Affixing Objects to Land/Buildings - Losing Title to the Objects

There is a principle in the common law (the principle of accession[0]) that where an object/chattel is legally affixed to the land/incorporated in the land, it: (a) becomes part of the land for the purposes of ownership[1]; and (b) its pre-existing title as a chattel is extinguished/ceases to exist[2a]. This branch of law is known as the English land law of fixtures, and the logic of the principle is said to be, to stop the destructive/wasteful de-construction/dismemberment of buildings/additions to land, after a chattel becomes sufficiently part of the building/land.

While the law is clear as to the effect of legally affixing a chattel to land (legal affixation[2b], or legal affixment, or legal 'annexure'[3a]), it can be hard to describe precisely when a chattel will become legally affixed: what does and what does not amount to legal affixing, such that the object ceases to be a chattel, and legally forms part of the land?

This article will consider this question and the main authorities setting out the circumstances and factors taken into account, in particular, the important cases of: (1) Holland v Hodgson (1871-72) L.R. 7 C.P. 328 - Court of Exchequer Chamber (Blackburn J; Cleasby B; Channell B; Hannen J; Kelly CB; Mellor J) ('Holland') (2) Berkely v Poulett [1977] 241 EG 911, [1977] EGD 754 ('Berkely'); and (3) Botham v TSB Bank Plc [1996] Lexis Citation 5162 (Roch LJ, Sir Richard Scott VC and Henry LJ) ('Botham').

Scenarios where the issue arises

Knowing whether a chattel, which has interacted (to use a neutral/vague term) with land, continues to have its own independent title, or has lost its independent title, is obviously critical in some circumstances. Disputes an arise between a landowner (on the one hand) and a person who originally owned the chattel (on the other), each claiming the object is now owned by them. Such circumstances include, for instance:

(1) where building material suppliers supplies building materials to a contractor/buyer, for incorporation into a new building, and it is placed (to use a neutral term) into the building/onto the land (see Aircool Installations v British Telecommunications Plc [1995] CLY 821[3b]for a simple county court example of this); and, separately

(2) where a land owner mortgages his land to a bank, and later alleges that what is mortgaged, does not include certain objects on the land (see Botham, and also Holland[3c]);

In the above (1) and (2) examples, there are only two parties interested. But particularly in circumstances like (1) above, there can be 3 parties interested[3d]

Physical Affixing vs Legal Affixing

Before considering the authorities, it should be noted that there is an important distinction to understand, between:

(1) the physical situation; and

(2) the legal consequences of that situation.

The analysis of a particular scenario needs to proceed in that order. First consideration of the physical situation, then the legal consequences of that situation. In other words:

(1) First analyse what the evidence[3e] shows the physical facts to be, including (if any), the physical affixing of the chattel(s) to the land/building (which can include physically affixing by no more than the chattel resting on the land though its own weight);

(2) Once this is done, the analysis can move on to whether or not that amounts to legally affixing materials to the building/land.

Divisions and subdivisions

At the highest level, there is a divide between 2 categories: (a) chattels (defined below); vs (b) objects (defined below) legally affixed to the land (so part of the land).

But this second category, category (b), has 2 subcategories, namely: (i) fixtures (which itself is subdivided into tenant's fixtures and landlord's fixtures - discussed in footnote 10); and (ii) part of the land/part and parcel of the land. This category (b) subdivide exists because very large objects (such as wooden bungalows/houseboats) do not easily fit within what most people understand to be a 'fixture'.

Nomenclature

Another thing to address before considering the authorities, is the various words are used in this area:

(1) to describe the item, without indicating whether it is or is not legally affixed (and so whether it has an independent title, or not), the word 'objects' will be used (unless quoting from a case). Other words, such as 'goods', 'articles', 'movables' and 'materials' are slightly less clear and using 'objects' has the attraction of consistency/brevity;

(2) a 'chattel' is an item which has its own separate/independent title[3f]. In other words, its title is separate from/not subsumed into, the title to the land/building;

(3) the legal connection between the land/building and the object, which has up to now in this article been called 'legal affixing', is sometimes to referred to, variously, as the 'incorporated', 'annexed', 'attached' or 'affixed', as in the chattel became 'incorporated', 'annexed', 'attached' or 'affixed to the land/building, such that it lost its separate/independent title. In this article, for consistency/brevity, the word 'affixing' is used (unless quoting from a case). So the phrases 'legal affixing' and 'legal affixed' are used to express that a object became, legally, subsumed into the land (whether as a fixture or 'part of the land');

Further:

(5) for brevity, rather than repeatedly use 'land/building', this will be shortened simply to 'land'.

(6) in this article, the word 'fixtures' is generally avoided, as it can generate confusion through: (a) being unclear whether it is being used in its physical or legal sense; and (b) it not being the converse to a chattel (as explained above).

Legal Affixing - No Precision Line as to what amounts to Legal Affixment

As will be apparent, in order to determine whether or not this common law principle applies, the key question to answer is whether the object has become legally affixed to the land, such that the independent title it had as a chattel has been extinguished, and it now forms part of the land and is owned, along with the rest of the land, by the legal title holder of the land. 

However, it has long been recognised that identifying the precise requirements for legal affixing is not simple. As least when Holland was decided, about 140 years ago, the line was said to be very difficult to precisely discern. In that case, Blackburn J said, at 334:

'There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case...'

Legal Affixing - Factors in Determining

There are a number of factors and circumstances, which are recognised as indicating (strongly or weakly) towards a particular determination. On this, a convenient starting point is Holland, and a passage from the judgment of Blackburn J - a passage which Roch LJ (with whom Sir Richard Scott VC and Henry LJ agreed) in Botham described as '[t]he most helpful statement of the legal principles in this area of law' (page 3). After what is quoted above, Blackburn J, said, at 334:

'...It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, then by its own weight it is generally to be considered a mere chattel; see Wiltshire v Cottrell (1 E&B 674; 22 LJ (QB) 177) and the cases there cited. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land: see D'Eyncourt v Gregory. (Law Rep 3 Eq 382). Thus blocks of stone placed 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. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to shew that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the shipowner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land. 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 shew that they were intended to be part of the land, the onus of shewing 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 shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel. This last proposition seems to be in effect the basis of the judgment of the Court of Common Pleas delivered by Maule J., in Wilde v Waters (16 CB 637; 24 LJ (CP) 193). This, however, only removes the difficulty one step, for it still remains a question in each case whether the circumstances are sufficient to satisfy the onus. In some cases, such as the anchor of the ship or the ordinary instance given of a carpet nailed to the floor of a room, the nature of the thing sufficiently shews it is only fastened as a chattel temporarily, and not affixed permanently as part of the land.'[4a]

In Elwes v Brigg Gas Co (1886) 33 Ch D 562[4b], Chitty J held that: (1) the subjective intention of the affixer was irrelevant; and that (2) the operation of natural causes, as well as by the hand of man, could cause legal affixing. Chitty J said, at 567:

'This principle is an absolute rule of law, not depending on intention; for instance, if a man digs in the land of another, and permanently fixes in the soil stones or bricks, or the like, as the foundation of a house, the stones or bricks become the property of the owner of the soil, whatever may have been the intention of the person who so placed them there, and even against his declared intention that they should remain his property. Nor does it appear to me to be material that the things should have been placed there by the hand of man; it would seem to be sufficient if they have become permanently fixed in the soil by the operation of natural causes.'[4c]

In Leigh v Taylor [1902] AC 157 in the House of Lords, Lord MacNaghten said, at 162:

'The question is still as it always was, has the thing in controversy become parcel of the freehold? To determine that question you must have regard to all the circumstances of the particular case - to the taste and fashion of the day as well as to the position in regard to the freehold of the person who is supposed to have made that which was once a mere chattel part of the realty. The mode of annexation is only one of the circumstances of the case, and not always the most important - and its relative importance is probably not what it was in ruder or simpler times.'

Lord Lindley in the House of Lords in Reynolds v Ashby & Son Ltd [1904] AC 466, chose to focus attention on 5 circumstances, when he said, at 474:

'...attention must be paid not only to the nature of the thing and to the mode of attachment, but to the circumstances under which it was attached, the purpose to be served, and last but not least to the position of the rival claimants to the things in dispute.'

The principles set out in Holland though must be 'applied with the observations of Scarman LJ in Berkely v Poulett and Others [1977] 241 EG 911, [1977] EGD 754, at page 913' (Roch LJ in Botham), because Scarman LJ in Berkely:

(a) '...identified the two tests as being:

(1) the method and degree of annexation;

(2) the object and purpose of the annexation.' (Roch LJ in Botham - page 4); and

(b) reduced the significance of 'degree of annexation' in the overall evaluation of whether the object is, or is not, legally affixed.

Scarman LJ in Berkely said, at page 913:

'...a degree of annexation which in earlier time the law would have treated as conclusive may now prove nothing. If the purpose of the annexation be for the better enjoyment of the object itself, it may remain a chattel, notwithstanding a high degree of physical annexation. Clearly, however, it remains significant to discover the extent of physical disturbance of the building or the land involved in the removal of the object. If an object cannot be removed without serious damage to, or destruction of, some part of the realty, the case for its having become a fixture is a strong one. The relationship of the two tests to each other requires consideration. If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless, an object, resting on the ground by its own weight alone, can be a fixture, if it is so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima Facie, however, an object resting on the ground by its own weight alone is not a fixture: see Megarry and Wade, p 716. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture, if, for example, the purpose of its affixing be that of creating a beautiful room as a whole (Neville J in In Re Whaley [1908] 1 Ch 615 at p 619[)]. As in the famous instance of Lord Chesterfield's Settled Estates [1911] 1 Ch 237 Grinling Gibbons carvings, which had been affixed to a suit of rooms 200 years earlier, were held to be fixtures. Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty.'

After quoting the above passage from Scarman LJ in Berkely, Roch LJ in Botham then said, at page 6:

'The tests, in the case of an item which has been attached to the building in some way other than simply by its own weight, seem to be the purpose of the item and the purpose of the link between the item and the building. If the item viewed objectively, is, intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture. If the attachment is temporary and is no more than is necessary for the item to be used and enjoyed, then it will remain a chattel. Some indicators can be identified. For example, if the item is ornamental and the attachment is simply to enable the item to be displayed and enjoyed as an adornment that will often indicate that this item is a chattel. Obvious examples are pictures. But this will not be the result in every case; for example ornamental tiles on the walls of kitchens and bathrooms. The ability to remove an item or its attachment from the building without damaging the fabric of the building is another indicator. The same item may in some areas be a chattel and in others a fixture. For example a cooker will, if free standing and connected to the building only by an electric flex, be a chattel. But it may be otherwise if the cooker is a split level cooker with the hob set into a work surface and the oven forming part of one of the cabinets in the kitchen. It must be remembered that in many cases the item being considered may be one that has been bought by the mortgagor on hire purchase, where the ownership of the item remains in the supplier until the instalments have been paid. Holding such items to be fixtures simply because they are housed in a fitted cupboard and linked to the building by an electric cable, and, in cases of washing machines by the necessary plumbing would cause difficulties and such findings should only be made where the intent to effect a permanent improvement in the building is incontrovertible. The type of person who instals or attaches the item to the land can be a further indicator. Thus items installed by a builder, eg the wall tiles will probably be fixtures, whereas items installed by eg a carpet contractor or curtain supplier or by the occupier of the building himself or herself may well not be.'

Roch LJ then considered the directions the first instance judge (Jacob J) in Botham had given himself when determining the case. Save for one point about fitted carpets as fixtures (which can conveniently be dealt with footnote[5]), Roch LJ concluded that '...no criticism can be made of the judge's statement of the tests and principles which had to be applied in this case...' (page 5). As a result, the first instance directions are instructive as to what will, or will not, amount to legal affixing. Roch LJ in Botham noted, at page 5, those first instance directions:

'...that the primary test whether an item is or is not a fixture is the degree of annexation of the item to the building. He cited Megarry and Wade on Real Property at page 732:

"An article is prima facie a fixture if it has some substantial connection with the land or a building on it."

Then a little later:

"A chattel attached to the land or a building on it, in some substantial manner, eg by nails or screws, were prima facie a fixture even if it would not be difficult to remove it. Examples in this category are a fireplace, panelling, wainscot and a conservatory on a brick foundation."

The judge then went on to direct himself that the second matter relevant to the issue was the purpose of the annexation of the item to the land or building. That consideration could in some cases render an item a chattel in law although it was attached to the land. The judge continued that the conventional test was whether or not the purpose of annexation was or was not to effect a permanent improvement in the land or was merely to enable the owner of the chattel to enjoy it as a chattel. The judge then referred to the case of Leigh v Taylor [1902] AC 157 where valuable tapestries were displayed in the drawing room of a mansion house by being stretched over canvas and tacked to the canvas which in turn was stretched over strips of wood and nailed to those strips of wood which in turn were nailed to the walls of the drawing room. The tapestries could be removed without doing any structural damage to the building. The House of Lords held that despite the degree of attachment to the walls of the house, having regard to the nature of the items and the purpose of their being placed as they were, the tapestries did not become fixtures. The judge continued by acknowledging a submission made by [the mortgagor's counsel] that the value of the item could be a relevant factor in the resolution of the question whether the item was or was not a fixture. Another relevant matter was whether or not the item could be removed without damaging the fabric of the building. Finally the judge directed himself that the purpose test was objective and could not depend on the particular intention of the person who had attached the item to the building.'[6]

Returning to Berkely for a small point, for at least objects in the curtilage of a building on the land, a factor can be whether the object is positioned '...so as to form an integral part of the architectural design of [part of the property]' (89); was it architecturally important/did it matter to the design. The same factor was identified in Tower Hamlets London Borough Council v Bromley London Borough Council [2015] LGR 622, wherein Norris J considered, at paragraph 17, whether the object formed part of an integral design of that estate[7]. By analogy with Lord Carnwath in Dill v Secretary of State for Housing, Communities and Local Government [2020] 1 WLR 2206 ('Dill'), in respect to statues or other ornamental objects in the curtilage of a building, the question can be asked, to determine whether an object is legally affixed to the land: is the statue or other ornamental object directly related to the design of the relevant building and its setting?

Legal Affixing - Affixer is a Tenant of the Land

It might be thought, prime facie, that if the affixer (the person physically affixing the object to the land) is a tenant with a (short or relatively short) leasehold title/interest, the inference that generates is that objectively, the intention of the affixer tenant is not to affix permanently, but only temporarily (i.e. for the duration of the leasehold title, and no more), and so what might otherwise amount to legal affixing, does not amount to legal affixing, because of this affixer tenant's objective intention (the 'Inference'). For instance, if the affixer tenant has a lease of land upon which a factory sits, into which he installs his manufacturing machines. It could be said, objectively, that it looks like the affixer tenant would intend to affix to the factory floor, such objects, just for the duration of the tenancy, and no longer.

Such objects affixed can be described as 'trade and tenant's fixtures', with Blackburn J in Holland at 333, defining these as:

'Trade and tenant's fixtures are...accurately defined as “things which are annexed to the land for the purposes of trade or of domestic convenience or ornament in so permanent a manner as to become part of the land...'[8]

However, this Inference either does not arise or has negligible impact on the overall evaluation of whether legal affixing has occurred. In Holland, Blackburn J said, at 336:

'...ordinary trade or tenant fixtures which are put up with the intention that they should be removed by the tenant (and so are put up for a purpose in one sense only temporary, and certainly not for the purpose of improving the reversionary interest of the landlord) have always been considered as part of the land...'

In other words, they still become legally affixed to the land. As to the reason for why the law operates this way, Blackburn J said in Holland, at 336:

'In most, if not all, of such cases the reason why the articles are considered fixtures is probably that indicated by Wood, V.C., in Boyd v. Shorrock [Law Rep. 5 Eq. at p. 78], that 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.'[9]

Quite what this 'mode' is not particularly clear.

This may be thought to work an injustice for the tenant. But it is actually a different rule which (generally) prevents the tenant from subsequently removing what he has made part of the land (which is what would create the injustice), and there is an important exception to this different rule, which prevents the injustice. This different rule (Rule of Irremovability) and the important exception, will be considered later.

Certain Relationships and Very Large Objects

So far this article has considered the general law and the particular relationship of landlord and tenant; but certain other relationships generate additional considerations. Those considering situations involving any of the following relationships, may wish to consider the cases listed in the below section entitled 'Outside the Scope of this Article': (1) tenant for life vs remainderman; (2) agricultural tenancies; (3) devisee and personal representatives; (3) vendor / purchaser; (5) mortgagor vs mortgagee.

Also note, where the object is very large, such that it can be, for instance, lived in (such as a wooden bungalow/houseboat), there is specific case law in relation to that type of object (see again, the below section entitled 'Outside the Scope of this Article').

Legal Affixing - Summary of factors

Clearly, much depends on the circumstances of the case, and in the end, it depends on all the circumstances of the case, but various propositions can be drawn from the authorities:

(1) The two principal tests are:

(a) the method and degree of annexation;

(b) the object and purpose of the annexation.

(2) The first test, the degree of annexation, has reduced importance nowadays. It is said that:

(i) today, so great are the technical skills of affixing and removing objects to land or buildings, that the second test is more likely than the first to be decisive;

(ii) the enduring significance of first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the land. In other words, where there is no physical annexation between the object and the land, it is not legally affixed;.

(iii) if the purpose of the annexation be for the better enjoyment of the object itself, it may remain a chattel, notwithstanding a high degree of physical annexation. To put this another way, where there is a sufficient degree of annexation, the test will really be directed to the purpose of the object and the purpose of the link between the object and the land;

(3) objects not otherwise attached to the land than by their own weight are not considered legally affixed, 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. Conversely, an object which is physically affixed to the land even slightly is to be considered legally affixed, 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 that it is a chattel. Seemingly, by way of indication, an object, resting on the ground by its own weight alone, can be held to be legally affixed, if it is so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the land. But, prima facie, an object resting on the ground by its own weight alone is not legally affixed.

(4) the wider context of the object and land, can strongly influence what, objectively, the purpose of the annexation was. A good example is given in Holland, of the blocks of stone placed on the top of one another without any mortar or cement, which could, depending on the wider context, be: (a) a dry stone wall (likely legally affixed); or (b) just a pile in a builders yard (likely not legally affixed).

(5) a key question is whether the purpose (judged objectively) of annexation was or was not to effect a permanent improvement in the land, or was merely to enable the owner of the chattel to enjoy it as a chattel. If the object, viewed objectively, is intended to be permanent and to afford a lasting improvement to the land, the object will have become legally affixed. If the attachment/connection is temporary and is no more than is necessary for the item to be used and enjoyed, then it will remain a chattel.

(6) Indicators are:

(i) if the item is ornamental and the attachment is simply to enable the item to be displayed and enjoyed as an adornment - that will often indicate that the item is/remains a chattel. Obvious examples are pictures. But this will not be the result in every case; for example ornamental tiles on the walls of kitchens and bathrooms.

(ii) the ease in which an object can be removed from the land is significant. That is, the extent of physical disturbance to land, or the damage caused to the fabric of the building, involved if the object were to be removed. Where an object cannot be removed without serious damage to, or destruction of, some part of the land, the case for its being legally affixed is a strong one.

(iii) the extent to which the object is installed into the land. For instance, a freestanding cooker merely plugged in, occupying an open cabinet slot vs a split level cooker set into a work-surface and forming part of cabinet in the kitchen;

(iii) The value of the object;

(iv) The type of person who instals or attaches the item to the land can be a further indicator[11a]. Objects installed by a builder, like wall tiles are probably legally affixed, but objects installed by, for instance, a carpet contractor or curtain supplier, or by the occupier of the building, may well not be.

Legal Affixing - Huge Variety of Objects and Circumstances/Contexts

Having considered the principles and factors at a high level of generality, we can now come down to the particularity, and see what particular guidance exists in relation to particular items. There is of course a huge variety of objects which can be physically affixed to land/buildings, in a large variety of circumstances/contexts, indeed too many to all be considered in this article. Save for a couple of other circumstances/contexts dealt with in a footnote[11b], this article will look at 2 circumstances/contexts:

(1) typical household objects;

(2) outdoor sculptures (briefly); 

Legal Affixing - Categories of Household Objects

The case of Botham provides a helpful analysis of whether certain typical household objects, are or are not legally affixed (at least, assuming the rest of the facts are the same as those in Botham). In Botham, Mr Botham owned a flat. He mortgaged the flat to a bank. Mr Botham fell behind on the mortgage instalments and the bank repossessed the flat. A dispute then broke out as to which of the objects in the flat when it was repossessed, were legally affixed to the flat, and which were not.

A schedule was prepared listing 109 objects - to which there was (at least initially) a dispute over whether or not they were legally affixed. These 109 objects were grouped together into 9 classes, described as follows (with notes of some subsequent concessions made by counsel for Mr Botham):

'1. Fitted carpets, cut to size and kept in place by stretching devices, known as gripper rods.

2. Light fittings which were not merely lamp shades but were lights fixed to walls or ceilings, some of them being in recesses in the ceilings and some being attached to the ceiling by tracks.

3. Four decorative gas flame effect fires of the mock coal type which had gas piped to them and which had been installed in four fireplaces in the hallway, the sitting room and two of the bedrooms, it being accepted by Mr Botham's counsel that the fireplaces in which the gas fires were placed were themselves fixtures.

4. Curtains and blinds including a shower curtain in one of the two bathrooms. It was accepted by Mr Botham's counsel that in the cases of the curtains the matching pelmets were fixtures.

5. Towel rails, soap dishes and lavatory roll holders.

6. Fittings on baths and basins namely the taps, plugs and shower heads.

7. Mirrors and marble panels on the walls in the fitted bathroom. Mr Botham's counsel conceded that these were fixtures. This class does not feature in this appeal.

8. Kitchen units and work surfaces, including a fitted sink.

9. White goods in the kitchen, namely the oven, the dishwasher, the extractor, the hob, the fridge and the freezer. The judge found that the white goods were made to standard sizes and were removable.

Two points to note before considering how the Court of Appeal in Botham determined whether these objects were/had remained chattels, or not:

(1) as the bank (respondents in the appeal) brought the claim, it was for the bank '...to establish that the items they claim were fixtures...', were indeed so (i.e. legally affixed); and

(2) the admissible evidence in the case did not include the Schedule contents (save for the list itself), but only included colour photographs (which did show clearly the objects they are intended to show)(page 6). This is relevant because some objects were held not to be legally affixed, not on the facts, but because of an absence of sufficient evidence (put forward by the bank), to satisfy the court on the balance of probabilities, as to certain important facts surrounding the object's position/nature etc. This creates pockets where the guidance is unclear.

Turning now to the Botham Groups, in turn.

Fitted carpets and Curtains and Blinds - Groups 1 and 4

In Botham, Roch LJ said, at page 7:

'...with regard to the fitted carpets and the curtains and blinds ...These items, although made or cut to fit the particular floor or window concerned, are attached to the building in an insubstantial manner. Carpets can easily be lifted off gripper rods and removed and can be used again elsewhere. In my judgment neither the degree of annexation nor the surrounding circumstances indicate an intention to effect a permanent improvement in the building. Although many people take with them their curtains and carpets when they move, it is true that others leave curtains and carpets for the incoming occupier, but normally only where the incoming occupier has bought those items separately from the purchase of the property itself. Curtains are attached merely by being hung from curtain rails. The removal of carpets and curtains has no effect damaging or otherwise on the fabric of the building. In my opinion, the method of keeping fitted carpets in place and keeping curtains hung are no more than is required for enjoyment of those items as curtains and carpets. Such items are not considered to be or to have become part of the building. They are not installed, in the case of new buildings, by the builders when the building is constructed, but by the occupier himself or herself or by specialist contractors who supply and install such items. The same is true of curtains. Both will be changed from time to time as the occupier decides to change the decoration of one or more rooms in his or her house or flat. There may be cases where carpeting or carpet squares are stuck to a concrete screed in such a way as to make them part of the floor and thus fixtures. In this case, there was no evidence, in my opinion, to justify the judge's finding that the carpets in this flat were fixtures.'[12]

Light Fittings - Group 2

In Botham, Roch LJ said, at pages 7-8:

'With regard to Group 2, the light fittings, [counsel for] Mr Botham, conceded that two of the light fittings recessed into the ceilings shown in photographs 129 and 138 were fixtures. I would hold that the respondents on the admissible evidence have failed to show that the other lighting items were fixtures. There is no admissible evidence as to the method of attachment of these items to the walls and ceilings other than that the photographs show that they must be attached in some manner. [counsel for Mr Botham] submitted that their removal cannot be too difficult because in many cases the fitting would have to be removed in order to replace a bulb or connection that had failed. In my judgment, these light fittings, in the absence of evidence other than the photographs of them, remain chattels as would lamp shades or ornamental light fittings or chandeliers suspended from a ceiling rose. To adopt a test used by Lush J in British Economical Lamp Company (Ltd) v Empire Mile End (Ltd) and another Times Law Reports, Friday April 18th 1913, these light fittings were not shown by the evidence to be part of the electrical installation in the flat.[13]

Gas Fires - Group 3

In Botham, Roch LJ said, at page 8:

'Group 3 were the gas fires. In their case the only connection between them and the building was a gas pipe. In the gas pipes, shortly before the pipes enter these gas fires, gas taps are to be seen in the photographs. Apart from that link, which essential if they are to be used as gas fires, nothing secures the gas fires, on the evidence, other than their own weight. [Counsel for Mr Botham] argues that their function was purely ornamental, the flat actually being heated by water filled radiators. I would not accept that submission. These fires have two purposes: one decorative, the mock coal fire aspect, and one functional, the gas fire aspect. Nevertheless I am of the view that electric fires and heaters which are simply plugged into the electricity supply of a house are not fixtures and I do not see any sensible distinction between such electric fires and these four gas fires on the evidence which was available to the judge and is available to us. Items 9, 19, 35 and 72 as described in Mr Chapman's schedule, were not shown by the admissible evidence to be fixtures.'

Bathroom Fittings - Group 5 and 6

In Botham, Roch LJ said, at page 6:

'I have no hesitation in agreeing with the judge that... the bathroom fittings namely the taps, plugs and showerhead together with the towel rails, soap dishes and lavatory roll holders which are all the items listed under the heading Ironmongery in the schedule... are fixtures.

Those items are attached to the building in such a way as to demonstrate a significant connection with the building, and are of a type consistent with the bathroom fittings such as the basins, baths, bidets and lavatories, as to demonstrate an intention to effect a permanent improvement to the flat. They are items necessary for a room which is used as a bathroom. They are not there...to be enjoyed for themselves, but they are there as accessories which enable the room to be used and enjoyed as a bathroom. Viewed objectively, they were intended to be permanent and to afford a lasting improvement to the property.'

Fittings on Baths and Basins - Group 7

In Botham, Roch LJ said, at page 7:

'...the marble panels and mirrors in the principal bathroom were conceded by Mr Botham's counsel before the judge to be fixtures and [counsel for Mr Botham] in this appeal, accepts that that concession was rightly made.'

Sir Richard Scott VC in Botham said, at page 12:

'The question whether a tap has become a fixture will, in my opinion, depend in most cases on whether the bath or basin or sink to which the tap is an appendage is a fixture. It is possible, in my view, that a Victorian bath, standing on its four short legs and connected by appropriate plumbing to the water system and drainage system, might retain its identity as a chattel. If the bath remains a chattel, its taps would be part of the bath, not part of the realty. In most cases, however, and, in my opinion, in every case in which the bath had been fitted or built into the bathroom, the bath would have become a fixture and its taps would, prima facie, follow suit. Very special evidence would, in my opinion, be needed to justify a conclusion that although the bath, basin or sink (as the case might be) was a fixture, its tap or taps remained chattels. The naturally inferred intention would be that the taps had become part of the bath, the basin or the sink. The decorative nature of particular top-of-the-market taps would not suffice, in my view, to shift this inference. The primary nature of taps is functional. I agree that the taps and the other bathroom fittings in the flat ... should, on the evidence of the photographs, supplemented by common knowledge as to their permanency, be held to be fixtures.

Kitchen Units and Work Surfaces - Group 8

In Botham, Roch LJ said, at page 7:

'The third group about which I have no doubt is Group 8, the kitchen units, including the sink...Again in my judgment the degree of annexation, the fact that between the working surfaces and the underside of the wall cupboards of the wall units there is tiling, demonstrates both a degree of annexation and an intention to effect a permanent improvement to the kitchen of the flat so as to make those units fixtures. Further, as a matter of common sense, those units could not be removed without damaging the fabric of the flat, even if the damage is no more that the leaving of a pattern of tiling which is unlikely to be of use if different units had to be installed.'

White goods in the kitchen - Group 9

In Botham, Roch LJ listed the items in Group 9, at page 7, as follows: (1) the gas hob; (2) the extractor fan unit; (3) a wall fitting holding a cordless electric carving knife, spare blade and a rechargeable torch; (4) a freezer fitted under the worktop; (5) an oven fitted into the kitchen units; (6) an integrated dishwasher; (7) an integrated washing machine and dryer; and (8) a refrigerator fitted under the work top.

Later, Roch LJ said, at pages 8-9:

'Many of those items were made by a single manufacturer, Neff. The judge said that whilst the kitchen units and sink were manifestly fixtures, the white goods he had found to be the most difficult items he had had to decide. He found that they were manufactured to standard sizes, they were fitted into standard sized holes and that they were removable. They were very probably expensive items, although he had no direct evidence of their value. He held them to be fixtures because:

They were there as part of the overall kitchen. If one were taking a flat on a lease one would expect them to be there. They were put in to be part of the kitchen as it stood. They were all physically fixed in, not only resting on their own weight, but being plumbed in, wired in and in most cases aligned with and perhaps to some extent abutted to, so that they could not be too easily removed, the remaining parts of the fitted kitchen. A fitted kitchen is a whole.

I differ from the judge on this group of items on the slender facts in this case. What one might expect to be in a flat if one were taking a flat, would depend on the type of letting one was seeking. That is not, in my view, a test of whether an item is or is not a fixture. Clearly all of these items are items one would not be surprised to find in a kitchen, but then so is an electric kettle, a food mixer and a microwave oven, which are all normally plugged in. No one, I venture to suggest would look on these as fixtures. Here the judge should have reminded himself that the degree of annexation was slight: no more than that which was need for these items to be used for their normal purposes. In fact these items remain in position by their own weight and not by virtue of the links between them and the building. All these items can be bought separately, and are often acquired on an instalment payment basis, when ownership does not pass to the householder immediately. Many of these items are designed to last for a limited period of time and will require replacing after a relatively short number of years. The degree of annexation is therefore slight. Disconnection can be done without damage to the fabric of the building and normally without difficulty. The purpose of such links as there were to the building was to enable these machines to be used to wash clothes or dishes or preserve or cook food. Absent any evidence other than the photographs, it was not open to the judge, in my opinion, to infer that these items were installed with the intention that they were to be a permanent or lasting improvement to the building. This is not a case where the intent to effect a permanent improvement in the building by installing these machines so that they became part of the realty was incontrovertible, as the judge's doubts illustrated.'[14]

Legal Affixing - Categories of Outdoor Sculptures

A useful authority here is Tower Hamlets London Borough Council v Bromley London Borough Council [2015] LGR 622 ('Tower Hamlets').

In Tower Hamlets, Norris J considered, amongst other things, whether a large sculpture had remained a chattel, or whether it had become legally affixed to the land. The sculpture was a large bronze sculpture, later known as “Draped Seated Woman”, created by Henry Moore (along with 5 other copies).

As to the sculpture itself, it consisted of a large bronze figure (weighing 1,500 kgs) sitting upon a stepped plinth, with its left arm resting upon the upper level.

As to the setting in which it was located:

(1) In 1962, the sculpture had been purchased and placed near three tower blocks (which were regarded as a prime example of modern architecture) on the (then) recently constructed (1961) Stifford Estate in Stepney (now in the London Borough of Tower Hamlets). The three towers were '...were designed without reference to the inclusion of any particular piece of art, but from an early stage it was contemplated that a work of art would be commissioned and placed somewhere in relation to the development.' (paragraph 9)

(2) '...the sculpture, on its plinth, was placed on a concrete slab built into a raised grass mound in an open space between two of the three tower blocks adjacent to the play area. A photograph from 1964 shows the sculpture upon the raised grassy mound clearly visible both from Jamaica Street on one side, and from Stepney Green on the other.' (paragraph 13)

Norris J posed himself the following question: 'Into what legal category is the sculpture to be placed? Is it part of the land? Or is it a chattel?' (paragraph 14).

At paragraph 15, he held that '...the sculpture, which was originally a chattel, remained a chattel and never formed part of the realty.'

After setting out the principles he was to apply[15], he said at paragraph 17:

'Applying the conventional tests and bearing in mind Lord Lloyd's observation, the following considerations are in my judgment material. The sculpture is an entire object in itself. It rested by its own weight upon the ground and could be (and was) removed without damage and without diminishing its inherent beauty. It might adorn or beautify a location, but it was not in any real sense dependant upon that location. It is true that...

“Occasionally, the sensitive placement of a non-commissioned work resulted in an impressive interaction of art and environment as in Henry Moore's Draped Seated Woman, whose longing gaze scans an expansive lawn”.

But in my view the sculpture's power was no greater in Stepney than in Cologne or Melbourne. The sculpture did not form part of an integral design of the Stifford Estate; and whilst it must have been intended to confer some benefits upon the residents of the Stifford Estate it conferred equal benefits upon anyone passing along Jamaica Street or Stepney Green. Upon an objective consideration of all of the circumstances of the case I conclude that the sculpture remained a chattel.'

He then commented that 'This outcome is consistent with the application of these principles in cases such as D'Eyncourt v Gregory (1866) LR 3 Eq 382 (subject to the criticism in Re de Falbe [1901] 1 Ch 523 ) and Berkley v Poulett [1977] 1 EGLR 86.'

For statues, or other ornamental objects/garden objects more widely, see: (1) Berkely; and (2) Dill.

Rule of Irremovability

Earlier in the article, reference was made to a different rule, namely the Rule of Irremovability and an important exception to it.

Up until now, the analysis has been on whether or not an object brought onto land/a building, kept an independent title, or its independent title ceased, and the object was subsumed within the title to the land itself - becaming part of the land. An analysis primarily of the application of the principle of accession.

There is a different rule about whether somebody can remove an object which (already) forms part of the land. This additional rule is distinct and separate from the principle of accession. It is the Rule of Irremovability (or the rules of removeability)

In Bain v. Brand (1876) 1 App.Cas. 762, Lord Cairns LC declared that the law as to fixtures is the same in Scotland as in England, and stated, at p. 767, that there were two general rules under the comprehensive term of fixtures:

“'one of these rules is the general well-known rule that whatever is fixed to the freehold of land becomes part of the freehold or inheritance. The other is quite a different and separate rule; whatever once becomes part of the inheritance cannot be severed by a limited owner, whether he be owner for life or for years, without the commission of that which, in the law of England, is called waste, and which, according to the law of both England and Scotland, is undoubtedly an offence which can be restrained. Those, my Lords, are two rules, not one by way of exception to the other, but two rules standing consistently together.'

As will be apparent:

(1) the first 'rule' described is the principle of accession; and

(2) the second is different, and is the Rule of Irremovability (what is '...part of the inheritance cannot be severed by a limited owner' rule). This rule applies to anyone who is a 'limited owner', for instance a tenant, founded on the imperative to prevent waste.

There is though an important exception to the Rule of Irremovability, and that is in relation to objects that became part of the land as trade fixtures. This exception[10a] grants a tenant affixer (and maybe other categories of affixer[10b]) a right, as against the freeholder, to sever and remove such objects from the building/land (at the end, or shortly after, the leasehold title ends).

Outside the Scope of this Article

Many topics fell outside the practical scope of this article, including:

(1) tenant for life vs remainderman (see Leigh v Taylor [1902] 1 Ch 523, CA, approved by the House of Lords [1902] AC 157);

(2) whether a large structure/object, typically, so big as could be lived in, is part of the land (for instance, a wooden bungalow (see Elitestone Ltd v Morris [1997] 1 WLR 687, HL) or houseboats (Mew v Tristmire Ltd [2011] EWCA Civ 912) or boathouses (Royal Parks Ltd v Bluebird Boats Ltd [2021] EWHC 2278 (TCC); [2021] BLR 649)). See a specific article on these types of objects, available here.

(3) agricultural tenancies (see (i) Agricultural Holdings Act 1986, for tenancies of agricultural holdings; and (ii) Agricultural Tenancies Act 1995, for farm business tenancies);

(4) devisee and personal representatives (see Re Whaley [1908] 1 Ch 615; Re Chesterfield's SE [1911] 1 Ch 237; Norton v Dashwood [1896] 2 Ch 497);

(5) vendor / purchaser (see Colegrave v Dias Santos (1823) 2 B&C 76; Phillips v Lamdin [1949[ 2 KB 33; Berkely; Taylor v Hammer [2002] EWCA Civ 1130; Wickens v Cheval Property Developments Ltd [2010] EWHC 2249; Law of Property Act 1925, s. 62 entitled 'General words implied in conveyances');

(6) mortgagor vs mortgagee (see Law of Property Act 1925, s.62(1) and 205(1)(ii) and Monti v Barnes [1901] 1 QB 205; Reynolds v Ashby [1904] AC 466).

For a global overview of the English law of fixtures, see Megarry's The Law of Real Property (9th Ed), chapter 22, and for consideration of these relationships, see in particular, paragraphs 22-011 onwards.

SIMON HILL © 2023*

BARRISTER

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole, or the Copyright holder. No attempt has been made to provide an exhaustive review/account of the law in this area. *Copyright is owned by Barrister Search Limited.

[0] In Elitestone Ltd v Morris 1997] 1 WLR 687, Lord Clyde (with whom Lord Browne-Wilkinson, Lord Nolan and Lord Nicholls; Lord Lloyd giving a concurring speech) said, at 695:

'As the law has developed it has become easy to neglect the original principle from which the consequences of attachment of a chattel to realty derive. That is the principle of accession, from which the more particular example has been formulated, inaedificatum solo solo cedit.'

Another concept in this article, is the rule on Irremovability (or rules of removability) - and an important exception to it - the exception being a tenant's (and perhaps others') right to remove his own trade fixtures (despite them having become legally affixed and part of the land). The rule on Irremovability concept, and the exception to the rule on Irremovability, is distinct from the principle of accession. After stating the above, Lord Clyde made this clear, where he said, at 695:

'A clear distinction has to be draw between the principle of accession and the rules of removability.'

[1] The law has moved away, to a very large extent, from using maxims written in Latin. But this common law principle used to be known by the maxim variously stated as 'quicquid plantatur' or 'fixatur solo, solo cedit' (Chitty J in Elwes v Brigg Gas Company (1886) 33 Ch. D. 562, at 567) or 'quicquid plantatur solo, solo cedit' (see Aircool Installations v British Telecommunications Plc [1995] CLY. 821 (Judge Edwards QC, unreported; Central London County Court) - which meant 'whatever is affixed to the soil belongs to the soil'.

[2a] The chattel's independent title ceases to exist:

(1) irrespective of who does the legal affixing. The nemo dat quod non habet principle - that is, that a person cannot give what he does not have, will not stop the affect of legal affixing causing the independent title to cease to exist. Lord Lindley in Reynolds v Ashby & Son Ltd [1904] A.C. 466, said, at 475:

'the title to chattels may clearly be lost by being affixed to real property by a person who is not the owner of the chattels'.

So if A steals B's concrete, and pores it into the grounds as foundations for a house on C's land, the concrete will cease to have independent title as a chattel (and it will form part of C's land, under C's title to that land). Whether B will have a cause of action against A, for A's actions, is another matter.

In Gough v Wood [1984] 1 QB 713, Lindley LJ said (as he then was), at 718-719:

'Wright, J., went, I think, too far in holding “that one man's property cannot be taken away from him by being fixed in the land of another.” Cases can be put in which this might happen; and the law stated in Brooke's Abr. Property, 23, and reproduced (although with a wrong reference) in Bac. Abr. Trespass, E. 2, is, I take it, good law even now. It is there said: “If a piece of timber which was illegally taken from J. S. have been hewed, this action (viz., trespass) does not lie against J. S. for retaking it. But if a piece of timber which was illegally taken have been used in building or repairing, this, although it is known to be the piece which was taken, cannot be retaken, the nature of the timber being changed; for by annexing it to the freehold it is become real property.” If I employ a builder to build me a house and he does so with bricks which are not his, I apprehend that they become mine and that their former owner cannot recover them or their value from me. The old law expressed in the maxim, “Quicquid plantatur solo, solo cedit,” although much relaxed since the days of the year-books, has not yet been replaced by the rule which prevents the owner of real property from granting a better title than he himself has; nor has the maxim in question yet given way to the ordinary rules which are applicable to sale of chattels whilst still unfixed to land. It is not, however, necessary in this case to attempt to reconcile any conflicting principles of law; when it becomes necessary to do so attention will have to be paid to the judgments in the important cases of Holland v. Hodgson and Wake v. Hall.'

(2) even where the chattel's legal title holder (i.e. the chattel's owner) transferred possession of the chattel to a buyer, under a contract of sale which contains a still active retention of title clause (i.e. active until an event, for instance full payment has occurred; and that event has not yet occurred), and the buyer legally affixes the chattel to the land.

(3) Unless there is some:

(a) pre-existing relationship between the landowner and chattel's legal title holder, or

(b) estoppel type claim,

it would seem that, post legal affixing, the chattel's (former) legal title holder will have no cause of action against the landowner.

As to this Estoppel,

(i) in Ramsden v Dyson (1866) L.R. 1 H.L. 129 (described by Lord Briggs in Guest v Guest [2022] 3 WLR 911, paragraph 20, as '...the classic case about the doctrine of estoppel by acquiescence...'), Lord Cranworth said, at 140-141:

'If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.

But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights.

It follows as a corollary from these rules, or, perhaps, it would be more accurate to say it forms part of them, that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the land and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end. The Appellant contends that it is within this principle that Thornton is brought. He acquired, it is said, possession of the land in question as a mere tenant at will, or from year to year, to Sir John , and if on that infirm title he thought fit to expend a large sum in building, there is no principle of equity which prevents Sir John , or his devisees, from asserting their legal rights by determining the tenancy, and so obtaining the benefit of his expenditure.'

In Lord Kingsdown's famous dictum (while dissenting, but not on this point) in Ramsden, Lord Kingsdown said, at 170:

'If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation.'

(ii) see the judgment of Lord Briggs, giving the judgment of the majority, in Guest v Guest [2022] 3 WLR 911.

(iii) see also JS Bloor Ltd v Pavilion Developments Ltd [2008] EWHC 724 (TCC); [2008] 2 EGLR 85, Peacock v Imagine Property Developments Ltd [2018] EWHC 1113, and Blue Haven Enterprises Ltd v Tully [2006] UKPC 17.

[2b] In Melluish (Inspector of Taxes) v BMI (No.3) Ltd [1996] AC 454, Lord Browne-Wilkinson (with whom the rest of the House of Lords agreed), referred to it as 'affixation', at 470.

[3a] In Chelsea Yacht & Boat Co Ltd v Pope [2000] 1 W.L.R. 1941, Tuckey LJ referred to it being common ground in that case an object was a chattel '...unless it has become part of the land by annexure.' (at 1944)

[3b] Two authorities here:

(1) For those looking for a simple illustrative authority, but only of persuasive authority, there is the case of Aircool Installations v British Telecommunications Plc [1995] C.L.Y. 821 (Judge Edwards QC, unreported; Central London County Court)('Aircool'). 

In Aircool, the Original Vendor was P, who manufactured and installed air-conditioning equipment. JG was the Original Buyer. P and JG entered into a contract, the P/JG contract ('P/JG Contract'), wherein: (i) P would supply and install air-conditioning equipment at a site/premises owned by D ('Land owner' - it seems that D owned the site/premises. The law report, which is a short one, is not very clear on this, referring to premises occupied by D, then later referring to the site as D's premises) ; but (ii) by a retention of title clause, P would retain title (i.e. ownership) to the air- conditioning equipment, until JG fully paid P.

JG then entered into a contract with D ('JG/D Contract'), wherein JG contracted that JG would install the air- conditioning equipment at the site/premises. As per the P/JG Contract, P installed the air-conditioning equipment in D's site/premises.

D paid JG, but JG only partially paid P. JG then entered liquidation. 

P had a claim for the unpaid sums against JG under the PJG Contract, but P brought proceedings against D under the Torts (Interference With Goods) Act 1977, asserting that P still held title to the air- conditioning equipment, and seeking its return to P. 

The air-conditioning equipment itself consisted of three pairs of units. Each unit in turn consisted of: (i) an internal unit which was bolted to internal walls in the premises and plugged into the mains electricity; and (ii) an external unit, which rested, without being attached, on paving slabs immediately adjacent to the external wall. Each paid of units was linked by insulated pipework containing refrigerant and electrical cabling. The pipework and cabling entered the building through a hole specially cut in the external wall, and was thereafter attached by means of a cabling tray to the internal walls. The evidence was that the equipment had taken two men between one and two weeks to install, and would take two men four to five days to remove. However, upon removal the equipment could have been re-installed in other premises.

The Judge held that: (1) Each pair of units must be regarded as one system; (2) the air-conditioning equipment had become a fixture (i.e. legally affixed to the building/land). This was because: (1) there was a sufficient degree of annexation; and (2) the purpose of its annexation was for the better enjoyment of D's premises, i.e. for the greater comfort of those working therein. The common law principle applied, and: (1) title to the air-conditioning equipment in P ceased; (2) title to the land (now) included title to the air-conditioning equipment; and (3) P's retention of title clause did not stop the common law principle applying.

(2) an Australian authority from the Supreme Court of Queensland: G James Safety Glass (QLD) Pty Ltd v The Joffe Group Pty Ltd (2003) 19 BCL 304 (Building and Construction Law Reports) ('Safety Glass'), a decision of Kiefel J. In Safety Glass, Kiefel J held that certain objects were fixtures (legally affixed). In essence, a 'Rainforest Sanctuary' theme park was being developed, which included the building of artificial structures to house live animals and other exhibits in a rainforest environment. Kiefel J said, on page 1:

'The plaintiff supplied and installed glass and aluminium extrusions which were used in the sanctuary. The basement level contains a glass-walled observation area into a crocodile pit. The ground level contains assorted glass-fronted dioramas, some of which contain native Australian animals, and the top level contains a restaurant...'

The project opened but failed, and receivers and managers were appointed, then a liquidator. The plaintiff was not paid for the materials supplied, however the plaintiff relied upon (very wide) retention of title clauses, which the plaintiff asserted had the effect that title to the goods or materials supplied was still retained by it. The plaintiff sought declarations that it was the owner of the aluminium and glass materials supplied and injunctions requiring all defendants to permit the plaintiff to have access to the site for the purpose of removing them.

Rather than set out the details of what was supplied (which is very detailed and voluminous), it is convenient just to set out Kiefel J's summary of the law (handed down prior to Botham). From page 6 to 8, Kiefel J said (referring to some English as well as Australian authorities):

'The general maxim of the law is that what is annexed to the land becomes part of the land and, on annexation, belongs to the owner regardless of whether the person affixing it had title to the goods: see Megarry and Wade "The Law of Real Property" 5th ed. p. 731; Halsbury's Laws of England 4th ed. vol. 27 para 142; Holland v. Hodgson L.R. 7 C.P. 328. The personal action for conversion against that person of course remains. What is a sufficient annexation for this purpose "is a question which must depend on the circumstances of each case, and mainly on two circumstances as indicating the intention, viz, the degree of annexation and the object of the annexation." (Holland v. Hodgson supra 328, 334). It is the reference to "intention" upon which the plaintiff has relied. It submits that the intention is that of the parties to the credit agreement (expressed in cll. 22 and 23) and is that the goods were not to become fixtures. Whilst Lord Blackburn in Holland v. Hodgson was speaking of the intention of the annexing party it was an intention to be inferred and one which was manifest or "apparent" as His Lordship went on to say. So much is clear from Hobson v. Gorringe (1897) 1 Ch. 182, 193 where the Court held that the question as to whether a gas engine became a fixture or not was not affected by the existence of a hire purchase agreement. "Now, in Holland v. Hodgson, Lord Blackburn, when dealing with the 'circumstances to shew intention', was contemplating and referring to circumstances which shewed the degree of annexation and the object of such annexation which were patent for all to see and not to the circumstances of a chance agreement that might or might not exist between an owner of a chattel and a hirer thereof. This is made clear by the examples that Lord Blackburn alludes to shew his meaning......" (Hobson v. Gorringe, 193)

The subjective intention of the party annexing or one shared with a supplier or hirer are not relevant. The object of the annexation must be determined from the objective circumstances: see Litz v. National Australia Bank Ltd (unreported decision of Connolly J. in No. 780 of 1986) and Bank of Melbourne v. C.B.F.C. Leasing Pty Ltd & Ors [1991] Q.Conv. R. 54-395. That is not to say that agreements concerning the chattels which may become fixtures will never have an effect. Whilst Hobson v. Gorringe held that the agreement did not prevent the chattel becoming a fixture, the Court went on to deal with the possibility that the contractual right to remove it might be enforced (but held that it did not). Clearly an owner may agree that persons such as a tenant shall be at liberty to remove something which has or will become a fixture. Such an agreement would bind the owner to permit the removal and the rights created by the owner in some circumstances may affect that owner's interests and the rights of others later acquiring an interest in the land. The cases to which the plaintiff referred in support of its claim of an equitable interest entitling it to enter upon the property and remove the goods (re Samuel Allen & Sons Ltd [1907] 1 Ch. 575; in re Morrison, Jones & Taylor [1914] 1 Ch.50; and Kay's Leasing Corporation Pty Ltd v. C.S.R. Provident Fund Nominees Pty Ltd [1962] V.R. 429) were concerned with these matters. Those cases however concerned the creation of an interest by the owner of the land, not by the tenant. Today it might also be that conduct on the part of the owner, falling short of express agreement, could suffice to create rights ...

In considering the purpose for which chattels are attached it may be relevant for the Court to consider the nature of the article itself (for example an attractive tapestry as in Leigh v. Taylor [1902] A.C. 157) or the fact that a structure, upon being built by the tenant, was to form part of the property to be leased by the landlord to the tenant: Reid v. Smith (1806) 3 C.L.R. 656, 668. But these are facts objectively ascertained. In Belgrave Nominees Pty Ltd. v. Barlin-Scott (Airconditioning) Pty Ltd [1984] V.R. 947, 941 (upon which the plaintiff relied) when His Honour referred to the Court having regard to the "relation and situation of the party making the annexation vis-...-vis the owner of the freehold or the person in possession" His Honour was I consider referring only to the fact of the relationship, not the subjective intention of any of the parties.

The development between the owner, the third defendant and GRS provided that GRS was to construct the rainforest sanctuary complex and on completion the third defendant would grant a tenancy of the demised premises which would include a complex constructed. The similarity with the features which Griffith CJ. considered important in Reid v. Smith (668) is apparent. The lease was to be for a term initially of ten years commencing in 1992 with eight options of five years' each in addition. These matters hardly assist the plaintiff. Clearly the structure into which the material ought to be incorporated was to remain for a long time. Further, cl. 13.1 required GRS at the expiration of the term to yield up the demised premises and the building which was defined to mean all buildings and other fixed improvements forming part of it.

The degree of affixation is for the most part substantial. Indeed even slight affixation is said to have the effect that the chattels are to be regarded as fixtures, the onus being on a party such as the plaintiff who contends they remain chattels to show otherwise: Holland v. Hodgson (supra) 335; Grigor v. International Harvester Co (Australia) Pty Ltd [1942] St. R. Qd. 238, 241. Although some distinction was sought to be drawn from the fact that these chattels were not affixed to the soil itself but to artificial rocks comprising part of the structure clearly when chattels are attached to a building already itself taken to be part of the land they also become fixtures: see Megarry and Wade (supra) p. 731. It is not suggested that those parts of the structure of the sanctuary in particular the walls, floors and stairs with which I am presently concerned were not to be considered as themselves part of the land.

The manner of installation here serves only to highlight what is otherwise apparent, namely that the glass panels and dioramas were intended to be part of the structure itself. Indeed this incorporation into the structure sets this case apart from the usual cases concerning the affixation of chattels. Whilst one may regard them individually as e.g. a tank or a showcase it is obvious that they were designed and constructed not as mere additions, which might have a temporary purpose, but as an integral part of the sanctuary itself. It was, I conclude, intended that they remain in position for so long as the sanctuary was present which was to be for a substantial period. In those circumstances they have become part of the land: see Holland v. Hodgson (supra), 336; Australian Provincial Assurance Co Ltd v. Coroneo (1938) 38 S.R.N.S.W. 700, 712; Bank of Melbourne v. C.B.F.C. Leasing Pty Ltd (supra) at 58, 997.

I have considered whether the mirrors fall into a separate category but was not persuaded that they were affixed for the purpose of the enjoyment of them as a chattel. Again, they were to be part of the facilities provided by the sanctuary building.

The Plaintiff has pointed out that some materials, notably the glass doors on hinges and panels held by sealant (not covered by concrete) could be readily removed. But it seems correct in principle that where the installation has been found to be a fixture portions of it which are removable, at least where they are an essential part of it, are likewise fixtures: Halsbury (supra) Vol. 27 para. 146 (where the authors give the example of doors and windows attached to premises).

[Counsel for the plaintiff] submitted that I ought to apply the findings of Thomas J. in South Bank Corporation v. Gondwana Rainforest Sanctuary Pty Ltd and Steelfinne Fabrications Pty Ltd (action 182/93) an unreported decision of Thomas J. of 10th February 1993 which case concerned another contractor to the Gondwana Rainforest Sanctuary. His Honour was dealing with the matter only at an interlocutory level and as His Honour stated his findings as to fact were not intended to be final. Clearly however what His Honour was concerned with was apparently a fully demountable structure sitting on columns.

In the present case it could not be said that the materials continued as chattels themselves nor could it be inferred that their annexation was merely for the better enjoyment of them as chattels themselves. They were to become part of the sanctuary structure. They facilitated the effective use of the structure itself designed as it was to contain exhibits. In the light of these findings, as to their incorporation into what is a permanent structure, it does not seem to me to be a strong consideration that items could be removed. In some cases where a chattel is so securely affixed that it cannot be detached without substantial injury that factor can provide strong evidence that permanent fixing was intended. In others a slight fixing might lead to the opposite conclusion (see the cases referred to in Coroneo's case p. 712, 713). The fact that an item attached could be removed if necessary does not prevent it being regarded as a fixture: Reynolds v. Ashby [1904] A.C. 466, 472 and The Commissioner of Stamps v. L. Whiteman Ltd (1940) C.L.R., 407, 411. Here the fact that it was intended to be permanent is to be inferred by reference to other objective indications. The difficulty observable in attempts to remove any of the structures, where concrete had been oversprayed, confirms that it was part of the structure and was not intended to be removed.'

[3c] In Holland v Hodgson (1871-72) L.R. 7 C.P. 328 in the Court of Exchequer Chamber (Blackburn J; Cleasby B; Channell B; Hannen J; Kelly CB; Mellor J), the land owner mortgaged his land, and then subsequently was adjudged bankrupt. The issue arose whether objects on the land: (1) were legally affixed to the land, so as to form part of the land which was mortgaged; or (2) not legally affixed to the land, such that title to the objects remained separate, and title to the objects vested in the trustee in bankruptcy upon bankruptcy.

To give more details, in Holland the land consisted of a wool yarn mill (the 'Mill'), wherein the land owner carried on the business of spinning and manufacturing wool yarn. The landowner mortgaged to a mortgagee ('Mortgagee'), the Mill 'and all fixtures which then were, or at any time thereafter should be set up and affixed to the premises,' (at 333). The Mortgagee failed to registered the mortgage as bill of sale (under the then applicable law). Subsequently, the landowner 'assigned all his estate and effects to the defendants as trustees for the benefit of his creditors' (at 333) - for present purposes the equivalent to a bankruptcy - the defendants being effective trustees in bankruptcy (the 'Trustees'):

(1) Under this assignment, the Trustees took possession of everything;

(2) as a result of the mortgage not being registered as a bill of sale, under the then applicable law, the mortgage was void as against the Trustees, in respect to fixtures (i.e the mortgage did not apply to the fixtures)(at 333).

The Mortgagee brought an successful claim against the Trustees, for trover (roughly equivalent to the tort of conversion) in respect of the looms in the Mill, the court finding the looms passed by the mortgage of the Mill as part of the land, and the action was therefore maintainable.

[3d] To give an example of 3 party (a tripartite) scenario:

A building materials supply company supplies building materials (the chattels) to a contractor/buyer, for incorporation into a building/land, and the building/land will be owned by a third party. In such a scenario, there is:

(1) the Original Vendor - the building materials supply company - who initially at least, holds legal title to the building materials (the 'chattels');

(2) the Original Buyer - the contractor/buyer - who contracts to purchase the materials (chattels) and, presumably, is contracted by the Land Owner (or at least contracted with another), to build on the Land Owners' land;

(3) the Land Owner, who owns the building/land of the building site/premises - and who may, depending on whether legal affixing occurs, own land with, or without, the materials being part of that land.

The Original Vendor has included in the supply agreement terms and conditions a retention of title clause over the building materials, until full payment is made.

The question of whether the chattels have lost title then becomes important, when the Original Buyer enters an insolvency procedure before the Original Buyer has paid the Original Vendor in full, such that the retention of title clauses appear, on first blush, to mean Original Vendor still has title to all the building materials supplied. While the Original Vendor will have an unsecured creditor claim in the Original Buyer's insolvency, for the unpaid price (where the Original Buyer has entered liquidation or administration, assuming permission is not sought to initiate/continue legal proceedings against the Original Buyer, this would be by a proof of debt), the Original Vendor wishes to assert its (apparent) proprietary rights over the building materials themselves. It may be however that some or all of the building materials were physically affixed to the land (whether to the land itself, or a building on the land), and the Land Owner (whether a third party landowner, or the contract/buyer, if the contractor/buyer is also the land owner) asserts that he, the Land Owner, owns the materials as they have become legally affixed to the land and so: (1) part of his title to the land; (2) the pre-existing title to the materials (the chattels) has ceased to exist.

[3e] Strictly speaking, facts in court are established in one of 4 ways: (1) by evidence; (2) by judicial notice; (3) by admission; or (4) by the effect of a presumption or assumption. There are no presumptions or assumptions in the law in this area; while (2) and (3) can conceivably arise, the focus will be on establishing facts through evidence.

[3f] The word 'chattel' has a long legal history in English law. In An Introduction to English Legal History (5th Ed) by Sir John Baker, in chapter 'Personal Property, Chattels and Things', it states, at 404:

'A convenient term used by common lawyers for personal property was 'chattels' (Latinized as catalla), a French word having the same root as 'capital'. The English equivalent 'cattle' came to be confined (after about 1500) to animals; but the legal chattel included all movable property, and also chattels real such as a term of years or a wardship severed from the seignory. 'Goods" (bona) was a synonym for tangible chattels, but it did not normally include chattels real, and it did not always include livestock. Goods and chattels were in turn usually distinguished from 'choses' (things) in action, which came to be regarded as a species of personal property but were 'things' only in an esoteric legal sense.'

For those interested in more legal history, describing the situation after 1500, the author states, at page 405:

'The distinction between land and chattels did not depend simply on movability. Title-deeds, door-keys, and uncollected loose minerals and windfalls, were all considered part of (or at least annexed to) the realty. They passed on a grant of the freehold, and they went on death to the heir rather than the executors. Animals and fixtures raised more complex questions. Domesticated animals were personal property, whereas unreclaimed wild animals and birds passed (as a kind of 'special property') with the land on which they lived. Things affixed to the realty might sometimes be regarded as chattels for the purposes of succession; for instance, certain classes of fixture placed by a tenant could be removed by executors. Even a building might not be part of the land, if it stood on pattens and was removable. It was once thought that an upper room in a house could not be a freehold, because it did not adjoin the soil; but it could hardly be a chattel, unless it was leased for years, and by 1500 'flying freeholds' were recognized. The key to the distinction between land and chattels annexed to land lay in the purpose and degree of annnexation. The mill-stone of a mill was regarded as part of the mill even while it was away being mended, whereas ploughs and ploughshares used to till the land were personal property. According to all the judges of England in 1647, dung spread on the ground was part of the realty whereas a heap of dung was a chattel. However, to say that something was part of the realty for the purpose of succession or transferring title was not to say that a real action lay for the thing independently of the land. There was no writ of right for muck or loose pebbles, independently of the land, though recovery of the land in a writ of right carried such things with it. But the same things when reduced into manual possession became chattels, could be recovered by the action of detinue, and could be the subject of larceny.'

And later, at 406:

'When a new thing was made by human industry - specificatio in the language of Roman law - it generally belonged to the maker; but a problem arose if he used materials belonging to another person. In the time of Edward IV it was held that the property vested in the maker if the new product was so different from the materials from which it was made that it could no longer be demanded by an action of detinue as being the same thing.28 But the fact that goods could not be demanded in detinue did not necessarily mean that they could not be reclaimed at all, for instance by legitimate self-help. If goods were taken wrongfully and made into something new, the owner of the materials was entitled to seize the new article without bringing any legal action. However, property was changed by specificatio in two cases. First, if the materials were no longer identifiable; for instance, if corn was made into bread, or barley into ale, or silver was melted down and cast in a new shape. Although the reason usually given was the practical one about seizure, there may also have been a more philosophical objection to treating a thing as continuing to exist when its nature had been transformed.29 The second case was where a thing was made to accede to the freehold, in which case there was neither a right of seizure nor a writ of detinue. This would be the situation if materials were built into a house.'

The author states, in a footnote to his last sentence, to: 'e.g. Phylpot v Frenche (1480) CP 40/872, m. 429 (demurrer as to leaded glass in a window); Henry's Case (1505-06) 94 SS 216 n. 4; probably the same as Bodon v. Vampage (1507) Caryll Rep. 540 (demurrer as to an oven cemented to the floor). See also OHLE, VI, pp. 733-8.'

[4a] In Holland v Hodgson (1871-72) L.R. 7 C.P. 328 in the Court of Exchequer Chamber (Blackburn J; Cleasby B; Channell B; Hannen J; Kelly CB; Mellor J), Blackburn J considered the case of Hellawell v. Eastwood (1851) 6 Ex. 295; 20 L. J. (Ex.) 154 ('Hellawell'). Briefly, the facts in Hellawell were that the defendant/landlord leased a mill to the plaintiff/tenant and, when rent was unpaid, the landlord seized (for the purposes of distraining) items in the mull, including cotton-spinning machinery called 'mules' (installed, it was inferred by the tenant only), some of which were (1) fixed by screws to the wooden floor; and other were (2) fixed by screws which were sunk in the stone floor, and secured by molten lead poured into them. An issue arose as to whether the mules could be distrained against, which in turn depended on whether the mules had remained chattels (and so could be distrained against) or not. Before the mules were attached to the floor, the mules undoubtedly were chattels, but the question was 'whether they lost that character by being attached to the floor in the manner described.' (at 561).

After dealing with some, for present purposes, irrelevant matters, Parke B, in delivering the judgment of the Court in Hellawell, said at 561:

'The only question, therefore, is, whether the machines when fixed were parcel of the freehold;'

In other words, had the mules become legally affixed to the land. Parke B then said, at 561:

“This is a question of fact depending on the circumstances of each case, and principally on two considerations; first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed integrè salve et commode or not without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the civil law, perpetui us–s causâ, or in that of the year book, pour un profit del inheritance, or merely for a temporary purpose and the more complete enjoyment and use of it as a chattel.”

In Holland, Blackburn J said that, subject to one observation (highlighted below), at 337:

'...we think that the passage in the judgment in Hellawell v. Eastwood does state the true principles.'

The one observation is that, at 337:

'...trade or tenant fixtures might in one sense be said to be fixed “merely for a temporary purpose;” but we cannot suppose that the Court of Exchequer [in Hellawell] meant to decide that they were not part of the land, though liable to be severed by the tenant.'

Blackburn J went on, at 337:

'The words “merely for a temporary purpose” must be understood as applying to such a case as we have supposed, of the anchor dropped for the temporary purpose of mooring the ship, or the instance immediately afterwards given by Parke, B., of the carpet tacked to the floor for the purpose of keeping it stretched whilst it was there used, and not to a case such as that of a tenant who, for example, affixes a shop counter for the purpose (in one sense temporary) of more effectually enjoying the shop whilst he continues to sell his wares there. Subject to this observation, we think that the passage in the judgment in Hellawell v. Eastwood 42 does state the true principles...'

As an aside, Holland, Blackburn J did doubt how the court in Hellawell had applied this principle of law, to the facts in Hellawell. Blackburn J said, at 337:

'though it may be questioned if they were in that case correctly applied to the facts.' 

In Hellawell, the doubted decision on the facts was that 'we cannot doubt that the machines never became a part of the freehold' (at 561). In Reynolds v Ashby & Son Ltd [1904] A.C. 466, Lord Lindley said of Hellawell and its decision that the mules were chattels, not legally affixed (fixtures), that it 'is of questionable authority' (at 473)

[4b] In Elwes v Brigg Gas Co (1886) 33 Ch D 562 ('Elwes'), Chitty J had to determine who had the better claim, as between a lessee (defendant) and a lessor (plaintiff), to a prehistoric boat found on land demised by the lessor to the lessee. The prehistoric boat was found 6 feet below the surface, while the lessee gas company was excavating to build foundations for a gas works. Chitty J determined that the scope of what was demised in the lease, did not include the prehistoric boat, so the lessor had the better claim to it ('The boat did not pass to them by the mere demise; a lease being only a contract for the possession and profits of the land' (569) and 'it would be unreasonable to infer that it was intended to be included' (570). It did not matter that the lessor was ignorant of the prehistoric boat's existence. This conclusion meant that it was not necessary to determine whether the prehistoric boat: (1) was a 'mineral'; (2) was part of the soil by reason of its having become permanently affixed to it; or (3) ought to be considered a chattel (570)(as in, it had retained its character as a chattel (566)). But Chitty J did note the following arguments, and made the following obiter comments, about whether the prehistoric boat:

(1) was a part of the soil (i.e. (a subtype of) legally affixed), Chitty J said, at 567:

In support of the contention that it ought to be deemed in law as part of the soil in which it was embedded, reference was made to the principle embodied in the maxim, “Quicquid plantatur ,” or as it is sometimes stated (see Broom's Legal Maxims [6th Ed. p. 376] and the judgment in Climie v. Wood [Law Rep. 3 Ex. 257 , 260] “fixatur solo, solo cedit .” This principle is an absolute rule of law, not depending on intention; for instance, if a man digs in the land of another, and permanently fixes in the soil stones or bricks, or the like, as the foundation of a house, the stones or bricks become the property of the owner of the soil, whatever may have been the intention of the person who so placed them there, and even against his declared intention that they should remain his property. Nor does it appear to me to be material that the things should have been placed there by the hand of man; it would seem to be sufficient if they have become permanently fixed in the soil by the operation of natural causes.'

(2) had retained its character as a chattel, Chitty J said, at 567 to 568:

'In support of the contention that the boat always remained a chattel, it was or may be urged that, though embedded in the soil, it always was distinguishable from the soil itself, and preserved its original character of a chattel, which it certainly now is. Not long ago there was discovered, in the course of making excavations in Hampshire, a jar containing Roman coins - not gold or silver coins, and therefore not falling within the royal prerogative of treasure trove: apparently the coins formed the small change of the treasure of a Roman legion. Could it be said that the jar or the coins were part of the soil within the principle referred to? Similarly a short time since there was found beneath the soil (I believe in Devonshire ) a Roman lamp of ingenious construction made of lead, and in an excellent state of preservation: a similar question may be asked of the lamp.'

(3) was a 'mineral' (the lease expressly reserved to the lessor 'all...minerals...'). Chitty J said, at 566 to 567:

'In support of the contention that it was a mineral, reference was made to the case of Hext v. Gill [Law Rep. 7 Ch. 699], and to the statement in the judgment of Lord Justice Mellish (with which Lord Justice James concurred), that the term “minerals” includes every substance which can be got from underneath the earth for the purpose of profit. The terms of this definition are wide enough to include the boat; but I am not aware that the term “minerals” has ever been held to include anything except that which is part of the natural soil. Unquestionably coal is deemed in law a part of the natural soil, without regard to what geologists may shew to have been its origin. In law the natural processes by which the trees of a forest have become coal are not investigated: the result only is considered. But the boat has not become petrified or fossilised; it always has been distinguishable from the natural soil itself. If, therefore, I were required to decide the question, I should hold that it is not a mineral.'

However, Chitty J reached no concluded view on these arguments, stating at 567: 'But, as I have said, it is not necessary to decide these or the like interesting questions in the present case.'

Note Chitty J found, at 568, that prior to the lease being granted, the lessor had possession of the prehistoric boat, because he possessed the soil to the centre of the earth. To be contrasted (according to Auld LJ in Waverley BC v Fletcher [1996] QB 334, CA, 345) with objects found on the ground, see Hannah v Peel [1945] 1 KB 509, and the extra nuanced approach explained by Donaldson LJ in Parker v British Airways Board [1982] QB 1004, QB

[4c] In Leigh v Taylor (sometimes known as In Re De Falbe)[1902] AC 157, Earl of Halsbury LC in the House of Lords said, at 158-159:

'One principle, I think, has been established from the earliest period of the law down to the present time, namely, that if something has been made part of the house it must necessarily go to the heir, because the house goes to the heir and it is part of the house. That seems logical enough. Another principle appears to be equally clear, namely, that where it is something which, although it may be attached in some form or another (I will say a word in a moment about the degree of attachment) to the walls of the house, yet, having regard to the nature of the thing itself, and the purpose of its being placed there, is not intended to form part of the realty, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable and goes to the executor.

My Lords, we have heard something about a suggested alteration of the law; but those two principles appear to have been established from the earliest times, and they are principles still in force. But the moment one comes to deal with the facts of each particular case, I quite agree that something has changed very much: I suspect it is not the law or any principle of law, but it is a change in the mode of life, the degree in which certain things have seemed susceptible of being put up as mere ornament, whereas at an earlier period the ruder constructions rendered it impossible sometimes to sever the thing which was put up from the realty. If that is true, it is manifest that you can lay down no rule which will in itself solve the question; you must apply yourself to the facts of each particular case; and I am content here to apply myself to the facts of this case.'

Later, he said, at 161:

'My own view is that, going back for some centuries, the real differences of opinion, which apparently on the surface have been entertained by different judges, have not been at bottom differences in the law at all, but the facts have been regarded in different aspects according to the fashion of the times, the mode of ornamentation, and the mode in which houses were built, and the degree of attachment which from time to time became necessary or not according to the nature of the structure which was being dealt with. The principle appears to me to be the same to-day as it was in the early times, and the broad principle is that, unless it has become part of the house in any intelligible sense, it is not a thing which passes to the heir.'

Lord Shand said, at 162 and 163:

'...there has been no change of the law; but I rather think that in the progress of time the law has been developed in the direction of holding what would at one time have been held to be parts of a building to be now temporary fixtures only, removable by the person who attached them to the building or his personal representative, and I think that this later view should be maintained.'

'It appears to me to be a sound principle...that where a tenant for a time or a tenant for life has purchased tapestries or pictures and affixed them to the walls for the purposes of ornamentation, he is entitled to remove them, and his executor has the same right. That principle, as it seems to me, is decisive of this case.

'...there has been an attempt to shew that there was here such a degree or character of annexation as to make these tapestries permanent additions to the house. I doubt whether there could have been such annexation by a tenant where the purpose of the annexation is ornamental. However firmly a tenant may put up such ornaments as pictures or tapestries upon the walls, I confess I think he is entitled to remove them, if during his tenancy he desires to do so, in order it may be to substitute others in their place, or to take them away altogether, and the same would be true at the end of his tenancy, at least where they are not built in, so as to be really parts of the permanent building. His position is that of a temporary occupant, having put up things for temporary purposes. He will be bound to take care that no damage occurs to the walls which he does not put right; but that is a different matter from an obligation to leave chattels which have not been built in as additions to the house, and which remain so when his tenancy ends.'

See the passage quoted in footnote 12 below, from Taylor Wimpey Plc v Revenue and Customs Commissioners [2017] UKUT 34 (TCC), wherein the Upper Tribunal dismissed as a factor/determinative factor, that Taylor had intended the objects to pass with the land.

[5] In Botham v TSB Bank Plc [1996] Lexis Citation 5162 ('Botham'), Roch LJ (with whom Sir Richard Scott VC and Henry LJ agreed) said, at page 5:

'The other authority to which the judge specifically referred during his judgment was that of Young v Dalgety plc 281 EG 427, [1987] 1 EGLR 116. In that case the Court of Appeal did not disturb the decision of Mervyn Davies J that fitted carpets were fixtures, although the Court of Appeal did not expressly agree with that finding.

In my judgment, no criticism can be made of the judge's statement of the tests and principles which had to be applied in this case save for his reliance on the last authority in respect of fitted carpets.'

[6] In this passage from Botham v TSB Bank Plc [1996] Lexis Citation 5162, the judge refers to the decision in Leigh v Taylor. The case of Leigh v Taylor (sometimes known as In Re De Falbe) went to the House of Lords [1902] AC 157, which affirmed the decision of the Court of Appeal ([1902] 1 Ch 523.

Before quoting from Earl of Halsbury LC's judgment, it is important to note the question at the heart of the decision. It related to some valuable tapestries that were attached (to use a neutral term) to the walls of Luton Hoo, a maison house. The 'owner' of Luton Hoo has been a certain Madame de Falbe when they were attached, and she had subsequently died. During her life, Madame de Falbe had been a tenant for life of Luton Hoo. When she died:

(1) her tenancy for life ended (obviously) and her remainderman (heir) 'owned' Luton Hoo, and anything legally affixed to Luton Hoo.

(2) her chattels were to go to her executors, presumably, for distribution pursuant to her will.

The issue then was, had these valuable tapestry become legally affixed to Lutoo Hoo, or not?

Stirling LJ in the Court of Appeal [1901] Ch 1, 523, at 538, put this question as follows:

'The question is whether these tapestries still form part of the estate of Madame de Falbe, the tenant for life, or whether they pass to the remainderman as annexed to the freehold.'

In the House of Lords, Earl of Halsbury LC said, at 159-162, when finding the tapestry had remained a chattel:

'Here are tapestries which, it is admitted, are worth a great deal of money. I put the case: Suppose this had been a tenant from year to year, and she put up these things, is it conceivable that a person would for the purpose of a tenancy from year to year put up these things exactly in this way if thereby they made a present of 7000l. to the landlord? That, I observe, startled [counsel for the heir] he would not acquiesce in that; but in logic I am unable to sever the two sets of facts which I suggest. It is all very well to say that there is a difference between the cases of an heir and an executor on the one hand, and a landlord and a tenant on the other; but if you grant the proposition that it must depend upon the purpose of the annexation, and you must attend to the degree of the annexation, I am wholly unable to frame a hypothesis of a state of things in which these two principles will not decide the question, whether you are dealing with a landlord and tenant, or whether you are dealing with a tenant for life and a remainderman, or with people standing in any other relation to these things. In this case Madame de Falbe stood as tenant for life to the remainderman.

My Lords, we come then, in my view, to the determination of the question upon the principles I have pointed out, applying them to the particular facts of this case. What are they? Here we have objects of ornamentation of very great value. Undoubtedly their only function in life, if it may be so called, is the decoration of a room. Suppose the person had intended to remove them the next month or the next year or what not, I do not know, notwithstanding the ingenious effort that has been made by [counsel for the heir], in what other way they could have been fastened than they were. We have seen the hard matchboard to which they were fastened in the first instance; then canvas was stretched on it, and the decoration of the wall as it originally stood was perfectly preserved except to the extent to which the nails were driven into the wall; they were necessarily driven into the wall, because otherwise the tapestry could not have been stretched out firm, as it was. I do not know any other mode by which the large one, for example, fourteen feet long, could have been placed there as it was. One has immediately before one's mind's eye cases of pictures of another sort, and after all, although this tapestry is very valuable, as I understand, and very beautiful, it is only a picture made in a particular form - it is a picture, whether woven or worked or what not, made for the purpose of ornamentation. When one looks at it and sees what it is, I should have thought, if ever there was an extreme case in which it would have been impossible to suppose that the person intended to dedicate it to the house, it was the case of these tapestries, which can be, and in fact have been, removed without anything but the most trifling disturbance of the material of the wall.

Under those circumstances I can entertain no doubt, now that we have had the whole case before us, that there is nothing which points to any intention to dedicate these tapestries to the house. There is nothing in the nature of the attachment which is necessarily permanent. My Lords, a number of words have been used, such as “only very slightly attached” and “not permanently attached.” They really often assume the very question in debate. Looking at the piece of boarding on which the canvas was stretched and on which this tapestry went, I can hardly imagine how a piece of tapestry of that extent, fourteen feet long, stretched against a wall, could be more slightly attached than this was. Under those circumstances it appears to me that the thing is so easily susceptible of being removed, and has in fact been removed, without any damage or material injury to the structure of the wall, that to my mind, so far as it is dependent upon a question of fact, it never was intended to form part of the structure of this house; and that, after all, is what the meaning of “the benefit of the inheritance” comes to, though expressed in different words. It never was intended to remain a part of the house; the contrary is evident from the very nature of the attachment, the extent and degree of which was as slight as the nature of the thing attached would admit of. Therefore, I come to the conclusion that this thing, put up for ornamentation and for the enjoyment of the person while occupying the house, is not under such circumstances as these part of the house. That is the problem one has to solve in each of these cases. If it is not part of the house, it falls under the rule now laid down for some centuries, that it is a sort of ornamental fixture, and can be removed by whoever has the right to the chattel - whose it was when it was originally put up.'

[7] This factor was consider in the Supreme Court case of Dill v Secretary of State for Housing, Communities and Local Government [2020] 1 WLR 2206 ('Dill'), a case in which Lord Carnwath gave the only judgment (to which all the other Supreme Court Justices agreed). Now, before considering what Lord Carnwath said, it is necessary to say a little about the issue before the Supreme Court, as it was not directly about the English law of fixtures, but, given a word in a statutory test had been found to act/operate in the same way as the English law of fixtures, Supreme Court considered what the English law of fixtures was.

In short, the Supreme Court had to consider, amongst other things, section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which read:

'“In this Act ‘listed building’ means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act- (a) any object or structure fixed to the building; (b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1 July 1948, shall … be treated as part of the building.”'

Lord Carnwath said, at paragraph 13, that he would 'refer to the second part of subsection (5) (“and for the purposes of”) as “the extended definition”.'

Within both (a) and (b) of that Extended Definition, there appears the word 'fixed', which defines a type of connection between the 'object or structure' and a building. As to the meaning of this, Lord Carnwath said, at paragraph 38:

'38. The extended definition, first introduced in the Town and Country Planning Act 1968, seems to have been designed to clarify the position following the case of Corthorn Land and Timber Co Ltd v Minister of Housing and Local Government (1965) 17 P & CR 210. Corthorn concerned a building preservation order made under section 30(1) of the Town and Country Planning Act 1962, prohibiting the removal from a listed building of various portrait panels, wooden panels, a large wood carving of the Crowning with Thorns, and a large wooden equestrian figure of St George and the Dragon. The issue was whether they were part of the listed building. In deciding that they were, Russell LJ applied a property law approach, saying, at p 217:

“It is not, in my judgment, open to serious doubt that these items were all fixed and annexed in their places as part of the overall and permanent architectural scheme and intended in every sense to be annexed to the freehold …”

In Debenhams plc v Westminster City Council [1987] AC 396 , 408–409 Lord Mackay of Clashfern confirmed that the word “fixed” in the extended definition was to have “the same connotation as in the law of fixtures … so that any object or structure fixed to a building should be treated as part of it”, thereby “[putting] beyond question the matter that was decided by Russell LJ in the Corthorn case”. [bold added]

Lord Carnwath continued, at paragraph 39:

39. Corthorn was not concerned with objects or structures within the curtilage of a listed building. We were not referred to any contemporary information as to the derivation of that part of the extended definition in the 1968 Act. It can be assumed to have been a recognition of the important part often played by such objects in the overall architectural composition or setting of a listed building, even though the architectural quality of the curtilage structure itself is not part of the test. The requirement that they should “form part of the land” is clearly designed to tie this part of the definition, like the first part, to real property concepts under the common law.

Given the Extended Definition tests is to have the 'same connotation' / is tied to the English law of fixtures, Lord Carnwath considered what the English law of fixtures was. At paragraph 40 onwards, he said:

40. It is not known what if any assumptions would have been made in 1968 about how the common law would treat statues or other ornamental objects resting only by their own weight. Reliance may have been placed on the then current edition of Megarry & Wade, The Law of Real Property , 3rd ed (1966) which stated: “Statues, figures, vases and stone garden seats have been held to become part of the land because they are essentially part of the design of the house and grounds, even though standing by their own weight.” This was supported by a footnote reference to D’Eyncourt v Gregory (1866) LR 3 Eq 382 , but with a cautionary note: “the authority of this decision is not great; see In re De Falbe [1901] 1 Ch 523 , 531, 532”.

41. Some years after the 1968 Act the treatment of such objects in real property law was considered by the Court of Appeal in Berkley v Poulett [1977] 1 EGLR 86. The dispute was about certain pictures and other objects which, it was said, should pass as fixtures on the sale of a house. The disputed items included a statue and sundial in the garden. The court was agreed that the sundial was a chattel, but there was disagreement as to the sculpture. Scarman LJ, in the leading judgment (pp 88–89), with which Stamp LJ in substance agreed (p 96), explained that, following Leigh v Taylor [1902] AC 157:

“The answer today to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation.”

Having discussed the principles and the other objects in dispute, he turned to the statute and sundial. The latter was “a small object” which had been detached from its pedestal many years earlier and thus “ceased to be part of the realty”. Of the statue he said:

“The statue was heavy. It weighed 10 cwt and stood 5 ft 7 in high on its plinth. There is an issue as to whether it was cemented into the plinth or rested on its own weight. The question is not decisive, for, even if it was attached by a cement bond, it was (as events proved) easily removable. However, upon the balance of probability, I agree with the Vice-Chancellor in thinking it was not attached. The best argument for the statue being a fixture was its careful siting in the West Lawn so as to form an integral part of the architectural design of the west elevation of the house. The design point is a good one so far as it goes: it explains the siting of the plinth, which undoubtedly was a fixture. But what was put upon the plinth was very much a matter for the taste of the occupier of the house for the time being. We know that at one time the object on the plinth had been a sundial. At the time of the sale it was this statue of a Greek athlete. The plinth's position was architecturally important: it ensured that whatever stood on it would be correctly positioned. But the object it carried could be whatever appealed to the occupier for the time being. Sundial or statue - it did not matter to the design, so long as it was in the right place - a result ensured by the plinth which was firmly fixed into the ground. Being, as I think, unattached, the statue was, prima facie, not a fixture, but, even if it were attached, the application of the second test would lead to the same conclusion.”

42. Goff LJ took a different view of the statue (p 90) which had been placed at a “focal [point] in the grounds”, not for better enjoyment as a chattel but “for the permanent enhancement of the beauty of the grounds”, a case “where resting upon its own bulk was a sufficient annexation”. On that point he regarded D’Eyncourt v Gregory LR 3 Eq 382 as still authoritative, not overlooking the criticisms in In re De Falbe [1901] 1 Ch 523, which in his view related to the inferences drawn from the facts, rather than “the principle that a thing may be a fixture because it is part of the architectural design”.

43. As I read the judgments the difference was not as to the principle, but as to its application to the particular facts. This view accords with the current 9th edition of Megarry & Wade (2019), para 22-010, which repeats the relevant passage from the earlier editions, with the same case references, but adds: “the principle that an object resting on its own weight can be a fixture if it is part of the overall design of the property has been approved: Berkley v Poulett [1977] 1 EGLR 86 , 89.” Although that is not a precise formulation, it follows in my view that a statue or other ornamental object, which is neither physically attached to the land, nor directly related to the design of the relevant listed building and its setting, cannot be treated as a curtilage structure and so part of the building within the extended definition.

44. Further confirmation of that approach can be found in a much more recent judgment of the High Court. It was held that a Henry Moore bronze sculpture “Draped Seated Women”, weighing 1,500 kg and resting on a plinth, which in 1962 had been placed by the London County Council in a new housing estate, under its policy of promoting works of art in public places, remained a chattel rather than part of the land ( Tower Hamlets London Borough Council v Bromley London Borough Council [2015] LGR 622) . The judge (Norris J) noted as material that the sculpture was “an entire object in itself”, resting by its own weight on the ground, and able to be removed without damage, and that it did not form part of an integral design of that estate (para 17).' [bold added]

By analogy then, the question can be asked, to determine whether an object is legally affixed to the land: is the statue or other ornamental object directly related to the design of the relevant building and its setting?

[8] The full quote from Blackburn J in Holland v Hodgson (1871-72) L.R. 7 C.P. 328, when defining these types of materials, at 333, is as follows:

'Trade and tenant's fixtures are, in the judgment in that case, accurately defined as “things which are annexed to the land for the purposes of trade or of domestic convenience or ornament in so permanent a manner as to become part of the land...'

The earlier case he refers to was Climie v Wood (1868-69) L.R. 4 Ex. 328.

[9] In Boyd v Shorrock (1867-68) L.R. 5 Eq. 72 (1867)('Boyd'), Sir W Page Wood VC held that the principle enunciated in (1) Ex parte Barclay 5 D. M. & G. 403; followed in (2) Mather v. Fraser 2 K. & J. 536 was the right one, before stating what the principle was, at 78, that:

'if the tenant has affixed to the freehold, during his tenancy, articles in such a manner as to make it appear that during the term they are not to be removed, and that he regards them as attached to the property, according to his interest in the property, then, on any dealing by him with the property to which these articles are affixed, the Court would presume that he meant to deal with the property as it stood, with all these things so attached, and to pass the property in its then condition.

On the facts in Boyd, Sir W Page Wood VC said, at 78 -79:

'Now the intention in this case clearly was, that everything should pass. These particular things are mentioned, but that is not the immediate contest before me. In what character do they pass? Were they intended to pass as fixtures which were attached to the property during the tenant's interest in the property, or were they assigned as chattels as to which no such intention (of attaching them) can be found to exist? The intention of the deed was to assign, in the first place, all the landlord's fixtures, and then other fixtures of some sort; the language used being, “the looms and other machinery, whether fixed or moveable.” Of course, as to all the chattels which are not fixed, they would simply pass in the ordinary way, as chattels, by way of assignment, in the nature of a bill of sale, which would require registration. As to all the chattels which were affixed in the same way as in Ex parte Barclay, it appears to me that they were intended to pass, and did pass, with the property. The question is, whether or not the chattels were intended to be affixed during the tenant's interest, and whether he passed his interest in the property as it existed. The mortgage was not intended to be raised by sale of the fixtures, and there could be no power in the mortgagor of removing them during the time the mortgage existed; they must continue in the mill, and in that sense they must be affixed to the mill. These cases, of course, have their own peculiar difficulties, but the definition, as far as it goes, given in Ex parte Barclay really concludes the case:

“By ‘fixtures’ we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be machinery, using a generic term; and in houses, grates, cupboards, and other like things.”

[10a] As to this exception to the 'irremovability of things fixed to the inheritance' rule - as identified by Lord Cairns LC in Bain v. Brand (1876) 1 App.Cas. 762, at 767 - see Elitestone Ltd v Morris [1997] 1 W.L.R. 687, paragraph 30), which can be seen as a right of severance/removal:

(1) in Holland v Hodgson (1871-72) L.R. 7 C.P. 328 in the Court of Exchequer Chamber (Blackburn J; Cleasby B; Channell B; Hannen J; Kelly CB; Mellor J) ('Holland'), Blackburn J set out the basic right, at 333:

'Since the decision of this Court in Climie v. Wood [Law Rep. 4 Ex. 328] it must be considered as settled law (except perhaps in the House of Lords) that what are commonly known as trade or tenant's fixtures form part of the land, and pass by a conveyance of it; and that though if the person who erected those fixtures was a tenant with a limited interest in the land he has a right, as against the freeholder, to sever the fixtures from the land...'

Blackburn J also said, at 333:

'Trade and tenant's fixtures are, in the judgment in that case, accurately defined as “things which are annexed to the land for the purposes of trade or of domestic convenience or ornament in so permanent a manner as to become part of the land, and yet the tenant who has erected them is entitled to remove them during his term, or it may be within a reasonable time after its expiration.” It was not disputed at the bar that such was the law; and it was admitted, and we think properly admitted, that where there is a conveyance of the land the fixtures are transferred, not as fixtures, but as part of the land...'

In Crossley Brothers Ltd v Lee [1908] 1 KB 86, Phillimore J said, at 89-90:

'From my point of view there are only two classes of fixtures, putting aside certain special things like gas fittings, which are provided for under a particular Act of Parliament. The two classes are, first, those fixtures, which when once implanted in the soil, become part of the soil and are irremovable except with the consent of the landlord; and, secondly, those fixtures which a tenant is entitled to sever during his tenancy, but which, until they are severed, form part of the freehold, and, if the tenant does not sever them, remain so for all time.' (it is not clear what Act of Parliament is under consideration in this passage)

(2) the rationale seems to be that it is recognised that the combination of:

(a) principle of accession - the common law principle of legally affixed materials becoming part of the land ('legal affixment') and ceasing to have their own title, and

(b) Rule of irremovability, prohibiting severance of any object which is part of the land, by a limited owner of the land,

can work an injustice to tenants. A tenant may legitimately wish to physically affix materials to the building/land, but upon doing so, those materials are likely to be deemed to have become legally affixed, and become part of the building/land. During the currency of the leasehold title, the leasehold title will include the materials so legally affixed, but when the leasehold title comes to an end, the materials would form part of the freehold title (superior title) and tenant would have not title to them. He would lose use of what might be valuable materials - a windfall to the freeholder (superior absolute interest holder) and an unjustified loss to the tenant. 

To address this injustice, the law recognises a tenant's right/exception, as against the freehold title holder (superior title holder).

(3) the tenant's right of severance is against the freeholder (or, though not stated in Holland, any intermediate landlords), not against the tenant's mortgagees. In Holland, Blackburn J said, at 333:

 '...yet if he be a mortgagor in fee he has no such right as against his mortgagee.'

A tenant right of severance, is itself, mortgageable (see Holland, at 334); quere assignable

(4) 'Fixtures' (i.e. objects legally affixed - though not, for clarity, coming under the term 'part of the land') can be either: (a) tenant's fixtures; or (b) landlord's fixtures. To know whether the tenant has a right of severance in relation to objects, a determination needs to be made as to whether the legally affixed objects, are, either: (a) tenant's fixtures; or alternatively, (b) landlord's fixtures. The affixer tenant's right of severance applies to tenant's fixtures, but not landlord's fixtures. In Young v Dalgety [1987] 1 EGLR 116 ('Young'), Fox LJ said, at page 7:

'In general, fixtures attached by tenants for the purposes of their trade or business will be tenants' fixtures.'

Limits on the tenant's right to sever may include:

(a) that removal will cause irreparable damage to the (remaining) land/building

'It is accepted of course that an article must be capable of being removed without irreparable damage to the demised premises.'; and

(b) that, seemingly, the object removed would though lose its essential character. In determining that certain items were tenant's fixtures, Fox LJ in Young said:

'I accept that the attachment must be such that, on removal, it would not lose its essential character. In that connection the learned Judge referred to Webb v. Frank Bevis, Ltd. (1940) 1 All Eng. Law Reps, 247...'

(5) agricultural tenancies are treated differently: (a) at common law, agricultural fixtures are not regarded as falling within this trade fixtures exception; but (b) Parliament has intervened, bringing forward: (i) Agricultural Holdings Act 1986, for tenancies of agricultural holdings; and (ii) Agricultural Tenancies Act 1995, for farm business tenancies.

Examples of the distinction between what are tenant's fixtures and those which remain the landlord's are provided by New Zealand Government Corporation v. H.M. & S Ltd [1982] 1 Q.B. 1145, 1157 where the Master of the Rolls held that improvements to a structure by the provision of windows and doors could not be termed tenant's fixtures. As to a front door being part of the land, see Fivaz v Marlborough Knightsbridge Management Ltd [2020] 2 P. & C.R. DG20, Upper Tribunal (Lands Chamber)(Judge Stuart Bridge); appeal dismissed, Marlborough Knightsbridge Management Ltd v Fivaz [2021] 1 W.L.R. 4345, Henderson LJ; Arnold LJ; Birss LJ.

[10b] Seemingly - though this is not without any doubt, it is not just a right of the tenant (i.e. tenant's exception to the general rule against Irremovability by limited owners). It is also a right/exception that anyone who does affixing has (including a licencee - the most likely category nowadays). That is is not just limited to a (limited) 'owner'.

(1) In re De Falbe; Ward v. Taylor [1901] 1 Ch. 523, after referring to an originally unbending rule that everything affixed to the freehold was held to go with the freehold, Rigby LJ at 530 said:

'But in modern times there have come to be important exceptions to this rule, one being in favour of trade fixtures and entitling a person who has put up what are now called ‘fixtures’ (which means removable fixed things) for the purposes of trade to remove them.' [bold added]. Rigby LJ said 'person' rather than the narrower 'tenant'; 'person' is of couse wide enough to catch a 'licencee' (or indeed a trespasser).

(2) It is implicit from the judgment in Royal Parks Ltd v Bluebird Boats Ltd [2021] EWHC 2278 (TCC) ('Royal Parks'), a decision of O'Farrell J. In Royal Parks, the landowner of Hyde Park (the Crown - paragraph 90), entered into a concession contract with the defendant Bluebird Boats Ltd ('Lee'), under which the parties agreed that: (a) Lee would build a new boathouse and jetties in Hyde Park by a Serpentine Lake; (b) Lee would then be entitled to provide leisure boating services on the lake on a 15 year term, crucially, as a licencee (licence to occupy). Lee built the boathouse, which O'Farrell J held to have become part of the land. Next, O'Farrell J 'Issue 3 – whether the Contract precludes the Defendant from removing the Boathouse' in her judgment, for paragraphs 88 to 94. In those paragraphs she held:

(a) that the 'The Contract does not contain any express provision giving the Defendant any right to remove the Boathouse.' (paragraph 88);

(b) the following in respect to certain concession contract express clauses:

'91. Condition 6.1 provides that the structure and envelope of the Premises remain the property of the Claimants and at no time vest in the Defendant. This would preclude the Defendant from asserting ownership in, or a right to remove the Boathouse.

...

93. Condition 20 set out the provisions for handover of the Boathouse on the expiry of the Contract term, including requirements for the Defendant to carry out works to restore the Boathouse to a reasonable state of repair (Condition 20.3), and prohibition on the removal of any fixtures belonging to the Claimants (Condition 20.8). Paragraph 8.4.3 of the Specification and Condition 51.4 required the Defendant to depreciate the capital investment in the Boathouse over the contract period using a straight-line depreciation. As [counsel for the Crown] submitted, these provisions of the Contract are inconsistent with any contention by the Defendant that it has ownership of, or is entitled to remove, the Boathouse.

94. For the above reasons, the Defendant has no proprietary or contractual right to remove any part of the Boathouse, including the building superstructure.'

The implicit assumption in this is that the rules of removeability applies to licencees. That the licencee here would have been entitled to remove the licencee's trade fixtures at the end of the licence (as a tenant would be entitled to do, to remove such a trade fixture, at the end of the tenant). But parties had agreed, recorded in the clauses in the contract, obligations which precluded/forewent that right of removal/severance. In other words, there was a right of removal/servance, but for the inconsistent contractual terms preventing exercise of that right.

(3) Lord Clyde in Elitestone Ltd v Morris [1997] 1 WLR 687 referred to Lord Cairns LC's judgment in Bain v. Brand (1876) 1 App.Cas. 762, seemingly with approval, at paragraph 35 (at 695), explaining:

(a) the difference between principle of accession (not presently relevant) and the (relevant) 'irremovability of things fixed to the inheritance' rule (the same as 'rules of removeability'); and, importantly

(b) the very important exception to the 'irremovability of things fixed to the inheritance' rule (which is the one under consideration here). The exception being '...in favour of fixtures which have been attached to the inheritance for the purposes of trade, and perhaps in a minor degree for the purpose of agriculture.' Lord Cairns then said 'Under that exception a tenant who has fixed to the inheritance things for the purpose of trade has a certain power of severance and removal during the tenancy'.

Now, there is a reading of this that means that: (a) the exception is linked to it being a trade (or agriculature) fixture; and (b) Lord Cairns, in the following sentence (starting 'Under that exception...'), is but giving one example of a legal affixer, who would be able to sever an object which was part of the land under the exception, but was not limiting the exception to exercisable just by tenants. From something said earlier, it should also include 'owner for life' at least, so why not all legal affixers.

The extract from Lord Clyde in Elitestone Ltd v Morris [1997] 1 WLR 687 at paragraph 35 (at 695-696), is:

'As the law has developed it has become easy to neglect the original principle from which the consequences of attachment of a chattel to realty derive. That is the principle of accession, from which the more particular example has been formulated, inaedificatum solo solo cedit. A clear distinction has to be draw between the principle of accession and the rules of removability.

My Lords, the distinction between these two matters was pointed out long ago by Lord Cairns L.C. in Bain v. Brand (1876) 1 App.Cas. 762. In that case it was declared that the law as to fixtures is the same in Scotland as in England. His Lordship stated, at p. 767, that there were two general rules under the comprehensive term of fixtures:

“one of these rules is the general well-known rule that whatever is fixed to the freehold of land becomes part of the freehold or inheritance. The other is quite a different and separate rule; whatever once becomes part of the inheritance cannot be severed by a limited owner, whether he be owner for life or for years, without the commission of that which, in the law of England, is called waste, and which, according to the law of both England and Scotland, is undoubtedly an offence which can be restrained. Those, my Lords, are two rules, not one by way of exception to the other, but two rules standing consistently together. My Lords, an exception indeed, and a very important exception, has been made, not to the first of these rules, but to the second. To the first rule which I have stated to your Lordships there is, so far as I am aware, no exception whatever. That which is fixed to the inheritance becomes a part of the inheritance at the present day as much as it did in the earliest times. But to the second rule, namely, the irremovability of things fixed to the inheritance, there is undoubtedly ground for a very important exception. That exception has been established in favour of fixtures which have been attached to the inheritance for the purposes of trade, and perhaps in a minor degree for the purpose of agriculture. Under that exception a tenant who has fixed to the inheritance things for the purpose of trade has a certain power of severance and removal during the tenancy.”

It would be right to add that the exception has been developed so as to extend beyond the purposes of trade. By the end of the 19th century it was clearly established that the exception included objects which had been affixed to the freehold by way of ornament: In re De Falbe; Ward v. Taylor [1901] 1 Ch. 523 , 539. This reflected not a change in the law but, as Lord Macnaghten put it in Leigh v. Taylor [1902] A.C. 157 , 162, a change “in our habits and mode of life.” No doubt the category of exceptions may continue to change.'

(4) Lord Clyde in Elitestone Ltd v Morris [1997] 1 WLR 687, at paragraph 37 (at 696), rather cryptically:

'I should add that the second rule may involve particular consideration of the various relationships between the interested parties which may play a part in the matter of removability, such as landlord and tenant, or mortgagor and mortgagee.

[11a] Seemingly this is who typically installs such object, rather than who in the particular case, installed the object. See the quote from Taylor Wimpey Plc v Revenue and Customs Commissioners [2017] UKUT 34 (TCC) set out in footnote 12 below

[11b] There are many authorities involving different types of objects being physically annexed to land/buildings (and so potentially legally affixed to land) - too many to go through for the purposes of this article. But that does not mean attention cannot be drawn to the case of Melluish (Inspector of Taxes) v BMI (No.3) Ltd [1996] AC 454 ('Melluish No.3'), where a few circumstances/contexts were mentioned as being uncontroversial occasions when objects were legally affixed to land/buildings.

In Melluish No.3, Lord Browne-Wilkinson (with whom the other Law Lords agreed), had to consider whether some appellant taxpayer companies (the 'Companies') were entitled to certain capital allowances. The Companies were entitled to the capital allowance if the object 'belongs' to the Companies. Now these Companies were '...carrying on the business of finance leasing i.e. the purchase of plant and the leasing to end-users of the plant they have purchased.' (paragraph 1). As Lord Browne-Wilkinson said:

'The particular problem in the present case arises from the fact that the plant purchased by the [Companies] (e.g. central heating) was incorporated into the structure of buildings owned by the lessees of the plant. In consequence they became fixtures. Under the general law, chattels fixed to the land become the property of the owner of the land.'

What was the 'plant' which were becoming legally affixed to the land/buildings?

'The nature of the plant is such that, for the most part, it has to be fixed to the structure of the building in which it is installed so that, on being so fixed, it would on ordinary principles of the general law be regarded as a fixture. Various types of plant and machinery are involved, viz. (a) central heating installed in council flats and houses; (b) video door entry systems installed in blocks of council flats and alarm systems in sheltered housing accommodation; (c) lifts installed in council car parks; (d) boilers installed in council offices; (e) cremators installed in a council crematorium; (f) ventilation and filtration plant installed in a council swimming pool.' (paragraph 4)

[12] In Taylor Wimpey Plc v Revenue and Customs Commissioners [2017] UKUT 34 (TCC), Warren J (with Judge Roger Berner), overturned decisions of the First Tier Tribunal ('FTT') in respect to fitted carpets, holding that it was not open to the FTT to hold differently from that held in Botham v TSB Bank Plc [1996] Lexis Citation 5162. At paragraphs 114-117, the Upper Tribunal said:

'114. The FTT went on to find, in relation to carpets, that the fitted carpets that formed part of the Claim Items were fixtures. In doing so the FTT declined to follow the Court of Appeal in Botham and others v TSB Bank plc (1997) 73 P&CR D1 . In that case the Court considered a wide range of items, including relevantly to this appeal white goods in the kitchen, namely an oven, dishwasher, extractor, hob, fridge and freezer, kitchen units and work surfaces, including a fitted sink, and fitted carpets cut to size and kept in place by gripper rods. The kitchen units, work surfaces and sink were held to be fixtures, but the white goods were not, even though they were wired and plumbed in. The fitted carpets were also held not to be fixtures.

115. With regard to the fitted carpets, those were considered alongside curtains and blinds. The Court took the view that the carpets were attached to the building in an insubstantial manner, there was no intention to effect a permanent improvement to the building and the removal of the carpets would have no effect, damaging or otherwise, on the fabric of the building. It was not a case where carpet or carpet squares had been affixed to a concrete screed in such a way as to make them part of the floor.

116. The FTT took the view that it was entitled to depart from the judgment of the Court of Appeal because the facts were different. It was significant, reasoned the FTT, that in Botham v TSB Roch LJ had taken the view that fitted carpets were not installed by builders, whereas in Taylor Wimpey's case they were so installed. The FTT also took its own view, though it appears without any evidence, that a fitted carpet is cut to size, fitted by expert fitters with tools and held down by gripper rods nailed to the floor, and that it would have the necessary degree of annexation to qualify, in principle, as a fixture. The FTT then went on to find that because Taylor Wimpey intended the carpets to pass with the dwelling, that was a sufficient intention, or object of annexation, for the fitted carpets to qualify as fixtures.

117. We do not agree. In our judgment, the FTT erred in law in this respect. It was not open to it to find that fitted carpets, held by gripper rods as in Botham v TSB , had the requisite degree of annexation, when Botham v TSB had decided to the contrary. The FTT appears to have considered it material that the gripper rods themselves were nailed to the floor, but that is not material to the degree of annexation of the carpets themselves. The Court of Appeal concerned itself instead with the ease at which the carpets could be lifted off the gripper rods. That was the appropriate test, and by failing to adopt it, the FTT erred in law. The only conclusion available to the FTT was that the fitted carpets were not fixtures.'

[13] In Botham v TSB Bank Plc [1996] Lexis Citation 5162 ('Botham'), Sir Richard Scott VC said under the sub heading 'Light Fittings', at page 12:

'Light fittings may or may not be so incorporated into the wall or ceiling to which they are fixed as to become fixtures. If they are to be held to have lost their identity as chattels, evidence of the nature of annexation is essential. In the present case there was no admissible evidence to justify a conclusion that the light fittings had become fixtures. Save for the fittings recessed into the ceilings that were conceded to have become fixtures (photographs 129 and 138), I would allow the appeal in respect of the light fittings.'

In British Economical Lamp Company (Ltd) v Empire Mile End (Ltd) (1913) 29 TLR 386, a division of the Kings Bench (A T Lawrence J and Lush J) heard and dismissed an appeal by the plaintiff British Economic Lamp Company ('BELC') against a recorder having dismissed their claim in detinue (a now obsolete cause of action) against the defendant owner of a theatre ('EME'). In short, BELC hired out lamps to a tenant of the theatre. The tenant did not pay rent and the landlord, EME, re-possessed the theatre (while the lamps still in situ in the theatre). A dispute arose as between EME as owner, and BELC, as to ownership of the lamps. While in the author's opinion: (1) the decision to dismiss the claim can be ignored for present purposes (since the dismissal of the claim in detinue seems technical, and the refusal to accept there might be a claim in conversion, just seems wrong by modern standards); and (2) A T Lawrence J's judgment does not properly address who held title to the lamps, and A T Lawrence J's judgment did not expressly agree with Lush J's judgment (it coming before Lush J's judgment), the Botham case did refer to Lush J's decision, at least on one point, favourably. To quote the main part of Lush J's judgment:

'This was an action of detinue brought to recover a quantity of electric light filament lamps or their value, and damages for their detention. The plaintiff's had let the lamps on hire to the lessee of a theatre. The defendants were the lessors and they had re-entered for non-payment of rent, no demand for the lamps having then been made. The action was tried in the Mayor's Court, before the Recorder. At the close of the plaintiffs' case, and while the defendants' case was being opened, the Recorder interposed, and said that in his opinion the lamps were trade fixtures and, therefore, gave judgment for the defendants. I regret to be unable to agree with this view. A filament lamp, although fitted or fixed in its socket, is only temporarily fixed with a view to the efficient use of the chattel itself, and that being so it does not, In my opinion. cease to be a chattel or pass to the land lord when the term comes to an end merely because it happens to be in the socket at that time. It as contended before us that the principle laid down Ex parte Astbury [L.R., 4 Ch. App., p. 630] applied, and that the lamps being part of the complete system of installation which itself was a fixture attached to the premises, the filament lamps were themselves also fixtures. What was decided in Ex parte Astbury was that the fitted rolls- not only those actually in the rolling machine but one or two Or different sizes also suppled to be used the machine were part of the rolling machine, and that as the rolling machine massed as a fixture under a mortgage of the premises the rollers themselves passed as fixtures. I do not think that that decision applies to this case. The rolls in Ex Parte Astbury were no doubt part of the rolling machine : there was no compete rolling machine without them; no operation could be performed by the machines without the rolls. But the lamps were not, I think, part of the installation. The installation is complete though no lamp may be supplied or be in the socket. The lamp is placed there to be operated upon by the wire installation. It is really in the nature of fuel for the installation. The installation produces no heat or light without them any more than a furnace produces heat without the fuel. The filaments in the lamps are consumed by the electric current in the installation as the fuel is consumed by the furnace. But as the fuel is no part of the furnace so, in my view, the lamp is no part of the installation. That which is attached for the purposes of being consumed cannot, as it seems to me, be said, to be part of that which is intended to consume it within the meaning of the decision in Ex parte Astbury. I think that there is no real analogy between that case and this, and that the lamps are mere chattels whether they are fitted in the sockets or waiting to be used as the occupier may require them. Assuming, however, that the lamps were chattels and not fixtures, I am of the opinion that no cause of action has been shown...'

In Botham, reference is made to the case of Young v Dalgety [1987] 1 EGLR 116, CA ('Young'), however, not on the issue of light fittings (but on the other aspect to the Young case, as to fitted carpets). Young is not a particularly useful authority.

Before quoting from the case, it should be noted that the case of Young came before Mervyn Davies J at first instance, before the appeal in the Court of Appeal (Fox LJ, Parker LJ and Glidewell LJ). In the Court of Appeal, only Fox LJ gave a reasoned judgment, and Fox LJ said, at page 4, of the light fittings:

'With regard to the light fittings...these consisted of fluorescent tubes contained in glass boxes fixed securely to the plaster of the ceiling. However, during the course of time, the lessees had in part substituted for those light fittings standard lamps which provided diffused lighting in an upwards direction.

However what originally ought to have been was the fluorescent tubes contained in glass boxes which were securely affixed to the plaster of the ceiling.'

Later, at page 7, Fox LJ said:

'The Judge decided that ...the light fittings were fixtures. The light fittings were securely fitted to the plaster of the ceiling.'

The Court of Appeal though did not expressly agree with that finding (i.e. that the light fittings were legally affixed to the land). Fox LJ merely 'assumed' that they were fixtures, not actually expressly agree with that conclusion. Fox LJ said, at page 7:

'The lessees have contended that these items were not fixtures, but for the purposes of this case I am prepared to assume that the learned Judge was correct in his conclusion that they were fixtures. Therefore, on the assumption they were fixtures, the next question is:...' [bold added]

The reader therefore is left merely with the first instance's conclusion, unsupported by the Court of Appeal.

For a case where ornamental fittings are discussed Leigh v Taylor [1902] 1 Ch 523, CA (approved [1902] AC 157)

[14] See Taylor Wimpey Plc v Revenue and Customs Commissioners [2017] UKUT 34 (TCC), paragraph 118, where Warren J (with Judge Roger Berner), agreed that the First Tier Tribunal's approach was consistent with Botham v TSB Bank Plc [1996] Lexis Citation 5162 in respect to white goods (and kitchen fittings):

'In particular, the FTT was careful to draw a distinction between white goods that were merely plumbed or wired in (holding, as in Bolton v TSB, that those Claim Items were not fixtures) and those which were fixed by screws, for example to the kitchen units or the wall, which the FTT held were fixtures. Those conclusions were open to the FTT, and there is no error of law in those respects.'

[15] In Tower Hamlets London Borough Council v Bromley London Borough Council [2015] LGR 622, Norris J said, at paragraph 16:

'It is always a question of fact in the individual case whether something has remained a chattel or become a fixture; other cases therefore serve as no more than illustrations of the application of the relevant principles. Conventionally, those principles require the application of two tests: (a) the method and degree of annexation; and, (b) the object and purpose of annexation. Generally, the second of those tests is taken to be the more significant and can enable a Court to decide when an object is a chattel, or is a fixture, or is part and parcel of the land itself. In Elitestone Limited v Morris [1997] 2 All ER 513 at 518j Lord Lloyd noted:—

“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] AC 157.'