Should it stay or should it go Fixtures and chattels in ...dilapidationsassociation.com/Fixtures and Chattels...Fixture or chattel? The law should be ‘accessible, and so far as possible

www.falcon-chambers.comwww.falcon-chambers.com

Should it stay or should it go

Fixtures and chattels in dilapidations disputesStephen Jourdan QC

www.falcon-chambers.com

Part 1 – What is it?

The test for deciding if an item is a fixture or a chattel


Threefold classification

• Integral part of a building

• Fixture

• Chattel


Other terminology

• Tenant’s fixture

• Landlord’s fixture

• Fittings


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.


Fixture or chattel?

The law should be ‘accessible, and so far as possible intelligible,

clear and predictable’.

Lord Bingham ‘The Rule of Law’ [2007]



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]


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]


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]


Holland v Hodgson [1872]


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.


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”.


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.


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”.


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.


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


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.


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”.


Chairs bolted to the floor


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.


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.


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.


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.


Bathroom fittings

• Towel rails, soap dishes and lavatory roll holders

• Fittings on baths and basins namely the taps, plugs and

shower heads.


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.


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”.


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.”


Carpets

• If can be removed, chattels

• If glued and will be destroyed by removal, part of building.

South Essex NHS v Laindon Holdings [2016]


Data cabling and sockets

• degree of annexation

• purpose of annexation


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.comwww.falcon-chambers.com

Falcon Chambers

Falcon Court

London

EC4Y 1AA

T: 020 7353 2484

F: 020 7353 1261

Email: [email protected]

DX: 408 Lond/Chancery Lane

Documents

Should it stay or should it go Fixtures and chattels in ...dilapidationsassociation.com/Fixtures and Chattels...Fixture or chattel? The law should be ‘accessible, and so far as possible