Law of Land & Property - Part 2 - Fixture or Chattel?

The definition of a fixture is sometimes subject to heated debate, however in general terms the law considers a fixture as something that is permanently fixed to the property/land and therefore is deemed to form part of it. 

Source: http://www.ecoinstaller.net/

Anyone who has bought and sold property over recent years will be very familiar with the pack of information that they receive from their legal advisors which details or schedules out all of the fixtures and fittings that will form part of the property/land.  This is important because there were often conflicts between a purchaser and a seller in respect of what formed part of the property/land and what did not.  It is therefore interesting to see what the law says about what is a fixture (and therefore forms part of the property/land) and what is a chattel (which does not).

The definition of a fixture is sometimes subject to heated debate, however in general terms the law considers a fixture as something that is permanently fixed to the property/land and therefore is deemed to form part of it.  Fixtures will therefore include things like buildings together with anything that is permanently attached to it.  If something is secured in place by anything other than its own weight, it is highly likely to be considered as a fixture.  A chattel on the other hand and hardly surprisingly is the exact opposite, being something that is easily removed and therefore cannot be considered as permanent. Chattels are therefore generally considered as temporary and easy to move (although there a number of exceptions to this, which will be considered later).  Before proceeding it is worth clarifying that the law considers ‘tenant fixtures’ in a very different way to other types of fixtures.  For the purposes of this article I will not be discussing tenant fixtures, which is a topic I will save for a future article.

Property is usually bought and sold under a contract which therefore allows the buyer and seller to come to whatever agreement they want in respect of fixtures and chattels.  Where this agreement is lacking, whether by ignorance or wilfulness and a dispute ensues the parties will sometime go court in order to resolve the dispute. Under the doctrine of judicial precedent the courts in the UK are bound by decisions made in similar previous cases so it is worth looking at some previous cases to help us to understand how the courts decide what is a fixture and what is a chattel.

Source: http://www.theglasgowstory.com/

The case of Holland v Hodgson (1872) is commonly referred to where the question in respect of fixtures and chattels.  The case related to whether some factory machinery (looms) were a fixture and formed part of a factory or if they indeed were chattels.  As stated above the law relating to tenant fixtures has evolved since this case however the test used for determining whether something is a fixture of a chattel is still relevant.  In deciding whether something is a fixture or a chattel the Judge identified two tests.  Firstly, the degree on annexation (how and the extent to which something is fixed) and the purpose of the annexation (the reason for fixing the item). In explaining the test the Judge went on to say that ‘articles that are only attached to the land by their weight are not usually considered to be part of the land, unless they were actually intended to form part of the land’. In order to demonstrate this point the judge gave an example of a dry stone wall, stating that ‘a pile of stones, randomly stacked in the middle of a field, would not be part of the land but when they have been arranged, packed, and formed into a stone wall, then they clearly are intended to be part of the land’. In any case it is the responsibility of the person/party claiming that an object forms part of the land to prove it.

In the case of Berkley v Poulett (1976) a dispute arose relating to whether certain items sold at auction were deemed to be fixtures and therefore formed part of the property/land or whether they were chattels.  The items in question were some pictures fitted into panelling in a wall and in the garden, a heavy marble statue resting on plinth and a sundial.  The Court of Appeal considered the test used in Holland v Hodgson and concluded that the pictures, although fixed to the wall were chattels as ‘they were put on the walls to be enjoyed as pictures, rather than with the intention of making them part of the land’. The statue was also not attached to the land, but was placed on a plinth that was attached to the land. The Court concluded that the plinth formed part of the land, but the statue did not, because there was no evidence that the statue was designed as part of an ‘architectural scheme’. The sundial was also determined to be a chattel, because it had been detached from its pedestal many years earlier.

If we contrast the case of Berkley v Poulett with the case of D’Eyncourt v Gregory (1866) we can see how the courts arrived at a different decision for similar items. In this case a sundial was also held to be a chattel rather than a fixture, however, in the garden, statues, figures, vases, and stone garden seats that were part of the architectural design of the grounds were deemed to be fixtures, whether or not they were attached to the ground.

In most property transactions the question of whether something is a fixture or a chattel is relatively straightforward however in instances where this is bought into question it is worth being aware that there is precedent for determining this and resolving disputes.  As stated above, in a future article I will tackle the issue of ‘tenant fixtures’, where we will find that the law differs from that stated above.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Law of Land & Property – Part 1 - What is Land?

If we were to carry out a survey and asked the question ‘what is land?’, the vast majority of responses would undoubtedly refer to a two dimensional area that they identify as standing on or where buildings or structures are erected on or possible ground, soil or earth that is not covered by water

Source: http://imgkid.com/

Land is something that has been occupied, bought. sold, fought over and disputed throughout the course of history in all parts of the World.  Even today land disputes are commonplace, some of which have led to war between the disputing parties where many lives are lost during these conflicts.  Fortunately, not all land disputes lead to war and in fact in my professional career I have dealt with boundary disputes where the disputing parties are arguing over what most people would consider as insignificant pieces of land.  For example where someone has erected a fence and the line or position has been disputed by a neighbour.  In these cases the amount of land being disputed is usually very small.

If we were to carry out a survey and asked the question ‘what is land?’, the vast majority of responses would undoubtedly refer to a two dimensional area that they identify as standing on or where buildings or structures are erected on or possible ground, soil or earth that is not covered by water.  Think of an image of the World which shows the mass of the continents and countries, surrounded by seas and oceans and you will see the perception of what most people consider as land.  Whilst this perception does in fact demonstrate some land, we will see that the legal definition of land in the UK is far wider.  The Law of Property Act 1925, s205(1)(ix), provides a definition of land (see below) which at first glance seems confusing, complicated and difficult to interpret.  This is because it uses some language and terminology that has evolved over many hundreds of years and is not commonly used today; 

“Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir;

It is worth however persevering with this definition in order to understand the scope and context of what land actually is.  Firstly, the definition states that land ‘includes…’ This suggests that the definition provided, as confusing as it is, is only in fact a partial definition and has the potential to include other things. Also, ‘land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way)’, suggests that land is more than just a two dimensional flat area and in fact is three dimensional, including not only the surface of the land, but also the ground beneath (subterranean space) and the airspace above.  The wider definition of land is sometimes expressed in the Latin term ‘cuius est solum eius est usque ad coelum et ad inferos’ which translated means ‘he who owns the land owns everything reaching up to the very heavens and down to the depths of the earth’. Although it is correct that land includes airspace and subterranean space, we will see that these rights are not unlimited.

Source: http://www.aandshouselifting.com/

Subterranean Land – If for example a landowner wants to add a basement to their property then they are free  to excavate below the ground to allow for its construction.  This is something that may be considered when land availability is restricted to add space and value to a property (subject to obtaining statutory permissions such as Planning Permission and Building Regulations Approval and other permissions where appropriate). Section 205(1)(ix) of the Law of Property Act states, ‘mines and minerals form part of the land’ – however certain ‘minerals’ are restricted from belonging to the land owner by statute. Gold or silver automatically belong to the ‘Crown’, which is the case across the whole of the UK.  Also, the Crown is entitled to oil, petroleum, coal, and natural gas by virtue of the Coal Industry Act 1994 and the Petroleum Act 1998.  It is therefore clear that land includes subterranean land however it has been shown that rights are sometimes limited.  The discovery of ‘treasure’ is also covered by statute and this is something I will discuss in a future article.

Airspace – By virtue of the Law of Property Act 1925 a landowner owns the airspace above their land, however as with subterranean land these rights are sometimes restricted.  If a landowner actually owned the airspace ‘up to the very heavens’, then effectively they would be able to sue in trespass every time an aeroplane flew over ‘their land’, which would be ridiculous!  However section 76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property ‘at a height above the ground which is reasonable’. The question of reasonableness is a case in point in every action and the courts will refer to previous case law to establish precedent.

Source: http://www.hintmedia.co.uk/

The consideration of airspace is far wider that the impact of aeroplanes passing over ‘land’, and in fact consideration must be given at a much lower level.  Tower cranes are a relevant example from a built environment context which have the potential to trespass onto land of different owners unless permission and/or an oversailing licence have been obtained.  Other examples include Kelson v Imperial Tobacco Co (1957), where a defendant committed trespass by allowing an advertising board to project eight inches into the Claimant’s property at ground level and another above ground level. John Trenberth v National Westminster Bank (1979), where scaffolding erected on a neighbours land constituted trespass and Laiquat v Majid (2005), where an extractor fan at about 4.5 m above ground level, protruded 750mm into the claimant’s garden.

The legal definition of land is clearly wide and in a future article I will explore some of the ‘older terminology’ that is used in section 205(1) (ix) of the Law of Property Act 1925, in order to consider land in its wider context.  This will include an explanation of the terms ‘corporeal and incorporeal hereditaments’, ‘manorial rights’ and ‘advowsen’, and consider what the law says about ‘fixtures’ and ‘chattels’

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.