Landlord and tenant – Breach of covenant – 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 allowed
The respondent landlord owned two one-bedroom flats at 120 and 131 Marlborough, 61 Walton Street, London SW3. The appellant was the registered leasehold proprietor of both flats. In 2014, the appellant replaced the external doors to the two flats. It was not in dispute that the new doors were compliant with all relevant fire regulations, and were fit for the purpose. However, nearly five years later, the respondent 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 respondent argued that, as the appellant 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 lease. The FTT determined the application in favour of the respondent 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 lease.
The appellant appealed, contending that the FTT had: (i) failed to consider, in the light of the House of Lords decision in Elitestone Ltd v Morris [1997] 1 WLR 687; [1997] PLSCS 119, whether the doors were neither chattels nor fixtures but were part and parcel of the land itself; and (ii) failed to address the appellant’s contention that the entrance doors to the flats were an integral part of the land demised, and not landlord’s fixtures.
The appeal was determined pursuant to the tribunal’s written representations procedure.
Held: The appeal was allowed.
(1) Leases had to be construed in the light of the words used, paying due regard to their particular context; it was not a matter of asking, in the abstract, whether the entrance door to a flat leased by a landlord to a tenant was a “landlord’s fixture”. It was possible that, in different contexts, and in different leases, an entrance door might or might not be captured by that terminology.
While clause 3(4) imposed an obligation on the tenant not to remove the landlord’s fixtures, it went no further in describing what it was that the tenant could not remove. However, it was clear that to comprise a “landlord’s fixture”, the item or object in question had to be a “fixture”. Furthermore, it had to be a fixture which was not a “tenant’s fixture”, which was (subject to the terms of the lease) removable by the tenant.
(2) It was important to remember that the demised premises were not the building (the block of flats) but the tenant’s individual flat. Each lease was 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 assumed a far greater significance, and while the door might 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, the doors had been made part of the flat itself in the course of its construction. The doors were themselves part of the demised premises within the terminology of the lease: Boswell v Crucible Steel Ltd [1925] 1 KB 119 considered.
(3) Clause 4(1) imposed on the tenant an obligation to repair (etc) the demised premises (as defined in the lease) and all parts thereof. It expressly included an obligation to repair the entrance door of the demised premises and then referred separately, in setting out the scope of the obligation, to “all fixtures and additions”. If the entrance door to the flat were intended to be a fixture, it would be captured by the reference to “fixtures” in the words of the covenant. There would therefore be no need to make any express reference to the door itself in defining the scope of the repairing obligation.
In proceedings such as the present, the burden fell on the landlord to establish on the balance of probabilities that the tenant had committed a breach of covenant. That was a burden which the respondent had failed to discharge. Not only did the FTT omit to address the important question whether the entrance doors were part of the demised premises, there was no doubt that its conclusion that the doors were “landlord’s fixtures” was wrong as a matter of law in that it did not accord with a proper construction of the terms of the lease.
(4) The FTT had failed to identify with sufficient precision what covenant had been broken by the tenant. The purpose of section 168(4) was to provide clarity and to ensure that the parties knew the scope and extent of tenant default prior to the inception of forfeiture proceedings. Where application was made for a determination pursuant to section 168(4) it was essential that, if a breach was proved, the FTT stated in clear terms what covenant (or condition) had been broken by the tenant. It should not be left to the parties to read between the lines. Accordingly, the appeal had to be allowed.
(5) There was no purpose in remitting the application to the FTT. There was no evidence that required to be heard. The parties were agreed on the facts. The question whether the external doors were landlord’s fixtures was a question of law, which the tribunal had answered in the negative, in the appellant’s favour. The respondent could not in those circumstances hope to succeed in establishing that in replacing the external doors the appellant committed a breach of covenant.
Click here to read a transcript of Fivaz v Marlborough Knightsbridge Management
Eileen O’Grady, barrister
