Archive for the ‘Fixtures’ Category

Huts, portakabin and a shed: fixtures or not

February 3, 2014

In Wessex Reserve Forces and Cadets Association v White ([2005] EWHC 983) one question was whether certain structures erected on land by a tenant were fixtures or chattels. If they were fixtures, were they tenant’s fixtures?

Two huts were held to be fixtures. Although they could be dismantled and re-assembled elsewhere, this would be labour-intensive. It was also relevant to consider the general nature of the huts; they were like assembly or meeting halls and prima facie were real property ([44] – [53]). The other buildings on the land (a portakabin, a garden shed and a pre-cast concrete building on a concrete slab) could be easily dismantled and removed and were chattels ([54] – [60]). The landlord accepted that if any of the buildings were fixtures, they were tenant’s fixtures and could be removed by the tenant on the termination of the lease ([2]).

The case was an application by the landlord to resist the tenant’s application for a lease renewal under Part II of the Landlord and Tenant Act 1954. The landlord relied on section 30(1)(f) of the Act (that it intended to demolish or reconstruct a substantial part of the premises contained in the holding). It argued that it intended to demolish the buildings erected on the land by the tenant. The lease contained an obligation on the tenant to do this itself at the end of the lease. If the tenant were to fulfill this obligation, the landlord would not need possession to carry out this work and its ground of opposition would disappear. To counter this, the landlord executed a deed releasing the tenant from this obligation. The tenant was not a party to the deed. The landlord could only unilaterally release the obligation if it was an obligation that was for its benefit alone. This was not the case since the clause also gave (or at least confirmed) the tenant’s right to remove the buildings and structures. The deed was therefore ineffective ([65] – [66]).

Michael Lower

Machinery: fixture or chattel

January 28, 2014

In Hulme v Brigham ([1943] KB 152) the question was whether heavy machines in a factory were fixtures or chattels (and so whether or not they were included in a mortgage of the factory). They were attached to the ground only by their own (considerable) weight. They were driven by electricity and so were connected to driving belts which were attached to the factory. The machines could easily be detached from the belts. The machines were held to be chattels.

Birkett J made the following observation:

‘An article which is not physically attached to the land may yet in certain circumstances have become part and parcel of the land and have lost its chattel character. The question of annexation depends on a number of circumstances, and the cases show that each case must be considered and decided on its own circumstances, applying the principles of law which have been laid down.’ (pp. 154 – 5).

Michael Lower

Failure to reinstate at the end of a lease and associated licence

July 20, 2012

In China Resources Property Management Ltd v Max Merit Ltd ([2012] HKEC 1010 (District Court)) C had granted M a lease of some shop premises for use as a sandwich shop and a licence of an Outside Seating Area. M had taken over the business of a previous owner of the shop and H was a director both of M and of the previous tenant. She had undertaken day to day management of the business both before and after the takeover.

At the end of the lease / licence term, C alleged that M had failed to reinstate ceiling panels to their ‘bare shell’ state as required by the agreement between them. One  question was whether this required the panels to be in the state they were in at the time of the takeover or at the time of the original lease to the previous tenant. The close involvement of H in both businesses persuaded the court that the ‘bare shell’ clause created an obligation to reinstate as at the date of the original lease to the previous tenant ([41] – [42]). The tenant was in breach and the agreement required it to indemnify C in respect of any costs associated with the breach.

The agreement prohibited the installation of fixtures of a permanent nature. The ceiling fans and spotlights were not fixtures since they were temporary and easy to remove. There was no breach of this prohibition.

The court had not allowed the landlord to rely on photographs and project documents as part of its evidence. They had been in existence for quite a long time but disclosed very late. The person who took the photos had not been called as a witness and so the photos would have been hearsay evidence.

The landlord’s claim to be able to forfeit the deposit because of non-payment of sums due under the agreement failed. The terms of the agreements did not allow forfeiture of the deposit in the circumstances of this case.

Fixture or chattel?

September 15, 2011

The question in Botham v TSB Bank plc ([1996] EG 149 (CS) CA (Eng)) was whether various items were fixtures and so subject to the mortgage granted by B to TSB of his flat. The items were: fitted carpets; light fittings; gas fires; curtains and blinds; towel rails, soap dishes and lavatory roll holders; fittings on baths and basins; kitchen units (including the sink); and white goods in the kitchen. Applying the degree and purpose of annexation tests, the English Court of Appeal decided that the towel rails etc, bath and basin fittings and built-in kitchen units and some of the light fittings were fixtures. The rest of the items were chattels.

Roch LJ proposed a set of indicators to be used when deciding whether items that had been attached to a building are fixtures or chattels:

1. Is it an ornament and is the attachment to the building intended to allow the item to be enjoyed as an ornament? Then it is a chattel.

2. Can the item be removed without damaging the fabric of the building?

3. Is it free-standing or set into the surrounding part of the building?

4. Did the person who brought the item onto the land own it?

5. What type of person installed the item? Was it the builder (then more likely to be a fixture) or a specialist installer or the occupier himself (more likely to be a chattel).

Indicators 4 and 5 are a little surprising.

Was a greenhouse part of the land?

August 31, 2011

In Goldful Way Development Ltd v Wellstable Development Ltd ([1999] 1 HKLRD 563) G had agreed to buy a house from W. There was a greenhouse in the backyard. This was an unauthorised structure that would have to be demolished. The question was whether W could demolish the greenhouse and still comply with the obligation to give good title. W’s argument that the greenhouse was not part of the land agreed to be sold failed. The greenhouse was firmly attached to the rest of the house, it could only be moved by demolition, it had been made to measure for the house. Applying Elitestone, the greenhouse was both a fixture and part and parcel of the land. W nevertheless succeeded because it was held that even if it demolished the greenhouse it could still substantially perform its agreement with G.

Fixtures? What was intended?

August 29, 2011

In Hamp v Bygrave ([1983] 1 EGLR 174) B sold a house to H. Before completion, B removed a number of items of heavy garden furniture (such as stone urns, a stone statue and a lead trough). All were very heavy and were secured by their own weight alone (they were free-standing). H argued that the items were fixtures and that B had had no right to remove them. The judge considered the purpose and degree of annexation tests. Then he looked at the intention of the sellers. He thought that three facts pointed to the conclusion that the sellers had regarded the items as fixtures. First, the items were all mentioned in the agent’s particulars (the marketing material); second, during the negotiations the seller had offered to exclude them and reduce the price (the suggestion was not followed up but showed that the seller thought they were part of the property); and third B had authorised his solicitors to state that the ‘garden furniture’ was included in the sale and the items were still on the land at that time. B was ordered to return the items he still owned and to pay damages in respect of the items that he had removed. The court held that even if the items had not been fixtures, B was estopped from denying that they were part of the property. The statement in the agent’s particulars that they were part of the sale had been relied on by H.

Applying the law on fixtures to everyday household items

September 13, 2010

Michael Haley’s ‘The law of fixtures: An unprincipled metamorphosis’ ([1998] Conveyancer and Property Lawyer 137 – 144) looks at the application of the law on fixtures to everyday items found in most homes. It is a case note that comments on the decision of the English Court of Appeal in Botham v TSB Bank plc ([1996] E.G. 149).

The court applied the degree and purpose of annexation tests to a range of household items such as light fittings, bathroom accessories and kitchen units and appliances.

Haley points out that the increased emphasis on the purpose of annexation test in modern times raises the question as to whether the degree of annexation test is still relevant. Haley suggests that the degree of annexation test retains its relevance because if there is no annexation then the item generally remains a chattel. Second, the test is useful where the purpose of annexation is unclear.

Haley is critical of the traditional tests because of their lack of clarity. He suggests an alternative: a presumption ‘that all items attached to land will remain chattels unless it is unreasonable to remove them.’ (p. 144)

Is a boat on a river a fixture?

September 12, 2010

Chelsea Yacht & Boat Co Ltd v Pope ([2000] 1 WLR 1941) concerned a houseboat on the River Thames in London. It was connected to various facilities on the river bank but these connections could be easily undone. It was afloat for part of the day and rested on the riverbed for part of the day. Tuckey LJ (invoking Elitestone) said that it is ‘common sense that a boat on a river is not part of the land.’

How the law of fixtures developed

September 11, 2010

Peter Luther in ‘Fixtures and chattels: A question of more or less’ ((2004) 24 Oxford Journal of Legal Studies, pp. 597 – 618) points out that the modern law of fixtures has three elements: (1) degree of annexation; and (2) purpose of annexation as (3) guides to the intention of the person who brought the objects onto the land. He shows the convoluted historical process that brought the law to this situation. His point is that an understanding of the past helps us to see why we have this test.

The law of fixtures could simply have focused on the degree of annexation. This seems to have been the trend for a very long time until Hellawell v Eastwood ((1851) 6 Ex 285, 155 E.R. 554). Baron Parke, deciding that case, referred to the purpose of annexation test. In doing so, Luther suggests that he conflated two separate questions: the first question is whether some property has become a fixture and the second is whether, even if it is a fixture, it can be removed (by a tenant who put it there, for example). This judgment influenced Blackburn J’s judgment and statements of principle in Holland v Hodgson.

The relevance of the intention of the person who brought the object onto the land is also a relatively late arrival in the law of fixtures. Luther identifies Wood v Hewett ((1846) 8 Q.B. 913, 115 ER 1118) and especially Lancaster v Eve ((1859) 5 CB(NS) 717, 141 ER 288) as the source of the role of intention in the law of fixtures. Luther suggests that in the latter case, the idea of intention was a pragmatic device to enable the court to reach the desired outcome. There was no principle or long-standing body of case law to support it.

Berkley v Poulett [1977] 1 EGLR 86

September 11, 2010

This concerned pictures fixed into recesses in wooden panelling on the walls of a room, a marble statutue that rested on a plinth and a sundial on a pedestal. The English Court of Appeal, in a majority decision, held that none of them were fixtures. Scarman LJ, emphasising that it is a question of fact in each case, thought that in modern times the balance had swung in favour of the purpose of annexation test. Stamp LJ concurred in this conclusion but gave noticeably greater attention than Scarman LJ to the degree of annexation test.