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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 [2020] UKUT 0138 (LC).

The facts

The facts of the case were simple.

Mr Fivaz had (and still has) long leases of two flats in a block owned by 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.

The appeal

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 [1997] 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 [1903] Ch 268 spoke of it as “not a happy expression”.  And in Boswell v Crucible Steel Co [1925] 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 purse 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.