The Fire Safety Act 2021 amends the Regulatory Reform (Fire Safety) Order 2005 to extend the duties of ‘Responsible Persons’ to ‘all doors between the domestic premises and common parts’. We were asked at a recent seminar whether landlords could force people to replace their front doors as part of work required to satisfy the (ever increasing) requirements in relation to fire safety and building safety. To answer this question landlords and their managing agents will need to determine whether the responsibility for the door lies with them or the respective flat owners. If it lies with them then of course it can bring efficiencies as to installing new doors, coordinating the works, and related cost and nuisance issues. If it does not then it may be difficult, currently, to force flat owners to change their property. The recent court of appeal decision in Marlborough Knightsbridge Management Limited v Thierry Giles Fivaz [2021] EWCA CIV 989 (the ‘Fivaz’ case) throws some light on this issue. In this case the owner of two flats replaced his front doors. The landlord contended this was a breach of the lease. At first instance the landlord succeeded, but the Upper Tribunal found in the tenant’s favour. Permission to appeal was then granted as the law in this area ‘is not as clear as it might be’. The issue was whether the front door was a landlord’s fixture. If it was then the flat leases prohibited its removal. However, if it was part of the flat owner’s land then it was entitled to replace it subject to complying with the restriction around alterations. ‘Landlord’s fixtures’ are fixtures which are not ‘tenant’s fixtures’. So, the front doors might be such a fixture or part and parcel of the land. The Court of Appeal considered the judgment in Boswell v Crucible Steel, where the windows were found to be part of the structure, being in effect walls of the building without which there would be no building. Following this reasoning the doors had been made part of the flat itself, as each flat owner holds a flat alone rather than a larger building, and so the entrance door to the flat ‘assumes a far greater significance and while the door may still not be a part of the structure of the flat the absence of a door would derogate significantly from the grant of the flat’ (paragraph 44 of His Honour Judge Stuart Bridge’s judgment in Fivaz) . Further the door had been made part of the flat in the course of construction. On top of that the doors afforded the flat owner privacy and security. As His Honour Judge Stewart Bridge put it: ‘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 entrance door forms part of the land belonging to the flat owner absent express wording to the contrary in the lease. How then can a Responsible Person under the Fire Safety Order (and in due course, the Accountable Person under the Building Safety Bill) discharge its duty if the front door, which is not their property, needs to be replaced to ensure the relevant premises are ‘safe’? The answer may come via the Building Safety Bill. Although it only presently relates to tall buildings above 18m or seven storeys, it will require a flat owner: not to act in a way that creates a significant risk of a building safety risk materialising not to interfere with a relevant safety item to comply with a request, made by the appropriate accountable person (the dutyholder under the bill), for information ‘Interfere’ means to damage, remove or interfere with the intended function of a relevant safety item, which may well include a front door (if the replacement is not sufficiently fire resistant). If the bill is passed then a contravention notice could be issued if the requirements set out above are breached and, further, the flat owner could be charged with the cost of reinstating / rectifying breach (i.e. for a replacement front door). Access can also be requested to the flat, if appropriate, to facilitate building safety matters and, presumably, to replace / remediate relevant safety items. If access is denied the county court can order access if it is satisfied that it is necessary to do so. Such powers may dilute the proprietary rights set out in leases / by the courts. Such dilution of powers may seem reasonable where criminal liability awaits Responsible Persons or Accountable Persons who do not ensure buildings are ‘safe’, but we anticipate the courts will be reluctant to interfere with flat owners proprietary rights unless it is absolutely necessary to do so. We will have to see how matters develop as and when the new powers in the Building Safety Bill come into force.
Mark Vinall, Partner at Winckworth Sherwood
Charis Beverton, Partner at Winckworth Sherwood
