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The phrase “Landlord’s fixtures” is not a happy one, and there are no less than three instances where leading judges have claimed not to be quite sure what a landlord’s fixture actually is (Elliot v Bishop (1854) 10 Ex 496, Lambourn v McLellan [1903] Ch 268, and Boswell v Crucible Steel Ltd [1925] 1 KB 119). In Marlborough Knightsbridge Management Ltd v Fivaz [2021] EWCA Civ 989, the Court of Appeal (Henderson, Arnold, Birss LJJ) was faced with the question whether the front door to a flat constituted a “landlord’s fixture”. The Respondent, Mr Fivaz, was the owner of two long leaseholds of flats in the same building in Knightsbridge. The leases had a covenant that the Tenant would not, without permission remove any “landlords fixtures” (a term left unhelpfully undefined). Mr Fivaz changed the doors, without seeking permission. The management company brought proceedings under s. 168 CLRA 2002, seeking a declaration there had been a breach of the Lease as the front doors were landlord’s fixtures. Mr Fivaz, in turn, argued that the front doors were in fact part and parcel of the realty, and therefore not fixtures at all. The FtT had found for the Management Company, the UT (HHJ Bridge) for Mr Fivaz. The Court of Appeal dismissed the appeal. Arnold LJ (with whom Henderson and Birss LJJ agreed), surveyed the cases cited in leading textbooks (Climie v Wood (1868-69) LR 4 Exch 328, Lambourn v McLelland and Boswell v Crucible Steel). The salient parts are relatively short:
“In Climie v Wood (E Willes J delivering the judgment of the Court of Exchequer Chamber (consisting of himself, Keating, Blackburn, Mellor, Montague Smith, Lush, Hayes and Brett JJ) said at 329-330:
“There is no doubt that sometimes things annexed to land remain chattels as much after they have been annexed as they were before. The case of pictures hung on a wall for the purpose of being more conveniently seen may be mentioned by way of illustration. On the other hand, 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. Lastly, things may be annexed to land, for the purposes of trade or of domestic convenience or ornament, in so permanent a manner as really to form a part of the land; and yet the tenant who has erected them is entitled to remove them during his term, or, it may be, within a reasonable time after its expiration.” […]
In Boswell v Crucible Steel the issue was whether plate glass windows which formed part of the walls of a warehouse were “landlord’s fixtures” within the meaning of a repairing covenant. The Court of Appeal held that the windows were not “landlord’s fixtures”, but formed part of the original structure of the building.
Bankes LJ said at 122:
“It is impossible to say that windows such as these, forming part of the original structure of the house, are landlord’s fixtures.”
Scrutton LJ said at 122:
“… it seems to me clear that [‘landlord’s fixtures’] cannot include a thing which forms part of the original structure of the building. It must be regarded as confined to things which have been brought into the house and affixed to the freehold after the structure is completed.”
Atkin LJ said at 123:
“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. As these windows were part of the original structure, representing the walls of the house, so that without them there would be nothing that could be described as a warehouse at all, they cannot come under the head of landlord’s fixtures.”
I would add two points. First, although none of the judges referred to Climie v Wood despite it being cited in argument, the decision is consistent with the dictum of Willes J in that case quoted above. Secondly, for what it is worth, part of the passage from the judgment of Atkin LJ which I have quoted was cited with apparent approval by Lord Lloyd in Elitestone v Morris at 690-691. […]
Having cited the passage from the judgment of Atkin LJ in Boswell v Crucible Steel set out above, the Upper Tribunal reasoned as follows:
“43. The respondent seeks to distinguish Boswell v Crucible Steel on the facts. In Boswell, the windows were part of the structure: they were in effect the walls of the building, and without walls there would be no building. Here, the respondent contends, the doors were not part of the structure of the building, and without an entrance door to an individual flat there would still be a building. The doors had been affixed to the structure, after it had been built, by way of addition by the landlord. The respondent therefore submits that the entrance doors would fall within the ordinary meaning of ‘landlord’s fixtures’.
44. It is important to remember that the demised premises are not the building (the block of flats) but the tenant’s individual flat. Each lease is a demise of one flat only, albeit with ancillary rights granted over the building as a whole. In that context, the entrance door to the flat assumes a far greater significance, and while the door 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. Moreover, to paraphrase Atkin LJ, the doors had been made part of the flat itself in the course of its construction. Indeed, as both parties accept, the doors were themselves part of ‘the Demised Premises’ within the terminology of the lease.”
Counsel for the Landlord repeated the submission that the present case was to be distinguished from Boswell v Crucible Steel. I agree with the Upper Tribunal, however, that it is indistinguishable. The entrance doors in the present case were part of the original structure of the flats. Moreover, they were an essential part of the structure, since they afforded privacy and security to the tenant(s). It is no doubt true that the doors were affixed to the walls (via door frames) by hinges after the walls were built, but that is immaterial. No one would say that the construction of a flat was complete if the entrance door had not yet been hung. I think this is what the Upper Tribunal meant by the statement that “the absence of a door would derogate significantly from the grant of the flat”.”
Nick Grant acted as sole counsel for the successful respondent, Mr Fivaz.