We are increasingly being asked by landlords and management companies ‘who owns, and who has responsibility for, flat entrance doors?’, particularly where upgrades to fire compliant doors are required. Whilst the new Fire Safety Bill, which had its second reading in the House of Lords on 01 October 2020, is expected to clarify responsibility for flat front doors from a fire safety perspective, until the Bill is passed the position remains that responsibility will be defined by the terms of the lease. That is also the case for other matters beyond fire safety, in terms of ownership, general repairs, redecoration, maintenance and replacement. The terms of the lease will dictate who is responsible for, who owns, and any other conditions relating to, the flat entrance doors.

This was a matter considered recently by the Upper Tribunal in the case of Thierry Fivaz -v- Marlborough Knightsbridge Management Limited [2020] UKUT 0138 (LC), specifically whether the flat entrance doors were to be considered ‘landlord’s fixtures’ such that their removal (and replacement by a new door) rendered the lessee in breach of covenant not to remove landlord’s fixtures without prior written consent.

Background

Mr Fivaz owned two flats and had, in 2014, replaced the front entrance doors to the flats. The landlord, Marlborough Knightsbridge Management Limited, subsequently complained that Mr Fivaz’s actions amounted to a breach of covenant against alterations. The covenant in question provided that the lessee would not “make any alterations in or additions to the demised premises…or to remove any of the landlord’s fixtures thereon without first…having received written consent of the lessors”. The landlord’s case was that the flat entrance doors were ‘landlord’s fixtures’.

The FTT agreed and held that Mr Fivaz was in breach of covenant. The FTT found that the flat entrance doors were not ‘chattels’ but were ‘landlord’s fixtures’, and although the doors had been replaced by Mr Fivaz, they had in any event been ‘removed’ to trigger the covenant against alterations. Mr Fivaz appealed to the Upper Tribunal.

Classification of items brought onto land

As a matter of law, items brought onto land can be categorised as either (a) a chattel (also referred to as a fitting), (b) a fixture; or (c) part and parcel of the land itself. The relevant test to be applied is the method and degree, and the object and purpose, of annexation to the land (e.g. how easily the item could be removed and what was the intended purpose). It is settled authority that the initial status of an item may change over time, e.g. an item brought onto the land as a chattel may over time become part of the land itself.

The expression ‘landlord’s fixture’ covers chattels affixed by way of addition to the original structure, either affixed by the landlord, or by the tenant in circumstances in which they are not removable by him. It does not include things that were made part of the demise during the course of construction.

The Upper Tribunal’s decision

The UT disagreed with the decision of the FTT, and allowed the appeal.

In reaching its decision, the UT held that the classification of the front entrance doors was a matter of contractual interpretation of the leases. The matter could not be determined in the abstract, but had to be considered in the context of the leases in question.

Mr Fivaz had not sought to argue that the front entrance doors were ‘chattels’, and the UT criticised the FTT for failing to properly engage in Mr Fivaz’s arguments, that the front entrance doors were in fact part and parcel of the land itself.

Both parties had accepted that the terminology of the leases included the flat doors in the demised premises, and the UT concluded that the doors had been made part of the flats in the course of their construction, such that they were not ‘landlord’s fixtures’. The land demised to Mr Fivaz under the leases were the individual flats, and the absence of a front door would have amounted to a significant derogation from grant by the landlord (see here).

The UT was also influenced by the fact that the repairing covenants in the leases included an express obligation on Mr Fivaz to repair the flat entrance door, plus a separate obligation to repair and maintain all fixtures and additions. The UT held that it would be counterintuitive for the flat entrance doors to be both a landlord’s fixture and part of the land demised to the tenant at the same time, and if the doors were intended to be a landlord’s fixture then they would have been captured by the reference ‘fixtures’ in the tenant’s repairing covenant. Instead, a separate reference to the flat doors in the repairing obligation was included, indicating that the doors were not intended to be classified as a fixture.

As the UT found that the flat entrance doors were part and parcel of the land, and not ‘landlord’s fixtures’, such that there was no breach of covenant by Mr Fivaz, it did not have to consider the second part of the covenant against alternations Mr Fivaz was alleged to have breached, namely whether the doors had in fact been ‘removed’.

Echoing criticisms of the FTT made in the case of Marchiteli -v- 15 Westgate Terrace Limited (2020) UKUT 192 (LC) reported by us earlier in the summer (here) , the UT further criticised the FTT for a lack of particularisation of the breach determined by the FTT, stating that :-

“The purpose of s.168(4) is to provide clarity and to ensure that the parties know the scope and extent of tenant default prior to the inception of forfeiture proceedings…it is essential that if a breach is proved the FTT states in clear terms what covenant (or condition) has been broken by the tenant. It should not be left to the parties to read between the lines”.

Conclusion

The term ‘landlord’s fixtures’ is an archaic and confusing concept seen little in modern practice. Whilst it is important to stress that each case will turn on its own facts and the interpretation of the particular terms of the lease in question, the UT’s views that the absence of a flat entrance door would amount to a derogation from grant is perhaps indicative of the general approach to be taken in these cases. That said, specialist advice should be taken in any given case.

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