Fixtures

• Pages: 25-56

FIXTURES

Land in the eyes of the law is not only the surface of the earth, it includes

the air space above it, things attached to it and the subsoil below it. Thus

buildings and structures on a piece of land, mines and minerals under-

neath it are considered as land.1

The question then is: when does a chattel used to build a structure on

a land become land? Adoor frame in the carpenter’s shop ready to be

transported to a building site does not become land because it is measured

to fit the door of the building on the land in question. In the shop it is

undoubtedly a chattel. But as soon as it is affixed to the building it becomes

part of realty and ceases to be a personalty. Akey to a door is considered as

land in law. It does not cease to be land because it is in the pocket of the

vendor of the house.2On the other hand, it was once held that spinning

machines, called “mules”, fixed by screws to a wooden floor, and others

fixed by screws which had been sunk into holes in a stone floor and

secured by molten lead merely to steady them for more convenient use as

machines, were chattels.3

Achattel which is physically annexed to land so as to form part of the

land may or may not become land. Where such a chattel is so affixed to a

piece of land as to qualify as land or realty, it is described as a fixture. It

thereby loses its chattel nature and becomes realty or land. The title to the

chattel is then merged with the title to the land, and thenceforth the owner

of the land becomes the owner of the chattel. The owner of the chattel loses

his title to the chattel and cannot lay claim to it.4

The significance of this enquiry is that the owner of the land is entitled

to the fixture even if the chattel which was affixed to his land did

not belong to him, but belonged to a third party, who thereby loses his

ownership of the fixture to the landowner.

1Property Act, 1979–81, Cap.236 (Barbados) s. 2; Law of Property Act, 2000, Cap.190

(Belize), s. 2; Conveyancing and Law of Property Act, 1991, Cap.220 (British Virgin

Islands), s. 2; Conveyancing and Law of Property Act, 1990, Cap.54:01 (Dominica), s. 2;

Conveyancing Act, 1973, Ch. 73 (Jamaica), s. 3; Conveyancing and Law of Property

Act, 1962, Cap.250 (Montserrat), s. 2; Conveyancing and Law of Property Act, 1961,

Cap.271 (St. Christopher [St. Kitts] and Nevis), s. 2; Conveyancing and Law of Property

Act, 1950, Ch. 27, No. 12 (Trinidad and To bago), s. 2; Land Law and Conveyancing Act,

1981, No. 20 (proposed legislation of Trinidad and To bago), s. 2.

2See, for example, Liford’s case (1614) 11 Coke 46 b.

3Hellawell v. Eastwood (1851) 6 Ex. 295, 312. Cf. Crossly v. Lee [1908] 1 K.B. 86.

4There are exceptions to this rule: where the chattel was used on the land for agricultural,

trade and ornamental purposes, it can be claimed by the owner of the chattel.

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The law of fixtures is founded on the maxim quicquid plantatur solo solo

cedit, i.e., whatever is affixed to the land becomes part of it and thereby

becomes the property of the owner of the soil. This is an instance where

one man’s property can be taken away from him by being fixed in the land

of another. In Gough v. Wood,5the Master of the Rolls quoted from Brooke’s

Abridgment, Property:

If a piece of timber which was illegally taken from J.S. have been hewed,

this (i.e. trespass) does not lie against J.S. for retaking it. But if a piece of

timber which was illegally taken have been used in building or repairing,

this, although it is known to be the piece which was taken, cannot be

retaken, the nature of the timber being changed; for by annexing it to the

freehold it becomes real property.

To further illustrate this, the learned M.R. said:

If I employ a builder to build me a house with bricks that are not his, I

apprehend that they become mine and that their former owner cannot

recover them or their value from me.

This maxim quicquid plantatur is based on the feudal concept of land tenure

under which realty went to the heir and personalty devolved on the per-

sonal representative. The maxim quicquid plantatur was invoked to safe-

guard the economic waste involved in giving the land to the heir and the

severed chattel to the personal representative, and to avoid the destruction

involved in the severance from the freehold6

[when (chattels) are fixed they are for the continual profit of the house; and

therefore it is more reasonable that the heir should have them, to whom the

freehold to which they are joined belongs, than the executors, who have

nothing to do with the freehold.7

Thus this doctrine evolved to resolve title between the personal representa-

tive and the heir who did not make any investment or incur expenditure,

or suffer any detriment, in the development of the structure or in the

procurement of the land in dispute. But the principle has been unduly

stretched to govern matters between landlord and tenant and mortgagor

and mortgagee, who stand to lose their investment by the application of

the maxim. The law, in realisation of the hardship caused by the strict

application of this maxim, made exceptions to the rule that where a chattel

has become a fixture it cannot be removed by the owner of the chattel.

These exceptions allow a fixture used for agricultural, domestic or orna-

mental, and trade purposes to be removed. Since such a right of removal is

exercisable under well-defined conditions, it is necessary to determine in

each case

5[1894] 1 Q.B. 713.

6Harrison, Cases on Land Law, Sydney, p. 60.

7Y.B.Tr in. 21 Hen. 7, 27 p. 14 (1506) (Kingsmil).

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1. whether the chattel has become a fixture or not, and

2. whether the law would permit the owner of the chattel to remove the

fixture.

It is only when the first issue is answered affirmatively that it becomes

necessary to address the second question. For where the chattel has not

by law become a fixture, the owner of it has the right to remove it without

let or hindrance. There is no exception to the quicquid plantatur maxim,

the exception relates to the question whether the fixture is removable. The

question as to whether such a chattel has become a fixture is to be dis-

tinguished from the issue as to whether the owner of the chattel, which has

assumed the character of realty, can remove it from the land. This is the

view sought to be established by this dictum

whatever is fixed to the freehold of land becomes part of the freehold

inheritance. The other is quite a different and a separate rule. ...whatever

once becomes part of the inheritance cannot be severed by a limited owner

...To the first rule which I have stated ...there is, so far as I am aware, no

exception whatever.8

Three main tests have been gleaned from the authorities for resolving the

issue whether an object is or has become a fixture. Chief Justice Bartley in

the American case of Teaff v. Hewitt 9said:

– the united application of the following requisites will be found the safest

criterion of a fixture:

1st Actual annexation to the realty or something appurtenant thereto.

2nd Appropriation to the use or purpose of that part of the realty with

which it is connected.

3rd 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 mode of

annexation, and the purpose or use for which the annexation has been

made.

To the same effect, Blackburn, J. in Holland v. Hodgson10 said:

Perhaps the true rule is, that articles not otherwise attached to the land

than by their own weight are not to be considered as part of the land,

unless the circumstances are such as to show that they were intended to be

part of the land, the onus of showing that they were so intended lying on

those who assert that they have ceased to be chattels, and that, on the

contrary, an article which is affixed to the land even slightly is to be con-

sidered as part of the land, unless the circumstances are such as to show

8Bain v. Brand (1876) A.C. 762–66.

9(1853) 1 Ohio St. 511, 527–30.

10 (1872) L.R. 7 CP 328, 335.

Chapter 2: Fixtures

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