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Sternbaum v Dhesi [2016]:

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What constitutes a landlord’s lack of repair?

The background

The Appellant occupied a Victorian-era property owned by the Respondent landlord under a 2009 tenancy. The Respondent covenanted to:

“…keep in repair the structure and exterior of the Premises (including the drains, gutters and pipes) and keep in repair and proper working order the installations in the Premises for the supply of water, gas, electricity, sanitation and for space and water heating…”

The property contained two staircases, the main staircase and one at the rear which served as a service staircase. The service staircase was steep, with walls on either side. No bannister or hand rail was fitted, although there were indications that at some point a bannister or rail was in place and that this had been removed.

The Appellant slipped and fell on the service staircase, suing the Respondent for negligence and a breach of statutory duty. The Appellant argued that the stairs were dangerous owing to the lack of handrail, and that the Respondent had failed to meet the terms of the covenant to maintain and repair the structure of the premises.

The law

It was agreed that the accident wouldn’t have happened if a handrail had been in place.

The Court addressed s.4 of the Defective Premises Act 1972, which states that, where a landlord knows, or ought to know, of a defect in a property:

“Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.”

The Appellant referred to Hannon v Hillington Homes [2012], which held that a staircase and a bannister which had been removed had formed part of the structure of the premises. The bannister in that case had been removed following commencement of the tenancy, and the decision stated that the failure to reinstall the handrail constituted a relevant, continuing defect.

The Respondent’s case centred on the fact that the handrail had not been in place when the tenancy commenced, and that there existed no obligation under the tenancy for him to make the premises safe or to improve them. The duty to repair was very different to the duty to make safe; ‘unsafe’ did not mean ‘in disrepair’.

In the first instance, the Court held that the claim did not fall within s.4 of the Act; the Respondent was not under an obligation to make it safe. The Appellant appealed to the Court of Appeal, which was asked to consider whether or not the premises were in disrepair.

The decision

The Court of Appeal rejected the Appellant’s claim, finding in favour of the Respondent. Although the lack of handrail may have presented a hazard, there was no evidence of disrepair. The stairs, the walls and the floor coverings were in good condition, albeit the staircase was steep and probably hazardous. To require the Respondent to fit a handrail would constitute an improvement, or a requirement to make the staircase safe, rather than to remedy any disrepair which extends beyond the terms of the Respondent’s covenant.

The Court of Appeal reserved opinion as to whether the staircase comprised part of the structure of the premises, referencing the terms of the tenancy agreement itself.

JB Leitch’s Phil Parkinson comments on the decision:

“Landlords and management companies should be aware of all of their obligations relating to a property, in particular properties where areas may be deemed hazardous. The decision in Sternbaum is a useful authority on the distinction between a defect which falls within the Defective Premises Act and the landlord’s obligations under a repairing covenant, providing some reassurance that landlords are not under a statutory obligation to improve or make safe premises where safety features were absent at the time the tenancy was entered into.”

The Court of Appeal rejected the Appellant’s claim, finding in favour of the Respondent. Although the lack of handrail may have presented a hazard, there was no evidence of disrepair.

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