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Miss Jacqueline Louise Ashton v Cornwall County Council Plymouth, County Court, 16 August 2013

10 September 2013
The Issues

Defective Premises Act 1972 s.4 – limitations of right of entry under a tenancy agreement – definition of defect.

The Facts

The claimant was a daily visitor to her sister’s council owned property in Saltash. She brought a claim that she had been injured during one such visit whilst carrying her three year old nephew across the garden, noticing but nevertheless failing to avoid a tree stump in the lawn and suffering a nasty gash to her leg below the knee.

The issues were threefold:

  • whether the council as the landlord owed a duty to maintain the garden and in particular to remove the tree stump (which in fact it did following the accident)
  • whether the tree stump constituted a ‘defect’ under the Act
  • whether, even if it did owe a duty, the claimants sister had, as she claimed, complained to the council on at least two previous occasions about the stump in her garden, such that it was on notice of the ‘defect’.
The Decision

The district judge found for the council on all three points.

  •  no duty was owed to the claimant, on the basis that the tenancy agreement explicitly provided for the tenant to maintain the garden, defining ‘garden’ as including trees, shrubs, lawns, etc. Any argument that a ‘stump’ could not be a part of this list was rejected. The agreement also carefully defined the exterior areas for which the council would be responsible for repairing and maintaining. The list included ‘shared gardens’ rather than ‘gardens’ and it followed logically that the private garden was not intended to be included, reinforcing the duty found elsewhere in the agreement that the tenant was responsible for its own garden. The council’s right of entry to repair and maintain was limited to the areas defined and did not warrant a finding of a more generalised duty as was set out by the Court of Appeal in McAuley v Bristol City Council
  • secondly, the tree stump could not be a defect under the Act: Alker v Collingwood Housing Association was followed. The duty to maintain or repair did not encompass a duty to ‘make safe’ that which was not in disrepair
  • thirdly, the court stated that even if it was wrong about the first two points, it found that the claimant’s sister had not, as claimed, complained about the stump in the past. The council’s complaint records were detailed and there had been a number of complaints from this property, none of them about the stump.

The tenancy agreement was very well crafted here and the areas for which the tenant and landlord were separately responsible were clearly set out, so that there could be no misunderstanding. Further, the expansion of the duty to ‘repair and maintain’ into a duty to ‘make safe’ as was attempted in the Alker case (relating to the failure to provide safety glass in a tenant’s door which was otherwise properly glazed) is far too onerous to place on a landlord, who cannot be expected to inspect with an eye to potential hazards, particularly in the tenant’s clearly defined areas of responsibility.

Report provided courtesy of: Hilary Winstone, Old Square Chambers
For further information on this or other cases go to: http://www.oldsquare.co.uk/

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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