The Law of Real Property
Fixtures
Fixtures was a concept that served to determine the difference between realty and personalty at a time when realty descended to the heir at law and personalty devolved on the personal representative. It was to avoid destruction involved in the severance of the chattels from the land. The law of fixtures is founded on the maxim, quicquid plantatur solo, solo cedit –whatever grows in or becomes attached to the soil becomes a part thereof. Thus, chattels which are so affixed to the land as to become part of the land loses the character of chattel and pass with the ownership of the land. Thus, it can be gleaned that chattels are of a temporary nature, while fixtures remain permanent. Exceptions to the rule of fixture was seen in Poole’s case where it was stated that a tenant can remove a fixture if it is ornamental, or for agricultural and trade purposes.
The controversy surrounding chattel houses is whether they are fixtures in the sense that they become part of the land. In the case of Holland v. Hodgson the dictum of Blackburn J has often been cited in establishing the rule with regards to fixtures and chattels. In this case Blackburn J states that, “perhaps the rule is that articles attached to the land than by their own weight are not considered part of the land unless the circumstances show that they were intended to be part of the land, the onus of showing such an intention lies on the person(s) asserting that they have ceased to be chattels, and on the contrary, articles affixed to the land even slightly is to be considered as part of the land, unless the circumstances show that it was intended all along to continue as chattel, the onus lying on those who contend that it is a chattel.”
Cheshire and Burn also suggest that the decision in differentiating a chattel from a fixture may rely on the degree of annexation and object of annexation. Under degree of annexation the general rule is that a chattel is not deemed to be a fixture unless it is actually fastened or connected to the land or building. Mere juxtaposition or lying of an article, however heavy, does not prima facie make it a fixture. If the superstructure can be removed without losing its identity, it will not be regarded as a fixture, per H.E. Dibble v. Moore. For example, a veranda attached to the house is a fixture, per Buckland v. Butterfield.
Thus, under the object of annexation, the test here is to ascertain whether the chattel has been fixed for its use as a chattel or for the more convenient use of the land or building. A comparatively durable method of affixation will not render a chattel a fixture, if the method of annexation is necessary for its proper enjoyment as a chattel. This test was demonstrated in the case of Leigh v. Taylor tapestry nailed to the wall together with moulding was held necessary for the adornment and proper enjoyment of them as tapestry, rather than for the improvement of the land. The principle in Leigh v. Taylor was adopted in the case of Berkley v. Poulett where a vendor screwed pictures, while still in their frames, into the recesses of the paneling of a dining room.
In the Commonwealth Caribbean, the locus classicus is the formulation laid down by Wooding CJ in Mitchell v. Cowie. Wooding CJ stated that although a house may be a chattel depending upon whether it was intended to be part of the land on which it stands. This intention is to be discerned objectively rather than subjectively. The American case of Teaff v. Hewitt also listed several tests such as the nature of the article fixed, the relation and situation of the party making the annexation, the structure and mode of the annexation, and the purpose for which the annexation was made.
Where one attaches his chattel to his own land, it is easy to conceive that he intends for it to become part of his land. The degree of attachment is of little consequence. Thus, where a person attaches his chattel to someone else’s land, the question of the relativity to the land by the person making the annexation arises. In Mitchell v. Cowie, Fraser J opined that the duration of tenancy, providing it is certain, has no influence on the status of the building. However, in the Bahamian case of O’Brien Loans Ltd. v. Missick, Georges JA stated that in cases where a yearly tenant attaches a wooden house to column anchored in the ground there would seem no reason why the degree of annexation would result in the house ceasing to be a chattel and becoming a fixture. However, where the owner of a long lease erects a similar structure on the land it would seem reasonable hold that he intended to improve the land, unless there is evidence to the contrary.
Wooding CJ, in the CA case of Mitchell v. Cowie, relied on Turner v. Cameron to uphold the decision of the trial court that the house in Mitchell was a fixture and not a chattel.
However, the degree of annexation of the railway lines in Turner, on which Wooding CJ relied on, bears no analogy to the construction of chattel houses generally. Wooding CJ’s decision should therefore not be accepted as having that a chattel house is a fixture. The analogy with the army huts in Billing v. Pill which was also cited and discussed in Mitchell’s case bears more resemblance with chattel houses than the railway lines in Turner. In Billing v. Pill the huts were erected to provide temporary sleeping accommodation for the army personnel dispatched to man gun replacements during the war. Since the huts could be removed without doing any damage at all to the freehold, they were not annexed to form any part of the realty and thus remained chattels. Wooding CJ’s holding after he analyzed the case of Turner v. Cameron is open to doubt, for it can be argued that if a tenant erects a structure on the land of another person, he does so not for the enjoyment of the land of which he is a tenant, but for the accommodation the chattel provides. Undoubtedly the nature of the house in Mitchell’s case makes it completely different from what is ordinarily considered a chattel house:
“The house was built of hollow clay blocks, plastered and stood on concrete pillars and covered with galvanized sheets. Such a house could not be removed without being disintegrated and could not have intended to be dislocated without losing its identity.”
This affords a solid ground on which Mitchell’s case can be distinguished. Wooding CJ’s analysis and application of the principles leave the impression that a chattel house is a fixture. Although in Mitchell the court held the chattel house was a fixture, Wooding CJ accepted that, “There still exist in this country wooden houses-not very many and certainly not nearly so many as may be seen in some of the neighboring West Indian islands-which rest by their own weight upon stone or brick foundations. The stones or bricks are so put together as to form a base wall, in some instances let into the ground but more often themselves resting by their own weight on the ground. In either case, they would be like the wooden barn in Wansborough v. Malon in which the wood comprised the entire barn notwithstanding it was placed on stone caps which were let into the ground it was not itself in any way affixed thereto but was supported thereon by mere pressure, that to remove it would therefore in no way disturb the freehold, and accordingly that it was found and remained a chattel.”
Owusu comments that, “the degree of annexation of the railways, and the possibility of damage to the land by removal of the railways in Turner v. Cameron make the facts completely different from the nature and situation of a chattel house. These features of Turner’s case are not different from the nature of the house in Mitchell’s case. They are however, not similar to the situation and the nature of what is ordinarily conceived as a chattel house.”
However, in Reid v. Smith (1905) 3 CLR 656 one of the issues was whether an ordinary dwelling-house, erected upon, but not fastened to the soil, remains a chattel or becomes part of the freehold. The High Court of Australia, reversing the Supreme Court of Queensland held that it became part of the land “treating the answer almost as a matter of common sense.” In Reid v. Smith, the house in that case was made of wood, and rested by its own weight on brick piers. The house was not attached to the brick piers in any way. It was separated by iron plates placed on top of the piers, in order to prevent an invasion of white ants.
In Elitestone v. Morris, Lord Lloyd in his judgment differentiates between the tests used for determining fixtures to house and a house itself. “A house which is removable, whether by units or in sections, may remain a chattel even though it is connected temporarily to main services such as water and electricity. However, if a house is constructed in such a way that it cannot be removed, save by destruction, then it cannot have intended to remain a chattel.”
In cases where one uses such abstract rules and principles, there may be an injustice served, such as in the Commonwealth Caribbean where chattel houses are a matter of culture. As Liverpool proposes, where a poor man with no home and land finds a house spot for rent, on which he builds a wooden house for him and his family, and improves the house with time, securing it against the ravages of nature to which all Caribbean territories are prone, could never contemplate leaving his life’s possessions to a landlord. One sympathizes with any judge who is not personally familiar with the facts of life in the region; but it is a matter of everyday occurrence that such houses are removed either whole or in part to their new location. Thus the realities of the situation suggest that the chattel house be regarded as a chattel.
So as not to cause an injustice, the test should be one of custom and usage, as suggested by McIntosh, as well as the intention of the parties. The maxim, quicquid plantatur solo, solo cedit has no application in the Commonwealth Caribbean to tenant’s fixtures. Under the section 13 of the Belize Landlord and Tenant Ordinance, any fixture affixed by a tenant, for which he is not entitled to compensation shall be removable by the tenant before or after the termination of the lease. A similar provision exists in Guyana Landlord and Tenant’s Act s.15, and in Trinidad & Tobago Landlord and Tenant Act 1981 s.27, though not yet proclaimed. Under the Barbados Property Act 1979 s. 163, in cases where removing the structure will cause damage to the land, the courts may vest the building in the landlord, provided that reasonable compensation is paid to the tenant, and as such, the landlord is entitled to reasonable compensation for any damage caused to his land.