Fixtures Review

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What tests would you employ to determine whether a chattel has become a fixture? What problems in the West Indies specifically concern the question of chattel houses in this context?
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  The Law of Real PropertyFixtures What tests would you employ to determine whether a chattel has become a fixture? What problems inthe West Indies specifically concern the question of chattel houses in this context? The law of fixtures is founded on the maxim ‘quicquid plantatur solo solo cedit’  , i.e. whatever isattached to the land becomes a part thereof. Thus, chattels that are so affixed to the land as to becomeapart of it, loses its character as chattel and passes with the ownership of the land. Thus, it could begleaned that chattels are of a temporary nature, while fixtures remain permanent. The maxim wasinvoked to prevent the economic waste involved in giving the land to the heir and the severed chattel tothe personal representative, i.e. to avoid destruction involved in the severance from the freehold. The principle of this doctrine has been unduly stretched to govern matters between landlord and tenant andmortgagor and mortgagee, who stand to lose their investment by the application of the maxim. Inrealization of the hardship caused by its strict application, the law made exceptions to the rule to allow atenant to remove fixtures used for agricultural, domestic/ornamental and trade purposes.The question whether a chattel has been affixed to the land can become exceedingly difficult toanswer, thus it is a question of law for the judge to decide. However, a decision in one case is no sureguidance through another. The decision turns upon the particular circumstances of each case, andmainly but not decisively, the degree of annexation and object of annexation. According to   Cheshireand Burn, under degree of annexation the general rule is that a chattel is not deemed to be a fixtureunless it is actually fastened or connected to the land or building. Mere juxtaposition or lying of anarticle, however heavy, does not prima facie make it a fixture. Thus, under object of annexation, the testhere is to ascertain whether the chattel has been fixed for its use as a chattel or for the more convenientuse of the land or building.Other tests have been evolved such as the one pointed out in the American case of  Teaff v. Hewitt  . In this case the court felt that the safest criterion was the united application of actual annexationto the realty; appropriation to the use or purpose of that part of the realty with which it is connected; andthe intention of the party making the annexation. To the same effect in  Holland Hodgson , the dictum of Blackburn J has often been cited in establishing the rule with regard to chattels and fixtures. Hesuggests that, if there is no attachment, one can assume it is a chattel. Anyone contending that it is afixture has the burden of so establishing. If it is attached to the land even slightly, it is considered to bea fixture, the burden shifting to the person who contends that it is a chattel.   In the Commonwealth Caribbean, the locus classicus is the formulation laid down by WoodingCJ in Mitchell v. Cowie . Wooding CJ’s formulation clearly establishes the intention criterion as thecontrolling factor. He propounds that a house may be a chattel or a fixture depending on whether it wasintended to form part of the land. The intention is to be determined objectively rather than subjectively.The cases do establish beyond a doubt that the controlling and guiding principle for determining thisissue is the intention with which the object is affixed to the realty, and other factors such as: degree of annexation, purpose of annexation, the relation to the land of the party making the annexation, damageto the land and the chattel upon removal, and custom and usage are also used to ascertain intention.By the degree of annexation test, a chattel will rank as a fixture if it is united to the land or affixed to an object which is physically attached to the land. Thus, there should be substantialattachment. For example, in the case of   Buckland v. Butterfield  , a veranda attached to a house would beconsidered a fixture. However, as noted in  H.E. Dibble v. Moore , if the superstructure can be removedwithout losing its identity it is likely to retain its chattel character and not rank as a fixture.Wooding CJ in Mitchell v. Cowie relied on Turner v. Cameron to uphold the decision of the trialcourt that the house was a fixture and not a chattel. But the degree of annexation of the railway lines inTurner v. Cameron bears no analogy to the construction of chattel houses generally. This comparison isfar-fetched. Therefore Wooding CJ’s decision should not be accepted as having established that achattel house is a fixture. The analogy in  Billing v. Pill  , which was also cited and discussed inMitchell’s Case, is closer to a chattel house than the railway lines in Turner’s Case. To remove therailway sleepers in Turner’s Case would have resulted in substantial damage to the land. However, in  Billing v. Pill  , the huts were erected to provide temporary sleeping accommodation for the army personnel, and could removed without causing any damage to the freehold. Wooding CJ’s holding after he analyzed Turner’s Case is open to doubt, for it can be argued that if a tenant erects a structure on theland of another, he does so not for the enjoyment of the land of which he is a tenant, but for theaccommodation the chattel provides. The comparison of a chattel house with the barn in Wansbrough v.Maton is apt. Thus, were it not for the peculiar facts of Mitchell’s Case, Wooding CJ could not havedecided that the house was a fixture. The house was constructed in such a way that it could not beremoved without being disintegrated. This affords a solid ground on which Mitchell’s Case can bedistinguished.  As stated earlier, where the nature of a structure placed on land is such that its removal wouldresult in its destruction, the obvious inference is that it was intended to remain permanently on the landas a fixture. In  Eva Fields v. Rosie Modeste and Jurine Joseph , the house was built of tapia and plastered with concrete nogging. The Court of Appeal considered that a house built of tapia could not be removed without its complete disintegration, and in their view that would make it a fixture and not achattel. The Court observed that such a house did not have one of the characteristics of a chattel, i.e.movability. Also, in  Elitesone v. Morris , the court came to the conclusion that the bungalow was afixture, as it was constructed in such a way as not to be removed. Thus, it must have been intended toform part of the realty, as removal would have resulted in destruction.Where one attaches his chattel to his own land, it is easier to conceive that he intended to havemade it part of his land. The degree of attachment would be of little consequence. The case of   Bernard v. Burke is illustrative of this point. The Court of Appeal rejected the argument that, since the upper storey could be removed without damage to the lower storey, the upper storey was a chattel, whichcould be recovered. The Court of Appeal was of the view that the question was not to be solved onslight attachment and easy removal, as the upper storey was found to be an essential and integral part of the lower storey. The court also gave consideration to the fact that the late Bernard built the structure onhis own land, and thus never intended it as a separate entity. Also, it was not distinguished separately inthe advertisement. Thus, it can be gleaned that where there is a permanent relationship of tenure between the owner of the land and the owner of the chattel an inference of the intention to make thechattel a fixture is not far-fetched.Where the tenancy is of a short duration, e.g. one month, it is unreasonable to impute to thetenant an intention to make the chattel a fixture. However, in Mitchell v. Cowie Fraser J stated that theduration of tenancy has no influence on the status of the building concerned. However, the preferredreasoning is that of Georges JA in O’Brien Loans v. Missick  where he explained that in cases where ayearly tenant erects and anchors a wooden house in the ground there would be reason why the degree of annexation should result in the house ceasing to be a chattel. However, where the owner of a long leaseerects a structure on his land it would be reasonable to hold that it was intended to improve the land,unless there is compelling evidence to the contrary.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  Leigh v.Taylor  , where tapestry nailed to the wall together with molding was held necessary for the adornment  and proper enjoyment of them as tapestry, rather than for the improvement of the land. The principle inLeigh v. Taylor was adopted in  Berkley v. Poulett  where a vendor screwed pictures, while still in their frames, into the recesses of the paneling of a dining room. Lord Lloyd’s deduction in  Elitestone v.Morris in relation to a house is very pertinent to an inquiry as to the status of chattel house. Heexplained that a house which is constructed in such a way so as to be removable, whether as a unit or insections, may well remain a chattel, even though it is connected temporarily to mains services such aswater and electricity. In  Botham v. TSB Bank  Roch LJ found the annexation of the carpets, curtains, and blinds to be unsubstantial, and that the method of keeping fitted carpets in place and keeping curtainshung are no more than is needed for the enjoyment of them as curtains and carpets.In cases where one uses such abstract rules and principles, there may be an injustice served, suchas in the Commonwealth Caribbean where chattel houses are a matter of culture. As Liverpool proposes, a poor man with no home and land finds a house spot for rent and builds a wooden house for him and his family, securing it against the ravages of nature to which all Caribbean territories are prone,could never contemplate leaving his life’s possessions to a landlord. Thus, the realities of the situationsuggest that the chattel house be regarded as a chattel. One sympathizes with any judge who is not personally familiar with the facts of life in the region; but it is a matter of everyday occurrence that suchhouses are removed either whole or in part to their new location.According to Marshall in his article West Indian Land Law: Conspectus and Reform, there areencouraging signs of judicial and legislative attempts to close the gap between law and social reality, themost important being that in relation to chattel houses. The insecurity of land tenure and the tendency to build with wood – at one time the cheapest material available in the West Indies – have been responsiblein the past for the widespread erection of easily removable structures known as chattels. So as not tocause an injustice, McIntosh in his article The Chattel House Case, suggest the employment of a customand usage test. Thus, the maxim quicquid plantatur solo solo cedit  has no application in theCommonwealth Caribbean to tenant’s fixtures.The Statute law in Belize, Guyana and Trinidad & Tobago provides for the abolition of thedoctrine quicquid plantatur solo solo cedit  . Section 13 of the Belize Landlord and Tenant Ordinance provides that all such fixtures affixed to the tenement by a tenant and any building erected by him for which he is not entitled to compensation under law, or which is not affixed in pursuance of someobligation to the landlord, shall be the property of and be removable by the tenant before or after the
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