‘When is a door not a door? When it's ajar!’ is a joke which used to appear in Christmas crackers.
Now the Court of Appeal in the case of Marlborough Knightsbridge Management Limited v Thierry Gilles Fivaz has answered the question - is the front door of a leasehold flat a landlord's fixture? The answer is, it's not.
Mr Fivaz, the tenant had two flats in a block of flats which were held on long leases. He replaced the front doors without the landlord's consent and the landlord contended that the tenant was in breach of a covenant not to "remove any of the landlord's fixtures".
The First Tier Tribunal (FTT) agreed with the landlord that the tenant was in breach but on appeal to the Upper Tribunal and now the Court of Appeal, the tenant's arguments won the day.
The tenant’s lease contained a commonly worded clause:
"Not at any time to make any alterations in or additions to the Demised Premises ...or to remove any of the Landlords fixtures therefrom..." [without first obtaining the landlords consent]
The tenant also agreed to keep the demised premises in repair including "all windows glass and doors (including the entrance door to the demised premises)..."
Lastly, the tenant agreed to observe regulations which prohibited the tenant from damaging the fixtures and fittings and to pay for the cost of making good any damage. The tenant also agreed not to interfere with the external decorations of the demised premises.
The tenant replaced the front doors without the landlord’s consent. The landlord applied to the FTT for a determination that the tenant was in breach. The reason why is that the landlord cannot forfeit unless it obtains a determination that a breach has occurred - section 168 of Commonhold and Leasehold Reform Act 2002.
Once a landlord gets a determination then it can serve a section 146 notice and if not remedied then proceed to forfeit. Given the flats are in London, SW3 they would be a very valuable windfall for the landlord if they were recovered.
This therefore explains why, with so much at stake, a relatively trivial matter ends up in the Court of Appeal.
The FTT determined that the doors were landlord’s fixtures and the tenant was in breach.
The Upper Tribunal held the doors were not landlord’s fixtures but were part of the land demised to the tenant and so the tenant wasn't in breach.
As the judgment in the Court of Appeal highlighted, it wasn't clear in law what "landlord’s fixtures" constituted. It was agreed that what they weren't were "tenant’s fixtures".
There were three previous Court of Appeal decisions which were referred to (all quite old cases). The most influential case applied here was Boswell v Crucible Steel (1925) which concerned whether plate glass windows that formed part of the walls of a warehouse were a landlord fixture.
In that case, the Court of Appeal held they were part of the original structure so were not a fixture. It was held that a [landlord’s] fixture cannot be something which forms part of the original structure of the building. A fixture must be something which is "brought into the house and affixed to the freehold after the structure is completed ".
The Court of Appeal decided that the doors were not landlord’s fixtures because they were part of the original construction of each flat and they were an essential part of the structure as they afforded privacy and security to the residents. No one would say that the construction of a flat was complete if the entrance door had not yet been hung.
As a result, the tenant was not in breach.
The take-away from this case is that it's not always obvious that apparently minor works can lead to disputes and that before embarking on any refurbishment of leasehold property leaseholders should consider taking legal advice.
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