Appendix 7 Questions and Answers

• Pages: 293-353

QUESTION 1

Victor has recently sold and conveyed the fee simple of a large mansion, Moonbury House, to

Pamela. On taking possession, Pamela was horrified to discover that Victor had removed:

-an expensive fitted carpet from the living room

-an air-conditioning unit from the study

-a heavy statue which had stood in the middle of the front lawn

-a chattel house located at the rear of the property and used as accommodation for the housekeeper.

Advise Pamela as to whether she may be legally entitled to recover the aforementioned items,

assuming that the contract of sale of Moonbury House makes no mention of any of them.

Suggested answer

In advising whether Pamela may recover the items removed by Victor, it is necessary

to determine whether the items were chattels or fixtures, as only items classed as

fixtures will have passed to Pamela under the conveyance to her. Put in another way,

because of the maxim quicquid plantatur solo, solo cedit (‘whatever is attached to the land

becomes part of the land’), the conveyance of Moonbury House to Pamela will be

deemed to have included all fixtures in the property. Items classed as chattels, on the

other hand, belong to Victor and were removable by him.

In deciding whether items are fixtures or chattels, the courts use two tests, (i) the

‘degree of annexation’ test, and (ii) the ‘purpose of annexation’ test. According to

the degree of annexation test, an item is a fixture if it is attached to the land or build-

ing in some substantial manner, and the greater the degree of attachment, the more

likely it is to be considered as a fixture. Thus, for example, in Holland v Hodgson (1872)

LR 7 CP 328, looms bolted to the floor of a mill were held to be fixtures, as was an

automatic car-wash machine bolted to the ground in Lombard and Ulster Banking Ltd

v Kennedy [1974] NI 20, and panel doors and three-phase tubing in National Business

Printing Ltd v Carib Spray Ltd (1994) 31 JLR 653. On the other hand, items resting on

the ground by their own weight will usually be held to be chattels under the degree

of annexation test, because of the lack of axation to the land.

However, the degree of annexation test is not conclusive as to the status of an

item, for the court may also apply the ‘purpose of annexation’ test, whereby an item

substantially attached to the land will be regarded as a chattel if the purpose of

the attachment was to enable it to be enjoyed as a chattel rather than to benefit the

land. On this test, for instance, ‘white goods’ such as an oven or a dishwasher will be

regarded as chattels even if they are part of the overall design of a ‘fitted’ kitchen,

because they do not permanently improve it.

The status of the items in the present problem will be considered seriatim:

APPENDIX 7

QUESTIONS AND ANSWERS

294 Appendix 7

(i) The fitted carpet in the living room

Under the degree of annexation test, the carpet would be considered a chattel, as it

rests on the floor by its own weight, perhaps with the assistance of light tacks or sta-

ples at its corners to prevent it from lifting. Also, the purpose of fitting it is arguably

to enjoy it as a carpet and not to enhance the value of the property. Thus, in Botham

v TSB Bank plc (1996) 73 P&CR D1, fitted carpets in a residential flat were held to be

chattels, and indeed it is customary in the sale of residential property for the price

of carpets and curtains to be separately negotiated by the parties. By contrast, in La

Salle Recreations Ltd v Canadian Camdex Investments Ltd (1969) 4 DLR (3d) 549, it was

held that, notwithstanding the minimal degree of attachment, wall-to-wall carpet-

ing in a hotel was a fixture, since the purpose of its installation was the better use

of the building as a hotel rather than the better use of the carpeting. In the present

case, Moonbury House is clearly a residential property and so, following the Botham

case, Pamela is advised that the carpet is a chattel removable by Victor.

(ii) The air-conditioning unit in the study

Pamela is advised that it is likely that the air-conditioning unit will be held to be a

fixture, that Victor was not entitled to remove it, and that she is entitled to recover

it as purchaser of the property. The reasons for this conclusion are (i) that (at least

if the air-conditioning unit is of the conventional kind), there will have been a sub-

stantial degree of annexation to the land, and (ii) that the purpose of fitting it was to

make the study a more comfortable place to work, rather than to enjoy the item for

its own sake. This view is supported by Aircool Installations v British Telecommunications

plc [1995] CLY 821.

(iii) The statue on the lawn

Applying the degree of annexation test, the fact that the statue rested on the ground

by its own weight suggests that it should prima facie be considered a chattel. On the

other hand, on the purpose of annexation test, if the statue had been placed on the

lawn as part of the landscaping and architectural features of the property, then it

would be regarded as a fixture. In Hamp v Bygrave (1982) 266 EG 720, for instance,

stone and lead garden ornaments resting by their own weight were held to be fix-

tures because the vendors regarded them as ‘features of, and part and parcel of, the

garden’, and a similar conclusion was reached in Berkley v Poulett [1977] EGLR 86 in

relation to a heavy marble statue of a Greek athlete standing on a plinth. However,

in the absence of any information as to the purpose for placing the statue on the

lawn, the prima facie presumption that it is a chattel will stand and it will therefore

belong to Victor and be removable by him.

(iv) The chattel house

Chattel houses are unique to Caribbean jurisdictions and there are a number of cases

which have examined the question whether they are to be regarded as chattels or as

fixtures. It appears from the judgment of Wooding CJ in Mitchell v Cowie (1964) 7 WIR

118 that, applying the ‘degree of annexation’ test, if a chattel house is of the type that

Appendix 7 295

rests by its own weight and is easily removable either wholly or in sections for instal-

lation elsewhere, it will be regarded as a chattel; but if it is of a kind that is attached

more substantially to the land and cannot be removed without its total destruction,

then it will be considered a fixture; and, on the ‘purpose of annexation’ test, if the

chattel house has been placed on the land for a temporary purpose it will be treated as

a chattel, but if it was intended to be a permanent residence for its occupants, it will

be a fixture (Massiah v Hutson (1961–63) 3 Barb LR 11. On the other hand, it was also

pointed out by Georges JA in O’Brien Loans Ltd v Missick (1977) BLR 49 that where a

yearly tenant of a ‘house spot’ places a chattel house on the land, it will be regarded as

a chattel and removable (notwithstanding that there is a substantial degree of attach-

ment to the land), because a yearly tenant would not have any intention of benefiting

the owner of the land. The situation in the present case is somewhat unusual in that

the chattel house was installed by Victor or his predecessor for the specific purpose of

providing accommodation for the housekeeper (whoever happened to be employed as

such) at Moonbury House, unlike in the aforementioned decided cases where it was

the owner of the chattel house (not the owner of the land) who installed the house for

his own benefit as a residence. In the present case, it is clear that the chattel house was

intended to be a permanent and not a merely temporary addition to the land, and so

on the ‘purpose of annexation’ test and irrespective of the degree of annexation, it will

be regarded as a fixture to which Pamela is entitled.

In conclusion, Pamela is advised that, as purchaser, she is entitled to recover

possession of the air-conditioning unit and the chattel house, but not the carpet or

the statue.

QUESTION 2

Vinnie is selling his suburban house, No. 13 Elm Street, to Peter. Vinnie is a keen carpenter in his

spare time and has installed a work bench in the garage, bolted to the floor. He has also erected a

free-standing bicycle shed in the back yard. In the dining room, there is an ornate chandelier hanging

from the ceiling and a painting of ‘Dido and Aeneas’ attached to hooks on the wall. There is a fitted

kitchen with integral stove, dishwasher and washing machine. Also, on an inspection visit to No 13

last week, Peter picked up a gold bracelet that he found lying under a bush in the garden.

Consider, on the sale of No 13 (in the absence of relevant terms in the sale agreement), who

will be entitled to:

(i) The work bench

(ii) The bicycle shed

(iii) The chandelier

(iv) The painting

(v) The stove, dishwasher and washing machine

(vi) The gold bracelet

Suggested answer

Since there are no terms in the agreement of sale specifying which items are to

pass on the sale to Peter, the entitlement to such items will be decided according to

whether a particular item is to be classified as a fixture or as a chattel. Fixtures will