The Law of Real Property

Fixtures

Proposition
A poor man with no home and land, who finds a house spot to rent, on which he builds a
wooden house for him and his family, who improves upon the house, securing it from the
ravages of nature prone to Caribbean, could never contemplate leaving his life’s
possessions to his landlord.
One must sympathise wit h any judge who is not personally familiar with the facts of life
in the Caribbean; however, it is a matter of everyday occurrence that such houses are
removed, whole or in part, to a new location. Thus it is suggested that realty demands the
chattel house to be regarded as such, a chattel.

Policy
Fixtures and chattels was a concept that served to determine the difference between realty
and personalty at a time when realty went to the heir at law, and personalty went to the
personal representative. This was to avoid destruction involved in severing the chattel to
the land.

Various tests for determining chattel from fixtures:

Fixtures is chattels which are so affixed to the land or to a building on the land, that it
becomes a part of the land; chattels thus lose the character of chattels and pass with the
land.
MAXIM at law, quicquid plantatur solo solo cedit –whatever grows in the soil is a part
thereof, and thereby becomes the property of the owner of the soil.
The question whether a chattel has been affixed to the land can become exceedingly
difficult to answer, thus it is a question of law for the judge to decide. However, a
decision in one case is no sure guidance through another. The decision turns upon the
particular circumstances of each case, as well as the degree of annexation and object of
annexation.

Other tests have been evolved, such as one pointed out in the American case of Teaff v.
Hewitt (1853) 1 Ohio St. 511. In this case the court said:
“The united application of the following requisites will be found the safest
criterion of a fixture:

1. Actual annexation to the realty or something appurtenant thereto

2. Appropriation to the use or purpose of that part of the realty with which it is
connected
3. The intention of the party making the annexation, to make the article a
permanent accession to the freehold, this intention being inferred from:
(a) the nature of the article affixed
(b) the relation and situation of the party making the annexation
(c) the structure and mode of annexation
(d) the purpose or use for which the annexation has been made
In our Commonwealth Caribbean jurisdiction, Wooding CJ laid down his own
formulation in Mitchell v. Cowie (1964) 7 WIR 118 @121 as follows:

1. A house may be a chattel or a fixture depending upon whether it was intended

to form part of the land on which it stands. The intention is to be determined
objectively rather than subjectively, i.e. according to the application of the
following rules set out here under.
2. A primary consideration in distinguishing a chattel from a fixture is whether
or not the house is affixed to the land.
3. If a house is not affixed to the land, but simply rests on its own weight, it will
be held a chattel, unless it appears from the relevant facts and circumstances
that it was intended to form part of the land, the onus rests on the person who
alleges that it is not a chattel.
4. If the house is affixed to the land, however slight, it will be held to form part
of the land unless it be made from the relevant circumstances that it was
intended to be or continue as a chattel, the onus for doing so rests on the
person alleging that it is a chattel.
5. As regards a house affixed to land by a tenant thereof, a circumstance of
primary importance is the object and purpose of annexation.
6. To ascertain the object or purpose of the annexation, regard must be had to
whether the affixation of the house to the land is temporary and for the use as
a chattel, or is permanent and intended to be for the better enjoyment of the
land. But for this purpose it must at all time be borne in mind that the
intention or right of the tenant to remove the house from the land on the cesser
of his interest as tenant with the result that no improvement will accrue to the
landlord’s reversionary interest does not make the affixation temporary. The
critical consideration, therefore, is whether the tenant in affixing his house to
the land has manifested a purpose to attach it thereto so that it becomes and
remains a part thereof co-terminously with his interest.

Sampson Owusu concludes that:

The controlling and guiding principle for determining this issue is the intention
with which the object is affixed to the realty and that the other factors
(a) degree of annexation
(b) mode of annexation
(c) purpose of annexation
(d) relation to the land of the party making the annexation
(e) damage to the land and chattel on removal
(f) custom and usage are used to ascertain the intention.

Relation of the Land to the Party making Annexation

- Where one attaches his chattel to his own land, it is easier to conceive
that he expected to have intended to make it part of his land. The
degree of attachment would be of little consequence.
 - A fortiori: Does a short tenancy or a tenancy that can be determined at
short notice make finding an intention to be come a fixture more
difficult to infer?
In Mitchell v. Cowie Fraser J stated: “I do not think that the duration
of the tenancy, providing it is certain, has any influence on the status
of the building.”
In comparison, Georges, JA in O’Brien Loans Ltd. v. Missick (1977) 1
B’mas LR 49 stated: “In cases where for example a yearly tenant attaches
a wooden house to column anchored to the ground, there would seem to
be no reason why the degree of annexation should result in the house
ceasing to be a chattel and becoming a tenant’s fixture. On the other
hand, the owner of a fee simple or of a long lease who erects such a
structure on his land would reasonably be held to have intended to
improve the land unless there is compelling evidence to the contrary.

Degree of Annexation
Wooding CJ, in the CA case of Mitchell v. Cowie, relied on Turner v. Cameron to
uphold the decision of the trial court that the house in Mitchell was a fixture and
not a chattel. However, the degree of annexation of the railway lines in Turner on
which Wooding CJ relied on, bears no analogy to the construction of chattel
houses generally. Wooding CJ’s decision should therefore not be accepted as
having that a chattel house is a fixture.

The analogy with the army huts in Billing v. Pill which was also cited and
discussed in Mitchell’s case bears more resemblance with chattel houses than the
railway lines in Turner.

In Billing v. Pill the huts were erected to provide temporary sleeping

accommodation for the army personnel dispatched to man gun replacements
during the war. Since the huts could be removed without doing any damage at all
to the freehold, they were not annexed to form any part of the realty and thus
remained chattels.

Wooding CJ’s holding after he analyzed the case of Turner v. Cameron is open to
doubt, for it can be argued that if a tenant erects a structure on the land of another
person, he does so not for the enjoyment of the land of which he is a tenant, but
for the accommodation the chattel provides.

Undoubtedly the nature of the house in Mitchell’s case makes it completely

different from what is ordinarily considered a chattel house:
“The house was built of hollow clay blocks, plastered and stood on
concrete pillars and covered with galvanized sheets. Such a house
could not be removed without being disintegrated and could not
have intended to be dislocated without losing its identity.”
This affords a solid ground on which Mitchell’s case can be distinguished.
 Wooding CJ’s analysis and application of the principles leave the impression that
a chattel house is a fixture. Wooding CJ relied on the view in Turner v. Cameron
that the:
“critical consideration is whether the tenant, in affixing his house to the
land, has manifested a purpose to attach it thereto so that it becomes and
remains part thereof co-terminously with his interest as tenant.”

This cannot be a right principle to base the case of Mitchell v. Cowie. If a tenant
for a one year term or less, places a structure on the land of his landlord, and so
secures it to withstand the forces of nature during the year of his tenancy, it would
not be logical to impute to the tenant an intention to make the structure a
permanent asset to the landlord. This view on which Wooding CJ based his
decision from Turner v. Cameron, where the term of the lease was 87 years. Such
an intention can be ascribed to a tenant of a long lease, but a monthly tenant as in
Mitchell’s case can hardly have that intention.

-Although in Mitchell the court held the chattel house was a fixture, Wooding CJ
accepted that:
“There still exist in this country wooden houses-not very many and certainly not
nearly so many as may be seen in some of the neighboring West Indian islands-
which rest by their own weight upon stone or brick foundations. The stones or
bricks are so put together as to form a base wall, in some instances let into the
ground but more often themselves resting by their own weight on the ground. In
either case, they would be like the wooden barn in Wansborough v. Malon in
which the wood comprised the entire barn notwithstanding it was placed on stone
caps which were let into the ground it was not itself in any way affixed thereto but
was supported thereon by mere pressure, that to remove it would therefore in no
way disturb the freehold, and accordingly that it was found and remained a
chattel.”

Owusu comments that:

The degree of annexation of the railways, and the possibility of damage to the
land by removal of the railways in Turner v. Cameron make the facts completely different
from the nature and situation of a chattel house. These features of Turner’s case are not
different from the nature of the house in Mitchell’s case. They are however, not similar to
the situation and the nature of what is ordinarily conceived as a chattel house.

However, in Reid v. Smith (1905) 3 CLR 656 one of the issues was whether an ordinary
dwelling-house, erected upon, but not fastened to the soil, remains a chattel or becomes
part of the freehold. The High Court of Australia, reversing the Supreme Court of
Queensland held that it became part of the land “treating the answer almost as a matter of
common sense.” In Reid v. Smith, the house in that case was made of wood, and rested
by its own weight on brick piers. The house was not attached to the brick piers in any
way. It was separated by iron plates placed on top of the piers, in order to prevent an
invasion of white ants.
Degree of Annexation
By this test a chattel will rank as a fixture if it is let into or united to the land or affixed to
some object which is physically attached to the land. The soil should have been
excavated so that it could receive the article which is then cemented. A veranda attached
to a house is therefore a fixture –Buckland v. Butterfield.

The general rule is that a chattel is not deemed to be a fixtures unless it is actually
fastened or connected to the land or building. Mere juxtaposition or the laying of an
article, however heavy, does not prima facie make it a fixture. If a superstructure can be
removed without losing its identity, it will not be regarded as a fixture.
Examples: -
A Dutch barn, consisting of a roof resting upon wooden uprights, the uprights being made
to lie upon brick columns let into the ground –Elwes v. Maw (1802) 3 East 38 @ 35.
A printing machine weighing several tons, standing on the floor and secured by its own
weight –Hulme v. Brigham [1943] 1 AER 204
If the superstructure can be removed without losing its identity, it would retain its chattel
character and will not rank as a fixture –H.E. Dibble v. Moore.
Nevertheless the degree of annexation is not a decisive test. Per Blackburn J in Holland
v. Hodgson (1872) LR 7 CP 328 @ 335
“Perhaps the rule is, that
(1) 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 lies on those asserting that the object has ceased to be a
chattel, and that on the contrary,
(2) an article which is affixed to the land even slightly is to be considered as part
of the land, unless circumstances show that it was intended all along to
continue as chattel, the onus lying on those who contend that it is a chattel.”
This dictum of Blackburn J has often been cited with a firm approval by the Courts of
Appeal in this region, but a hard look at the chattel house cases shows that the Courts of
Appeal have been merely paying lip service to the intention criterion as disclosed by
Blackburn J ‘s dictum.
Thus, the second consideration.

Purpose of Annexation
In Elitestone Ltd. v. Morris, in the judgment of Lord Lloyd he differentiates between the
tests used for determining fixtures to a house and a house itself. He stated:
“These tests are less useful when one is considering the house itself. In the case
of the house the answer is as much a matter of common sense as precise analysis.
A house which is constructed in such a way so as to be removable, whether as a
unit or in sections, may well remain a chattel, even though it is connected
temporarily to main services such as water and electricity. But a house which is
constructed in such a way that it cannot be removed at all, save by destruction,
cannot have intended to remain as a chattel. It must have been intended to form
part of the realty.”
Object of Annexation
The test here is to ascertain whether the chattel has been fixed for its use as a chattel, or
for the more convenient use of the land or building. Blackburn J in Holland v. Hodgson
gave the following example:
“Blocks of stone placed one on top of another without any mortar or cement for
the purpose of forming a dry stone wall would become part of the land, though
the same stones, if deposited in a builder’s yard and for convenience sake stacked
on the top of each other in the form of a wall, would remain chattels.

On the other hand, chattels may become annexed to or placed on the land in
circumstances which show an obvious intention to benefit the use of the land, and if this
is so they become fixtures.

Caribbean Statutory Provisions

Belize Landlord and Tenant Ordinance s.13
The doctrine of the common law quicquid plantatur solo solo cedit, shall have no
application in the Territory to tenant’s fixtures of any kind, and all such fixtures
affixed to a tenement by a tenant and any building erected by him there on for
which he is not so affixed or erected in pursuance of some obligation in that
behalf or instead of some fixture or building belonging to the landlord shall be the
property of and be removable by the tenant before or after the termination of the
tenancy.

Similarly in Guyana Landlord and Tenants Act s.15 and Trinidad & Tobago Landlord
and Tenant Act 1981 s.27
The provision vests in the tenant the right to remove any such fixture which he
has annexed to the land subject to the following conditions:
(a) payment of all rent and performance of all obligations due to the landlord
(b) repair of any damage caused to the land on removal of the fixture by the
tenant
(c) service of one month’s notice on the landlord of intention to remove the
fixture
(d) the landlord has the right to pay a fair value for and to keep the fixture by
electing to purchase on the receipt of notice of the tenant’s intention to remove
it.

NB: - Condition (d) has the effect of depriving the tenant of his common law rights.
Under the common law a tenant can remove any fixture used for trade or ornamental
purposes and statute also allowed a tenant the right to remove fixtures used for
agricultural purposes without any reference to the landlord and the landlord did not have
the right to demand against the will of the tenant to buy him out of his property which
was used for trade, ornamental or agricultural purposes.
However, the provision extends the rights of the tenant to fixtures used for residential
purposes.

Barbados Property Act 1979 s.163

(1) Any chattel, engine, machinery, fencing or other fixture, or any building
erected on or fixed to the demised premises by the lessee at his sole expense, for
any purpose of residence, trade, manufacture or agriculture, or for ornament or for
the domestic convenience of the lessee in the occupation of the demised premises,
but not so erected or affixed in accordance with any obligation or in violation of
any agreement in that behalf, may be removed by the lessee at any time during the
continuance of the lease.

The right conferred by section (1) is not exercisable where the removal of the
building or other fixtures would cause irreparable damage to the demised
premises, so long as the said right is exercisable the fixture or building remains
the property of the lessee.

(4) Upon application by the lessor, the court may make an order vesting in the
lessor the building or other fixture, provided reasonable compensation for the loss
of the said building or fixture be paid to the lessee.

(5) The lessor is entitled to reasonable compensation for any damage caused to the
demised premises by a removal of a building or other fixture under this section.
The Law of Real Property
Fixtures

Fixtures and chattels was a concept that served to determine the difference between realty
and personalty at a time when realty descended to the heir at law and personalty on the
personal representative. It was to avoid destruction involved in the severance of the
chattels from the land.

The maxim at law, quicquid plantatur solo, solo cedit –whatever grows in the soil
becomes a part thereof. Thus, chattels which are so affixed to the land as to become part
of the land loses the character of chattel and pass with the ownership of the land. Thus, it
can be gleaned that chattels are of a temporary nature, while fixtures remain permanent.
Exceptions to the rule of fixture was seen in Poole’s case where it was stated that a tenant
can remove a fixture if it is ornamental, or for agricultural and trade purposes.

The controversy surrounding chattel houses is whether they are fixtures in the sense that
they become part of the land. In the case of Holland v. Hodgson the dictum of Blackburn
J has often cited in establishing the rule with regards to fixtures and chattels. In this case
Blackburn J states that, “perhaps the rule is that articles attached to the land than by their
own weight are not considered part of the land unless the circumstances show that they
were intended to be part of the land, the onus of showing such an intention lies on the
person(s) asserting that they have ceased to be chattels, and on the contrary, articles
affixed to the land even slightly is to be considered as part of the land, unless the
circumstances show that it was intended all along to continue as chattel, the onus lying on
those who contend that it is a chattel.

Cheshire and Burn also suggest that the decision in differentiating a chattel from a fixture
may rely on the degree of annexation and object of annexation. Under degree of
annexation the general rule is that a chattel is not deemed to be a fixture unless it is
actually fastened or connected to the land or building. Mere juxtaposition or lying of an
article, however heavy, does not prima facie make it a fixture.
If the superstructure can be removed without losing its identity, it will not be regarded as
a fixture, per H.E. Dibble v. Moore. For example, a veranda attached to the house is a
fixture, per Buckland v. Butterfield. Thus, under the object of annexation, the test here is
to ascertain whether the chattel has been fixed for its use as a chattel or for the more
convenient use of the land or building. A comparatively durable method of affixation will
not render a chattel a fixture, if the method of annexation is necessary for its proper
enjoyment as a chattel. This test was demonstrated in the case of Leigh v. Taylor where
tapestry nailed to the wall together will moulding was held necessary for the adornment
and proper enjoyment of them as tapestry, rather than for the improvement of the land.
The principle in Leigh v. Taylor was adopted in the case of Berkley v. Poulett where a
vendor screwed pictures, while still in their frames, into the recesses of the paneling of a
dining room.

In the Commonwealth Caribbean, the locus classicus is the formulation laid down by
Wooding CJ in Mitchell v. Cowie. Wooding CJ stated that although a house may be a
chattel depending upon whether it was intended to be part of the land on which it stands.
This intention is to be discerned objectively rather than subjectively. The American case
of Teaff v. Hewitt also listed several tests such as the nature of the article fixed, the
relation and situation of the party making the annexation, the structure and mode of the
annexation, and the purpose for which the annexation was made.

Where one attaches his chattel to his own land, it is easy to conceive that he intends for it
to become part of his land. The degree of attachment is of little consequence. Thus,
where a person attaches his chattel to someone else’s land, the question of the relativity to
the land by the person making the annexation arises. In Mitchell v. Cowie, Fraser J
opined that the duration of tenancy, providing it is certain, has no influence on the status
of the building. However, in the Bahamian case of O’Brien Loans Ltd. v. Missick,
Georges JA stated that in cases where a yearly tenant attaches a wooden house to column
anchored in the ground there would seem no reason why the degree of annexation would
result in the house ceasing to be a chattel and becoming a fixture.
However, where the owner of a long lease erects a similar structure on the land it would
seem reasonable hold that he intended to improve the land, unless there is evidence to the
contrary.

Wooding CJ, in the CA case of Mitchell v. Cowie, relied on Turner v. Cameron to uphold
the decision of the trial court that the house in Mitchell was a fixture and not a chattel.
However, the degree of annexation of the railway lines in Turner on which Wooding CJ
relied on, bears no analogy to the construction of chattel houses generally. Wooding CJ’s
decision should therefore not be accepted as having that a chattel house is a fixture.

The analogy with the army huts in Billing v. Pill which was also cited and discussed in
Mitchell’s case bears more resemblance with chattel houses than the railway lines in
Turner.

In Billing v. Pill the huts were erected to provide temporary sleeping accommodation for
the army personnel dispatched to man gun replacements during the war. Since the huts
could be removed without doing any damage at all to the freehold, they were not annexed
to form any part of the realty and thus remained chattels.

Wooding CJ’s holding after he analyzed the case of Turner v. Cameron is open to doubt,
for it can be argued that if a tenant erects a structure on the land of another person, he
does so not for the enjoyment of the land of which he is a tenant, but for the
accommodation the chattel provides.

Undoubtedly the nature of the house in Mitchell’s case makes it completely different
from what is ordinarily considered a chattel house:
“The house was built of hollow clay blocks, plastered and stood on concrete
pillars and covered with galvanized sheets. Such a house could not be removed
without being disintegrated and could not have intended to be dislocated without
losing its identity.”
This affords a solid ground on which Mitchell’s case can be distinguished.

Wooding CJ’s analysis and application of the principles leave the impression that a
chattel house is a fixture. Wooding CJ relied on the view in Turner v. Cameron that the:
“critical consideration is whether the tenant, in affixing his house to the land, has
manifested a purpose to attach it thereto so that it becomes and remains part
thereof co-terminously with his interest as tenant.”

This cannot be a right principle to base the case of Mitchell v. Cowie. If a tenant for a one
year term or less, places a structure on the land of his landlord, and so secures it to
withstand the forces of nature during the year of his tenancy, it would not be logical to
impute to the tenant an intention to make the structure a permanent asset to the landlord.
This view on which Wooding CJ based his decision from Turner v. Cameron, where the
term of the lease was 87 years. Such an intention can be ascribed to a tenant of a long
lease, but a monthly tenant as in Mitchell’s case can hardly have that intention.

-Although in Mitchell the court held the chattel house was a fixture, Wooding CJ
accepted that:
“There still exist in this country wooden houses-not very many and certainly not
nearly so many as may be seen in some of the neighboring West Indian islands-
which rest by their own weight upon stone or brick foundations. The stones or
bricks are so put together as to form a base wall, in some instances let into the
ground but more often themselves resting by their own weight on the ground. In
either case, they would be like the wooden barn in Wansborough v. Malon in
which the wood comprised the entire barn notwithstanding it was placed on stone
caps which were let into the ground it was not itself in any way affixed thereto but
was supported thereon by mere pressure, that to remove it would therefore in no
way disturb the freehold, and accordingly that it was found and remained a
chattel.”

Owusu comments that:

The degree of annexation of the railways, and the possibility of damage to the
land by removal of the railways in Turner v. Cameron make the facts completely different
from the nature and situation of a chattel house. These features of Turner’s case are not
different from the nature of the house in Mitchell’s case. They are however, not similar to
the situation and the nature of what is ordinarily conceived as a chattel house.

However, in Reid v. Smith (1905) 3 CLR 656 one of the issues was whether an ordinary
dwelling-house, erected upon, but not fastened to the soil, remains a chattel or becomes
part of the freehold. The High Court of Australia, reversing the Supreme Court of
Queensland held that it became part of the land “treating the answer almost as a matter of
common sense.” In Reid v. Smith, the house in that case was made of wood, and rested
by its own weight on brick piers. The house was not attached to the brick piers in any
way. It was separated by iron plates placed on top of the piers, in order to prevent an
invasion of white ants.