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08/07/2021

Doors, fixtures and demises

Marlborough Knightsbridge Management Ltd v Fivaz (2021) EWCA Civ 989

In which the Court of Appeal grapple with whether a front entrance door to a leasehold flat is a ‘landlord’s fixture’ or something else. This was the landlord’s second appeal from the Upper Tribunal decision we noted here, where the UT had found that the door was part of the demise under the lease, not a landlord’s fixture. The overall issue was that the leaseholder, Mr Fivaz, had replaced the front door to his flats. The landlord contended that this was a breach of lease under a covenant

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 the written consent of the Lessors thereto and paying the fees of the Lessor and any Mortgagee and their respective professional advisers

This was on the basis that the door – on which the lease was specifically silent – was a ‘landlord’s fixture’.

The Court of Appeal dealt with this relatively rapidly. As the Upper Tribunal had noted

Elitestone Ltd v Morris (1997) 1 WLR 687 approved the three-fold classification set out in Woodfall, Landlord and Tenant as follows:

“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. Objects in categories (b) and (c) are treated as being part of the land.”

But that case had gone no further on any distinction between a fixture or ‘part and parcel of the land’.

In Climie v Wood (1868-69) L.R. 4 Exch 328 the Court of Appeal had held:

“There is no doubt that sometimes things annexed to land remain chattels as much after they have been annexed as they were before. The case of pictures hung on a wall for the purpose of being more conveniently seen may be mentioned by way of illustration. On the other hand, 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. Lastly, things may be annexed to land, for the purposes of trade or of domestic convenience or ornament, in so permanent a manner as really to form a part of the land; and yet the tenant who has erected them is entitled to remove them during his term, or, it may be, within a reasonable time after its expiration.”

And in Boswell v Crucible Steel Co (1925) 1 KB 119, the Court of Appeal had held that windows were not landlord’s fixtures but formed part of the original structure of the building. For example:

Atkin LJ said at 123:
“A fixture, as that term is used in connection with a house, means something which has been affixed to the freehold as accessory to the house. It does not include things which were made part of the house itself in the course of its construction. And the expression ‘landlord’s fixtures,’ as I understand it, covers all those chattels which have been so affixed by way of addition to the original structure, and were so affixed either by the landlord, or, if by the tenant, under circumstances in which they were not removable by him. As these windows were part of the original structure, representing the walls of the house, so that without them there would be nothing that could be described as a warehouse at all, they cannot come under the head of landlord’s fixtures.”

The Court of Appeal went on to find that an entrance door was likewise a part of the structure

The entrance doors in the present case were part of the original structure of the flats. Moreover, they were an essential part of the structure, since they afforded privacy and security to the tenant(s). It is no doubt true that the doors were affixed to the walls (via door frames) by hinges after the walls were built, but that is immaterial. No one would say that the construction of a flat was complete if the entrance door had not yet been hung. I think this is what the Upper Tribunal meant by the statement that “the absence of a door would derogate significantly from the grant of the flat”.

The Upper Tribunal was correct and the appeal was dismissed.

Comment

There are some important caveats here.

i) In this case, the lease was silent on the entrance doors – they were neither expressly part of the demise, nor reserved to the freehold. Express clauses in a lease will override the position found in this case. If the lease says the door belongs to the freeholder, it does.

ii) This does not mean that the leaseholder can do what they like with the front entrance door (though this has certainly been a safety problem in the past). The Fire Safety Act 2021 expressly extends the scope of the 2005 Regulatory Reform (Fire Safety) Order to “all doors between the domestic premises and common parts” and therefore subject to the inspection and enforcement regime under that Order. The Building Safety Bill, as introduced, would also enable powers for the Accountable Person to compel a leaseholder to address any safety issues arising from their doors.

 

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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