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Landlord responsible for H&S in common areas


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There has been a recent court case in the high court that has worrying implications for landlords of leasehold properties with a common areas.

Edwards v Kumarasamy [2015] EWCA Civ 20 (Edwards was tenant on AST and Kumarasamy the leaseholder of the flat)

Mr Edwards tripped over an uneven path by the bins on the ground that belonged to the freeholder and part of the common area of the block. Mr Edwards injured his knee and took his landlord Mr Kumarasamy to court.

Apparently a leaseholder (Flat owner) does have the right to make repairs (if the freeholder doesn't/wont) if they have access (on common areas) due to some old case law going back to 1877 and therefore it becomes a repairing obligation under common law if they (the flat owner) has an express grant of an easement.

We all know with section 11 the landlord of a property needs notice of the defect in writing before the repairing obligation kicks in and if I am understanding this correctly that still stands for the demised areas (inside the flat) but for common areas it is not the case and notice is not needed..

So where does this leave all us leasehold flat owners? It also raises some questions.

1 If you have a claim against you by your tenant could you recover any penalty/fine from the freeholder or managing agent?

2 Do we have to do our own risk assessments (yearly?) if there isn't one in place.

3 Managing agents (of the block) legally have to get regular risk assessments. Should we be asking to see these and check the recommendations are carried out?

4 If there is no MA and the F/Holder wont rectify a issue do we as L/H just get the work done? If so recovering the cost is an issue.

5 Do Leaseholder need to take out extra insurance to cover themselves.

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Thanks for bringing this to our attention BUT.....Everything in life including life itself carries risk.

This is an isolated claim.....probably the only such claim in many years. It doesn't mean that we should now spend lots of time, effort & expense putting safeguards in place to avoid a similar situation.

I heard of a guy who was injured when a branch fell on him whilst walking under a tree. Should I now ensure I wear protective head gear before walking under trees? No of course not.

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RL - You have effectively done this Risk Assessment in your head, as we all used to do. (Hazard = Yes) X (Likelihood = Very unlikely) = Risk negligible hence no action required.

If tenants, insurance companies, MAs etc. want written Risk Assessments written out, it isn't difficult and probably worth doing. There are standard lists of hazards readily available.

Back to OP - If this happened to me I would be hotfoot to my MA for action and costs incurred.

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Managing agents have to do a risk assessment but all the owners with a share of the freehold (without agent) or where the freeholder manages the block himself or is a absent freeholder there could be a lot larger risk as there could be a certain element of burying their heads in the sand.by the leaeholders.

But this is a lot wider issue than an uneven paving slab or twig falling from a tree. There surely must be a greater risk from:

1 Rucked carpet in the hallway that is a trip hazard especially at the top of stairs.

2 Blown bulbs for long periods on stairways

3 Bikes and pushchairs in walkways.

The above is just a few I find can be quite common and have had the odd complaint from tenants and I have just forwarded the issue to the MA or FH without further action.

But think on this when the new deposit protection laws came out with the x3 penalty for non compliance there was very few claims for the first few years but as it became more common knowledge for tenants with the council, CAB, Shelter and ambulance chasing companies advising tenants it was seen as a opportunity to get a few quid. I certainly don't see this case having the same effect I just think landlords should be aware and make decisions on the risk.

Another thought is a section 8 can be stalled with a disrepair counterclaim, but as mentioned the LL has to have written notice of the disrepair in advance for it to be valid but in this case it was ruled is was not necessary under common law. Does that mean a tenant could stall or get a s8 struck out just by bring up a risk hazard or a fabricated trip or fall at the hearing?

Just thinking

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Just thinking

Does that mean a tenant could stall or get a s8 struck out just by bring up a risk hazard or a fabricated trip or fall at the hearing?

Probably as it is disrepair! Any tenant not wanting to go is liable to try anything to scupper a Section 8 possession case in my experience

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