Real Property Law: The distinction between fixtures and chattels

A ‘fixture’ is any structure which is attached to the land, thereby becoming a part of the land.
Additionally, it can be a piece of equipment or furniture that is fixed in position in a building or
vehicle and is considered legally part of it so that they normally remain in place when an owner
moves. It is important to know the distinction because it will determine what a tenant, for
example takes when the tenancy is determined.

Examples of fixtures

(a) fireplaces

(b) water heaters

(c) light fixtures

(d) some appliances such as stoves and dishwashers, for example, are commonly considered
fixtures by virtue of being built into a kitchen.

The general idea is that if the items when removed will cause the property to change, then they
are fixtures.

A ‘chattel’ is a structure which does not form part of the land and can be removed easily. When
it is removed it should not transform the character of the land. A chattel is a physical object
that never becomes attached to the land, even though placed in some close relation with it, and
so does not pass with conveyances of the land. It has been right pointed out that the distinction
between fixtures and chattels is ‘not entirely straightforward’ 1 and there is a considerable body
of case law on the topic.

Examples of Chattels

(a) Machines standing unattached on a floor

(b) Power supplies that are connected by electrical wires to a building.

(c) Greenhouses that are moveable.

(d) Stone wall unattached by cement

(e) A zinc shed or store room, bolted to a concrete floor

The law of fixtures is grounded in the maxim “quicquid plantatur solo solo cedit”, a Latin phrase
which translates to mean that whatever is affixed to the land becomes a part of it and therefore
belongs to the owner of the soil.

1
Gray, Elements of land Law, 2nd edn , 1993, London: Butterworths, p 12
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 Real Property Law: The distinction between fixtures and chattels

It therefore means that if anyone wants to dispute or rebut that general position, that person
must satisfy the relevant tests as follows:

1. Whether the chattel has become so attached that it can be classified as a fixture.

2. Whether or not the law would allow the owner of the chattel to remove what could
otherwise be considered a fixture (discretionary)

Mitchell v Cowie [1964] 7 WIR 118 addressed the effect of the two tests. Wooding C.J states
that:

“. . . It is essential not to confuse what are really two separate and wholly independent issues:
the first, whether the thing in question is a chattel or a fixture: if it is a chattel . . . its owner may
dispose of it without let or hindrance whenever he pleases: but if it is a fixture, then and only
then, the second issue may be raised—whether it is subject to any right of removal.”

He advanced six criteria which will determine whether a chattel has or has not become a
fixture:

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. But the intention is to be determined objectively rather than
subjectively, that is to say, according to the circumstances as they appear and by application of
rules as set out hereunder.

2. To distinguish chattel from fixture, a primary consideration is whether or not the house is
affixed to the land.

3. If the house is not affixed to the land but simply rests by its own weight thereon, it will
generally be held to be a chattel unless it be made to appear from the relevant facts and
circumstances that it was intended to form part of the land, the onus for doing so being on him
who alleges that it is not a chattel.

4. If the house is affixed to the land, be it however slightly, it will generally be held to form part
of the land unless it be made from the relevant facts and circumstances that it was intended to
be or continue as a chattel, the onus for so doing being upon him who alleges that it is a chattel.

5. Specifically as regards a house affixed to land by a tenant thereof, a circumstance of primary

importance is the object or purpose of the 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 use a chattel, or is permanent and
intended to be for the better enjoyment of the land. But for this purpose it must at all times be
bone in mind that the intention or right of the tenant to remove the house from the land on the

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cesser of his interest as tenant with the result that no improvements will accrue to the
landlord’s reversionary interest does not make the annexation 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 as tenant.”

The test for determining whether an object is a fixture or chattel includes:

(a) The degree of annexation

(b) The purpose of the annexation

Test 1: Degree and method of annexation (Berkley v Poulett, see also Holland v Hodgson)
How firmly is item attached to land? i.e. if attached to soil/securely affixed to land/would cause
damage if removed à presumption of fixture. However, this presumption may be rebutted by
test 2.

Test 2: Object and purpose of annexation (D’Eyncourt and Leigh v Taylor)

D’Eyncourt: if forms part of architectural design of garden/house it is à fixture (even if
freestanding/not firmly fixed)
Leigh: Annexation is only way object can serve its function/purpose

The degree of annexation

According to this test, an article is a fixture if it is attached to the land or building in some
substantial manner, such as by nails or screws, and ‘the more firmly or irreversible the object is
affixed2 to the earth or a building thereon, the more likely it is for the object to be classified as a
fixture’. On the other hand, Lord Blackburn observed that when ‘the article in question is no
longer attached to the land than by its own weight, it is generally considered to be a mere
chattel’ (Holland v Hodgson).

Apply this test, it was held that the following articles were fixtures: looms bolted to the floor of
a mill;3 an automatic car-wash machine bolted on the ground; 4 gasoline pumps on a garage
forecourt;5 gas mains and service pipes embedded in the soil; 6 Lockers tacked to a wall; panel
doors; three phase tubing. Items such as air conditioning units and bathroom fittings would also

2
Ibid

3
Holland v Hodgson (1872) LR 7 CP 328, at 335.

4
Lombard and Ulster Banking Ltd v Kennedy [1974] NI 20, at 23

5
Smith v City Petroleum Co Ltd [1940] 1 All ER 260

6
North Shores Gas Co Ltd v Commissioner Stamp Duties (NSW) (1940) 63 CLR 52.
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be fixtures under the test.7 Conversely, the following items have been held to be chattels,
principally on the basis that they rest on the ground by their own weight:

i. a cistern (Mather v Fraser);

ii. a free-standing greenhouse (HE Dibble Ltd v Moore);

iii. a mobile home (Royal Bank of Canada v Reyak);

iv. Printing machinery (Hulme v Brigham).

It has also been said that ‘if an object cannot be removed without serious damage to, or
destruction of some part of the realty, there is a strong case that it has become a fixture’
(Berkley v Poulett).

Purpose of Annexation

The degree of annexation is not conclusive of the status of an item; it merely provides the
prima facie categorization that may be reversed by contrary evidence as to the purpose for
which an item was brought onto the land. For instance garden ornaments resting by their own
weight may be regarded as fixtures, if the circumstances show that they were intended to form
part of the landscaping or architectural design of premises. 8 On the other hand, it has been held
that ‘white goods’, such as oven, a refrigerator and a dish washer, are not fixtures, even if they
are part of the overall design of the kitchen, because they do not permanently improve it
(Botham v TSB Bank plc).

It is an established principle that items substantially fixed to the realty may nevertheless
be regarded as chattels if the purpose of fixing them was not to improve the land, but to enjoy
them as chattels, and the degree of annexation was no more than was necessary to achieve
that purpose. For example tapestries,9 or television cable and equipment. The nature of the
premises may also be a relevant factor. Thus, where as carpets in a private home will usually be
regarded as chattels, it has been held that wall-to-wall carpeting affixed to the floors of a hotel
was a fixture, since the purpose of its attachment was the better use of the building as a hotel
rather than the better use of carpeting.10

Chattel houses

7
Aircool Installations v British Communications [1994] 31 JLR 6553, Supreme Court, Jamaica.

8
Ibid

9
Leigh v Taylor [1902] AC 157

10
La Salle Recreations Ltd v Canadian Camdex Invesments Ltd (1969) 4 DLR (3d) 549.
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 Real Property Law: The distinction between fixtures and chattels

In the Caribbean, issues concerning the status of chattel houses as fixtures or chattels have
arisen in a number of cases. The leading case is Mitchell v Cowie, in which Wooding CJ, in the
Court of Appeal of Trinidad and Tobago, pointed out that there are two types of chattel houses
in the Caribbean.

1. The first type is a wooden structure resting by its own weight upon a stone or brick
base. Applying the degree of annexation test, such a structure would clearly be treated
as a chattel, owing to its not being affixed to the land and to the fact that it could easily
be removed to another location without causing any damage to the land.

2. The second type of chattel house is affixed to the land in some way and ought therefore
to be regarded as a fixture. The house in Mitchell v Cowie, was of this type, being
constructed of hollow blocks standing on concrete pillars that were let in the ground,
and it was held to be a fixture. A similar type of house featured in the Bahamian case,
O’Brien Loans Ltd v Missick. It was described as a wooden house resting on wooden
beams, which were bolted at the four corners to four columns. The columns were made
of concrete blocks resting on the ground, with cement poured into the hollow spaces to
hold them together. The bolts were fixed into the cement. There was also a septic tank
in the ground. However, notwithstanding the considerable degree of annexation to the
land. Georges JA held, applying ‘the purpose of annexation’ test, that the house was a
chattel. The main ground of the decision was that the owner of the house being a yearly
tenant of the plot of land on which the house stood, had ‘no intention to benefit the
landlord by adding value to the land’. In a sense, the purpose for which the house was
constructed was ‘the proper enjoyment of the plot of land’, but that did not translate
into an intention to benefit the owner of the land.

Wooding CJ, in Mitchell v Cowie, had also made the point that, in asserting the
purpose of annexation, regard must be had to whether the affixation of the house to the
land was temporary, and for use as a chattel, or permanent, and intended for the
better enjoyment of land. If a structure that prima facie would be a fixture is shown to
have been erected for some temporary purpose, then the prima facie, presumption may
be displaced and the structure be held to be a chattel. In the English case of Billing v Pill,
in which an army hut resting on a concrete foundation, to which its flour was secure by
bolts let into concrete, was held to be a chattel because it had been erected for the
temporary purpose of providing sleeping accommodation for army personnel in
wartime, and could be easily dismantled, removed from the site and re-erected
elsewhere.

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 Real Property Law: The distinction between fixtures and chattels

In a Barbadian case, Massiah v Hutson, similar distinction between building

intended to be temporary and those intended to be permanent was made, but the
chattel house in that case was held to be a fixture on the grounds: (a) that the building
was ‘of a permanent nature firmly fixed to the soil, the removal or attempted removal of
which would be followed by serious loss or material damage to structure’ and (b) that it
was erected for occupation by the family as their residence permanently.

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.

MODEL ANSWER ON FIXTURES AND CHATTELS

QUESTION: 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?

The law of fixtures is founded on the maxim ‘quicquid plantatur solo solo cedit’, i.e. whatever is
attached to the land becomes a part thereof. Thus, chattels that are so affixed to the land as to
become a part of it, loses its character as chattel and passes with the ownership of the land.
Thus, it could be gleaned that chattels are of a temporary nature, while fixtures remain
permanent.

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, and mainly but not decisively, the degree of annexation and object
of annexation. According to Cheshire and Burn, under the 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

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land or building. Mere juxtaposition or lying of an article, however heavy, does not prima facie
make it a fixture. Thus, under 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.

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
annexation to the realty; appropriation to the use or purpose of that part of the realty with
which it is connected; and the intention of the party making the annexation. To the same effect
in Holland v Hodgson, the dictum of Blackburn J has often been cited in establishing the rule
with regard to chattels and fixtures. He suggests that, if there is no attachment, one can
assume it is a chattel. Anyone contending that it is a fixture has the burden of so establishing.
If it is attached to the land even slightly, it is considered to be a 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
Wooding CJ in Mitchell v. Cowie. Wooding CJ’s formulation clearly establishes the intention
criterion as the controlling factor. He propounds that a house may be a chattel or a fixture
depending on whether it was intended 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 this issue 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, damage to 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
substantial attachment. For example, in the case of Buckland v. Butterfield, a veranda attached
to a house would be considered a fixture. However, as noted in H.E. Dibble v. Moore, if the
superstructure can be removed without 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 trial court that the house was a fixture and not a chattel. But the degree of annexation of
the railway lines in Turner v. Cameron bears no analogy to the construction of chattel houses
generally. This comparison is far-fetched. Therefore Wooding CJ’s decision should not be
accepted as having established that a chattel house is a fixture. The analogy in Billing v. Pill,
which was also cited and discussed in Mitchell Case, is closer to a chattel house than the railway
lines in Turner’s Case. To remove the railway sleepers in Turner Case would have resulted in

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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 be removed without
causing any damage to the freehold. Wooding CJ’s holding after he analyzed Turner Case is
open to doubt, for it can be argued that if a tenant erects a structure on the land of another, he
does so not for the enjoyment of the land of which he is a tenant, but for the accommodation
the chattel provides.

Where the nature of a structure placed on land is such that its removal would result in
its destruction, the obvious inference is that it was intended to remain permanently on the land
as 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 a chattel. 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 a fixture, as it was constructed in such a way as not to be
removed. Thus, it must have been intended to form 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 have made 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, which could be recovered. The Court of Appeal was of the view that the
question was not to be solved on slight 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 on his own land, and thus
never intended it as a separate entity. Also, it was not distinguished separately in the
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 the chattel a fixture is not far-fetched.

Where the tenancy is of a short duration, e.g. one month, it is unreasonable to impute
to the tenant an intention to make the chattel a fixture. However, in Mitchell v. Cowie Fraser J
stated that the duration of tenancy has no influence on the status of the building concerned.
However, the preferred reasoning is that of Georges JA in O’Brien Loans v. Missick where he
explained that in cases where a yearly 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 lease erects a structure on his land it would be

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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 in Leigh 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. He explained that 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. 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
curtains hung are no more than is needed for the enjoyment of them as curtains and carpets.