Is the front door of a flat part of a landlord’s fixtures or an integral part of the land demised? This is the question that the Upper Tribunal (Lands Chamber) (UT) was asked to determine in Fivaz v Marlborough Knightsbridge Management Ltd [2020] UKUT 0138 (LC); [2020] PLSCS 81.
The appellant tenant was the lessee of two flats in Chelsea. In 2014, he replaced the external front door of each flat without the landlord’s consent. Some five years later, in 2019, the landlord made an application 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.
By virtue of clause 3(4) of each lease, the tenant covenanted as follows:
“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…”
The FTT determined that the front doors were fixtures and not chattels. In removing the doors without the landlord’s consent the tenant was in breach of covenant. The tenant appealed, arguing that rather than taking the tertiary approach propounded by the House of Lords in Elitestone Ltd v Morris [1997] 1 WLR 687; [1997] PLSCS 119, the FTT had taken a binary approach to the issue. It had asked itself only whether the doors were fixtures or chattels and had omitted to consider whether, in the alternative, they were part and parcel of the land itself.
As a starting point, the UT noted that the question was one of contractual interpretation. The leases had to be construed in light of the words used and in the context in which they were found.
Relying upon Elitestone Ltd and Boswell v Crucible Steel Ltd [1925] 1 KB 119, the UT had regard to the extent of the demise. It noted that each lease demised one flat, albeit with ancillary rights granted over the building as a whole. In that context, the entrance door to the flat assumed a greater significance. While it 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”. The doors had been made part of the flats in the course of their construction and were, within each lease, part of the “Demised Premises”.
In allowing the appeal, the UT found that the landlord had failed to establish on the balance of probabilities that the tenant had breached clause 3(4) of the respective leases. The FTT omitted to consider whether the entrance doors were part and parcel of the demised premises. Further, its conclusion that the doors were part of the “landlord’s fixtures” was wrong as a matter of law.
The decision of the UT again underscores the primacy of the contractual terms of the lease when ascertaining whether a breach has occurred. A finding that the entrance doors were fixtures was inconsistent with the “words of the lease”.
Elizabeth Dwomoh is a barrister at Lamb Chambers
