This article augments a more general article, by the same author, on legal affixment, entitled 'Affixing Objects to Land/Buildings - Losing Title to the Objects', available here; and it assumes that the said more general article, has already been read by the reader.

Principle of accession

The English common law principle of accession stipulates that an object/chattel which becomes legally affixed to land/a building forming part of the land: (a) becomes part of that land (part of the realty) for the purposes of ownership; and (b) its pre-existing title as a chattel is extinguished/ceases to exist. It is a principle which is explored in detail in the article entitled 'Affixing Objects to Land/Buildings - Losing Title to the Objects' in detail. This article will consider this principle's application, in relation to one particular category of object/chattel, namely very large objects/chattels, in light of (1) Elitestone Ltd v Morris [1997] 1 WLR 687 ('Elitestone') House of Lords (Lord Browne-Wilkinson; Lord Lloyd; Lord Nolan; Lord Nicholls; Lord Clyde); (2) Chelsea Yacht and Boat Co Ltd v Pope [2000] 1 WLR 1941 ('Chelsea'), Court of Appeal (Morritt LJ; Waller LJ; Tuckey LJ); (3) Mew v Tristmire Ltd [2011] EWCA Civ 912 ('Mew') Court of Appeal (Maurice Kay LJ; Arden LJ; Patten LJ) and (4) Royal Parks Ltd v Bluebird Boats Ltd [2021] EWHC 2278 (TCC); [2021] BLR 649 ('Bluebird'), High Court (O'Farrell J).

Nomenclature

This article will try and avoid confusion as to the attributes of the items described, by adopting the following nomenclature:

'Object' is used to describe something without indicating whether it retains separate/independent title or not;

'Chattel' is used to describe something that has separate/independent title (it does not form 'part of the land');

'Part of the land' is used to describe something that does not have separate/independent title, but is only part of the land and comes under the land's title only.

'Fixture' is avoided if possible. This is for the same reasons as set out by Lord Lloyd in Elitestone (see also Lord Clyde[1]). Lord Lloyd, after framing the question in Elitestone, said 'It will be noticed that in framing the issue for decision I have avoided the use of the word “fixture.” There are two reasons for this.' (paragraph 11 (at 690):

(1) 'Fixture' not apt as a word to describe very large objects like buildings[2]:

(2) Confusable with 'tenant's fixtures' as a concept in the Rule of Irremovability'[3]:

Woodfall Categorisation

Woodfall on Landlord and Tenant (Vol.1) categorises objects on the land as follows at paragraph 13.131:

"An object that is brought onto land may be classified under one of the broad heads. It may be

(a) a chattel;

(b) a fixture; or

(c) part and parcel of the land itself.

Objects in categories (b) and (c) are treated as being part of the land."

Elitestone

It is convenient to start with the case of Elitestone, a decision of the House of Lords. Before considering the approach expounded, it is helpful to note some of the facts in Elitestone. The plaintiffs (claimants) ('E') were the freehold title holders of land known as Holt's Field. Holt's Field was divided into 27 lots. Since 1971 (paragraph 8), Mr Morris ('M') had lived on Lot No.6, and occupied a wooden chalet/bungalow (the 'Bungalow'; built before 1945 (paragraph 10)) on Lot No.6 (paragraph 1; at 689), paying a 'licence' fee (like all other Lot occupiers) to E (paragraph 8) (later not disputed to be a landlord/tenant relationship (paragraph 29)). In proceedings for possession of the land, M's defence '...turned on whether or not the bungalow formed part of the realty.' (paragraph 3; at 689). In other words, '...whether M's bungalow did indeed become part of the land, or whether it has remained a chattel ever since it was first constructed before 1945' (paragraph 10). Later, Lord Lloyd framed it as '...whether, when the bungalow was built, it became part and parcel of the land itself.' (paragraph 17; at 691)

At first instance, the Judge (assistant recorder) (who had visited the site):

(1) said:

'While the house rested on the concrete pillars which were themselves attached to the ground, it seems to me clear that at least by 1985 and probably before, it would have been clear to anybody that this was a structure that was not meant to be enjoyed as a chattel to be picked up and moved in due course but that it should be a long-term feature of the realty albeit that, because of its construction, it would plainly need more regular maintenance.' and

(2) held the Bungalow to have become part of the land (paragraph 29; at 694).

The Court of Appeal disagreed, holding the Bungalow to have remained a chattel (paragraph 29; at 694).

On a further appeal to the House of Lords, Lord Clyde and Lord Lloyd gave the only reasoned judgments (Lord Browne-Wilkinson, Lord Nolan and Lord Nicholls agreed with both; neither Lord Lloyd nor Lord Clyde expressly agreed with the other). Taking things chronologically.

Initially, the materials used to build the Bungalow, were, prior to being brought to Lot No.6, chattels (obviously). Lord Lloyd said, at paragraph 17 (at 691-692)

'The materials out of which the bungalow was constructed, that is to say, the timber frame walls, the feather boarding, the suspended timber floors, the chipboard ceilings, and so on, were all, of course, chattels when they were brought onto the site.'

Lord Lloyd then said, at paragraph 17 (at 691-692) 'Did they cease to be chattels when they were built into the composite structure? The answer to the question, as Blackburn J. pointed out in Holland v. Hodgson (1872) L.R. 7 C.P. 328, depends on the circumstances of each case, but mainly on two factors, the degree of annexation to the land, and the object of the annexation.'

Under the subheading 'Degree of annexation', Lord Lloyd said (paragraphs 18-19; at 692):

'The importance of the degree of annexation will vary from object to object. In the case of a large object, such as a house, the question does not often arise. Annexation goes without saying. So there is little recent authority on the point, and I do not get much help from the early cases in which wooden structures have been held not to form part of the realty, such as the wooden mill in Rex v. Otley (1830) 1 B. & Ad. 161, the wooden barn in Wansbrough v. Maton (1836) 4 A. & E. 884 and the granary in Wiltshear v. Cottrell (1853) 1 E. & B. 674. But there is a more recent decision of the High Court of Australia which is of greater assistance. In Reid v. Smith (1905) 3 C.L.R. 656, 659 Griffith C.J. stated the question as follows:

“The short point raised in this case is whether an ordinary dwelling-house, erected upon an ordinary town allotment in a large town, but not fastened to the soil, remains a chattel or becomes part of the freehold.”

The Supreme Court of Queensland had held that the house remained a chattel. But the High Court reversed this decision, treating the answer as being almost a matter of common sense. 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. There was an extensive citation of English and American authorities. It was held that the absence of any attachment did not prevent the house forming part of the realty. Two quotations, at p. 667, from the American authorities may suffice. In Snedeker v. Warring (1854) 12 N.Y. 170, 175 Parker J. said: “A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection.” In Goff v. O'Conner (1855) 16 Ill. 421, 423, the court said:

“Houses, in common intendment of the law, are not fixtures to, but part of, the land …. This does not depend, in the case of houses, so much upon the particular mode of attaching, or fixing and connecting them with the land upon which they stand or rest, as it does upon the uses and purposes for which they were erected and designed.”' [bold added]

Under the subheading 'Purpose of annexation', Lord Lloyd said (paragraphs 20-25; at 692-693):

'Many different tests have been suggested, such as whether the object which has been fixed to the property has been so fixed for the better enjoyment of the object as a chattel, or whether it has been fixed with a view to effecting a permanent improvement of the freehold. This and similar tests are useful when one is considering an object such as a tapestry, which may or may not be fixed to a house so as to become part of the freehold: see Leigh v. Taylor [1902] A.C. 157. 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 mains 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 been intended to remain as a chattel. It must have been intended to form part of the realty. I know of no better analogy than the example given by Blackburn J. in Holland v. Hodgson, L.R. 7 C.P. 328, 335:

“Thus blocks of stone placed one on the 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.”

Applying that analogy to the present case, I do not doubt that when [M's] bungalow was built, and as each of the timber frame walls were placed in position, they all became part of the structure, which was itself part and parcel of the land. The object of bringing the individual bits of wood onto the site seems to be so clear that the absence of any attachment to the soil (save by gravity) becomes an irrelevance.'

The above 'fits' with an important factor identified by Lord Lloyd earlier in his judgment, wherein, at paragraph 7 (at 689-690), he said:

'Unlike the judge, the Court of Appeal did not have the advantage of having seen the bungalow. Nor were they shown any of the photographs, some of which were put before your Lordships...the photographs show very clearly what the bungalow is, and especially what it is not. It is not like a Portakabin, or mobile home. The nature of the structure is such that it could not be taken down and re-erected elsewhere. It could only be removed by a process of demolition. This, as will appear later, is a factor of great importance in the present case. If a structure can only be enjoyed in situ, and is such that it cannot be removed in whole or in sections to another site, there is at least a strong inference that the purpose of placing the structure on the original site was that it should form part of the realty at that site, and therefore cease to be a chattel.' [bold added]

This important factor can, for the purposes of this article, be labelled 'Relocatability'. As will have been noted, Lord Lloyd said that it was 'factor of great importance' (paragraph 7; at 689-690) in Elitestone. But its importance is also demonstrated by it being the reason why Elitestone had a different outcome to the outcome in H. E. Dibble Ltd. v. Moore [1970] 2 QB 181 ('Dibble') and was distinguished by Lord Lloyd in Elitestone:

(a) in Elitestone, the Bungalow was a '...two bedroom bungalow which cannot be moved at all without being demolished' (paragraph 25; at 694); whereas:

(b) in Dibble, in respect to the two Dutch Greenhouses - '...it was customary to move such greenhouses every few years to a fresh site.' (Dibble, Megaw LJ 187G; Elitestone paragraph 25; at 694)

The attributes of the very large object were therefore different, and this was pivotal. Lord Lloyd in Elitestone said 'It is obvious that a greenhouse which can be moved from site to site is a long way removed from a two bedroom bungalow which cannot be moved at all without being demolished.'.

Turning Lord Clyde's speech in Elitestone, Lord Clyde:

(1) defined what the bungalow comprised. It comprised a '...bungalow is not physically attached to the land'  (paragraph 30; at 694), which was just '...the wooden structure alone...' (paragraph 30; at 694). The foundations did not part of the Bungalow (because neither the structure above, nor the foundations below, had been adapted for the other; the main structural elements of the bungalow simply rested on the concrete blocks. The bungalow structure above, and the foundations below, were severable from each other[4]). He noted that '...the bungalow is not attached or secured to any realty. It is not joined by any physical link which would require to be severed for it to be detached.' (paragraph 43; at 696)

(2) said that 'In the generality there are a number of considerations to which resort may be had to solve the problem. But each case in this matter has to turn on its own facts. Comparable cases are useful for guidance in respect of the considerations employed but can only rarely provide conclusive answers' (paragraph 38; at 696)

(3) said 'The question...can simply be asked whether the bungalow is a chattel or realty.' (paragraph 38; at 696) On this, seemingly the 'wider approach', Lord Clyde said '...a useful starting point can be found in the words of the old commentator Heineccius (Elementa Iuris Civilis secundum ordinem Pandectarum, Lib.I, Tit. VIII, Sec.199) where, in classifying things as moveable or immoveable he describes the latter as being things “quae vel salvae moveri nequeunt, ut fundus, aedes, ager … vel usus perpetui causa iunguntur immobilibus, aut horum usui destinantur.' (paragraph 38; at 696) - which (approximately) translates into immoveables being things 'which cannot be safely moved, such as a farm, a house, a field, or are connected with immovables for a permanent purpose, or are intended for their use.' (Google Translate).

Lord Clyde said of this: 'The first of these factors...' I interpose here - meaning the fact that the thing cannot be safely moved '...may serve both to identify an item as being real property in its own right and to indicate a case of accession.' (paragraph 39; at 696) but Lord Clyde cautioned against that being the only factor given relevance. Lord Clyde continued, at paragraph 38 (at 696) 'But account has also to be taken of the degree of physical attachment and the possibility or impossibility of restoring the article from its constituent parts after dissolution.'[5]

Focusing on this Relocatability factor (though not using that label), Lord Clyde referred to two earlier cases (paragraph 39; at 696):

(a) 'In one early Scottish case large leaden vessels which were not fastened to the building in any way but simply rested by their own weight were held to be heritable since they had had to be taken to pieces in order to be removed and had then been sold as old lead: Niven v. Pitcairn (1823) 2 S. 239.' (by 'heritable' Lord Clyde (former practicing in Scotland), effectively, means part of the land; the dichotomy used in Scotland is between 'heritable or moveable' (paragraph 42; at 697) i.e. between part of the land, on the one hand, and a chattel on the other)

(b) 'In Hellawell v. Eastwood (1851) 6 Exch. 295, 312, Parke B., in considering the mode and extent of annexation of the articles in that case, referred to the consideration whether the object in question “can easily be removed, integré, salvé, et commodé, or not, without injury to itself or the fabric of the building.”

[Note: integré, salvé, et commodé is latin, meaning: complete, safe, and convenient (Google Translate)]

On the facts in Elitestone, applying this Relocatability factor, Lord Clyde said (paragraph 39; at 696):

'It is agreed in the present case that as matter of fact that “the bungalow is not removable in one piece; nor is it demountable for re-erection elsewhere.” That agreed finding is in my view one powerful indication that it is not of the nature of a chattel.' [bold added]

Holding that the Relocatability factor is 'one powerful indication' that the Bungalow was consistent with Lord Lloyd's focus on the Relocatability factor as being a 'factor of great importance' (paragraph 7 (at 689-690) - pointing towards the Bungalow being part of the land and not a chattel.

(4) advocated 'asking the question whether the particular subjects belong to a genus which is prima facie of a heritable character and, if they are, whether there are any special facts to deprive them of that character.' (paragraph 42; at 696). After listing some Scottish authorities[6] adopting this test, Lord Clyde said, on the facts in Elitestone:

'Beyond question [M's] bungalow is of the genus “dwelling-house” and dwelling houses are generally of the nature of real property. While it is situated in a rural setting it evidently forms part of a development of a number of other houses whose positions are even noted on the ordnance survey map. I find no factors which would justify taking it out of the category of dwelling houses. On the contrary there are powerful indications that it and its constituent parts do not possess the character of a chattel. It seems to me to be real property.' (paragraph 42; at 696)

(5) said 'accession can operate even where there is only a juxtaposition without any physical bond between the article and the freehold.' (paragraph 43; at 697)[7]. Thus, on the facts in Elitestone, accession could have occurred though the Bungalow was '...not attached or secured to any realty.' (paragraph 43; at 696) and was not '...joined by any physical link which would require to be severed for it to be detached.' (paragraph 43; at 697)

(6) said regard must be had to '...the purpose which the object is serving' (paragraph 43; at 697) - which requires the Court to ask: '...whether the object is designed for the use or enjoyment of the land or for the more complete or convenient use or enjoyment of the thing itself.' (paragraph 43; at 696)

(a) this is to be assessed objectively and not subjectively. So regard is not to be had to 'the purpose of the person who put it there' (paragraph 43; at 698)[8] or any other subjective aspect to the affixer's intentions (paragraph 46; at 699). Subjective intention cannot affect the operation of the law (paragraph 46; at 699). Similarly  the freeholder's subjective belief is also irrelevant (paragraph 46; at 699)

(b) 'the intention has to be shown from the circumstances' (paragraph 44; at 698) and 'a consideration of the object and purpose of the annexation as it is to be inferred from the circumstances of the case.' (In re De Falbe; Ward v. Taylor [1901] 1 Ch. 523 ('De Falbe'), 535, Vaughan Williams LJ; Elitestone, paragraph 45; at 698)

(c) Sometimes 'purpose' has been thought of as the 'intention' for object serves, but speaking of 'intention' risks directing attention to the subjective intentions of the person who put the object there, which not a factor (paragraph 44; at 698).

(7) said accession involves also a degree of permanence, as distinct from some merely temporary provision.

'Accession also involves a degree of permanence, as opposed to some merely temporary provision. This is not simply a matter of counting the years for which the structure has stood where it is, but again of appraising the whole circumstances. The bungalow has been standing on its site for about half a century and has been used for many years as the residence of [M] and his family.'

(8) said, at 699:

'If one considers the object or purpose which the structure serves by being placed where it is, it was clearly placed there to enable the amenity of Holt's Field to be enjoyed through the establishment of a residence. The bungalow was built there in order that people could live in what is represented as being an idyllic rural environment...'

(9) draw the factors together, and reasoned:

'That the bungalow was constructed where it is for the purpose of a residence and that it cannot be removed and re-erected elsewhere point in my view to the conclusion that it is intended to serve a permanent purpose. If it was designed and constructed in a way that would enable it to be taken down and rebuilt elsewhere, that might well point to the possibility that it still retained its character of a chattel. That the integrity of this chalet depends upon it remaining where it is provides that element of permanence which points to its having acceded to the ground. The Court of Appeal took the view that the bungalow was no more annexed to the land and just as much a chattel as the greenhouse in Deen v. Andrews [1986] 1 E.G.L.R. 262 (or, as I have already mentioned, the large shed in Webb v. Frank Bevis Ltd. [1940] 1 All E.R. 247). But there is a critical distinction between Deen v. Andrews and the present case in the fact that the greenhouse was demountable while the bungalow is not. I prefer the conclusion reached by the assistant recorder after hearing the evidence and visit which has gone into it:

“it seems to me clear that at least by 1985 and probably before, it would have been clear to anybody that this was a structure which was not meant to be enjoyed as a chattel to be picked up and moved in due course but that it should be a long-term feature of the realty albeit that, because of its construction, it would plainly need more regular maintenance.”'

Chelsea

In Chelsea, the issue arose whether a particular houseboat ('Dinty Moore') that was moored to a pontoon and to the bank of the Thames[9], had become part of the land (as part of a larger issue whether an agreement governed by the Housing Act 1988)(at 1943). The houseboat could be untied, and its connection to mains services, disconnected. It could then be towed to a new location. After considering Elitestone (and finding no other authority relevant)[10], the Court of Appeal held that the houseboat was not part of the land, because, in summary:

(1) degree of physical attachment - the attachment to the land were insufficient and also suffered from the ambiguity/uncertainty of - to which land?

(2) Relocatability - the houseboat could be moved quite easily without injury to itself or the land (the physical attachment to the land could simple be undone);

(3) the objective or purpose of physical annexure - the object, the houseboat, could be used for its purpose, a home, within necessarily being physically annex it to the land. The attachments were to prevent the houseboat from being carried by the tide or the weather up or down stream and to provide the services to it;

(4) common sense - a boat, albeit on used as a home, on a river is not part of the land; and

(5) genus category - it is not in the genus category 'real property'.

Tuckey LJ (within whom Waller LJ agreed) set out these conclusions, at 1945 to 1946:

'Turning firstly to the degree of annexure, it is important to bear in mind that what is required is sufficient attachment to the land so that the chattel becomes part of the land itself. Here the houseboat rested periodically on the river bed below it and was secured by ropes, and perhaps to an extent the services, to other structures. It is difficult to see how attachments in this way to the pontoons, the anchor in the riverbed and the rings in the embankment wall could possibly make the houseboat part of the land. One is bound to ask, ‘which land’? There is in my judgment no satisfactory answer to this question. More importantly, however, all these attachments could simply be undone. The houseboat could be moved quite easily without injury to itself or the land. The agreement contemplates that it will be moved, and, in practical terms, required Mr Pope to dry-dock it if he was to fulfil his obligation to paint the hull. The fact that it cannot move under its own power is not the point. Whilst the houseboat was obviously intended to be moored where it was for the term of the agreement at least, the fact that it could and would have to be moved greatly undermines the argument based on permanence.

“Turning then to the object or purpose of annexure, [counsel for the occupier] strongly submits that the attachment of the houseboat was to provide a permanent home for its occupant. I do not agree. It is not necessary to annex the houseboat to the land to enable it to be used as a home. The attachments were, like the ship's anchor referred to by Blackburn J in Forrest v Greenwich Overseers (1858) 8 E & B 890, to prevent the houseboat from being carried by the tide or the weather up or down stream and to provide the services to it.

“For these reasons I conclude that the houseboat has not become part of the land. I support this conclusion on the grounds of common sense. It is common sense that a house built on land is part of the land: see Lord Lloyd of Berwick in Elitestone Ltd v Morris [1997] 1 WLR 687, 692 h. So too it is common sense that a boat on a river is not part of the land. A boat, albeit one used as a home, is not of the same genus as real property.'

Morritt LJ (within whom Waller LJ also agreed) agreed with Tuckey LJ that the houseboat Dinty Moore had not become part of the land (at 1948), and:

(1) held that tenancy terms are irrelevant to the principle of accession. Morritt LJ said, at 1947-1978: '...the terms of the tenancy do not appear to me to have any relevance to whether there has been the requisite degree or purpose of annexation. They show the intention of the parties in regard to the contract, but, as Lord Lloyd of Berwick pointed out in Elitestone Ltd. v. Morris [1997] 1 W.L.R. 687, 693f, the intention of the parties is irrelevant save in so far as it is derived from the degree and object of the annexation.'

(2) reaffirmed that: 'The proper test is that laid down in Holland v. Hodgson, L.R. 7 C.P. 328, 335, as approved in Elitestone Ltd. v. Morris [1997] 1 W.L.R. 687. The court has to consider both the degree and object of annexation.' (at 1948)[11]

(3) held, on the facts, that 'The Dinty Moore is attached to the river wall and the river, in the manner described by Tuckey L.J., ultimately by ropes and service connections. Those ropes and services may be untied and disconnected without any undue effort to enable the Dinty Moore to be towed away by a barge. Thus the degree of annexation does not require recognition of the Dinty Moore as part of the land.' (at 1948)

(4) addressed counsel for the houseboat occupier's reliance/emphasis 'that the purpose of the annexation was to provide a home' (at 1948). Morritt LJ said on this 'Certainly the object of the conversion of the landing craft and its attachment to the services was to provide a home. But there is nothing to prevent the removal of the Dinty Moore from this mooring to another. The provision of a home does not necessitate annexing the structure (be it a caravan or a boat) to the land so as to become a part of it; it is sufficient that it is fitted out for living in.' (at 1948)

Mew

Mew concerned whether certain (test case) houseboats in a harbour had become part of the land. After summarising: (a) Elitestone[12]; and (b) Chelsea [13], Patten LJ (with whom Arden LJ and Maurice Kay LJ agreed), said:

(1) Originally, the houseboats were a landing craft (paragraph 33) and 'could (and...probably did) continue to float even when converted into houseboats' (paragraph 33). In relation to this, Patten LJ said that 'Had they remained floating in the harbour attached to one of the harbour company's pontoons...' (paragraph 33) they would clearly not be part of the land (paragraph 33). Comparing Mew with Chelsea, Patten LJ in Mew said that Chelsea '...was a much easier case to decide than [Mew] because the houseboat remained floating alongside the Thames embankment and was attached both to the river wall and to the pontoon which the owners of the adjoining boat yard were permitted by the Port of London Authority (“PLA”) to attach to the bed of the river.' (Mew, paragraph 32);

(2) Further comparing Mew and Chelsea, in Mew it was argued that Mew fell on the other side of the line (i.e. in Mew the houseboats had become part of the land), because:

(a) the houseboats in Mew had been removed '...on to the wooden platforms which now support them clear of the tide.' (paragraph 34). While not physically affixed to those platforms, neither was the house in Elitestone.

(b) 'Their placement in those positions is said to give them a degree of permanence so as to make them part of the plots on which the platforms stand. They cannot now be removed without their disintegration but even when in a proper state of repair they had, objectively speaking, become permanent structures like houses on stilts which were not intended to be removed.'

The 1st instance judge in Mew had rejected this[14], holding that the houseboats had remained chattels. In the Court of Appeal, the appeal against this was dismissed. Under the heading 'Discussion', Patten LJ said, at paragraphs 39 to 43:

'39. The issue ... (as it was in the Elitestone case) is whether a tenancy or licence of the plot including supporting platforms extended to the houseboat once it had been placed into position and notwithstanding the fact that the houseboat at that point in time was undoubtedly a chattel which had been purchased by its owners and which was subsequently sold separately from any assignment of the tenancy. If [counsel for the occupier] is right about the houseboats becoming part of the realty and therefore the tenancy on being placed on the platforms it must follow that their owners ceased to be entitled to remove them or to sell them on as removable chattels in the way in which they in fact did.

40. In the Elitestone case the fact that [M] had also purchased the bungalow from its previous owner and had then continued to pay the licence fee to the freeholder was not considered material to the question whether annexation had taken place. No estoppel could arise except between the parties to the sale. The same must apply in the present case. [The Freeholder] and its successors in title are not bound by the course of dealings between successive owners of [the houseboats]. But that course of dealing is material in so far as it forms part of the relevant factual background against which the question of the purpose of the annexation falls to be judged.

41. A structure like the bungalow in the Elitestone case which is positioned on a residential site for which a rent or licence fee is paid has, from the start, all the attributes of a house and none of the features of removability inherent in, for example, a caravan or a boat. The fact that it is not bolted as such on to the pillars which support it is immaterial. By its very nature it is intended to be a permanent feature of the site. The bungalow was constructed on site from components brought in for that purpose. It was not readily transportable as a unit and its removal would always have involved its demolition or destruction. In these circumstances, it is much easier to infer that the purpose of its annexation was that it should become part of the site.

42. But the same cannot be said of the houseboats in this case. Whatever condition they may now be in, they were... structures which could have been removed without being dismantled or destroyed in the process. They also fall into a category of items such as caravans which, as designed, are moveable...

43. I therefore consider that the judge was right to conclude that the houseboats have not become affixed to the land...'

Bluebird

In Bluebird, the owner of Hyde Park, the Crown, acting through Royal Parks Ltd/Royal Parks Agency as the Authority (the 'Crown'), claimed a boathouse (and attached jetties) (collectively, the 'Boathouse') constructed on the side of the Serpentine Lake in Hyde Park was part of the land and so part of its title, whereas the licensee/concession holder ('Licensee'), who had run a boating services therefrom for c.15 years, and who had constructed the boathouse, pursuant to a contract, claimed it had been and remained a chattel(s) which the licensee were entitled to remove. An issue was therefore who was the owner of the Boathouse, which depended on the application of the principle of accession (amongst other matters - paragraph 8).

Defining the Boathouse first, O'Farrell J said, at paragraph 62:

'In my judgment the Boathouse comprises both the superstructure and substructure of the building. The concrete slab and piled foundation provide necessary support for the superstructure. The steel frame of the superstructure is bolted into the concrete floor slab, creating a permanent connection between the two elements, capable of being broken only by severing the fixings. The drawings and design statements by ... the original architect, indicate that it was designed as an integral, permanent structure for Hyde Park. There is no suggestion in any of the contemporaneous documents that the design of the slab was intended to accommodate a number of different superstructure buildings. The method of construction adopted, materials used and the extent to which it has been anchored to the land, partially cut into the sloping bank of the Serpentine, indicate that the substructure and superstructure elements of the Boathouse were built to be permanent and immobile.'

Then, after noting the respective parties position on the application of the principle of accession (paragraphs 63-66), under the heading 'Legal principles', O'Farrell J said, at paragraphs 67 to 72, and 76:

'67. Woodfall on Landlord and Tenant (Vol.1) categorises objects on the land as follows at para.13.131:

"An object that is brought onto land may be classified under one of the broad heads. It may be

(a) a chattel; (b) a fixture; or (c) part and parcel of the land itself. Objects in categories (b) and (c) are treated as being part of the land."

68. It is a question of fact whether a particular object falls within one of these categories. The main factors are the degree of annexation to the land, and the object of the annexation. Where an item has been attached or connected in some way to the land, there is a rebuttable presumption that it has become a fixture, as summarised by Blackburn J in Holland v Hodgson (1871–72) L.R. 7 C.P. 328 :

"Perhaps the true rule is, that 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 lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend it is a chattel."

69. In Elitestone Ltd v Morris [1997] 1 W.L.R. 687 (HL), the issue for the House of Lords was whether a bungalow that rested on concrete block foundations was part of the land. In giving the judgment with which their Lordships agreed, Lord Lloyd of Berwick observed at p.690:

"The nature of the structure is such that it could not be taken down and re-erected elsewhere. It could only be removed by a process of demolition. This, as will appear later, is a factor of great importance in the present case. If a structure can only be enjoyed in situ, and is such that it cannot be removed in whole or in sections to another site, there is at least a strong inference that the purpose of placing the structure on the original site was that it should form part of the realty at that site, and therefore cease to be a chattel."

70. Although the mode of annexation of the object to the land is a relevant factor, the significance of the purpose of annexation was emphasised by Lord Lloyd at p.693:

"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 is connected temporarily to mains 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 been intended to remain as a chattel. It must have been intended to form part of the realty."

71. Also per Lord Clyde at p.699:

"That the bungalow was constructed where it is for the purpose of a residence and that it cannot be removed and re-erected elsewhere point in my view to the conclusion that it is intended to serve a permanent purpose. If it was designed and constructed in a way that would enable it to be taken down and rebuilt elsewhere, that might well point to the possibility that it still retained its character of a chattel. That the integrity of this chalet depends upon it remaining where it is provides that element of permanence which points to its having acceded to the ground."

72. The test is an objective one. The terms of any contract, or other agreements between the parties, do not affect the determination as to whether, in law, the object in question has become part of the land: Melluish (Inspector of Taxes) v BMI (No.3) Ltd [1996] A.C. 454 (HL), per Lord Browne-Wilkinson at 473:

"…the intention of the parties as to the ownership of the chattel fixed to the land is only material so far as such intention can be presumed from the degree and object of the annexation. The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil … The terms of such agreement will regulate the contractual rights to sever the chattel from the land as between the parties to that contract and, where an equitable right is conferred by the contract, as against certain third parties. But such agreement cannot prevent the chattel, once fixed, becoming in law part of the land and as such owned by the owner of the land so long as it remains fixed."

73. In Elitestone (above), Lord Clyde stated at p.698:

"It is important to observe that intention in this context is to be assessed objectively and not subjectively. Indeed it may be that the use of the word intention is misleading. It is the purpose which the object is serving which has to be regarded, not the purpose of the person who put it there. The question is whether the object is designed for the use or enjoyment of the land or for the more complete or convenient use or enjoyment of the thing itself."

...

76. A similar issue arose in Wessex Reserve Forces and Cadets Association v White [2006] 1 P. & C.R. 22 QBD, the findings of which were not challenged in the ensuing appeal. The court found that huts, a portacabin and garden shed were chattels and could be removed from the land. However, an assembly hall, comprising a sectional pre-cast building resting on a concrete slab, had become part of the land. A significant factor was that, although the unit could be dismantled and reassembled elsewhere, such exercise would be relatively labour intensive and a not inconsiderable number of components would require replacement.'[15]

Drawing these authorities together, for the purposes of Bluebird, O'Farrell J said, at paragraph 77:

'The applicable principles derived from the above authorities for the purpose of this case are:

i) The structure will be treated as being part of the land if: (a) the degree of annexation is such that the structure is permanently fixed to the land and can only be removed by a process of demolition; and (b) the purpose of such annexation must be that it should form part of the land.

ii) The structure will be treated as a chattel if its sits on the land but is otherwise unattached, unless there is objective evidence that it was intended to form part of the land.

iii) Where the structure is annexed to the land but potentially removable, it will be treated as being part of the land if the purpose for which it was annexed was the permanent and substantial improvement of the land; but it will be treated as a chattel if the purpose for which it was annexed was temporary or for the more complete enjoyment and use of it as a chattel.

iv) The test as to the degree and purpose of such annexation is an objective one; it is not determined by the subjective intention of the parties or any contractual arrangements between them.'

Additional Authorities

Readers may also wish to consider:

(1) Gilpin v Legg [2017] EWHC 3220 (Ch); [2018] 1 P. & C.R. DG18, HHJ Matthews sitting as a Judge of the High Court - huts;

(2) Spielplatz Ltd v Pearson [2015] EWCA Civ 804; [2015] H.L.R. 40 Court of Appeal, Laws LJ; Burnett LJ; Sir Colin Rimer - chalet;

(3) Caddick v Whitsand Bay Holiday Park Ltd [2015] UKUT 63 (LC); [2015] L. & T.R. 16, Upper Tribunal (Lands Chamber), Judge Mole QC (obiter) - mobile homes;

(4) Savoye v Spicers Ltd [2014] EWHC 4195 (TCC) [2015] Bus. L.R. 242, Akenhead J - automated conveyor system in an existing factory site;

(5) Lictor Anstalt v Mir Steel UK Ltd [2014] EWHC 3316 (Ch); [2014] 6 Costs L.O. 918, Asplin J - parts/equipment required to assemble a hot strip steel mill.

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