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Defective Premises and Freeholder Liabilities – Court of Appeal Test Case

The potential liabilities of freeholders under the Defective Premises Act 1972 came under the spotlight in a Court of Appeal test case, arising from a tragic accident in which a tourist on honeymoon was fatally injured in a fall down stairs.

StairsThe tourist was staying at a London flat when he fell. His widow subsequently sued the freeholder, the tenant under a 125-year head lease and the under-lessee. She challenged a judge’s decision to grant summary judgment to the freeholder on the basis that her claim against it had no real prospect of success.

In ruling on the matter, the Court noted that, under the head lease, the primary duty to repair and maintain the property fell upon the tenant. However, the freeholder retained the right to notify the tenant of any defaults and, if necessary, to enter the property and to carry out works at the tenant’s expense.

The tenant had replaced the property’s staircase in the 1980s and it was assumed for the purposes of the litigation that the freeholder had consented to those works. The new staircase did not comply with building regulations, in that it was too steep and either did not have a handrail or the handrail had later been removed.

The widow’s lawyers submitted as follows:

  • The removal of the original staircase amounted to a breach of covenant;
  • That breach had not been remedied by the installation of the non-compliant staircase; and
  • The existence of the freeholder’s right to enter the property to rectify that breach gave rise to a duty under the Act that was owed to the widow.

In dismissing her appeal, however, the Court found that those arguments did not take account of the scheme of the head lease as a whole. On the basis that the freeholder had consented to the alterations, it could not plausibly be argued that the removal of the old staircase amounted to a breach of the lease. The freeholder’s right to enter the property in order to ensure installation of a compliant staircase had thus not been triggered.