Suggested Answer to Exercise 3.2
A Detailed Answer Plan
Introduction
To determine whether Jack was entitled to remove the items we need to establish whether they were included in the sale of the land.
- The general rule is that something that has been fixed to land becomes part of that land (Elitestone Ltd v Morris [1997] 1 WLR 687).
- Therefore, if any of the objects were fixed to the land they were included in both the contract to sell the land to Waheeda and the deed that transferred ownership of the land to her (s.62 LPA 1925).
There are two separate elements to determining whether an object is fixed to the land or is still a chattel: the ‘two-stage test’ (Holland v Hodgson (1871-72) LR 7 CP 328, see also Elitestone).
a) degree of annexation; and
b) purpose (object) of annexation.
Historically, the first of these tests was dominant. However, it is now recognised that merely physically attaching an object to land does not make it a fixture (see, for example, the boat held to the land by mooring ropes in Chelsea Yacht & Boat Co. v Pope [2000] 1 WLR 1941).
It is also possible that an object will be found to be ‘fixed’ to the land even though it is only held down by its own weight (see, for example, Elitestone, and Lord Scarman’s comments in Berkley v Poulett [1977] 1 EGLR 86). The second test is now dominant: was the object intended to be part of the land?
This is an objective question which the court must answer by considering the circumstances in which the object was attached, not the subjective intention of the person who attached it (see Melluish v BMI (No 3) Ltd [1996] AC 454). As Vaughan J explained in De Falbe [1901] 1 Ch 523, 525,
“In dealing with the question of fixtures it becomes necessary to consider the object and purpose of the annexation, by which I do not mean that there must be an inquiry into the motive of the person who annexed them, but a consideration of the object and purpose of the annexation as it is to be inferred from the circumstances of the case’.
The tests must be applied to each case on its own facts. Because a particular object has been held to be a chattel in a previous case does not necessarily mean it cannot be a fixture in other circumstances.
a) The Statue
| Degree of annexation: | Not clear if it is actually attached to the land (or even the plinth). If not, assumption is that it is a chattel. However, it is open to Waheeda to rebut this presumption using purpose of annexation. |
| Purpose of annexation: | Intention refers to the purpose the object serves (Elitestone). Was the statue placed there as a garden ornament (chattel): refer to Berkley v Poulett [1977] 1 EGLR 86; Hamp v Bygrave (1982) 266 EG 720. Alternatively, was it part of an architectural whole (fixture): refer to D’Eyncourt v Gregory (1866) LR 3 Eq 382. See, Iljadica, ‘Is a Sculpture “Land”?’ (2016) 80 Conv 242 for a useful reflection on ornaments and artworks as fixtures in the light of London Borough of Tower Hamlets v London Borough of Bromley [2015] EWHC 1954 (Ch). |
b) The Shed
| Degree of annexation: | See (a) above. |
| Purpose of annexation: | It is tempting to assume that the shed is similar to the chalet in Elitestone, but is it? In Elitestone the chalet could only be removed by destroying it. The judgments in Elitestone suggest that if the building can be dismantled (the word that Waheeda uses here) and re-erected elsewhere may be a chattel (as in the cases of a freestanding greenhouse: see Dibble (H E) Ltd v Moore [1970] 2 QB 181). As in (a), the court will need to consider the purpose for which the shed was placed on the land. Although Wessex Reserve Forces and Cadets Association v White [2006] 1 P & CR 22 is a case concerning tenants fixtures, the way in which the judge differentiated between the different types of building is also informative here. |
c) The Fitted Carpets
| Degree of annexation: | In this case the carpets are fixed. The assumption, therefore is that they are fixtures, unless the purpose of annexation indicates to the contrary. |
| Purpose of annexation: | Objects such as carpets are frequently removed on sale. Normal methods of attaching a fitted carpet to the floor are unlikely to be sufficiently substantial to indicate an intention to effect a permanent improvement to the property. However, if a floor covering is very substantially attached to the land (as would be the case with carpet tiles that have been glued down) this might suggest an intention to make it a permanent part of the land. In Botham v TSB Bank plc (1997) 73 P & CR D1, Roch LJ said, ‘In my opinion, the method of keeping fitted carpets in place and keeping curtains hung are no more than is required for enjoyment of those items as curtains and carpets. Such items are not considered to be or to have become part of the building.’ [Note how degree of annexation is being used here not as a separate test, but as part of the purpose test.] |
Conclusion
Make sure that you have advised Waheeda whether in your opinion each of the objects is a chattel or a fixture. There is room for doubt in all three cases here, so there is probably no one right answer. Make sure that you say what you think – and why the cases cause you to reach this conclusion.
