If you are a tenant and have installed any fixtures or fittings into your premises it is important to know how those items are defined in law because it will affect you in future, under the terms of your lease and in particular in respect of dilapidations and yielding up obligations. To decide what the particular item actually is, and what you can do with it, you will need to examine the terms of your lease and answer the following questions:
1. What is it?
b. a chattel
c. part and parcel of the land itself
Is it a fixture?
Whether an item is a chattel or a fixture is a question of fact and depends on an objective assessment of:
- the degree to which an item is annexed/fixed to the premises – how and how firmly?
- the purpose for which it is annexed – was it for a temporary purpose or was it with a view to making a permanent improvement to the premises?
Is it a chattel?
Chattels are things that are not fixtures. A chattel may be removed at any time during the term.
Is it part and parcel of the land itself?
This encompasses items which have become completely part of the land or part of the structure of the premises such as bricks used to build a wall, doors or windows etc.
There have been numerous cases on this, all of which turn on its own facts, but the following examples are of interest:
- Where an article is securely fixed to property (e.g. by nails, screws or bolts), it satisfies the degree of annexation part of the test. In such cases whether it is decided to be a fixture or not is the second element – the purpose of annexation.
- Items not fixed to the premises but resting on their own weight are in the first instance considered to be chattels. However, if they are integral they may possibly be fixtures – it is a question of fact looking at the item and property in question.
- The following have been held to be chattels: fitted carpets, paintings, a bottle rack fastened by a screw to two wall hooks, transformers weighing circa 100 tonnes, which rested on their own weight.
- The following have been held to be fixtures: lifts, advertising hoardings, alarm system and video door system.
- The following have been held to be part and parcel of the land itself: doors, windows skylights, locks, key bolts and bars.
If you decide your item is a fixture. The next questions to ask are:
2. Is it a landlord’s fixture or tenant’s fixture?
a. Tenant’s fixture
A tenant’s fixture has three distinctive elements:
- a fixture in law;
- annexed for the purpose of the tenant’s trade or for mere ornament and convenience; and
- physically capable of removal without causing substantial damage to the premises and without losing its essential utility as a result of the removal.
b. Landlord’s fixture
A landlord’s fixture is one annexed by the tenant but which does not satisfy the above three elements.
Whilst each case turns on its own facts, the following examples have been held to be tenant’s fixtures: public house bars, beer machines, cabinets, chandeliers, light fittings. A fixture annexed to the premises by the landlord or previous owner is part of the premises demised to the tenant and not a landlord’s fixture.
3. Can you remove it during the term?
- If the item is a landlord’s fixture – no, there is no common law right to remove landlord’s fixtures.
- If the item is a tenant’s fixture – yes (unless modified or excluded by the terms of the lease).
4. Do you have to remove it at the end of the term?
What you are obliged to remove will ultimately turn on the terms of your lease and any subsequent licence for alterations. If the lease is silent on this, the common law principles are:
- No obligation to remove things that are part of the building or that are landlord’s fixtures; and
- No obligation to remove tenant’s fixtures.
5. You decide it is a tenant’s fixture. If you do not remove it at the end of the term, have you lost the right?
At common law, yes – the tenant is entitled to remove tenant’s fixtures so long as the tenant remains in lawful possession of the premises as a tenant (including statutory period of holding over if the tenancy is a protected tenancy – this right is lost in situations such as forfeiture etc). If the tenant does not remove them they will belong to the landlord.
You will need to review the terms of your lease – it is possible your lease may contain an express provision permitting the tenant to remove tenant’s fixtures within a short period after the expiry of the term, although such a term will not bind an incoming tenant/occupier under the terms of a new lease.
6. What is your repairing obligation?
a. Tenant’s fixtures: whilst the tenant has a common law right to remove tenant’s fixtures, in law the tenant will be liable to keep tenant’s fixtures in repair under a lease covenant to keep the premises in repair (unless qualified or modified by the terms of the lease). The lease does not need to expressly refer to tenant’s fixtures.
b. Landlord’s fixtures: the tenant will be liable to repair under a lease covenant to keep the premises in repair (unless qualified or modified by the terms of the lease). The lease does not need to expressly refer to landlord’s fixtures.
c. Part and parcel of the land: these form part of the premises and therefore the tenant will be liable to repair under a lease covenant to keep the premises in repair.
7. Is the position modified by the terms of the lease?
The provisions of your lease are key. You will need to review what your lease actually says and whether it modifies the common law position, for example your lease might contain a provision taking away the tenant’s right to remove tenant’s fixtures during or at the end of the term. In that event, you will not be able to remove tenant’s fixtures.
It is a question of fact whether the item will be held to be a chattel or a fixture and if a fixture whether it is a tenant’s fixture but it is important to know what the item would be in law – it will affect what you can do with that particular item and whether that particular item is caught by your obligations under your lease in particular in respect of dilapidations and yielding up obligations. Whilst landlord and tenants cannot between themselves agree the legal status of an item, the uncertainty surrounding removal can be circumvented to a certain extent by careful drafting of the lease.
What does this all mean for tenants?
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The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.