03/05/2020

On front doors and on going through them

A couple of leasehold cases, one on flat entrance doors and, one on rights of access through those doors.

First, Fivaz v Marlborough Knightsbridge Management Ltd (LANDLORD AND TENANT – BREACH OF COVENANT) (2020) UKUT 138 (LC), a skirmish in what appears to be an ongoing war between freeholder and leaseholder. Mr F, the leaseholder had, in 2014, replaced the entrance doors to two flats he had leases for in the building owned by MKM.

Some 4 years later, MKM made an application to the First Tier Tribunal for a declaration that Mr F was in breach of lease. The lease provided

“Not at any time during the said term to make any alterations in or additions to the Demised Premises or any part thereof or to cut maim alter or injure any of the walls or timbers thereof or to alter the internal arrangement thereof or to remove any of the landlords fixtures therefrom without first having made a written application (accompanied by all relevant plans and specifications) in respect thereof to the Lessors… and secondly having received written consent of the Lessors… thereto and paying the fees of the Lessor… and any Mortgagee and their respective professional advisers.”

And the demise was defined as

All those rooms known as flat No. [120 or 131] on the first floor of Marlborough including one half part in depth of the structure between the floors thereof and the (ceilings of the flat) (basement) below and one half part of the structure between the ceilings thereof and the (floors of the flat) (structure) above as the same is shown edged red on the plan annexed hereto.

NOTE: All walls except exterior walls in contact with the outside and walls wholly within the interior of the Demised Premises are party walls.

The FTT had decided that the front entrance doors were a fixture and that Mr F was in breach of lease.

The Upper Tribunal reversed this on appeal.

The FTT having rightly decided that the doors were not chattels, appeared to have decided that they must be a fixture. However, Elitestone Ltd v Morris [1997] 1 WLR 687 set out a tripartite approach:

“An object which is brought onto land may be classified under one of three broad heads. It may be (a) a chattel; (b) a fixture; or (c) part and parcel of the land itself. Objects in categories (b) and (c) are treated as being part of the land.”

Woodfall at 13.36 states

“All structures are constructed out of materials which were originally chattels, such as the bricks used to build a wall. Where an article which was originally a chattel is built into the structure of a building, it will not usually be regarded as a fixture but as part of the building itself. Thus “things may be made so completely a part of the land, as being essential to its convenient use, that even a tenant could not remove them. An example of this class of chattel may be found in doors or windows.” (Climie v Wood [1869] LR 4 Exch 328) ”

Similarly in Boswell v Crucible Steel Ltd [1925] 1 KB 119, windows to a warehouse, windows were found to be part of the structure, rather than ‘landlord’s fixtures’.

So

It is important to remember that the demised premises are not the building (the block of flats) but the tenant’s individual flat. Each lease is a demise of one flat only, albeit with ancillary rights granted over the building as a whole. In that context, the entrance door to the flat assumes a far greater significance, and while the door may still not be part of the structure of the flat, the absence of a door would derogate significantly from the grant of the flat. Moreover, to paraphrase Atkin LJ, the doors had been made part of the flat itself in the course of its construction. Indeed, as both parties accept, the doors were themselves part of “the Demised Premises” within the terminology of the lease.

The doors were not landlord’s fixtures, so there was no breach of the covenant contended for by the landlord.

Comment

Obviously the status of a front door will depend on express lease clauses, but where, as here, it is not clearly dealt with, a finding that it is part and parcel of the land makes considerably more sense than it being a fixture. Certainly a front entrance door would fall under ‘structure and exterior’ for section 11 tenancy purposes.

Then, and of greater wider significance at least for Right to Buy leases, there is Piechnik v Oxford City Council (2020) EWHC 960 (QB). This was an appeal of a County Court decision (our note here) which had held that Oxford City Council as freeholder had a right of access to the leaseholder’s flat

for the purposes of carrying out works in order to avoid the risk of death or personal injury, or to remedy a state of affairs which is injurious to health (“the Extended Right of Access”).

even though this was not express in the lease. This was via a reading of paragraph 2(2)(b) of Schedule 6 to the Housing Act 1985 which applied to the secure tenancy that was the precursor of the right to buy lease.

Dr Piechnik appealed.

The High Court found that while Dr P was not correct in arguing that a relatively broad covenant to give access in the Fourth Schedule to the lease was limited by the quiet enjoyment clause and the express repairing obligations clause, the first instance court had erred on the ‘extended right of access’ for works to avoid risk of death or personal injury.

(Oxford City Council’s) case is that paragraph 2(2)(b) of Part I of Schedule 6 relates to rights of access to a building or part of a building and is not limited, as the words provide, to “the rights to the access of light and air to a building or part of a building”. This, in my view, is a complete misreading of paragraph 2(2)(b) and is wrong. This sub-paragraph has nothing whatsoever to do with rights of entry or access to the premises. Rather, as the wording of the sub-paragraph makes clear, it is concerned with “rights to the access of light and air to a building or part of a building” (underlining added), and the underlined words cannot be ignored in order to give effect to the sub-paragraph in a completely different way.

(Oxford CC’s) argument is, in my view, misconceived. Paragraph 2(2)(a) of Part 1 of Schedule 6 to the HA 1985 is directed at “rights to the access of light and air to a building or part of a building”. This paragraph in Schedule 6, as I have explained at paragraph 26 above, has nothing whatsoever to do with rights of entry to a building or part of a building in order to carry out works.

I therefore agree with the defendant that the recorder was wrong to find that “the claimant has the right to enter the premises for the purposes of carrying out works in order to avoid the risk of death or personal injury, or to remedy a state of affairs which is injurious to health”, which he described as “the Extended Right of Access”. There is no such right or “extended right” implied into the Lease.

There was another issue decided by the County Court and appealed by Dr P. The FTT had made determinations in a previous matter, ruling on what works amounted to improvements and were not recoverable under the lease. The County Court had held that the FTT decision did give rise to an an issue estoppel but only to the extent that any of the works had been determined to be an improvement rather than a repair, and only to the extent that the FTT was determining the recoverability of the costs of works from leaseholders.

Dr P appealed, arguing that a directions order in the FTT proceedings had in the recital that the order was in these terms “AND UPON both counsel agreeing that subject to any appeal process to the Upper Tribunal they would accept the jurisdiction of this Tribunal on legal issues related to the interpretation of the Lease rather than issue separate proceedings in the county court”, so all the FTT decisions in relation to the interpretation of the lease were binding as it gave rise to an estoppel by convention. The FTT had made findings that (i) there was no disrepair at the premises, and (ii) there was no statutory or regulatory need to carry out any repairs at the premises.

Oxford CC argued that the first instance decision was correct. It

submitted this is because the FTT decides questions of service charge liability (section 27A of the LTA 1985). The FTT does not decide any issues relating to rights of access. Therefore any decision by the FTT about whether an item of work is a repair or an improvement is made in the context of establishing liability to pay a service charge, not about whether a landlord has a right of access to do the work or not. Therefore, the decisions of the FTT in this case have nothing whatsoever to do with any legal issues relating to rights of access under the Lease.

The High Court agreed with Oxford.

The agreement made between the parties, and recorded in the Order in the FTT dated 20 December 2016, was made in the context of the proceedings under section 27A of the LTA 1985 to determine the liability of the defendant, and others, to pay service charges. The parties were therefore agreeing to accept the jurisdiction of the FTT on legal issues relating to the interpretation of the Lease, in the context of the proceedings under section 27A. This was not, however, an agreement that the FTT had jurisdiction to determine any legal issues in relation to the interpretation of the Lease, irrespective of whether the legal issue in relation to interpretation had anything to do with the section 27A proceedings. Indeed, as Mr Bates, counsel for the claimant, pointed out the FTT does not have any jurisdiction or power to determine the scope of the claimant’s rights of access to the premises under the Lease and, unsurprisingly, did not make any determinations in relation to any such rights in its decisions.

In these circumstances, it seems to me to be clear that there was no common assumption between the claimant and the defendant that the decisions of the FTT would be binding in respect of all matters relating to the interpretation of the Lease and there is no basis on which the defendant’s argument based on estoppel by convention can get off the ground. The recorder’s answer to Question Two is correct.

Comment

The decision on access makes sense. As noted in our first instance note, it seemed quite extraordinary to find an ‘extended’ right of access in relation to right to buy leases alone, without express terms.

This last on the FTT decisions as binding also seems to me to be correct. The parties to an FTT section 27A case can’t effectively extend the Tribunal’s jurisdiction by agreement between themselves – that jurisdiction is limited by statute. In addition, even if the parties agreed between themselves to accept the Tribunal’s decisions on lease interpretation more broadly, that would have to be very clearly set out in order to establish an estoppel by convention. (Dr P was not represented by counsel at the FTT and so was not even clearly a party to that agreement). The FTT finding that there was no disrepair (if that is what it was) is in any event a factual finding, not a matter of lease interpretation.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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