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2.1.2 Fixtures and Chattels Lecture

What are fixtures and chattels?

A fixture is any item that is included as part of a conveyance of land (that is, where land is given from one party to another, and such an exchange includes all of the rights and obligations over that land) according to s.62 of the Law of Property Act 1925. This means that when a portion of land is sold and there is something defined as a fixture within the confines of that land, then that fixture will be owned by the person who takes ownership of the land as a whole.

By contrast, a chattel is a physical object which is separate from the land, and thus its ownership is independent of who owns the land. It does not change hands upon a conveyance of land.

The Test and Miscellaneous Issues

Two-Stage Test aka the Gravity Test

The central question comes down to a two-fold test, as devised in Hellawell v Eastwood(1851)155 E.R. 554. In this test, the court must consider:

  1. the degree of annexation: the extent to which the item has been attached or annexed to the property, and
  2. the purpose of annexation: the purpose for which the item was attached to the property.

The same test was reiterated and put forward in Elitestone Ltd v Morris [1997] 1 W.L.R. 687 by Lord Lloyd of Berwick.

In looking at stage 1), we can say that the greater the degree of attachment or annexing is to the property, the more likely the item is considered to be a fixture.

The result of an item being a fixture is that the person who owns it is whomever owns the land. Thus, a fixture can have a former owner; that is, someone who used to own the land (and thus the fixture), but now does not own the land, and therefore does not own the fixture. This is such an abiding principle of fixtures that former owners are prevented from retaining ownership even if they take active steps to do so: for example, in Aircool Installations v British Telecommunications [1995] C.L.Y. 821, if the former owner inserts a retention of title clause into the conveyance of a fixture, such a clause is null and void.

Mortgagees

It is more often the case that the distinction between fixtures and chattels is not a dispute around the sale of a property. Instead, it is more likely to form part of a dispute between lenders (mortgagees) and borrowers (mortgagors) after the borrower has missed payments on their mortgage. Here, the lender is considering whether they can sell the property along with certain items in the property, such as household appliances. (Botham v TSB Bank plc).

Physical Annexation

Physical Degree of Annexation

Given there is almost no statute in this area, and in each case the status of physical objects have been determined on the facts of those particular cases, there is no single means of assessing whether the physical object has been annexed to the land.

There is a kind of gravity test (though to be clear, you won’t find that term used in the case law!) which suggests that an object is a chattel if it rests upon the land merely by the force of its own weight. Applying this rule of thumb to an example, a chair that is not fixed to the floor would be a chattel.

So between two cases, where the objects are the same or of a similar type, yet they are set down in different methods, there will be a different result. In Hulme v Brigham [1943] K.B. 152, heavy printing machinery that were unattached to the floor were held to be chattels, whereas in Holland v Hodgson(1871-72) L.R. 7 C.P. 328 the spinning looms were bolted to the floor of a mill and so were held to be fixtures.

For other examples, in Aircool Installations v British Telecommunications [1995] air conditioning equipment was bolted on to, and cut in to, the walls of a building, and they were held to be fixtures. By contrast, in Botham v TSB Bank plc kitchen appliances that rested on the floor of the kitchen merely by their own weight and without any means of bolting to the floor were held to be chattels, even though they were connected electronically and were integrated into the kitchen.

Purpose

Deemed purpose of Annexation

However, it is not necessarily the case that an item which is bolted down is intended to be a fixture, and such a lack of intention would mean the item was not a fixture (Potton Developments Ltd v Thompson [1998] NPC 49, ChD). Intention will usually be gauged by inference, and communication between the parties.


This intention must be made known between the parties. Lord Cockburn observed in Dixon v Fisher(1843) 5 D 775 that no person ‘can make his property real [ie belonging to the land] or personal [belonging to himself] by merely thinking it so.’ The question is whether the installation of the object would in ordinary circumstances have been intended to be a permanent accretion to, or improvement of, the land or if it is only a temporary addition to the building or landscape (Botham v TSB Bank plc).

The gravity test is a relevant consideration when deciding if an object is a fixture or a chattel, but if there is sufficient contrary intention to make them a fixture, then the objects are deemed to be fixtures, notwithstanding that they can be removed without damaging the land.

Overriding Purpose

Intentions can also render an object a chattel: if an item is affixed to a surface, yet the intention of the party who installed it was merely to facilitate enjoyment of the object (rather than to have the object provide value to the land). If use of the object was unnecessary for the use of the land, and the use of the object was simply to enjoy using the object, then the item may be deemed a chattel (Elitestone Ltd v Morris).

Tenant’s Fixtures

Generally, the only party which is entitled to remove a fixture is the freeholder, so if anyone is in occupation or possession of the property, they cannot remove it except with the consent of the freeholder (Elitestone Ltd v Morris).

However, over time, the court has come to recognise an exception to this rule and to allow a certain group the right to remove fixtures. This right to remove fixtures is extended to tenants. It is recognised that tenants will want to install items on their property and would use those items, but that item is intended to be used by the tenant for, among other reasons, their trade. Therefore, the court has come to recognise that there is a difference between ordinary fixtures and “tenant’s fixtures.”

If a tenant installs an object therefore, the question is whether the object was to be used for a specific purpose. Therefore, the question becomes whether the item annexed to the land is present on the property for the purposes of the tenant’s trade or is for ornamentation or utility. If the item can be removed without it losing its usefulness, then it will be defined as a chattel. If however the property has to be installed on the land in order for it to be used (meaning it is useless without being installed), then it will be a fixture (Webb v Frank Bevis [1940] 1 All ER 247). Examples of items which would be fixtures are doors, windows, and chimney pieces. This is so even if the tenant installed them.

Tenants and Right to Remove

Tenants have the right to remove fixtures during the course of their lease. They may even be required to do so, such as in the case of redundant equipment. Failing to do so may expose the tenant to a breach of the conditions of their agreement with the freeholder. The terms of the lease can also modify or exclude this right to remove fixtures.

If a lease is intended to restrict the right of a tenant to remove the tenant’s fixtures, then the lease must make that intention clear: the court must be confident that the language of the lease is unambiguous and express about that intention, otherwise the court will not uphold a term which excludes the right to remove fixtures (Peel Land and Property (Ports No 3) Ltd v TS Sheemess Steel Ltd [2014] EWCA Civ 100).

Agricultural Fixtures

Unlike in other case law, in agricultural fixtures comprehensive guidance is found in the Agricultural Holdings Act 1986 and the Agricultural Tenancies Act 1995. These statutes are primarily concerned with the rights of tenants of agricultural lands to remove fixtures and buildings. These statutes recognise that fixtures of farm land can be of immense value to the owner.


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