Worksheet 2- Fixtures

Introduction

The main question to be asked is when a chattel that has been on the land does,
lose its characteristic as a chattel and become a fixture. The answer is this, is that it
may or may not become so, depending on a number of factors. If it fulfills these
requirements then it becomes a fixture and becomes a part of the land and thusly is
owned by the owner of the land. The previous owner of the chattel before it became
a fixture cannot lay claim to it. The criteria for determining whether it is affixed to
the land and became a fixture is set out by the factors indicated in Mitchell v.
Cowie, where Wooding C.J, outlines the criteria,

1. A house maybe a chattel or a fixture depending on whether it was indended

to be part of the land on which it stands. But the intention is to be
determined objectively rather than subjectively.
2. To distinguish whether it is a chattel or fixture, consideration whether the
house is affixed to the land or not must be taken into account.
3. If the house is not affixed to the land but rather rests on its own weight then
is will be generally deemed to be a chattel unless it can be proven that it was
intended to be part of the land.
4. If it is affixed to the land then it will generally be held to be a chattel unless it
can be proven that it was intended to be a chattel for the remainder of its
existence.

Cases establish that the guiding principle is the intention which the object is affixed
to the realty. Factors to consider,

a. The realtion of the land of the party making the annexation.

b. The degree of annexation
c. Purpose of annexation
d. Damage to the land and the chattel on removal
e. Custom and usage

Annexor relationship to the land.

Where one person attaches a chattel to his own land it is usually assumed that it
was for permanently and was meant to become part of the land. In the case of
Burke v. Bernard (1920), the late Thomas Bernard put up a two storey house, with
the upper storey with wood resting on masonry and wooden pillars on his land. He
then sold the house, and after he died the plaintiff his brother seek to claim the
‘chattel house’, the Court of Appeal rejected the claim that it was a chattel, even
though that the upper storey was made of wood, and was not physically affixed to
the lower storey. The court said that the lower storey was a fixture, and the upper
storey was an integral part of the house, and it was Thomas Bernard’s intention that
it was to be part of the land.

As related to tenancy, the case of O’ Brien Loans Limited v. Missick (1977), Georges
J.A stated, that in the case that a yearly tenant erects a wooden house to a column
anchored in the ground, there would be no reason why it would lose its
characteristic as a chattel and become a fixture, however a long term lease holder
who erects such a structure would be reasonably held to have done so for the
purpose of improving the land.

Degree of annexation

By this test a chattel will rank as a fixture if it is let onto or united to the land or
affixed to some object which is physically attached to the land. There must be a
physical connection with the land or with something that is part of the land and the
object, e.g soil excavated so it could receive the article and then is cemented. By
having the cement foundation and then the article resting on the foundation, the
foundation is separate from the ‘superstructure’, if the ‘superstructure’ can be
removed without losing its identity then it will retain its chattel characteristic.

The case of Elitestone Ltd v. Morris (1997), where the defendant bought a bungalow
on the 27 plots of land owned by the plaintiffs, the plaintiffs sought possession of
the premises for redevelopment, the defendant resisted on the grounds of
protection under the Rent Act 1977, the plaintiffs calimed that the protection did
not cover chattels. According to the HoL the bungalow was part of the land, and
could not be removed without destroying it. Lloyd observed that the bungalow is not
removable in one piece, nor is demountable for re erection elsewhere. However in
Billing v Pill (1953), where the courts had to consider whether an army hut resting
on a concrete foundation and secured by bolts onto the concrete was a fixture or
not. It could be dismantled and removed easily without damaging it. The courts held
that the hut was temporary used to provide sleeping accommodation for soldiers
etc. and that it could be removed without damaging the freehold and is thusly a
chattel.

If a tenant for a one year lease or less places a structure on the land of his landlord
and so secures it to withstand the forces of nature during the one year period then
it would not become a permanent assest to the landlord.

Damage to the chattel on removal

Where the circumstances, the situation and the nature of a structure placed on land
are such that the removal of the article would lead to its destruction, the obvious
inference is that it was not intended to be removed from the site, and was intended
to permanently remain on the property. It therefore ranks as a fixture. This is seen
in the case of Eva Fields v Rosie Modeste, the house was built of tapia, plasters with
concrete noggin, etc. the court held that the house was indeed a fixture because of
the fact that being built of tapia and removing it would result in its disintegration.
This principle is further noted in the case of Salad v Eljofir and Anor, where it was
stated that a house of such nature cannot be completely transferred by delivery
unless by reducing it to pieces of wood, dried mud with particles thereof. And by
such a process the article would lose its entire character.

Conversely the opposite of this is not followed, that is to say that even it can be
removed without destruction it doesn’t mean that it is a chattel, the question arises
about the intention, whether it was intended to be part of the land, the case of
Burke v. Bernard is illustrative of this, even though the upper storey part of the
house could be removed easily without damage, the Court of Appeal found that the
upper storey was an integral part of the house and was meant to be there
permanently, regardless of the fact that it could be removed easily.

Purpose of annexation test

The test here is to ascertain whether the chattel has been fixed for the purpose of
use as a chattel or has been affixed to be used for more convenient purposes of the
land. Simply whether it was attached to be a chattel or be part of the land, a fixture.
The case of Leigh v. Taylor explains this test, a tapestry fixed to the walls and
canvas which was nailed on to the wall. It was said that the way in which the
tapestry was attached was for adornment and not for the improvement for the land.
It is not inconceivable to think that the tapestry would be moved from time to time,
or replaced after a number of years. Items of that nature are generally not held to
be fixtures, ornamental objects, household appliances, accessories etc. the purpose
of annexation is to be determined objectively rather than the subjective purpose by
the person who attached it. L.J Roch in the case of Botham & Ors. V. TSB Bank Plc
(1997) referred to four indicators, firstly, if the item is ornamental and is simply to
be enjoyed, secondly, the ability to remove the article without damaging the fabric
of the land or building, thirdly the relevance to whom the article is owned by,
whether the land owner or someone else, and fourthly the type of person who
attached the object. E.g. a person who installs tiles etc which will be a fixture, as
compared to someone installing curtains or carpet.

In Berkley v. Poulett (1976), pictures were fixed in the recesses of paneling of two
rooms of the estate of the defendant, and there was a heavy statue of a Greek
athlete, the estate had been purchased by the plaintiff, and the defendant removed
the items, the plaintiff sued for compensation or delivery of the items. L.J Scarman
viewed that the pictures and the statue was much to the taste of the occupier of the
estate at that time.

Also it can be argued that a tenant erects a structure on the land, he does not do so
for the enjoyment of the land of another person, but for the accommodation that
the chattel provides. This point is made clear in O’ Brien v Missick, where Georges
J.A explains, that in many parts of the West Indies yearly tenants build houses on
plots of land, the purpose of such is for proper enjoyment of the land, even if there
is minimal attachment which will make the house less liable for stormy weather,
there is no intention to benefit the landlord by adding value to the land. The tenant
subjectively did not intend to cause benefit to the landlord, but objectively it must
the intention must come from the method it was annexed to the land which aims at
making the attachment minimal.

Adaptation

If an article is constructed and adapted for an attachment to the realty and there is
intention to make it part of it then it will rank as a fixture. If an article has no special
or peculiar adaption to the realty then it would retain its chattel characteristic.
Items such as domestic animals and equipment used on a farm would not be
fixtures but chattels, this contrasts sharply with the St. Lucia civil code that
anything place on the land for the purpose of exploitation would be considered as
immovables and thusly fixtures.

Statutory Provisions

Legislation in Belize and Guyana accommodates the abolition of the doctrine

quicquid solo plantaur, meaning ‘whatever is affixed to the soil belongs to the soil’
the legislation upholds that if such fixtures are affixed to the tenement by the
tenant, shall be the property of and can be removable by the tenant before or after
the tenancy. The provision gives the tenant the right to remove any fixtures he had
attached to the land under certain conditions however,

1. There must be payment of rent and performance of all obligations owed to

the landlord.
2. Repair of the damaged land due to the removal of the fixture.
3. Service notice of one month of intention to remove the fixture.
4. The landlord can elect to purchase and keep the fixture on the receipt of
notice of the tenant.

The last provision certainly deprives the tenant from his common law rights. Under
the provision a tenant has the right to remove any residential articles that are
fixtures, subject to the conditions above. The question arises concerning the chattel
and it would be difficult to prove whether it is a chattel or a fixture, the abolition of
the doctrine which was evidential to the definition, is now removed and the problem
of whether a chattel has become a fixture is not solved. The abolition of the doctrine
causes the shift of the burden of proof to lie on the landowner to prove that the
chattel has become a fixture.

Barbados Property Act 1979

The Barbados legislation differs from the Belize and Guyana legislation in that the
power and right of removal is vested in the landlord regardless of intention by the
tenant or agreement of tenancy, in Belize and Guyana the courts would have the
power to give way to the contrary, that is the agreement of the lease or tenancy.
The act confirms the tile of the fixture to be vested in the tenant, but it gives the
landlord the right to make a claim for the title, providing the circumstances allow it.
The landlord incurs the burden of proof to persuade the court to divest the title from
the tenant. If the landlord can show that the land would be damaged due to the
fixture being removed and economic loss from removing it then the courts would
rule in favor of the landlord. Also there is no requirement of the part of the tenant to
give notification on the removal of the fixture; the landlord has to take initiative to
begin the court proceedings, if he desires to acquire the title of fixture.

The problem of the definition of a fixture is not solved by the staute, but rather the
right to removal. It states by s. 163 (1), that ‘any chattel, engine, machinery etc,
affixed to the premises by the lessee at his expense for the purpose of residence,
trade, manufacture or agriculture, or domestic convience, provided that there is no
obligation or in violation of the agreement in the affixing, then the lessee may
remove it at any time during the lease.’ This does not however encompass the
definition of a chatte house. The provision does not provide for a chattel house, but
rather those chattels that have become affixed to land to become fixtures.

St Lucia Legislation

Article 369 states that ‘ownership of the soil carries with it ownership of everything
above and below it’

Article 368, provides that ‘whatever becomes united to a thing belongs to the
proprietor’

These two articles uphold the maxim superficies solo credit, meaning whatever is
attached to the land becomes part of it.

Article 371 provides if the owner of the land uses materials that do not belong to
him, he must pay the value of the materials, he may also be condemned to pay
damages, but the owner of the materials has to right to take them away.

If the improvements were effected by the owner in bad faith then the owner of the
land had the option of paying the actual value of the materials or permitting the
owner of the materials to remove them, if that could be done without deterioration
in the value of the land, as stated in Article 371. If the improvement is so costly that
the owner of the land cannot pay for the materials, then the owner of the materials
can be compelled by the court to recover the land together with the materials from
its owner, stated in Article 373. The owner of the land cannot have the materials
taken away; he must in all cases pay what they cost, except in cases of bad faith
where only compensation can be made. Where it is done in good faith however the
owner of the land is liable to pay for the cost to the extent of which the value of the
land increased. Also in the civil law the material owned by the owner of the land can
become immovable by nature or destination, providing that they are intended to be
permanent, intended for exploitation of the land etc. No affixation to the land is
required, contrasting with the common law where there must be some affixation.
Also the this presumption under the common law does not consider the relationship
with the materials and the owner of the land, in the civil law the owner of the
chattel and material must belong to the owner of the land.