Battle of the fire doors

Fire Safety Bill 2020 - Whilst the Government has quite rightly focussed the vast majority of its resources in tackling the COVID-19 pandemic, it is great to see that the Government has set aside time to produce a draft Fire Safety Bill. This had its second reading on the 29 April 2020, and is currently making its way through Parliament. 

In light of the Grenfell Tower tragedy, the uncertainties of various provisions contained within the Regulatory Reform (Fire Safety) Order 2005 (FSO 2005) have been criticised. The Fire Safety Bill seeks to redress these, by clarifying certain responsibilities within the legislation. 

More particularly, and for the purposes of this article, the Fire Safety Bill seeks to clarify that building owners and managers of multi-let residential blocks will be responsible for the front entrance doors that open onto the common parts. Given the serious issues highlighted by the Grenfell Tower tragedy, concerns have been levelled at the fire-retardant standards of front entrance doors in residential tower blocks across the country that may not be compliant with current fire regulatory standards. The current standard requires flat front doors to be minimum FD30-rated fire doors.

Whilst the Government seeks to make it clear that the front entrance door is the responsibility of the landlord/managing agent, the draft legislation fails to redress the dichotomy that exists between what a lease might say – or not and the practical aim of the legislation (the FSO 2005 and subsequently the Fire Safety Bill) to manage the spread of fire through a multi-let block. 

From a landlord's perspective, its ability to change the front entrance doors of each and every flat within a residential block may be the preferred position. This would: 

1. save both time and costs when procuring this under a programme of works;
2. allow the landlord to have control over the type of front entrance door that is fitted, ensuring it satisfies fire regulations
3. enable the landlord to maintain the aesthetic ambience of the residential block; and
4. charge the costs of doing so under the service charge (subject to the lease permitting this). 

Unfortunately, the practical reality of doing this can be complicated and far from straight forward. Many residential leases are silent or ambiguous on the question of ownership of the front entrance door. There could also be situations where residential leases assign ownership to the tenant (either inadvertently due to poor drafting or intentionally) denying the landlord the ability to carry out front door improvement works, or requiring the tenant to do so. 

Reviewing the terms of the particular lease
As touched on above, it is crucial to undertake a review of each lease within a residential block to check who really has ownership and/or repair/replacement obligations in relation to the front entrance door. Leases are not always clear and to make matters worse, you could be faced with issues of inconsistent terms/forms of leases entered into with different tenants in the same tower block. 
Ambiguity leads to disputes, and disputes lead to potential litigation meaning that the courts will scrutinise and undertake a detailed analysis of the objective meaning of the particular clause(s) in question.

Fivaz v Marlborough Knightsbridge Management Ltd [2020] UKUT 138 (LC) (Fivaz)
This is the exact issue that arose in Fivaz which the Upper Tribunal (UT) decided on the 29 April 2020; timely considering the Fire Safety Bill was produced on the 19 March 2020. It is a particularly good example of the conflict that arises between the contractual (lease) provisions and the responsibility that statute (FSO 2005 / the provisions of the Fire Safety Bill) purportedly seek to impose on a landlord/managing agent in relation to front entrance doors of flats within a residential tower block. 

The case concerned a tenant, Mr Fivaz who had two flats (and therefore two leases) in a residential block. Both leases were identical in all material respects, and were entered into in the 70s. The tenant replaced the front entrance doors for both flats in 2014, and the Landlord some 5 years later applied to the First Tier Tribunal (FTT) to make a decision as to whether the tenant had breached the terms of its lease by replacing the front door (it contended a landlord fixture) without its express written consent. The dispute between the parties (which was not considered by the FTT) revolved around the landlord undertaking a programme of extensive refurbishment works, which included replacing the front entrance doors for each flat, and then charging this under the service charge. 

The questions to be decided here were whether the external doors were indeed a landlord fixture, and if so, whether there had been a breach of covenant by the tenant. 

The FTT undertook a review of the lease provisions and held that the front entrance doors were indeed a landlord fixture, and as such, there was a breach of covenant. In doing so, the FTT's rationale was that a front entrance door could not be a chattel (it was attached to the building), and it did not stand on its own weight. It was therefore a fixture. 

The Upper Tribunal (UT) allowed the appeal, and subsequently reversed the decision made by the FTT and held that the flat front door was not a landlord fixture. To make sense of the decision of the UT, it is important to review the following provisions from the leases in question: 

In clause 3(4) of each lease, the tenant covenanted as follows:

“Not at any time during the said term to make any alterations in or additions to the Demised Premises or any part thereof or to cut maim alter or injure any of the walls or timbers thereof or to alter the internal arrangement thereof or to remove any of the landlords fixtures therefrom without first having made a written application (accompanied by all relevant plans and specifications) in respect thereof to the Lessors… and secondly having received written consent of the Lessors… thereto and paying the fees of the Lessor… and any Mortgagee and their respective professional advisers.”

"the Demised Premises" was defined as:

“All those rooms known as flat No. [120 or 131] on the first floor of Marlborough including one half part in depth of the structure between the floors thereof and the (ceilings of the flat) (basement) below and one half part of the structure between the ceilings thereof and the (floors of the flat) (structure) above as the same is shown edged red on the plan annexed hereto. 
“NOTE: All walls except exterior walls in contact with the outside and walls wholly within the interior of the Demised Premises are party walls.”  

The logic of the UT's decision can be broken down as follows:

1. The FTT was incorrect in adopting a binary approach in asking whether the front entrance door was a chattel. It logically concluded that it was not, but that should not necessarily have lead it to conclude that it was a landlord fixture; 
2. The FTT failed to consider the House of Lords  three category test set out in Elitestone Ltd v Morris [1997] 1 WLR 687. This case provided a third option (where it could not be classed as a chattel or fixture) but the front entrance door being "part and parcel of the land itself" and as such an integral part of the flat demised to the tenant;
3. In support of the view that the front entrance door fell within this third category, the UT made reference to the tenant's submission: “an entrance door is, by its very nature, an integral part and parcel of the flat it serves…" and "a unit is not, in any meaningful sense, a flat without a front door. A front door is not added (by way of afterthought) as “an accessory” to a flat; it goes with, and is part of the essence of, the flat itself. Without a front door, the accommodation is not self-contained and enclosed…"
4. A contractual (lease) interpretation exercise was crucial, so that the UT could ascertain the objective meaning of the language in the lease. The courts have in the past grappled and struggled with the phrase "landlord's fixtures". The UT noted that clause 3(4) of the leases in question did not go into further detail as to what these were;
5. A chattel could change its status when built into the structure of a building, but not necessarily as a fixture. The UT cited the authority of Boswell v Crucible Steel Ltd [1925] 1 KB 119 (Boswell) which found that windows which formed the wall of the building were not a fixture but "part of the original structure of the house". Without them there would be no wall, and therefore no building;
6. Boswell could not be distinguished on the basis that even without the front entrance doors, there would still be a tower block. It was important to view each flat within the tower block as a separate demise granted by the lease. With that in mind, the UT held that the front entrance door of an individual flat "assumes a far greater significance and while the door may not be part of the structure of the flat, the absence of a door would derogate significantly from the grant of the flat".
7. The UT found that in Fivaz the parties accepted that the doors were themselves part of the "Demised Premises" within the terminology of the lease. Added to that, the repair obligation at clause 4(1) imposes an obligation on the tenant to repair the Demised Premises and all parts thereof, which expressly includes an obligation to repair the entrance door and then separately to "all fixtures and additions". The UT held that if the front door was intended to be a fixture, it would have been captured by the reference to "fixtures" without the need to make express reference to the entrance door itself. 

Conclusion
In summary, whilst the Government seeks to clarify the responsibilities of a landlord/managing agent in relation to its fire safety obligations post-Grenfell, there is an apparent conflict with case law and it will boil down to what the lease provisions say. The Government has not addressed this conflict in the Fire Safety Bill.

The main take-away points from the above are as follows: 

1. It is crucial to undertake a thorough review of each particular lease to check whether it is clear on whether or not the front entrance door is a landlord fixture, or otherwise the landlord's responsibility. It is likely that a lot of leases (particularly older, longer leases) may be silent, ambiguous or indeed assign ownership to the tenant. This could be the result of poor drafting, or landlords not foreseeing the importance of explicitly retaining control of the front entrance door in light of the incoming regulatory changes that the Grenfell Tower tragedy will bring;
2.  The courts will construe the particular lease covenants in light of the words used. It was said in Fivaz that "in different contexts, and in different leases, an entrance door may or may not be captured by that terminology [landlord's fixtures]". The decision in Fivaz should therefore not be taken as a blanket rule and it is important to review each particular lease on its own merits;
3. Clear drafting going forward is crucial, and, particularly for important items, the lease should always explicitly reference those items which are considered to be "landlord's fixtures". This should be borne in mind when entering into new leases and precedents should be updated; and
4. If you are uncertain as to the contractual (lease) position, do not replace the front entrance doors without first considering legal advice. The tenant may have an action for trespass if the front doors form part of the flat demised.  

If you have a programme of works planned which involves replacing the front entrance doors of residential property (or indeed other apparent landlord fixtures within the common parts of a building), and are unsure of your position in light of the decision in Fivaz, please do get in touch as we would be happy to assist you.