Should it stay or should it go Fixtures and chattels in dilapidations disputes Stephen Jourdan QC www.falcon-chambers.com www.falcon-chambers.com
Part 1 – What is it? The test for deciding if an item is a fixture or a chattel www.falcon-chambers.com
Threefold classification • Integral part of a building • Fixture • Chattel www.falcon-chambers.com
Other terminology • Tenant’s fixture • Landlord’s fixture • Fittings www.falcon-chambers.com
Tenant’s fixture – the test • Fixed by tenant so as to become a fixture • For purposes of his trade or for ornament and convenience • Physically capable of removal without causing substantial damage to the land and without losing its essential utility as a result of the removal. www.falcon-chambers.com
Fixture or chattel? The law should be ‘accessible, and so far as possible intelligible, clear and predictable’. Lord Bingham ‘The Rule of Law’ [2007] www.falcon-chambers.com
www.falcon-chambers.com
Fixture or chattel? “I do not profess to be able to reconcile all the cases on fixtures, still less all that has been said about them”. Lord Lindley Reynolds v Ashby and Son Limited [1903] “Many authorities have been cited to us which purport to lay down criteria for determining what is and what is not a “fixture”. Those criteria are not always easy to harmonize ...” Asquith LJ in Jordan v May [1947] www.falcon-chambers.com
Twofold test • Degree of annexation: is it attached to the land, and if so, how firmly; how easy is it to remove? • Purpose of annexation: what purpose does its presence serve, objectively? “It is the purpose which the object is serving which has to be regarded, not the purpose of the person who put it there”. Lord Clyde in Elitestone [1997] www.falcon-chambers.com
Rebuttable presumption created by fixing • If rests by own weight “not to be considered as part of the land, unless the circumstances are such as to shew 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”. • If “affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel”. Blackburn J in Holland v Hodgson [1872] www.falcon-chambers.com
Holland v Hodgson [1872] www.falcon-chambers.com
Holland v Hodgson [1872] Exchequer Chamber = Court of Appeal • F mortgages cotton mill and installs looms in it • Essential to the proper working of the looms that they should stand on the level, and be steady and kept in their true direction perpendicular to the line of shafting. • Looms attached to floor by nails driven through holes in the feet of the looms, in some cases into beams built into the stone, and in other cases into plugs of wood driven into holes drilled in the stone for the purpose. www.falcon-chambers.com
Blackburn J • Tenant fixtures are part of the land, though severable by the tenant • Because “the tenant indicates by the mode in which he puts them up that he regards them as attached to the property during his interest in the property”. www.falcon-chambers.com
Hobson v Gorringe [1897] Court of Appeal • King, the freehold owner of a sawmill acquired a gas engine on hire purchase. • Affixed it to the land by bolts and screws to prevent it from rocking and shifting, as it would have done had it not been bolted down. • The hire purchase agreement said that the engine would not become the property of the hirer until payment of all the instalments, and that the owner could remove it if any instalment was not paid. • King then granted a mortgage of the land. www.falcon-chambers.com
Smith LJ “If there had been in this case nothing but the existing visible degree of annexation of the gas engine to King's freehold, and the known object for which such annexation had taken place, the authorities conclusively establish that the gas engine had ceased to be a chattel, and had become part of the freehold”. www.falcon-chambers.com
Reynolds v Ashby and Son Limited [1094] House of Lords • Essentially same facts as Hobson v Gorringe • Machinery taken on HP was bolted to the floor of a factory, and could be removed by unscrewing the nuts and lifting the machines off the bolts. • Evidence that such machines could be, and often were, used without being fixed to the premises, but it was better to have them steadied by being so fixed - in order to avoid vibration, and to prevent the machine from shifting its position. www.falcon-chambers.com
Reynolds v Ashby and Son Limited “The purpose for which the machines were obtained and fixed seems to me unmistakable; it was to complete and use the buildings as a factory. It is true that the machines could be removed if necessary, but the concrete beds and bolts prepared for them negative any idea of treating the machines when fixed as movable chattels”. Lord Lindley www.falcon-chambers.com
Crossley Brothers Limited v Lee [1908] Applied principles in landlord and tenant case - landlord could not distrain for rent on engine bolted to floor to hold it steady while working. www.falcon-chambers.com
Fahstone Ltd v Biesse Group UK Ltd [2015] • Computer controlled woodworking machine • Huge and weighty, and bolted to the floor by 54 threaded rods grouted into holes in the concrete floor • Took up 50% of workshop • Could be removed without damage to its functionality • Question - did it “form part of the land”. www.falcon-chambers.com
Chairs bolted to the floor www.falcon-chambers.com
Chairs • Lyon & Co v. London City And Midland Bank [1903] - chairs for hippodrome on HP for 12 weeks then extended, screwed to floor. • Vaudeville Electric Cinema Limited v Muriset [1923] - chairs for cinema, attached to floor. www.falcon-chambers.com
Shop counters, display units and shelving units • Horwich v. Symond (1915) display unit, a counter and show case, and a bottle rack into the shop, and fixed them lightly in place with nails or screws. • Gibson Lea Retail Interiors v Makro Self Service Wholesalers [2001] - shelving units for wholesaler, fixed to floor and fitted with illuminated pelmets wired in, shop counters connected to electrical system. Layout of stores often changed. www.falcon-chambers.com
Domestic items - Botham v TSB Bank plc [1996] • Fitted carpets, cut to size and kept in place by gripper rods • Curtains and blinds including a shower curtain in one of the two bathrooms. www.falcon-chambers.com
Light fittings • Lights fixed to walls or ceilings • Some of them being in recesses in the ceilings - conceded to be fixtures • Some attached to the ceiling by tracks. www.falcon-chambers.com
Bathroom fittings • Towel rails, soap dishes and lavatory roll holders • Fittings on baths and basins namely the taps, plugs and shower heads. www.falcon-chambers.com
Kitchen fittings • Kitchen units and work surfaces • Fitted sink • Gas hob • Extractor fan unit • Oven fitted into the kitchen units • Integrated dishwasher • Integrated washing machine and dryer • White goods manufactured to standard sizes, fitted into standard sized holes, were removable. www.falcon-chambers.com
Partitions • Different types - screen, demountable partition, stud partition • Nottingham Community Housing Association v Powerminster [2000] Dyson J - “the installation of a demountable wall partition” is similar to“the installation of a central heating, air conditioning, sanitation system or any other of the fittings mentioned in paragraph (c). There is no distinction in property law: once installed, they all become part of the land”. www.falcon-chambers.com
Riverside park v NHS property Services [2017] • metal stud partitions with painted plasterboard on either side and fixed aluminium skirting • screwed to raised floor and to suspended ceiling, not to structure • contained air conditioning units and electrical wiring and sockets • created bespoke “rabbit warren” offices • single joint expert described them as “demountable.” www.falcon-chambers.com
Carpets • If can be removed, chattels • If glued and will be destroyed by removal, part of building. South Essex NHS v Laindon Holdings [2016] www.falcon-chambers.com
Data cabling and sockets • degree of annexation • purpose of annexation www.falcon-chambers.com
Conclusion • Some things are clearly part of the building • Some things are clearly not part of the building • With some things, the position is unclear… www.falcon-chambers.com
Falcon Chambers Falcon Court London EC4Y 1AA T: 020 7353 2484 F: 020 7353 1261 Email: clerks@falcon-chambers.com DX: 408 Lond/Chancery Lane www.falcon-chambers.com www.falcon-chambers.com
Recommend
More recommend
