Real Protery I Fixtures

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. b. c. d. e.

The realtion of the land of the party making the annexation. The degree of annexation Purpose of annexation Damage to the land and the chattel on removal 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.