Rilys Adams

November 1st 2009

FIXTURES
INTRODUCTION
A chattel may be annexed to the land in a manner in which it becomes land. When this occurs, the chattel becomes a fixture (loses its nature as a chattel and becomes land/realty). The title of the chattel becomes merged with the title of the land and henceforth the owner of the land becomes the owner of the chattel. It must be noted that if the owner of the chattel and the owner of the land are separate, the owner of the chattel loses his claim to the land (although there are exceptions to this rule), and must seek damages. The law of fixtures is founded on the maxim quicquid plantatur solo solo cedit (whatever is affixed to the land becomes part of it and thereby becomes the property of the owner of the soil). Gough v Wood (quotes from Brookes Abridgment Property) speaks about timber being illegally taken from JS. If the timber is illegally taken without any further action an action of trespass cannot be brought against JS if he retook it. However, if the timber is used in repair or construction, although it is known to be illegally taken cannot be retaken because ... the nature of the timber... [was]... changed; for by annexing it to the freehold it becomes real property. The doctrine of quicquid plantatur solo solo cedit was derived from the days of tenure where the real property went to the heir and personalty to the personal representative. It sought to safeguard against the economic waste that could have been caused by giving the land to the heir and the severed chattel to the personal representative and to also safeguard against the destruction of the property. The law has been notably stretched to govern relationship between landlord and tenant; mortgager and mortgagee. However, the law recognized undue hardship in several instances, and as, fixtures used for agricultural, domestic or ornamental and trade purposes may be removed. Whether or not the item in question qualifies must be determined in each case: 1) Has the chattel become a fixture and; 2) Would the law permit the owner of the chattel to remove the fixture?
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Note that there is no exception as it relates to the maxim, the exception relates to whether or not the fixture is removable. The main tests was gleaned Bartley CJ in the American Case Teaff V Hewitt. It was a three step rule which covered: 1) Actual annexation to the realty or something appurtenant thereto 2) Appropriation to the use of purpose to that part of the realty with which it is connection
3) The intention of the party making the annexation, to make the article

a permanent accession to the freehold this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and the mode of annexation and the purpose for which the annexation has been made. In the case Mitchell v Cowie, Wooding CJ posited the formula found on page 28 of Owusus book, which will be summarized. A house may be a chattel or fixture depending upon whether it was intended to form part of the land on which it stands. The intention is determined in an objective rather than a subjective manner in accordance with the circumstances as they appear and by the application of following rules. The primary consideration in distinguishing whether a house is a chattel or a fixture is whether or not the house is affixed to the land. A house resting by its own weight will generally be held to be a chattel, unless it is made to appear from the circumstances that it was intended to form a part of the land, the onus being on him who alleges that it is not a chattel. If the house is affixed to the land, however slight, it will generally be held to be a part of the land unless it is made to appear contrary from the circumstances, the onus being on him who alleges that it is a chattel. When the house is attached by the tenant of the property, special attention must be paid (primary importance) to the purpose or the object of annexation. When determining the purpose or object of annexation, it must be taken into consideration whether the house was attached to the land for temporary use as a chattel or if it were intended to be for the better enjoyment f the land. It must not be assumed that the house was attached on a temporary basis just because the intention or right of the tenant to remove the house from the land at the end of his tenancy so that no benefit accrues to the landlord. The main question is whether the

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house has manifested a purpose so that it is attached to the land and remains a part of the land even when his interest as a tenant ceases. deduced from Holland v Hodgson (ascertains that the intention criterion is the controlling factor.) Intention is the primary factor with the other factors as a means to ascertain intention: a) The relations to the land of the party making the annexation b) Degree of annexation (mode of annexation) c) Purpose of Annexation d) Damage to the land and the chattel on removal e) Custom and Usage The application of these principles is a lot harder in reality and it must be noted that each case would turn upon its peculiar facts. The principles are useful guidance in the determining of whether the object has become a fixture or remained a chattel. In Leigh v Taylor it was established that there has been no alternation in the law regarding fixtures but what has changed per Lord Halsbury L.C was the mode of life. Judicial authorities tend to view the chattel house in the Caribbean as a fixture, and although legislation has removed doubt as to the right of the tenant to remove his house, it has provided no insight as to whether or not the chattel house is a fixture.

ANNEXATION TO ONES OWN LAND

When an individual attaches an object to his own land it will generally be presumed that his attachment was made for the improvement of his inheritance. Constructive annexation was developed to explain situations where there was temporary removal from the land, or case where integration was so obvious that the court was driven to ignore the lack of physical annexation. Note: Burke v Bernard
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B, Ps brother put up a two storey house on his land, the upper story was wood resting on masonry pillars and wooden pillars. The land was purchased by M.B in an execution sale for judgement for repayment of debt. B, quietly vacated the property and it was after his death, the plaintiff (executor of the will), laid claim to the house on the land. The claim of P was rejected in the Court of Appeal on the grounds that the house was not a chattel but a fixture. The court said that the lower masonry storey of the house was built into the land and was clearly a fixture, the wooden upper storey was an essential and integral part of the house and by its attachment to the wooden pillars in the ground was also a fixture. Note that the removal of the upper wooden story would have resulted in the unroofing the sub-structure and that would damage the freehold. And as such, it was obvious that B intended to make the structure a part of the land which belonged to him. Where the owner of the land is not the owner of the chattel but there is a permanent relationship between the owner of the land and the owner of the chattel, an inference of an intention to make the chattel part of the land of another person to which the chattel is affixed will not be far-fetched. However where the tenancy of a bare land or one that can be determined with short notice, it is unreasonable to impute to the tenant an intention to attach his chattel permanently to the and so as to form part of the land in which, under such circumstance, he has an unsecured tenure. However, Fraser J in Mitchel v Cowie, I do not think that the duration of the tenancy, providing it is certain, has any influence on the status of the building. It is purported though that Fraser Js reasoning was not the most sound. Georges J.A in OBrien Loans Limited v Missick states, In cases where for example a yearly tenant attaches a wooden house to [a] column anchored n the ground there would seem to be no reason why the degree of annexation should result in the house ceasing to be a chattel and becoming a tenants fixture. On the other hand, the owner of a fee simple or of a long lease who erects such a structure on his land would reasonably be held to have interned to improve the land unless there is compelling evidence to the contrary.

DEGREE OF ANNEXATION

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This test is used interchangeably with the mode of annexation test. A chattel will rank as a fixture if it is affixed to the land by some object which is attached to the land (like wooden pillars: See Burke v Bernard). There should be such a substantial attachment as would give rise to an inference of an intention to attach the chattel to the land and to retain it there permanently. Also, if the superstructure can be removed without losing its identity, it is more likely to retain its chattel character and not rank as a fixture. However, this is not a suggestion that where this is slight or no attachment, the chattel cannot become a fixture. It is just that the greater the degree of annexation, the greater the inference of intention.

Elitestone Ltd v Morris: where it was contended that the defendants were not entitled to the Rent Protection Act as the bungalow was only a Chattel and what the defendants were renting was the land the bungalow was on. Lord Lloyd: If a structure can only be enjoyed in situ, and is such that it cannot be removed in whole or in sections to another site, there is at least a strong inference that the purpose of placing the structure on the original site was that it should form part of the realty at that site, and therefore cease to be a chattel. Lord Lloyd also stated: A house which is constructed in such a way so as to be removable, whether as a unit or in sections, may well remain a chattel, even though it is connected temporarily to main services such as water and electricity. It is submitted that the abovementioned quote from Lord Lloyd is particularly relatable to the chattel house in the Caribbean. Read pg 35 39. The decision that the chattel house in Mitchel v Cowie was a fixture should not be taken as a definite precedent but one that turned on special the facts of the case. Megarry and Wades view that the right of removal is an exception to the degree of annexation test cannot be right. The purpose of annexation is one of the presumptions used to determine the questions whether a chattel has become a fixture. There has been no modification of, or exception to that test. It is after the application of the various tests, including the purpose of annexation test, and the
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conclusion has been reached that the chattel has become a fixture that determination of the question of removal arises.

DAMAGE TO THE ATTACHED CHATTEL ON REMOVAL

Where the circumstances, the situation and the nature of a structured placed on land are such that the removal of the structure would lead to its destruction, the obvious inference is that it was not intended to be removed from the sight, and that it was intended to remain permanently and therefore ranks as a fixture. (Elitestone Ltd v Morris) Eva Fields v Rosie Modeste and Jurine Joseph [Eva Fields Case] ... [the house] was built of tapia ... resting on wooden pillars, covered with galvanized iron sheets... The Court of Appeal considered that a house built of tapia could not be moved without its complete disintegration. That, in our view, would make it a fixture. The house did not possess the characteristic of a chattel relating to it being moveable and transferable by delivery. In addition to the fact that the house would have been damaged if an attempt was made to use it was the fact that the house was also affixed to the land and hence did not fall under Wooding C.Js third category. Note: Salad v Eljofri and Anor: [it is] difficult to appreciate how a house of the nature in question can properly be said to be a chattel it could only, I suppose, be completely transferred by delivery by reducing it to pieces of wattle wood and dried mud or daub with particles thereof. By such a process the whole character of the thing would be gone and its state hardly more enviable than that of the late, lamented Humpty-Dumpty. Note: the converse of the presumption is not always followed: so, the fact that the removal of the structure would not result in its destruction does not invariably make it a chattel. Intention is a primary consideration. So, if the application of the test along with the other tests points to a firm indication of an intention to make the chattel a permanent part of the structure, it will be regarded as a fixture, even if its removal would not result in its destruction. See: Burke v Bernard.
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PURPOSE OF ANNEXATION
The test here is to ascertain whether the chattel has been fixed for its more convenient use as a chattel, or for the more convenient use of the land or building. Can it be inferred from the nature of the chattel and its affixation that it was annexed to the realty for the purpose of permanent improvement of the land or to facilitate the use of the chattel? Leigh v Taylor: object in question: a valuable piece of tapestry fixed to the wall by tacks to a framework of wood and canvas which was nailed on to the wall, together with moulding fastened unto the wall. The argument was put forward that it was a fixture because of the degree of annexation. However it was held that items of that nature (of the ornamental, household appliances, domestic equipments, residential accessories or utilities) should not be considered as fixtures once, its attachment was no more necessary than what was required for them for be used for normal purposes. What has to be considered is not only the purpose of the item, but also the purpose of the link between the item and the land or the building to which it is attached. That is, if the attachment, viewed objectively, is found to be no more than is necessary for the item to be enjoyed and used, then its chattel character will not be changed by reason of its attachment. The purpose of attached is to be ascertained objectively, and not by reference to the subjective motivations of the annenxor. Four indicators are put forward by Roch L.J in Botham & Ors. v TSB Bank PLC: 1) If the item is ornamental and the attachment is simply to enable it to be enjoyed then this will indicated that it is a chattel. (note that this doesnt work for all ornamental items: think of ornamental tiles on the walls of the kitchens and bathrooms) 2) The ability to remove the item without damaging the fabric of the building will indicate a chattel.

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3) Whether the item is owned by the land owner or belongs to someone else. In the latter case, the article should not be held to be a fixture unless: the intent to effect a permanent improvement in incontrovertible.
4) The type of person who installs/attaches the item to the land can be a

factor: items installed by professionals are morel likely to be seen as fixtures than those by the occupier. See: Botham & Ors v TSB Bank Plc If an object is for the improvement of the land, the chattel becomes realty. Statues, stone seats, and ornamental vases constructed to be an integral part of the architectural design of the estate would be fixtures. (DEyncourt v Gregory)

ADAPTATION
If an article is constructed and adapted for an attachment to the realty and there is an intention to make it part of it, it would qualify as a fixture. Specially cut or formed items found on land to be employed in the building of an incomplete building on the land may be regarded as a fixture. However, where the article has no special or peculiar adaptation to the realty and can be used with equal efficiency in any like estate or establishment, it will retain its chattel character. Thus implements and domestic animals necessary for the cultivation of a farm do not qualify as fixtures. (This contrasts with St. Lucia where under the Civil Code where implements and animals used for farming are classified as immovable by destination if they are placed on a farm for the service or exploitation of the land.)

CUSTOM AND USAGE

In the landlord-and-tenant relationship, matters on which the agreement is silent may be open to explanation by the general usage and custom of the country where the land it situated. This is particularly applicable to the status of the chattel house in the Caribbean, which stemmed from the uncertainty directly after
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emancipation and as to encourage labour, the planters who had a near monopoly on the land market would offer land in return for work. As they were tenants at will and could be evicted at short notice, it was necessary for the tenants to have a house which was easily moveable.

GENUS OF THE STRUCTURE TEST FOR BUILDINGS

Cannot ascertain the importance of this but since it seems like Owusu basically suggests that it was a load of crap, if necessary to go over... See: Page 48.

STATUTORY PROVISIONS ON FIXTURES

BELIZE AND GUYANA The statute law in these territories abolishes the doctrine quicquid solo plantatur, solo cedit. Basically it provides that anything a tenant affixes to the land which he isnt obligated to under law or is not entitled to compensation, and which is not so affixed or erected in pursuance of some obligation in that behalf or instead of some fixture of building belonging to the landlord will be the tenants property liable to be removed by him before the end of or at the termination of his tenancy. Landlord and Tenant Act 2000 Cap 189 s. 13 (Belize) Landlord and Tenant Act 1973 Cap.61:01 s. 15(1) (Guyana) It vests the right in the tenant to remove any fixture he has annexed to the land subject to conditions: these are: (a) Payment of all rent and performance of all obligations due to the landlord (b) Repair of any damage caused to the land on removal of the fixture by the tenant (c) Service of ones months notice on the landlord of the intention to remove the fixture.
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(d) The landlord has the right to pay a fair value for and to keep the fixture

by electing to purchase it on the receipt of notice of the tenants intention to remove it. - what is a fair value can be determined in the Magistrates court. The last two of the list deprives the tenant of his common law right to remove his fixture without any reference at all to the landlord. Certainly under the common law the landlord did not have the right to demand that the tenant sell him the fixtures. Note that the courts only have jurisdiction to intervene so as to determine what the fair value of the fixture is but there is no power to prevent the landlord from purchasing the fixture if he so desires. There is however one remedial effect. It extends the common law right of removal which had been confined to trade, agricultural and ornamental fixtures to cover situations where the fixtures were used for residential purposes. Under this provision a fixture which is used for residential purposes can be removed by the tenant at the end of his tenancy, subject to the conditions stated above. Note that the provision only deals with fixtures, and as such where the determination yields to the conclusion that the chattel retains its character as a chattel, the tenant can carry away his chattel without hindrance. The doctrine of quicquid solo plantatur, solo cedit is one of evidential importance. It enables the court to start with a presumption that if a chattel is affixed to land it is a part of the land. The doctrine also has the effect of casting the onus on the owner of the chattel to prove the contrary. It is posited that the inapplicability of the doctrine only shifts the burden of proof. It becomes cast on the owner of the land to prove that the title to the chattel has become merged with the title of the land and vested in the owner of the land.

BARBADOS
There are several differences between the Barbados Property Act 1979 and the Landlord and Tenant Acts of Belize and Guyana. The BPA provides explicitly that the right of removal created and the compulsory acquisition powers vested in the landlord by the statute are

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subject to any contrary intention expressed or contained in the lease or tenancy agreement. [Section 163 (6)(a)]1 The Court in Barbados is vested with additional powers to determine whether the chattel should be removed or not [s. 163 (4)]. The Act confirms the title of the tenant to the fixture, but vests in the landlord the right to proceed in court for a declaration of title to the fixture. Since the statute vests ownership of the fixture in the tenant, the landlord incurs a heavy burden to persuade the court to divest the tenant of it. (An economic loss resulting from substantial and irreparable damage caused by the removal of the fixture might be consideration, though it is dubious that this is the general case in such a technologically advanced world). There is no requirement on the part of the tenant to give notice of his intention to remove the fixture; the landlord has to take the initiative to starts the court proceedings, if he desires to acquire title to fixture. s. 163 (1) provides that any chattel, engine, machinery, fencing or other fixture, or any building, erected on or affixed to the demised premises by the lessee at his sole expense, for any purpose of residence, trade, manufacture or agriculture, or for ornament or for the domestic convenience of the lessee in the occupation of the demised premises, but no so erected or affixed in accordance with any obligation or in violation of any agreement in that behalf, may be removed by the lessee at the time during the continuance of the lease. See: Third test from Mitchell v Cowie as reiterated in Eva Fields v Rosie Modeste and Jurine Joseph: If a house is not affixed to the land but simply rests by its own weight theron, it will generally be held to be a chattel house unless... it was intended to form part of the house. Owusu posits, even if a chattel house is affixed to the land, but it is determined that it was not intended to form part of the land, and as it still retains its chattel character, it is submitted that it will not fall within the terms of this provision. The provision affects chattels which have been so erected or affixed as to become fixtures and as such cannot be interpreted to encompass a chattel house, which, as was defined by Wooding C.J, is not affixed to the land. The provision in Barbados should only apply when by carious tests, it can be said that there was a fixture.
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Submitted that although it is not explicitly stated in the Guyanese / Belizean provision, the courts will give effect to any contrary intention found in the agreement.

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ST. LUCIA
Article 369 of the Civil Code of St. Lucia provides that: Ownership of the soil carries with it ownership of what is above and what is below it; except that a mine may be alienated and owned apart from the land above it. Article 368: Whatever becomes united or incorporated with a thing belongs to the proprietor, according to the rules hereinafter established. This is an enactment of the civil law doctrine: superficies solo cedit: it is subject to the provisions contained in Articles 369 to 379 and its effect is to allow the owner of the land who builds on his land by using materials belonging to another person to retain the materials, but accords to the owner of the materials the right to recover damages from the owner of the land. Recall: Gough v Wood (Brookes Abridgement Property). Article 371: The owner of the soil who has constructed buildings or works with materials which do not belong to him, must pay the value of the materials. He may also be condemned to pay damages, if there be any; but the owner of the materials has no right to take them away. Where the materials were used by their owner to effect improvements on the land of another person, the rights of the parties depend on: (a) The nature of the improvement and (b) The good or bad faith of the person who effected the improvement with his materials on the land of the other party. Article 372: When improvements have been made by a possessor with his own materials, the right of the owner to such improvements depends on the nature and the good or bad faith of such possessor Where the improvements were effected by their owner in bad faith, the owner of the land has two options. He can keep the materials and pay the owner for the actual value of the materials or permit the owner of the materials to remove them, if that could be done without any deterioration in value of the land. (See Article 371). If, however, the improvements are so elaborate that the owner of the land cannot afford to pay for them, the owner of the materials may be compelled to
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pay for the land and recover the land as well as his materials from the owner of the land. See Article 373. Where the improvements are deemed to be necessary the owner of the land must pay for the cost of the materials unless the improvements were effected in bad faith, in that case the owner of the materials are only entitled to compensation. (Article 372, para 1) Where the improvements are deemed unnecessary but are however made if good faith the owner of the land is liable to pay to the extent to which it has increased the value of the land. (Article 372, para 2) Articles put on the land by the owner of the land can become immovable either by nature or destination in accordance with Article 337. Moveable things which a proprietor has place on his real property for a permanency or which he has incorporated therewith, are immovable by their destination so as long as they remain there. The conditions for the application of this provision are: 1) The owner of the land should also own the material or chattel 2) The material or chattel should have been incorporated or; 3) The material or chattel should have been placed on the land with the intention that it should remain their permanently. When these conditions are satisfied the movable becomes immovable. There is a distinction here between the common law test and that of the civil law: 1) Under the civil law there can be immovable by destination even where there is no affixation. But under the common law there should be affixation for this presumption to apply. 2) The presumption under the common law does not depend on the existence of a relationship of ownership between the owner of the land and the materials. By this provision them movable property attains the characters of immovable by destination only where the chattel belonged to the owner of the land. Hence, moveable property such as utensils, manure, straw, carts and other such implements which are merely placed on the land becomes immoveable property by destination, but remember it must be proved that the objects
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were intended to be there permanently and that they were put on the land for the service and the exploitation of the land. (Article 337) Examples: press boilers, stills, vats and turns, utensils necessary for working forges, mills, manure and substances intended for manure, cattle, and carts, and other implements employed in the working of an estate. Article 338 para 1 offers some similarity with the common law presumption that if the removal of an object results in damage it is a fixture. ..which cannot be removed without breakage, or without destroying or deteriorating that part of the property to which they are attached. Note that under the common law the damage upon removal seems to act as an aid in determining the intention with which the annexor attached the chattel and the intention to make it permanent or not is the controlling factor. Under the St Lucia Civil Code it appears that the fact of incompleteness and destruction is conclusive of the question as to the intention with which it was done. But remember these tests are only used when the land itself belongs to the person who used the material.

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