Breach of Covenant: Whether replacement of entrance doors to a property by a tenant constituted breach of covenant (Fivaz v Marlborough Knightsbridge Management Ltd – 2020)

Where a tenant replaces the entrance doors to flats in a building, is he in breach of covenant for making alterations to fixtures without landlord’s consent?

The background

In Fivaz v Marlborough Knightsbridge Management Ltd [2020], the tenant held long leases of two flats comprised in a building owned by the landlord company. Under its leases, the tenant covenanted not to remove any landlord’s fixtures without the prior consent of the landlord.

The tenant replaced the external doors to his flats. Although the doors complied with fire regulations and all other requirements, the landlord brought a claim in the First-tier Tribunal, arguing that the tenant had breached the lease covenant. The FTT found that the doors were a landlord’s fixture, the replacement of which required the landlord’s consent. The tenant had therefore breached the lease. The tenant appealed to the Upper Tribunal.

The decision

The Upper Tribunal allowed the appeal, focusing its decision on whether the entrance doors formed part of the premises demised by the leases. The repairing obligation in the lease required the tenant to repair the ‘Demised Premises’, including an obligation to repair the entrance door to the Demised Premises, and further to ‘all fixtures and additions’. The Court decided that, if the entrance door was to be identified as a fixture then it would fall within the general reference to ‘fixtures and additions’ and would not require an express reference.

An entrance door may be treated differently in different leases, and it was necessary to consider the wording used by the parties in the lease rather than to apply a general view that entrance doors will be ‘landlord’s fixtures’. The landlord carried the burden of proof and was required to demonstrate that the tenant had breached the lease covenant. The leases only demised the tenant’s individual flats but granted rights over the whole building. In this context, the entrance doors were significant as they allowed the tenant to enjoy the leases’ demised premises and the rights granted by them.

Advice and action

This successful appeal is further authority that the Courts will interpret the specific wording of a lease and the parties’ intentions when reaching a decision, looking at the facts of the case in each instance. Here, the entrance doors were found to form part of the demised premises; the tenant was therefore not in breach of the lease covenants to obtain landlord’s consent to their replacement.

Where landlords wish to retain control over the entrance doors used externally and for individual units within a block, particularly for the purposes of ensuring fire safety and meeting regulatory requirements, it is recommended to deal with this separately in the lease.