As the case stands, the Court of Appeal found that a landlord of a flat let under a short lease was liable for disrepair of common parts of the block in which the flat was situated. This liability arose under section 11 of the Landlord and Tenant Act 1985. The landlord concerned was not the head landlord of the block (who had the ultimate repairing obligations) and his liability attached even though the tenant had not given notice of
the disrepair.

The key factor which resulted in the liability attaching was that the disrepair was not within the demised property, therefore the implied term that the tenant had to give notice of the disrepair was found not to apply. The disrepair was in a common area and knowledge of it would have been revealed by inspections.

The effect of this decision is that landlords of units in blocks have to ensure that they keep a proper watch on the state of repair of the common areas. Care and consideration must be taken when making decisions on the type and location of flats chosen to buy-to-let, the need to employ managing agents, and the inspections that managing agents need to undertake.

Premises in disrepair

Obligations within a demised property were clarified in Sternbaum v Dhesi [2016] EWCA Civ 155. In this case, a property had a narrow, steep staircase with no bannister or handrail fitted. It was let to a company, and one of the people with an interest in that company fell on the stairs and suffered an injury. Importantly, there was no evidence that a handrail had been in place when the property was let, or indeed at any time during the duration of the tenancy.

The Court of Appeal found that the only question it had to consider was whether the premises were in disrepair. Lady Justice Hallett DBE accepted that the staircase was a hazard, but stated that 'as unsafe as it may have been, there is nothing about it that, to my mind, could possibly justify the description of being in disrepair'. The landlord was not found liable.

Of course, the fact that liability does not attach under the Defective Premises Act 1972 does not necessarily mean that a landlord has not fallen foul of obligations under health and safety legislation. In fact, in the Sternbaum case the landlord conceded that the council concerned had served an improvement notice to install a handrail (having decided that it was a 'category one hazard' under the housing health and safety rating system).

Noise nuisance

In Cocking and other v Eacott and another [2016] EWCA Civ 140, a mother (who did not live at the property) allowed her adult daughter to occupy her home on a bare licence. The daughter's dog caused a noise nuisance to the neighbours, but
the mother attempted to resist liability, arguing that she was not responsible as she was not the occupier.

The Court of Appeal found that, in the circumstances of this case, the nature of the particular licence did not prevent the mother from continuing to have obligations - she was in fact
the occupier. This re-enforces the fact that householders have to be careful who they leave unaccompanied in their property, especially
those who are house-sitting or occupying on a relatively casual basis, as it could well be that the householder's liability does not cease despite
their absence.

Right to respect for the home

A further decision of the Supreme Court which (at the time of writing) is awaited is McDonald (by her litigation friend) v McDonald and others (UKSC 2014/0234). The Supreme Court is considering whether it is open to a court, which is hearing an application by a private landlord under section 21(4) of the Housing Act 1988 for a possession order against an assured shorthold tenant, to consider whether an order would infringe the tenant's right to respect for her home under article 8 of the European Convention on Human Rights.

Break clauses

The financial consequence of rent being paid in advance and then a break clause being triggered was brought home by the December 2015 decision in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and another [2015] UKSC 72.

The lease in this case required the rent to be paid on the usual quarter days in advance. The rent was properly paid in full on 25 December 2011, and on 24 January 2012 the break clause was activated. The question being decided by the Supreme
Court was whether the tenant could recover the apportioned rent in respect of the period from 24 January to 24 March 2012.

The court confirmed that neither the common law nor statute apportions rent in advance on
a time basis (per Lord Neuberger) and the old, often-cited case of Ellis v Rowbotham [1900] 1 QB 740 continues to be good law. The Supreme Court also provided a comprehensive and useful overview of when contractual terms can
properly be implied.

Those drafting leases with a break clause should consider an apportionment clause for rent paid in advance prior to a break clause falling due and make sure that clients are aware of, and budget for, the consequence of there not being such a clause.

Correct address for service

The High Court also recently considered the question of a break clause, but in the context of the proper address for service. In Levett-Dunn and others v NHS Property Services Ltd [2016] EWHC 943 (Ch), notices seeking to exercise the break clause were served on the address that the landlords gave in the lease. It was argued (among other things) that the address given was not a last-known place of abode or business, and therefore the notice had not been properly served in accordance with section 196 of the Law of Property Act 1925.

Judge David Cooke was not persuaded, and accepted the submissions made to him that the 'provisions for service under rules of court necessarily contemplate service on a party who has not volunteered or agreed to be served and may have no prior connection or relationship with the person seeking to serve him'. Landlords who provide an address in leases should ensure that lessees are updated to changes in this address.

Acceptance of a surrender

Finally, in this time of continuing financial uncertainty, lessees are still regularly attempting to bring leases to a premature end. Padwick Properties Ltd and Punj Lloyd Ltd [2016] EWHC 502 (Ch) concerned an attempt to argue that various actions, such as allowing a licence, accepting keys, securing the property concerned, and marketing the same with vacant possession, all constituted an unequivocal act by which it could be argued there had been an effective acceptance of a surrender.

Judge Keyser QC reviewed the various authorities and reiterated that the burden of establishing a surrender was on the party asserting it, and further that the acts had to be objectively unequivocal.
The landlord (Padwick) had not behaved in such an unequivocal manner, and the lease concerned had not been effectively surrendered.

This case is, therefore, another timely reminder that landlords can protect their position (for example, by securing the property) without accepting a surrender, but it is prudent to make it plain that they are not accepting any purported surrender when they are so doing. SJ

Elizabeth Haggerty is a barrister practising from Lamb Chambers