UGANDA CHRISTIAN UNIVERSITY

MUKONO

NAME: NAMUGANZA SANDRA

REG. NO.: BS18B11/344 YEAR: TWO

COURSE: BACHELORS OF LAW

COURSE UNIT: FOUNDATIONS OF LAND LAW

LECTURER: MADAM ACHIENG MIRIAM

TUTOR: MR. BWAMBALE WILBERFORCE

QUESTION

“The question whether a chattel has been so attached to land to form part
of it is sometimes exceedingly difficult to answer. The decision in one
case may not be a sure guide in another. Everything depends upon the
facts and circumstances of a case”.

Discuss the validity of this comment.

The law relating to the chattels and fixtures is complex and confusing in such a
way that it is hard to determine when an object which was formerly a chattel
had become part and parcel of the land. 1 Although courts have managed to
come up with ways of telling a fixture from a chattel, the distinction between a
fixture and a chattel still remains ambiguous. And even more, case law is not
uniform nor is it consistent such as in some cases a thing is called a chattel
and in another case with a similar set of facts, the same item is referred to as a
fixture.

Land includes messuages, tenements, corporeal or incorporeal hereditaments,

easements and appurtenances appertaining to the land. 2 It also includes the
rights above and below the surface.

The general rule is that whatever is attached to the land becomes part of it. 3
This is expressed in the Latin maxim quicquid plantatur solo solo cedit. This
maxim was first expressed by Baron Parke in the case of Minshall v Lloyd4
where he opined that “the law is clearly settled that everything substantially
and permanently affixed to the soil is in law a fixture and the principle in law is
that of quicquid plantatur solo solo cedit (whatever is attached to the soil
becomes part of it)”. This maxim determines what kind of rights a landowner
has over things attached to or embedded in land, 5 for example if a house is
built on land, courts have to determine whether he is entitled to not just the
land but also to the house and other things in the house.

Therefore, a fixture means anything that has become so attached to the land
that it forms part of the land whereas a chattel is an item of personal property
that is not attached to land.6

1
P Luther, ‘Fixtures and Chattels: A Question of More or Less…’ (2004) 24 Oxford Journal of
Legal Studies 597.
2
Section 1 (i), Registration of Titles Act Cap 230.
3
R Megarry and W Wade, The Law of Real Property in C Harpum, Bridge and Dixon (eds), (8th
edn, Sweet & Maxwell 2012) 1103.
4
Minshall v Lloyd (1837) 150 ER 834.
5
J T Mugambwa, Principles of Land Law in Uganda (1st edn, Fountain Publishers Ltd 2002) 51.
6
Francis v Ibitoye [1936] NLR 1.
According to Lord Lloyd in Elitestone v Morris7, where the plaintiffs argued
that the tenancy consisted only of the site and that the bungalow which was
attached to concrete pillars was not a fixture but a chattel and thus not
covered by the tenancy, when an item is brought onto the land, it is classified
into three, that is to say it is either a chattel, a fixture or part and parcel of the
land. This is because the twofold distinction of a chattel and a fixture can be
confusing as it is appropriate for things fixed to the building and the building
itself is not normally taken to be a fixture but as forming part of the land. 8

If an object has not become a fixture then it will be a mere chattel and
therefore it will not pass with property to the purchaser of the house or land.
This means that the seller can legally take it as his own upon the sale of the
property, for example the plates and cups of a seller will always remain chattels
and won’t pass to the purchaser, the seller has the right to take them with him.
However, a dispute will arise when it comes to the fitted Tray Racks where the
plates and cups are as to who is the real owner. This is because some fitted
Tray Racks are attached to the wall and others are stand freely.

The courts, though it may seem difficult, have to therefore resolve whether the
purchaser of the building or land can claim the fitted items that are not clearly
fixtures or chattels and they have henceforth come up with two tests that they
apply to determine whether an object is a chattel and therefore passes to the
buyer or a fixture that remains property of the landowner. These tests include
the degree of annexation and the object of annexation per Blackburn J in
Holland v Hodgson9 who was of a view that determining whether the item is a
chattel of fixture depends on the circumstances of each case but mainly on the
above tests. In this case the dispute was between the mortgagee of the land
and the mortgagee of the physical assets about who got to retain the mill which
had been attached by looms to the factory floor. The issue was whether the
looms had become fixtures and therefore part of the land.
7
Elitestone v Morris [1997] 2 ALLER 260.
8
Goo SH, Sourcebook on Land Law (3rd edn, Cavendish Publishing Limited 2002) 34
9
Holland v Hodgson (1872) LR 7 CP 328.
When determining whether an item is a chattel or a fixture, courts first apply
the degree of annexation test. This test is used to determine the extent to
which a thing is fixed to the land, that is to say the means by which an article
is attached to the land for example by nails, bolts, mortars or by its own
weight.10 The general rule is that a thing not otherwise attached to the land
than by its own weight is prima facie a chattel. 11 This means that something
that is resting on the ground by its own weight is not a fixture but a chattel
and the onus of showing that the thing is a fixture lies on the person who is
claiming it to be one.

However, something that is attached to the land not by its own weight but by
for example nails, bolts or mortars is prima facie a fixture. Even the slightest
fixing of the thing to the land makes it part of the land and thus a fixture
unless the circumstance show that it was intended to remain a chattel and still
the onus of proof will lie on the person who says that it is a chattel. 12 In
Holland v Hodgson (supra), the looms were held to be fixtures as they were
attached to the floor by nails driven through holes in the feet of the feet of the
looms, in some cases into the beams built into the stone and in other cases
into plugs of wood driven into holes drilled in the stone and therefore the
mortgagee of the land was entitled to them.

Also, in the case of Jordan v May13, where the contention was whether the
electric light plant had become part of the land that had been requisitioned. It
was held that the electric light plant was a fixture because its engine was
bolted down to the concrete bed by mortars and the engine was the most
essential part for the electric plant to work. However, the batteries which were
attached by wires to the engine were held to be chattels since they could still
work if they had been housed in another shed regardless of the fact that they
were also necessary for the plant to function.

10
J T Mugambwa, (n 4) 53.
11
Holland (n 8)
12
Ibid.
13
Jordan v May [1947] KB 427
However, the test of degree of annexation is not a conclusive one in
determining whether a thing is a chattel or a fixture therefore in order to prove
that the article is what the annexor or occupier asserts it to be, courts have
applied the second test known as the object of annexation. Lord Scarman in
the case of Berkley v Poulett14 asserted that the test of degree of annexation
was too harsh and unjust to not only the limited owners who had attached
valuable chattels of their own to settled land but also to the tenants and
therefore the second test of object of annexation evolved to take care of a
limited owner such as a tenant for life. Lord Scarman further went ahead and
demonstrated his assertion by saying that the test was invoked by the House of
Lords in Leigh v Taylor15 to promote the interests of a tenant for life who had
affixed large and valuable tapestries to the walls of the house for the purpose of
adornment and enjoyment of them as tapestries. He further contended that
this test was of the most importance and thus should be given much more
focus than the degree of annexation.

The object of annexation test is used by courts to determine the intention of

the person who fixed the thing to the land. 16 In most cases when a person
such as a tenant brings something onto the land, it’s probably for different
purposes such as agricultural, trade or better enjoyment and they may intend
for it not to become a fixture. It is however hard to determine the intention of
the person who fixed the article to the land. They have henceforth come up
with guidelines that aid them in determining what the intention of that person
was in fixing the article on the land and these guidelines were stated by
Blackburn J in Holland v Hodgson. These guidelines include the following;

If the intention of the person was to make a permanent improvement on the

land, then that thing is a fixture for example in Holland v Hodgson (supra),
the Court of Exchequer Chamber held that the object or intention of the owner
of the mill in setting up the looms was to enhance the value of the factory
14
Berkley v Poulett [1976] 241 EG 911.
15
Leigh v Taylor [1902] AC 157.
16
Mugambwa (n 4) 53.
premises to which they were attached. In the case of Hamp v Bygrave17 where
the purchasers claimed that a number of items whereby most of them were
garden ornaments passed as fixtures with the conveyance of the freehold and
were thus wrongfully removed by the vendors, Boreham J held that the
ornaments were prima facie chattels since they were resting on their own
weight however, the terms of the contract negated their being chattels as it
stated that they were to remain part of the land after the sale and they were
therefore for the permanent improvement of the garden as it formed part of the
architectural design of the garden.

If the attachment of the item is temporary and is no more than is necessary for
the item to be used and enjoyed, then it will remain a chattel. 18 If the item that
is attached to the land such as ornamentals is for the better enjoyment of the
chattel by the annexor, that article remains a chattel regardless of the mode in
which it is attached to the land. This was contended in the case of Berkley v
Poulett (supra) where the plaintiff claimed that the treasures which included
pictures, a white marble statue of a Greek athlete and a sundial which were
removed and sold by the defendant were fixtures and was thus entitled to
them. Court held that the statue was not a fixture as it was not attached to the
land but to the plinth and thus did not form part of the architectural design of
the land, the defendant put it just so he can better enjoy it as a statue.

Another guideline is the ability to remove an item or its attachment from the
building or land without damaging the fabric of the building or land. The same
item may in some areas be a chattel and in others a fixture. Where a thing is
firmly held and its removal would entail destruction or serious damage to the
thing itself or to the building, then it was most likely intended to be a fixture. 19
In Berkley v Poulett (supra) court held that it is significant to discover the
extent of physical disturbance of the building or the land involved in the
removal of the object whereby if an object cannot be removed without serious
17
Hamp v Bygrave [1982] 266 EG 720.
18
Holland (n 8).
19
Mugambwa (n 4) 54.
damage to or destruction of some part of the realty then it became a fixture.
Lord Lloyd in Elitestone v Morris held the bungalow to be a fixture because
even though it was resting by its own weight on the concrete pillars without
any attachment, removing it would lead to not only its destruction but also to
destruction of the concrete pillars. He further imputed that a house which can
be removed without causing destruction can be held to be a chattel.

However, if the article can easily be removed without being destroyed or

destroying the land to which it is attached, that article is a chattel. The case of
Elitestone v Morris (supra) can be contrasted with the case of Deen v
Andrews20 where the issue was whether a greenhouse that was partly bolted to
a concrete base was a building that could pass to the purchaser under a
contract for the sale of land together with the farmhouse and other buildings,
court held that it was not a building and didn’t form part of the land as its
removal would not lead to its destruction and so it was a chattel. In Chelsea
Yacht and Boat Co. Ltd v Pope 21 it was held that a houseboat that was
moored stern to a pontoon by rope mooring lines and connected to services
which could be disconnected did not form part of the land, it remained a
chattel. This was because the attachments could be undone and the houseboat
moved quite easily without any injury to itself or he land and its attachment
was to prevent it from being swept away by the tide.

In Botham v TSB p/c22 Roch LJ held that the carpets and curtains were
chattels. This was because they were attached to the building in an
insubstantial manner although they were made or cut to fit a particular floor or
window concerned. They could easily be lifted off the gripper rods and removed
without damaging the fabric of the building and can be used again elsewhere.

The capacity in which the person who attached the thing is also another
guideline for determining the intention of that person. 23 The court in
20
Deen v Andrews [1985] 1NLJ 728.
21
Chelsea Yacht and Boat Co. Ltd v Pope [2001] 2 ALLER 409.
22
Botham v TSB Bank p/c [1996] EGCS 149 CA.
23
Mugambwa (n 4) 54.
determining the intention of the person who fixed the item onto the land or
building look at whether he was a tenant or a landowner at the time he
annexed the thing to the land. If the person who attached the object was at
that time the landowner, then he probably intended for it to be a fixture. In his
words, Blackburn J stated that “…items installed by a builder such as the wall
tiles will probably be fixtures whereas items installed by a carpet contractor or
curtain supplier or by the occupier of the building himself or herself may well not
be.”24 In Vaudeville Electric Cinema Ltd v Muriset 25, the court held the
cinema chairs to be fixtures because apart from the chairs being fixed for
permanent use as they formed part of its architectural design, they were also
fixed by the company which was a freehold owner at the time. This case can be
contrasted with Lyon & Co. v London City and Midland Bank 26 where the
chairs were hired for temporary use for 12 weeks and the person who had
hired them was a tenant.

Where parties agree as to whether an item is a fixture or a chattel, they will be

bound by that agreement and those items will be held to be so as agreed upon.
If the landowner and the tenant agree that the tenant will remove whatever he
or she fixes to the land, those items will be held to be chattels. Where the
agreement is to the effect that the things will remain fixtures, the landowner
must provide some consideration to the tenant.27

In conclusion therefore, in deciding by courts whether a chattel has been so

attached to land to form part of it depends upon the facts and circumstances of
a case but mainly on two tests that is the degree of annexation and the object
of annexation as opined by Lord Lloyd in Elitestone v Morris. The facts and
circumstances have to be harmonized into these two tests.

BIBILIOGRAPHY

24
Holland (n 8).
25
Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74.
26
Lyon & Co. London City and Midland Bank [1903] 2 KB 135.
27
Spear House Ltd v Barclays Bank of Uganda Ltd Civil Suit No. 236 of 2008.
Laws

The Registration of Titles Act Cap 230

Cases

Berkley v Poulett [1976] 241 EG 911

Botham v TSB Bank p/c [1996] EGCS 149 CA
Chelsea Yacht & Boat Co. Ltd v Pope [2001] 2 ALLER 409
Deen v Andrews [1985] 135 NLJ 728
Elitestone v Morris [1997 2 ALLER 513
Francis v Ibitoye [1936] NLR 1
Hamp v Bygrave [1982] 266 EG 720
Holland v Hodgson (1872) LR 7 CP 328
Jordan v May [1947] 1 KB 427
Leigh v Taylor [1904] AC 466
Lyon & Co. v London City and Midland Bank [1903] 2 KB 135
Spear House Ltd v Barclays Bank of Uganda Ltd Civil Suit No. 236 of 2008
Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74

Textbooks

Goo SH, Sourcebook on Land Law (3rd edn, Cavendish Publishing Ltd 2002)
Megarry R and Wade W, The Law of Real Property in Harpum C, Bridge and
Dixon (eds), (8th edn, Sweet & Maxwell 2012)
Mugambwa J T, Principles of Land Law in Uganda (1st edn, Fountain
Publishers Ltd 2002)

Legal Journals

Luther P, ‘Fixtures and Chattels: A Question of More or Less…’ (2004) 24

Oxford Journal of Legal Studies 597