Student #: 808010627

BUS.P.14

2011/2012

THE UNIVERSITY OF THE WEST INDIES

The Office of the Board for Undergraduate Studies

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TITLE OF ASSIGNMENT: MID TERM ASSIGNMENT 1

COURSE CODE: LAW 2210

COURSE TITLE: LAW OF REAL PROPERTY I

STUDENT ID: 808010627

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By signing this declaration, you are confirming that the work you are submitting is
original and does not contain any plagiarised material.

I confirm that this assignment is my own work, and that the work of other persons has
been fully acknowledged.

SIGNATURE:

DATE: 22/10/16

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A definition of the concept of property is difficult to produce. In the Commonwealth

Caribbean, the classification of property exists under the Common Law, St. Lucia Civil
Code and Guyana Civil Law. Under these classifications, the entitlement to property
which falls under the umbrella of personalty and movable and/or realty and immovable
property strikes up some differences. In advising the executors of Taylors will, these
legal classification systems will be investigated, in determining which property shall be
handed down to either Aaron or Ann as itemized in his will.

Issue #1:

The first issue which falls to be considered is whether the plantation house and the fee
simple estate containing two tractors and harvested coffee beans would be considered
movable/personalty or immovable/realty.

Principles of Law and Authorities:

The main classification of property under Common Law is done in terms of realty and
personalty. Under common law, Realty is divided into corporeal and incorporeal.
According to Owusu, corporeal property includes physical objects which can be touched
and seen, e.g. land and clothes. 1 Under corporeal hereditament, the fee simple estate is
an estate where the grantee has the right to use and enjoy the land to its fullest extent
for his life and those of his heirs 2 According to Kodilinye, A fee simple estate is in
modern law equivalent to permanent ownership of the land. 3 Another Common Law
classification of property is movable/immovable. Immovable property refers to land and
things underneath and attached to it, e.g. the earths surface, fixtures, trees, crops and
unsevered fruits growing on the land. 4 Land includes under Barbados Property Act 1979
legal estate meaning any interest or charge which is authorized to subsist under

1 Sampson Owusu, Commonwealth Caribbean Land Law (Routledge-Cavendish, 2007) 2

2 Gilbert Kodilinye, Commonwealth Caribbean Property Law (4th edn, Routledge, 2015) 2

3 Gilbert Kodilinye, Commonwealth Caribbean Property Law (4th edn, Routledge, 2015) 2

4 Sampson Owusu, Commonwealth Caribbean Land Law (Routledge-Cavendish, 2007) 3

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Section 3; an estate in fee simple absolute in possession. 5 Personalty conversely, can

be categorised as chattel real/chattel personal. Under chattel personal; chose in
possession and chose in action. Choses in possession are things which are visible,
tangible, capable of direct physical control; capable of being transferred physically. They
can be destroyed, or removed from the courts jurisdiction and are neither permanent
nor stationary.6
The main classification of property under St. Lucia Civil Code is immovable and
movable. St. Lucia Civil Code defines things which are immovable by nature as
comprising, Lands and buildings. Crops and fruits are also immovable, but become
moveable when severed from the soil. 7 Movables by nature are mobile, visible and
tangible according to Art. 3428. Regarding immovable by destination, Art. 337, these are
objects which would normally be movables but which are considered to be immovable
by reason of their attachment to immovable property. For a movable property to be so
restrained, it must have been placed on the immovable property for the service of it. 9
According to Section 2 of the Civil Law of Guyana, immovables are considered real
property and movables are deemed to be personal property as understood by English
Common Law.10

Application and Advice:

Applying the law to the facts, under common law, the plantation house would be
considered realty or immovable as it is affixed to the land. Under St. Lucia Civil Code it
is immovable by nature as a building and under Guyana Civil Law immovable and real
property. It is advised that Ann is entitled to the plantation house.

5 Barbados Property Act 1979, Cap. 236, s 3(1)(a)

6 Sampson Owusu, Commonwealth Caribbean Land Law (Routledge-Cavendish 2007) 12

7 St. Lucia Civil Code, 1957 Rev. Ch 242, Arts. 335 and 336.

8 St. Lucia Civil Code, 1957 Rev. Ch. 242, Art. 342

9 St. Lucia Civil Code, 1957 Rev. Ch. 242, Art. 337

10Civil Law of Guyana, 1917, Cap. 6:01, s 2

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The fee simple estate under common law would be considered Realty. Under corporeal
hereditament, the fee simple estate is equivalent to permanent ownership of land. Land
is considered immovable property under common law. Under St. Lucia Civil Code, the
fee simple estate in the coffee plantation would be considered immovable by nature
according to Art. 335. Under Guyana Civil Law, the fee simple estate in the coffee
plantation would be considered immovable property according to Section 2. Ann is
therefore entitled under the three classifications of property to the fee simple estate.

The two tractors under common law would be considered personalty. Under St. Lucia
Civil Code, the two tractors are considered immovable by destination as they would
normally be seen as movable but become immobilised due to their attachment to the
immovable property for exploitation of the fee simple estate. Under Guyana Civil Law,
the two tractors are considered movables and personal property. Aaron is therefore
entitled to the two tractors as they are personalty and movable under common law and
Guyana Civil Law, whereas under St. Lucia Civil code, Ann is entitled to the two tractors
as they are immovable by destination.

The harvested coffee beans stored in barrels under common law would be considered
personalty. Under St. Lucia Civil Code they are considered movables by nature as they
are severed from the soil and under Guyana Civil Law they are considered movables.
Aaron is entitled to the harvested coffee beans under these classifications.

Issue #2:

The second issue which falls to be considered is whether the leasehold interest in
property with an outstanding term of 9 years would be considered personalty/movable
or realty/immovable.

Principles of Law and Authorities

According to Owusu, a lease or a chattel real is a grant of exclusive possession of land

for a fixed period in return for periodic payment in monetary installments. 11 Within
common law jurisdictions they are considered personalty but in Barbados and Trinidad

11 Sampson Owusu, Commonwealth Caribbean Land Law (Routledge-Cavendish 2007) 4

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and Tobago they are considered realty.12 Under St. Lucia Civil Code, leases of
immovable property other than emphyteutic leases are movable. 13 Emphyteusis is a
lease for a duration of nine to ninety-nine years. 14 Under Guyana Civil Law, immovable
property means both real property and chattels real as understood by English common
law.15

Application and Advice:

Applying the law to the facts under common law, the leasehold interest in property with
an outstanding term of 9 years would be considered personalty except in Barbados and
Trinidad and Tobago where it would be considered realty. It is advised that in Barbados
and Trinidad and Tobago, Ann is entitled as it would be considered realty. In other
Commonwealth Caribbean jurisdictions, Aaron is entitled as it would be personalty.
Under St. Lucia Civil Code, Ann is entitled to the leasehold interest as it is considered
immovable and similar entitlement under Guyana Civil Law, as it is immovable property.

Issue #3:

The final issue which falls to be considered is whether the wooden house and the
plantation houses contents are chattel/personalty and movable or fixture/realty and
immovable.

Principles of Law and Authorities:

Under common law, where a chattel has been affixed to land so much that it qualifies as
land or realty, it loses its chattel nature and becomes a fixture and immovable. This law
of fixtures rests on the maxim quicquid plantatur solo solo cedit - whatever is attached

12 Sampson Owusu, Commonwealth Caribbean Land Law (Routledge-Cavendish 2007) 4

13 St. Lucia Civil Code, 1957 Rev. Ch. 242, Art. 346

14 St. Lucia Civil Code, 1957 Rev. Ch. 242, Art. 514

15 Civil Law of Guyana, 1917, Cap. 6:01, s 2

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to land becomes a part thereof and becomes the property of the owner of the soil. 16
Distinguishing between fixtures and chattels, per Wooding C.J. in Mitchell v Cowie, the
objective intention to create a fixture is fundamental. 17 It is an issue of fact to be decided
by the specific circumstances of each case according to Leigh v Taylor.18 In Holland v
Hodgson, the degree of annexation and purpose of annexation indicate an intention to
create a fixture.19 The degree of annexation test states that an article is a fixture if it is
so irreversibly affixed to the earth or building thereon 20 Relevant to this test is the
mode of annexation where if the object is physically attached to the land it is a fixture
and if it rests on its own weight it isnt. In Elitestone v Morris 21 the court held the houses
construction was in such a way that it couldnt be removed except by destruction and
was not intended to remain a chattel but to form part of the realty. In Berkley v Poulett 22,
the purpose of annexation test states that one must observe whether the object is
brought unto land to improve the land (fixture) or for the enjoyment of the object in and
of itself (chattel). Intention is to be deduced from nature of the chattel and its attachment
to realty.

Under St. Lucia Civil Code, property is immovable either by nature; its destination; by
reason of the object to which it is attached and by determination of law. 23 Also, those
things are considered as being attached for a permanency which are placed by the
proprietor and fastened with iron or nails or imbedded with cement, or which cannot be

16 Sampson Owusu, Commonwealth Caribbean Land Law (Routledge-Cavendish 2007) 26

17 [1964] 7 W.I.R. 118, 121

18 [1902] A.C. 157, 160

19 [1872] L.R. 7 CP 328, 335

20 Kevin Gray, Elements of Land Law (2nd edn, London: Butterworths 1993) 12

21 [1997] 2 All ER 513

22 [1977] 1 EGLR 86

23 St. Lucia Civil Code, 1957 Rev. Ch 242, Art. 334

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removed without breakage, or without destroying that part of the property to which they
are attached. Mirrors, pictures are considered to have been placed permanently when
without them the part of the room they cover would remain incomplete. 24 Regarding
movables in Art. 352, the word furniture comprises only movables which are destined
to furnish apartments such as seats but not collections of pictures. 25

Under Guyana Civil Law, wherever the words movable property exist in an Act they
should be deemed to mean personal property and wherever the words immovable
property exist they should be deemed to mean real property. As understood by the laws
of England.26

Application and Advice:

Applying the law to the facts, under common law and Guyana civil law, the wooden
house is fixture/realty as it has been irreversibly connected by way of it being bolted to
cement filled blocks and removal could cause damage to the realty and the wooden
house itself. It was brought onto the land for the improvement of the land as a maids
quarters. Under St. Lucia Civil Code the wooden house is immovable as it is made solid
into the blocks. Therefore, Ann is entitled to the wooden house as it is a fixture/realty
and immovable.

Under common law and Guyana civil law, the ornamental mirror is a chattel/personalty
as it is to be enjoyed in and of itself and can be removed easily (Subjective intention).
Under St. Lucia Civil code the ornamental mirror is considered immovable as without it
the room would seem incomplete. Under common law and Guyana civil law the chaise
lounge is chattel/personalty as it rests on its own weight and is to be enjoyed in and of
itself and under St. Lucia Civil code it is movable as a seat. Under common law and
Guyana civil law, the collection of paintings are chattel/personalty as they are to be
enjoyed in and of themselves whilst under St. Lucia Civil Code they are immovable.

24 St. Lucia Civil Code, 1957 Rev. Ch 242, Art. 338

25 St. Lucia Civil Code, 1957 Rev. Ch 242, Art. 352

26 Civil Law of Guyana, 1917 Cap. 6:01, s 2

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It is advised that Aaron is entitled to the ornamental mirror under common law and
Guyana civil law and Ann under St. Lucia Civil Code. Aaron is entitled to the chaise
lounge under all three classifications. Regarding the collection of paintings, Aaron would
be entitled under common law and Guyana civil law and Ann under St. Lucia Civil Code.

Word Count: 1998 words excluding Footnotes and Bibliography.

BIBLIOGRAPHY

BOOKS:

Gray K, Elements of Land Law (2nd edn, London: Butterworths 1993)

Kodilinye G, Commonwealth Caribbean Property Law (4th edn, Routledge 2015)

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Owusu S, Commonwealth Caribbean Land Law (Routledge-Cavendish 2007)

CASES:

Berkley v Poulett [1977] 1 EGLR 86

Elitestone Ltd. v Morris [1997] 2 All ER 513

Holland v Hodgson [1872] L.R. 7 CP 328, 335

Leigh v Taylor [1902] A.C. 157, 160

Mitchell v Cowie [1964] 7 W.I.R. 118, 121

LEGISLATION:

Barbados Property Act 1979, Cap. 236, s 3 (1) (a)

Guyana Civil Law Ordinance 1917, Cap. 6:01, s 2

St. Lucia Civil Code, 1957 Rev., Ch. 242, Arts. 334-338, 342, 346, 352, 514

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