A decision by the Court of Session serves as a timely reminder for landlords regarding their duty in respect of inspecting and maintaining common areas. Common parts are generally understood as shared areas common to all tenants such as staircases and paths, but which remain under the landlord's control and their responsibility.

In the case of Kathleen Kirkham v Link Group Ltd a tenant attempted to sue her landlord, Link Group Ltd for £92,400 after she sustained an injury by tripping on a garden footpath. The tenant's fall was attributable to the path having become uneven by just 15 millimetres. Whilst the tenant in this instance ultimately lost her case, it is worth noting the principal reason the court found in Link's favour was because the tenant had not proven her case and not because the landlord was not liable, and would not have been liable if the tenant had proven her case. On this occasion therefore, the landlord could arguably be said to have had a lucky escape.

This case highlights several important considerations for landlords when evaluating the systems they have in place for inspecting and maintaining common areas. The court firstly recognised that common parts should regularly be inspected. In exercising their duty, a landlords should 'exercise' reasonable diligence, with the following factors requiring consideration:

• frequency of inspections
• adequate system for carrying out inspections was in place and properly implemented

The court further reasoned that the practice and systems of other landlords could be taken into account when assessing if reasonable diligence had been exercised in any specific situation. Also, whether the landlord was aware or could be deemed to be aware of any danger to their tenants was a significant factor.

In the present case the judge decided the tenant could not have known a difference of 15mm presented any danger. This suggests that landlords cannot simply rely on tenants to report potential defects within common parts before the landlord's duty to inspect and repair is triggered. Indeed, in certain circumstances landlords may be deemed to know of an existing danger even if they claim to have no actual knowledge of it. This case confirms that as a landlord it is important you act quickly to remedy any defects with common parts.

If you would like legal advice regarding this or any other landlord issue, please contact us.