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Much a Door About Nothing? When is a Door a Landlord’s Fixture?
- Aug 19, 2020
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Q: “When is a door not a door?”
A: “When it’s ajar.”
However, the less amusing (except perhaps to a property lawyer) “When is a door a landlord’s fixture?” was the central question in Fivaz v Marlborough Knightsbridge Management Ltd  UKUT 0138 (LC).
The facts of the case were simple.
Mr Fivaz had (and still has) long leases of two flats in a block owned by Marlborough. In around 2014 he unilaterally replaced the front door of each flat. About 5 years later the landlord complained that his actions constituted a breach of the leases. It brought proceedings in the FTT for a determination of breach pursuant to s.168(4) of the Commonhold and Leasehold Reform Act 2002.
The covenant relied on by Marlborough and alleged to have been broken was a covenant by the tenant:
“Not at any time during the … term to make any alterations in or additions to the demised premises or any part thereof or to cut main alter or injure any of the walls or timbers thereof or to alter the internal arrangement thereof or to remove any of the landlord’s fixtures therefrom with first … having received written consent of the lessors …”
It was common ground that entrance doors were not part of the structure of the flat, and that the general prohibition on the making of alterations or additions was not engaged by Mr Fivaz’s replacement of the doors. The landlord pinned its colours to the mast of ‘removal of landlord’s fixtures’.
The issues and the FTT decision
That meant there were two issues. (1) Were the doors “landlord’s fixtures”? (2) If so, were the doors “removed”? Only if both questions were answered affirmatively would the asserted breach be established by the landlord.
Marlborough prevailed in the FTT. The FTT concluded that the doors were not chattels; they were fixtures. It also said that the doors, although replaced, had been removed. It found that the leases had been breached.
Mr Fivaz appealed. The Upper Tribunal (Lands Chamber), has now allowed his appeal.
The classification of objects brought onto land
The Upper Tribunal (HHJ Stuart Bridge) agreed with Mr Fivaz that the FTT had failed correctly to address the issues before it. Mr Fivaz’s argument had not been that the doors were chattels; he had accepted that, given the method and degree, and the object and purpose, of their annexation to the flat, they were not chattels. However, he had maintained that they were part and parcel of the flat itself. The FTT had wrongly omitted to engage with this argument.
In this context the Upper Tribunal acknowledged the three-fold classification of articles laid down in Elitestone Ltd v Morris  1 WLR 687, HL. An object brought onto land may be (a) a chattel; (b) a fixture; (c) part and parcel of the land itself. The Upper Tribunal also accepted that the status of an article, initially a chattel, may change – but such change may not necessarily result in it becoming a fixture (as opposed to a part of the land).
Were the entrance doors “landlord’s fixtures”?
The above approach meant that the Upper Tribunal had to determine whether the doors were “landlord’s fixtures”.
Unfortunately, the concept of “landlord’s fixtures” is neither clear nor felicitous. In Elliott v Bishop (1854) 10 Ex 496 Martin B described the term as “a most inaccurate one”. Vaughan Williams LJ in Lambourn v McLellan  Ch 268 spoke of it as “not a happy expression”. And in Boswell v Crucible Steel Co  1 KB 119 Scrutton LJ stated that he had “always had a difficulty in understanding” what the phrase means. Hardly a promising platform!
All that one can really say with confidence is that a “landlord’s fixture” is a sub-species of fixture. So it must be a fixture. It must also be a fixture which is not a tenant’s fixture (i.e. installed and removable by the tenant). Beyond that it may (in the light of the above dicta) be unwise to tread, unless absolutely necessary. Indeed, as was suggested by DJ Alan Johns QC (as he then was) and Greville Healey in their 2017 Blundell Lecture, the term “landlord’s fixtures” ideally should be avoided.
Of course, in this case the Upper Tribunal could not avoid the term. It featured in the leases.
In Boswell v Crucible Steel Atkin LJ had said: “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.”
Following that approach, the Upper Tribunal concluded that the doors had been made part of the flats in the course of their construction.
The Upper Tribunal decided that the entrances doors were not “landlord’s fixtures”. Rather, they were an inherent part of the demised premises themselves. In each lease the demised premises were the individual flat. The demise included the door. The absence of a door would derogate significantly from the grant of the flat by landlord to tenant. There was no doubt that the FTT’s decision (that the doors were landlord’s fixtures) was wrong in law.
In so doing, the Upper Tribunal rejected Marlborough’s submission that because the doors were not part of the structure of the building, they fell within the meaning of “landlord’s fixtures” in the above sense. The Upper Tribunal observed that the demised premises were not the building (the block of flats) but the individual flats, entailing that the doors to the flats assumed a far greater significance in that context.
In reaching its decision the Upper Tribunal stated that the the issue of classification (landlord’s fixture or no) is one of contractual interpretation. It is not a question to be asked and answered in the abstract; it is possible that in different contexts an entrance door may or may not be categorised as a landlord’s fixture.
In this case, in addition to the points made above, the Upper Tribunal was influenced by the repairing covenant in the lease which distinctly placed on the tenant a liability to repair the entrance door to the demised premises and, separately, an obligation to keep in repair all fixtures and additions. This served to underscore the status of the front door as an inherent part of the premises. If the doors had been been intended to be classed as fixtures, they would have been captured by the reference to ‘fixtures’ in the repairing covenant and the express reference to the doors themselves in that covenant would have been otiose.
Had the doors been ‘removed’ by the tenant?
Because of its clear conclusion that the doors were not landlord’s fixtures the Upper Tribunal did not decide this issue.
The competing arguments were:
♦ (for the tenant) removal connotes a situation where an item is taken away without any substitute being provided; it does not embrace the scenario in which the result of the process undertaken is that there remains something fulfilling the function of the relevant item (here a door); that is replacement, not removal.
♦ (for the landlord) the fact that the original item has gone inevitably means that removal has occurred, even though a replacement is supplied.
Resolution of this dispute will have to await another case in which the issue is live.
The Upper Tribunal decided that Marlborough had no hope of establishing any breach of covenant caused by Mr Fivaz having replaced the external doors. As a matter of law the doors were not landlord’s fixtures and so, necessarily, the covenant relied on by the landlord had not been infringed. The Upper Tribunal allowed the appeal and substituted its own conclusion to this effect.
In the light of the Upper Tribunal’s decision that whether something is to be classed as a “landlord’s fixture” is a matter of contractual interpretation, it cannot be said that the entrance door to a flat must invariably be regarded as part and parcel of the flat (as opposed to a landlord’s fixture).
However, bearing in mind that a flat is not realistically built or complete without an entrance door (lacking which it is not self-contained and enclosed), a feature which provides essential weatherproofing, security and privacy to the flat, and that an entrance door is not (again to use the language of Atkin LJ) an ‘accessory’ to a flat, it is suggested that it would have to be a truly exceptional case (driven by highly unusual wording in the relevant lease) in which the front door of a flat (which is surely of the essence of the flat) would be adjudged to be anything other than an inherent part of the demised property. As the Captain of HMS Pinafore put it, “Hardly ever!”
Decisions on “landlords’ fixtures” are few and far between. Many, if not most, date from the 19th century. Even if (as explained above) the decision in Fivaz is not wholly determinative of the status in law of something as fundamental as the entrance door of a flat in every possible case, nonetheless the Upper Tribunal’s conclusion no doubt provides a welcome and helpful indicator of the stance which is likely to be taken in similar cases.
The decision is also in line with view expressed in Woodfall, para.13.136 (a passage endorsed by the Upper Tribunal) that:
“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.” (Citing Climie v Wood  LR 4 Exch 328)
Armed with the decision in Fivaz v Marlborough Knightsbridge Management Ltd, practitioners can now have some confidence that in the 21st century a robust and common sense approach will be taken to issues regarding the classification of objects such as doors. Hopefully, the notion of “landlord’s fixtures” will no longer prove unduly troubling in most cases.
Need for clarity in FTT decisions
Finally, the Upper Tribunal’s decision is also worthy of note for its criticism of the FTT’s failure clearly to identify the breach the existence of which it purported to find. The FTT’s decision stated only that there had been a breach of covenant. Moreover, its unspecific decision was compounded by the fact that the final paragraph of its reasoning alluded, confusingly, to the breach having rested with both the alterations and the repairing covenants - despite it never having been contended that there was any breach of the latter.
The Upper Tribunal recorded that there was considerable merit in the submission that the FTT’s decision was inadequate on this basis (although in the end the point did not matter because of the reversal of the FTT’s conclusion that there was any breach). The Upper Tribunal stated: “The purpose of s.168(4) is to provide clarity and to ensure that the parties know the scope and extent of tenant default prior to the inception of forfeiture proceedings. Where application is made for a determination pursuant to s.168(4) it is essential that if a breach is proved the FTT states in clear terms what covenant (or condition) has been broken by the tenant. It should not be left to the parties to read between the lines.”
A sage observation indeed.
Martin Dray acted for the successful Appellant,
Mr Fivaz, in the appeal.
About the Author
Martin Dray specialises in all aspects of real property law. He has particular experience and expertise in relation to: adverse possession; conveyancing; land registration issues such as priorities and alteration of the register of title; options (to break, renew and purchase) and rights of pre-emption; easements; restrictive covenants; development and overage agreements; landlord and tenant; 1954 Act business lease renewals; 1967 Act and 1993 Act leasehold enfranchisement. He frequently advises on the interpretation and rectification of contractual documents.