419-1587-Clerksroom-RRD-Stephen-Pritchett

In 1920 Lord Justice Warrington in Pole-Carew v. Western Counties and General Manure Company
Ltd [1920] 2 Ch 97 @ 122 said;
“I think it is clear that after a surrender of the term in the land to which tenant’s fixtures are attached
and the subsequent lease to the same tenant the latter can no longer remove the tenant’s fixtures
unless his existing right to remove them is reserved expressly or by necessary implication”
In late 1981, however, the issue arose before the Court of Appeal chaired by Lord Denning Master of
the Rolls sitting with Lord Justices Dunn and Fox in the context of determining the open market rental
value of demised premises and how far the tenant’s fixtures were to be included in that analysis. See
New Zealand Government Property Corporation v HM & S Ltd [1982] 1 QB 1145.
In that case based upon a large body of first instance dicta it was submitted by the landlords that a
tenant who wished to retain the right to remove tenant’s fixtures during a new term should expressly
reserve that right in the new lease and if he did not do so then, as a matter of law, at the end of the
original lease all of the tenant’s fixtures accrued to the landlord and attached to the freehold.
For the tenants it was submitted that there was no case which held that when a tenant continued
in occupation after the end of an original lease he lost his right to remove his fixtures. If there was
any distinction drawn on the authorities it was between a tenant who was leaving the demised
premises altogether and the tenant who was staying in the premises under the auspices of a new
arrangement with the landlord.
The Court of Appeal was clearly not attracted by an argument which gave rise to fine distinctions
dependent upon the circumstances in which a particular lease came to an end or which could give
rise to different answers dependent upon whether or not the original lease was determined by an
express surrender or by an implied surrender and whether or not the tenant vacated or remained in
possession under the terms of a new lease.
Lord Denning, giving the leading judgement began his analysis by noting that;
“It is clear law that a tenant has a right to remove “tenant’s fixtures” before the term comes to
an end”.
He stated that in those circumstances there was no doubt that the tenants had a right to remove
tenant’s fixtures which had been added to the demised premises during the old lease and also
during the statutory continuance of that lease up to the date upon which the second lease was
granted and, as the court indicated, the first lease was effectively surrendered by operation of law.
The question for the court was whether or not the right to remove the tenant’s fixtures continued
after that surrender by operation of law and throughout the duration of the second lease.
Despite the weight of first instance authority the Court of Appeal held that those previous opinions
were wrong. Lord Denning said the tenant remains entitled to remove the “tenant’s fixtures” so long
as he remains in possession.
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