Landlord and tenant – Breach of covenant – Landlord’s fixtures – Long residential lease containing covenant not to remove landlord’s fixtures without consent – Appellant tenant replacing external doors to flats – First-tier Tribunal finding appellant in breach of covenant – Appellant appealing – Whether entrance doors comprising respondent landlord’s fixtures – Appeal dismissed
The appellant landlord owned two one-bedroom flats at 120 and 131 Marlborough, 61 Walton Street, London SW3. The respondent was the registered leasehold proprietor of both flats. In 2014, the respondent replaced the external doors to the two flats. The new doors were compliant with all relevant fire regulations, and were fit for purpose. However, nearly five years later, the appellant applied to the First-tier Tribunal (FTT) for a determination under section 168(4) of the Commonhold and Leasehold Reform Act 2002 that a breach of covenant had occurred.
The appellant argued that, as the respondent had removed the external doors to the properties, which formed part of the landlord’s fixtures and fittings, without first having made a written application and received the written consent of the lessors to do so, it was in breach of clause 3(4) of the leases. The FTT determined the application in favour of the appellant concluding that, as the door was a fixture, the consent of the landlord was required before it was removed and replaced. Therefore, there had been a breach of a condition of the leases.
The Upper Tribunal (UT) allowed the respondent’s appeal, holding that the doors were not landlord’s fixtures, but rather were part of the land demised to the tenant, and thus the respondent had not acted in breach of clause 3(4): [2020] UKUT 138 (LC); [2020] PLSCS 81. The appellant appealed.
Held: The appeal was dismissed.
(1) The application to the FTT was brought under section 168 of the 2002 Act, which imposed a control on landlords’ ability to exercise a right of forfeiture. Before exercising a right of forfeiture for breach of a tenant’s covenant (other than the payment of rent), the landlord first had to give notice under section 146 of the Law of Property Act 1925. The effect of section 168 of the 2002 Act was that, before giving notice under section 146 of the 1925 Act, there had to be either an admission of breach by the tenant or the landlord had to obtain a determination that a breach had occurred (from either the FTT, a court or an arbitral tribunal pursuant to a post-dispute arbitration agreement). The appellant’s application to the FTT was thus the first step to enforcing its right of forfeiture, under clause 6 of the leases, in respect of the alleged breaches.
(2) The appellant contended that the FTT was correct to hold that the doors were landlord’s fixtures so that the respondent had acted in breach of clause 3(4) of the lease and the UT was wrong to hold to the contrary.
It was common ground that, in order to determine whether the doors were “landlord’s fixtures” within the meaning of clause 3(4), it was necessary to construe the leases applying ordinary principles of contractual interpretation. However, the expression “landlord’s fixtures” was one which had a very long usage in this area of the law and it was therefore idle to suppose that it was intended that it should be interpreted as if it were free from any technical meaning.
(3) The starting point was that every building was composed of things, such as bricks, mortar and so on, which were chattels prior to their incorporation into the building. Once incorporated into the building, however, they became part of the land. Thus, their legal status changed from being personal property to being real property.
In Climie v Wood (1868-69) LR 4 Exch 328, the court said that there was no doubt that sometimes things annexed to land remained chattels as much after they have been annexed as they were before. On the other hand, things might be made so completely a part of the land, as being essential to its convenient use, that even a tenant could not remove them. Lastly, things might 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 had erected them was entitled to remove them during his term, or, it might be, within a reasonable time after its expiration.
In Boswell v Crucible Steel Ltd [1925] 1 KB 119, the court said that landlord’s fixtures could not include a thing which formed part of the original structure of the building. It had to be regarded as confined to things which had been brought into the house and affixed to the freehold after the structure was completed. A fixture, as that term was used in connection with a house, meant something which had been affixed to the freehold as accessory to the house. It did not include things which were made part of the house itself in the course of its construction. And the expression ‘landlord’s fixtures” covered all those chattels which had 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.
(4) The present case was indistinguishable from Boswell v Crucible Steel. The entrance doors 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. It was no doubt true that the doors were affixed to the walls (via door frames) by hinges after the walls were built, but that was immaterial. No one would say that the construction of a flat was complete if the entrance door had not yet been hung.
The relevant part of clause 3(4) was the promise not to remove any of the landlord’s fixtures. Its purpose was limited to preventing removal of landlord’s fixtures without the landlord’s consent. While one could well understand that a landlord might wish to have control over the replacement of external doors, clause 3(4) was not apt for that purpose once it was concluded that an external door was part of the demised property and not a fixture. The question whether other provisions in the leases might be apt for that purpose was not before the court.
James Fieldsend (instructed by Bolt Burdon Solicitors) appeared for the appellant; Nick Grant (instructed by Direct Access) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Marlborough Knightsbridge Management Ltd v Fivaz
