Thierry Fivaz v Marlborough Knightsbridge Management Ltd  UKUT 0138 (LC)
30th June 2020
As a matter of contractual interpretation, the entrance doors to flats were not to be regarded as “landlord’s fixtures” under the terms of the tenant’s leases. The FTT was therefore wrong to conclude that the tenant, who had replaced the entrance doors, had breached his covenant not to remove the landlord’s fixtures without consent.
The Appellant held identical leases of two residential flats within a block. The Respondent was the landlord under both leases. Clause 3(4) of each lease contained a covenant on the tenant’s part “Not at any time… to remove any of the landlords fixtures” without first having applied for and obtained written consent from the lessor. The Appellant replaced the entrance doors to the two flats, pointing to clause 4 of each lease, by which he had covenanted with the lessor “to repair maintain renew uphold and keep the Demised Premises and all parts thereof [including the “entrance door” and “all fixtures and additions”] in good and substantial repair and condition”.
However, the Respondent successfully applied for a determination under s. 168(4) of the Commonhold and Leasehold Reform Act 2002 that a breach of clause 3(4) had occurred as a result. The FTT concluded that the entrance doors were to be regarded as “landlord’s fixtures”, as opposed to chattels, such that the tenant ought to have obtained the landlord’s consent prior to their removal. The tenant appealed.
The main issue on appeal was whether the entrance doors to the flats were “landlord’s fixtures” within the terminology employed by clause 3(4).
Decision on appeal
The Appeal was allowed.
The above issue fell to be addressed by reference to general principles of contractual interpretation. It was not a matter of asking whether the entrance doors were landlord’s fixtures in the abstract; an entrance door may or may not be captured by that terminology in different leases depending on the context.
The UT accepted the Appellant’s argument that the FTT had failed to address the three-fold classification in Elitestone Ltd v Morris 1 WLR 687, by which an object which ceases to be a chattel can become part and parcel of the land as opposed to a mere fixture: although a door might not form part of the structure, it was considered that its absence would derogate significantly from the grant of the flat. It was also relevant that the doors were themselves part of “the Demised Premises” within the terminology of the lease.
In any event, the FTT’s conclusion did not accord with a proper construction of the terms of the lease. It was counter-intuitive to say that the entrance doors were, at one and the same time, both part of the land demised to the tenant and landlord’s fixtures. Furthermore, the tenant’s repairing covenant referred to the “entrance door” as separate from “all fixtures and additions”. If the entrance door was a fixture, it would have been captured by the reference to “fixtures” in the words of the covenant.
By Mitchell Hayden-Cook
Team: Mitchell Hayden-Cook
Expertise: Landlord & Tenant
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