Faculty of Law, The University of the West Indies, St. Augustine Campus
LAW 2210: REAL PROPERTY 1 SEMESTER I
YEAR 2
ACADEMIC YEAR 2022-2023
Rionne R. Boyke
WORKSHEET 3
CLASSIFICATION OF PROPERTY
FOR STUDENT USE ONLY
Reading:
Owusu S, Commonwealth Caribbean Land Law, Routledge-Cavendish 2007, Chapters
1& 2
Gray K and Gray S, Elements of Land Law, Fifth Edition (OUP 2009), Chapters 1.4 (optional)
Learning Objectives:
By the end of this topic, students should be able to:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
Demonstrate an understanding of the meaning of real property and personal property
Demonstrate an understanding of the distinction between movables and immovables;
Discuss the relevance of such distinction to modern real property law;
Demonstrate an understanding of the nature of chattels and fixtures;
Define whether an object has become a fixture;
Demonstrate an understanding of the test of the degree of annexation and the purpose
of annexation;
Demonstrate an understanding of the status of chattel houses.
Discuss the right of removal of fixtures by a landlord and a tenant; vendor and
purchaser.
The Meaning of Land
‘Land’ under the common law extends to more than just physical earth. The general rule is that
what ever is attached to the soil becomes part of it: ‘quicquid plantatur solo, solo cedit.’
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Therefore, the owner of the physical earth is also the owner of all that is attached to it as well as
mines, minerals, gold, silver and all hydrocarbons and petroliferous substances lying under the
surface.
Section 16 of the Conveyancing and Law of Property Act, Chapter 56:01 provides:
‘16. (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey,
with the land, all buildings, erections, fixtures, hedges, ditches, fences, ways, waters, watercourses,
liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to
appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed
with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof. (2) A
conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by
virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections,
fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights,
watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed
to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the
time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or
appurtenant to, the land, houses, or other buildings conveyed, or any of them, or any part thereof.’
If a building is erected on a parcel of land and additional objects or structures are attached to the
building, then ‘land’ here includes : the soil, the building and the objects affixed to it and the owner
of the land becomes the owner of the building.
Meaning of Real Property and Classification at Common Law
Conveyancing and Law of Property Act, Chapter 56:01
Section 2:
“land” includes land of any tenure, houses and other buildings, mines and minerals, and other
corporeal hereditaments; also a rent and other incorporeal hereditaments, and an easement,
right, privilege, or benefit in, over, or derived from land, and also an undivided share in land; and
in this definition “mines and minerals” include any strata or seam of minerals or substances in or
under any land, and powers of working and winning the same; and “hereditaments” mean real
property which under an intestacy devolve on the next of kin;
(1)
Rights in rem and rights in personam;
(2)
Corporeal and incorporeal hereditaments;
(3)
Personalty and realty;
(4)
Movable and immovable property
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(1)
Rights in rem and Rights in personam
Property, on the other hand, denotes a right in rem. This means that it gives rise to rights which
are enforceable not only against the parties to the transaction, but against the whole world.1
The right to enforce a contract is a right in personam since, as a general rule, action can be
brought only against the other contracting party.
(2)
Corporeal and incorporeal hereditaments
Land may also be described as ‘hereditaments’ which are of two kinds: corporeal and incorporeal
and a hereditament is defined as ‘all things, whether corporeal of incorporeal, which a man may
have to him and his heirs, by way of inheritance,..’: Lloyd v. Jones 136 E.R. 1182.
It signifies a right which is transmissible, i.e., capable of passing by way of descent to heirs.
According to Blackstone2:
‘Hereditaments, then to use the largest expression, are of two kinds, corporeal and incorporeal,
Corporeal consists of such as affect the senses; such as may be seen and handled by the body;
incorporeal are not the object of sensation, can neither be seen nor handled, are creature of the
mind and exist only in contemplation. Corporeal hereditaments consist of substantial and
permanent objects.’
Corporeal hereditaments refer to the physical and tangible aspects of land. Incorporeal
hereditaments include rights and legal obligations which only exist in the law and which are
intangible, e.g., such as easements and profits à prendre (or servitudes), leases and usufruct.
Easements and profits a prendre incorporeal hereditaments as they do entitle the grantee to
possession of or an estate in land. A right to cross a neighbouring property to access your
property or a right to take away timber or to remove soil does not give you a right to possess any
part of your neighbour’s property. This is a right which exists at law which is treated as an integral
part of land as much as the building upon which a house is built.
(1) Personalty and Realty
Corporeal and incorporeal hereditaments are known as realty in order to distinguish them from
personalty or movable property. This is the primary classification of property under the common
law.
1
2
Owusu, S, Commonwealth Caribbean Land at page 1
Commentaries, vol ii, p.17
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Personalty may be capable of absolute ownership, but realty under the common law is subject to
incidents of tenure and cannot be an object of absolute ownership as an individual is only granted
an estate in land.
Prior to the UK Law of Property Act, 1925, the remedies for the recovery of realty and personalty
differed. Where a person was dispossessed of realty he could, bring an action in the court and be
restored to the very object of which he was dispossessed. Where an owner of realty was
dispossessed, he could by this him into possession of the very thing from which he was wrongfully
evicted. This remedy availed him not only against the person who wrongfully ejected him, but also
against any person who was found in possession of the property. The remedy for the loss or
personalty was to bring an action in personam (against the person). In such a case, a claimant
did not get back the property as of right but rather the defendant had the option of returning the
item or paying damages.
Personalty has two main categories:
(i)
(ii)
Chattels Real; and
Chattels Personal
Chattel Real
A lease is a chattel real and although was not originally considered as realty, it acquired the
protection of the common law. A lease is an interest in land which is issued out of the fee
simple for a specific duration on specific terms.
It is capable of transmission.
Chattel Personal
There are two types of chattel personal:
(i)
(ii)
Chose in possession
Chose in action
A chose in possession is something which is tangible and is capable of direct physical control and
possession. It is movable and can be destroyed and is therefore, not permanent.
A chose in action is incorporeal. It exists only in the eyes of the law and is incapable of physical
handling. A chose in action include shares in a company, intellectual property rights, and
contractual rights affecting land.
Choses in action are capable of assignment by instruments of title.
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Immovable and Movable Property
Immovable and Movable property is the basic classification as exists pursuant to the Civil Code
in St. Lucia: St. Lucia Civil Code.
See Owusu, S. Commonwealth Caribbean Property Law:
Pages 14 to 21-Classification of Land in St. Lucia
Pages 21-34 Classification of Land in Guyana.
Immovable property refers to land and things underneath and attached to it. It includes the earth’s
surface, the ground beneath it including all minerals and natural vegetation, a limited portion of
airspace.
Movable property may be destroyed and therefore lose its identity. It does not have a permanent
location and may not be restored to a dispossessed owner.
Accession to Realty
English law adopts an ancient rule of accession to realty, under which buildings and other
constructions integrally or irreversibly linked with land, merge with and become part and parcel of
the land.3 Buildings constructed on foundations placed in the soil become part of the realty.
Classification of Chattels
The courts have tended to regard objects as chattels affixed on land which rest on land by their
own weight: Holland v. Hodgson (1872) LR 7 CP 238
Accession also involves a degree of permanence, as opposed to some merely temporary
provision: Elitestone Ltd. V. Morris [1997] 1 WLR 687.
Status of Chattel Houses in Trinidad and Tobago:
In Mitchell v. Cowie [1964] 7 W.I.R. 118 at 121, Wooding C.J. stated the following:
‘1. A house may be a chattel or a fixture depending upon whether it was intended to form part of the land
on which it stands. But the intention is to be determined objectively rather than subjectively, that is to say,
3
Gray and Gray, Elements of Land Law, 5th Ed. p. 28
See Lancaster v. Eve [1859] 141 ER 288 at 293.
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according to the circumstances as they appear and by the application of rules such as are set out
hereunder.
2. To distinguish chattel from fixture, a primary consideration is whether or not the house is affixed to the
land.
3. If the house is not affixed to the land but simply rests by its own weight thereon, it will generally be held
to be a chattel unless it be made to appear from the relevant facts and circumstances that it was intended
to form part of the land, the onus for so doing being upon him who alleges that it is not a chattel.
4. If the house is affixed to the land, be it however slightly, it will generally be held to form part of the land
unless it be made to appear from the relevant facts and circumstances that it was intended to be or continue
as a chattel, the onus for so doing being upon him who alleges that it is a chattel.
5. Specifically as regards a house affixed to land by a tenant thereof, a circumstance of primary importance
is the object or purpose of the annexation.
6. To ascertain the object or purpose of the annexation, regard must be had to whether the affixation of the
house to the land is temporary and for use as a chattel or is permanent and intended to be for the better
enjoyment of the land. But for this purpose, it must at all times be borne in mind that the intention or right
of the tenant to remove the house from the land on the cesser of his interest as tenant with the result that
no improvement will accrue to the landlord's reversionary interest does not make the affixation (albeit that
it is in one sense) temporary. The critical consideration, therefore, is whether the tenant in affixing his house
to the land has manifested a purpose to attach it thereto so that it becomes and remains a part thereof
conterminously with his interest as tenant”
Note:
Bisram v. Bisram TT 2016 HC 412
Lydia Ramdath v. Peter Seecharan CV2013-00306
Statutory Provisions on Chattel Houses in Trinidad and Tobago:
The Land Tenants (Security of Tenure) Act, 1981, Chapter 59:54:
‘1. (1) chattel house” includes a building erected by a tenant upon land comprised in his
tenancy with the consent or acquiescence of the landlord and affixed to the land in such
a way as to be incapable of being removed from its site without destruction;’
FIXTURES
The primary meaning of a fixture is a chattel which is so affixed to land or a building that it has
become in fact part of the land thereof.
A fixture is a chattel which has lost the character of a chattel and can now pass with the ownership
of the land.
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The question is: Whether a chattel has become so affixed to land so as to become part of
it?
The difference between a fixture and a chattel depends on the circumstances of each case and
upon two tests: The Degree of Annexation and the Object of Annexation
It is important to bear in mind that the determination of the courts depend on the particular
circumstances of each case and not on the decision in a previous case. The degree of annexation
test is not conclusive.
A.
Degree of Annexation
The general rule is that a chattel is not deemed to be a fixture unless it is actually fastened
or connected with the land or building. Laying of an article, no matter heavy, upon the
land does not, prima facie, make it a fixture. If a superstructure can be removed without
losing its identity, it will not in general be regarded as a fixture.4
The extent of annexation is not a decisive test:
The onus of proof rests on the party who asserts the continuing status of the object in
question: see Vaudeville Electric Cinema Ltd. V. Muriset [1923] 2 Ch 74 at pg. 83.
‘Perhaps the true rule is, that articles not otherwise attached to the land than by their own
weight are not 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 showing 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 as a chattel the onus lying on those who contend it is a chattel.’Per Blackburn J,
Holland v. Hodgson (1872) LR 7 CP 238 at 335.
See also:
(i)
Jordan v. May [1947] KB 427
(ii)
Mitchell v. Cowie [1964] 7 W.I.R. 118 at 121
(iii)
Berkley v. Poulet and Others [1977] 261 EG 911, 912-913
(iv)
Graham Charles Botham & Ors v. TSB Bank [1996] EGCS 149;
Note Judgment by Roch LJ
(v)
Preston Antiques v. Paul Allison 94/0008
(vi)
Bain v. Econo Car Rentals Ltd TT 2010 HC 211
Examples of Fixture Classifications:
4
Cheshire & Burn Modern Law of Real Property, Chapter 7, p.137.
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Spinning Looms bolted to the floor of a mill-Holland v. Hodgson, supra
Petrol Pumps installed on a station forecourt-Smith v. City Petroleum Company Ltd. [1940]
1 All E.R. 260 at 261;
Central Heating, elevators, video/alarm systems and swimming pool filtration plantMellushi v. BMI (No.3) Ltd. [1996] 1 AC 454 at 476.
B.
Object of Annexation
Whether the object has been fixed for a more convenient use as a chattel or for the more
convenient use of the building:
(i)
(ii)
Holland v. Hodgson supra
Leigh v. Taylor [1902] AC 157
The intention of the placement of an object is not to be assessed on a subjective basis only.
In Elitestone Ltd. V. Morris, supra, the House of Lords specified certain criteria as being relevant
to the identification of those chattels and structures which by virtue of their use for construction
purposes provide instances of real accession. The subjective intention may be of some
persuasive weight but greater consideration may be given to the underlying purpose of the
annexation in relation to the surrounding circumstances.
Note Scarman LJ in Berkley v. Poulet, supra at page 88.
Certain objects which rest by on their own weight may regarded as fixtures if the circumstances
indicate that they must have intended to become part of the land: Berkley v. Poulet, supra. These
can constitute objects which are integral to landscape or interior design.
Fixtures have been held to include:
A White marble Statue of a Greek athlete weighing half a ton and standing on a plinth-Berkley v.
Poulet
Heavy Marble Statues of Lions-D’Eyncourt v. Gregory [1866] LR 3 Eq 382 at 397
Substantial Garden Ornaments; Hamp v. Belgrave [1983] 266 EG 720 at 724
Right to remove fixtures
A freeholder owner who attaches fixtures to his own land may of course remove those fixtures at
any time before the sale of his property. On a sale of a property, the purchaser is entitled to all
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fixtures which were attached to the land at the date of the agreement for sale, unless otherwise
agreed.
Landlord and Tenant:
A tenant is allowed to remove three classes of articles notwithstanding that they are fixtures.
Trade fixtures
A tenant may remove fixtures that have been attached to the land for the purpose of carrying on
his particular trade.
Examples of Trade Fixtures:
Petrol Pumps installed at wayside garage: Smith v. City Petroleum Co {1940] 1 All E.R. 260
Floor coverings and light fittings: Young v. Dalgerty plc [1987] EGLR 116
Ornamental and Domestic Fixtures
A tenant may remove such chattels as he has affixed to a house either ornamental purposes or
for convenience.
Any fixture which involves permanent improvement and which cannot be removed without
substantial damage does not come within the description of an ornamental fixture. All trade,
ornamental and domestic fixtures must be removed before the end of a tenancy otherwise, they
become a gift in law to the landlord(reversioner).If a tenant expressly surrenders his tenancy to
the landlord, he loses his right of removal, unless otherwise agreed upon but where the surrender
is implied by operation of law, he retains the right of removal.
Agricultural fixtures:
Prior to 19015, a farmer was in an unfavourable position regarding chattels affixed to his land, as
although the sole purpose of their annexation was to in furtherance of his agricultural operations,
they could not be regarded as trade fixtures. He would have been liable to pay damages to his
landlord. In
See Cheshire and Burn, Modern Law of Real Property, Chapter 7, pgs., 139-140
5
Mears v. Callendar [1901] 2 Ch 388
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Vendor and Purchaser
Upon a conveyance of land, in the absence of any express agreement to the contrary, all fixtures
which are not deemed to be chattels pass to the purchaser and are included in the purchase price.
See: Phillips v. Lamdin [1949] 2 KB 33
TUTORIAL QUESTION
1. Answer (a) and (b)
a. What test(s) would you employ to determine whether a chattel has become a fixture?
b. You are consulted by John who tells you that he is the tenant of a garage and adjoining living
accommodation under a lease which is about to expire. No renewal is contemplated. During his
lease he has installed petrol pumps and erected a conservatory at the rear of the premises
connected by a door to a living room. He also installed air-conditioning equipment in the master
bedroom in the living accommodation
Advise John.
Rionne R. Boyke
October 2022
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