What tests would you employ to determine whether a chattel has become a fixture? What problems in the West Indies specifically concern the question of chattel houses in this context?
The law of fixtures is founded on the maxim
‘quicquid plantatur solo solo cedit’
, i.e. whatever is attached to the land becomes a part thereof. Thus, chattels that are so affixed to the land as to become apart of it, loses its character as chattel and passes with the ownership of the land. Thus, it could be gleaned that chattels are of a temporary nature, while fixtures remain permanent. The maxim was invoked to prevent the economic waste involved in giving the land to the heir and the severed chattel to the personal representative, i.e. to avoid destruction involved in the severance from the freehold. The principle of this doctrine has been unduly stretched to govern matters between landlord and tenant and mortgagor and mortgagee, who stand to lose their investment by the application of the maxim. In realization of the hardship caused by its strict application, the law made exceptions to the rule to allow a tenant to remove fixtures used for agricultural, domestic/ornamental and trade purposes.
The question whether a chattel has been affixed to the land can become exceedingly difficult to answer, thus it is a question of law for the judge to decide. However, a decision in one case is no sure guidance through another. The decision turns upon the particular circumstances of each case, and mainly but not decisively, the degree of annexation and object of annexation. According to Cheshire and Burn, 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. Thus, under 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.
Other tests have been evolved such as the one pointed out in the American case of Teaff v.
Hewitt . In this case the court felt that the safest criterion was the united application of actual annexation to the realty; appropriation to the use or purpose of that part of the realty with which it is connected; and the intention of the party making the annexation. To the same effect in Holland Hodgson , the dictum of
Blackburn J has often been cited in establishing the rule with regard to chattels and fixtures. He suggests that, if there is no attachment, one can assume it is a chattel. Anyone contending that it is a fixture has the burden of so establishing. If it is attached to the land even slightly, it is considered to be a fixture, the burden shifting to the person who contends that it is a chattel.

In the Commonwealth Caribbean, the locus classicus is the formulation laid down by Wooding
CJ in Mitchell v. Cowie
. Wooding CJ’s formulation clearly establishes the intention criterion as the controlling factor. He propounds that a house may be a chattel or a fixture depending on whether it was intended to form part of the land. The intention is to be determined objectively rather than subjectively.
The cases do establish beyond a doubt that the controlling and guiding principle for determining this issue is the intention with which the object is affixed to the realty, and other factors such as: degree of annexation, purpose of annexation, the relation to the land of the party making the annexation, damage to the land and the chattel upon removal, and custom and usage are also used to ascertain intention.
By the degree of annexation test, a chattel will rank as a fixture if it is united to the land or affixed to an object which is physically attached to the land. Thus, there should be substantial attachment. For example, in the case of Buckland v. Butterfield , a veranda attached to a house would be considered a fixture. However, as noted in H.E. Dibble v. Moore , if the superstructure can be removed without losing its identity it is likely to retain its chattel character and not rank as a fixture.
Wooding CJ in Mitchell v. Cowie relied on Turner v. Cameron to uphold the decision of the trial court that the house was a fixture and not a chattel. But the degree of annexation of the railway lines in
Turner v. Cameron bears no analogy to the construction of chattel houses generally. This comparison is far-fetched. Therefore Wooding CJ’s decision should not be accepted as having established that a chattel house is a fixture. The analogy in Billing v. Pill , which was also cited and discussed in
Mitchell’s Case, is closer to a chattel house than the railway lines in Turner’s Case. To remove the railway sleepers in Turner’s Case would have resulted in substantial damage to the land. However, in
Billing v. Pill , the huts were erected to provide temporary sleeping accommodation for the army personnel, and could removed without causing any damage to the freehold. Wooding CJ’s holding after he analyzed Turner’s Case is open to doubt, for it can be argued that if a tenant erects a structure on the land of another, he does so not for the enjoyment of the land of which he is a tenant, but for the accommodation the chattel provides. The comparison of a chattel house with the barn in Wansbrough v.
Maton is apt. Thus, were it not for the peculiar facts of Mitchell’s Case, Wooding CJ could not have decided that the house was a fixture. The house was constructed in such a way that it could not be removed without being disintegrated. This affords a solid ground on which Mitchell’s Case can be distinguished.

As stated earlier, where the nature of a structure placed on land is such that its removal would result in its destruction, the obvious inference is that it was intended to remain permanently on the land as a fixture. In Eva Fields v. Rosie Modeste and Jurine Joseph , the house was built of tapia and plastered with concrete nogging. The Court of Appeal considered that a house built of tapia could not be removed without its complete disintegration, and in their view that would make it a fixture and not a chattel. The Court observed that such a house did not have one of the characteristics of a chattel, i.e. movability. Also, in Elitesone v. Morris , the court came to the conclusion that the bungalow was a fixture, as it was constructed in such a way as not to be removed. Thus, it must have been intended to form part of the realty, as removal would have resulted in destruction.
Where one attaches his chattel to his own land, it is easier to conceive that he intended to have made it part of his land. The degree of attachment would be of little consequence. The case of Bernard v. Burke is illustrative of this point. The Court of Appeal rejected the argument that, since the upper storey could be removed without damage to the lower storey, the upper storey was a chattel, which could be recovered. The Court of Appeal was of the view that the question was not to be solved on slight attachment and easy removal, as the upper storey was found to be an essential and integral part of the lower storey. The court also gave consideration to the fact that the late Bernard built the structure on his own land, and thus never intended it as a separate entity. Also, it was not distinguished separately in the advertisement. Thus, it can be gleaned that where there is a permanent relationship of tenure between the owner of the land and the owner of the chattel an inference of the intention to make the chattel a fixture is not far-fetched.
Where the tenancy is of a short duration, e.g. one month, it is unreasonable to impute to the tenant an intention to make the chattel a fixture. However, in Mitchell v. Cowie Fraser J stated that the duration of tenancy has no influence on the status of the building concerned. However, the preferred reasoning is that of Georges JA in O’Brien Loans v. Missick where he explained that in cases where a yearly tenant erects and anchors a wooden house in the ground there would be reason why the degree of annexation should result in the house ceasing to be a chattel. However, where the owner of a long lease erects a structure on his land it would be reasonable to hold that it was intended to improve the land, unless there is compelling evidence to the contrary.
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 Leigh v.
Taylor , where tapestry nailed to the wall together with molding 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 Berkley v. Poulett where a vendor screwed pictures, while still in their frames, into the recesses of the paneling of a dining room. Lord Lloyd’s deduction in
Elitestone v.
Morris in relation to a house is very pertinent to an inquiry as to the status of chattel house. He explained that a house which is constructed in such a way so as to be removable, whether as a unit or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. In Botham v. TSB Bank Roch LJ found the annexation of the carpets, curtains, and blinds to be unsubstantial, and that the method of keeping fitted carpets in place and keeping curtains hung are no more than is needed for the enjoyment of them as curtains and carpets.
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, a poor man with no home and land finds a house spot for rent and builds a wooden house for him and his family, 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. Thus, the realities of the situation suggest that the chattel house be regarded as a chattel. 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.
According to Marshall in his article West Indian Land Law: Conspectus and Reform, there are encouraging signs of judicial and legislative attempts to close the gap between law and social reality, the most important being that in relation to chattel houses. The insecurity of land tenure and the tendency to build with wood – at one time the cheapest material available in the West Indies – have been responsible in the past for the widespread erection of easily removable structures known as chattels. So as not to cause an injustice, McIntosh in his article The Chattel House Case, suggest the employment of a custom and usage test. Thus, the maxim quicquid plantatur solo solo cedit has no application in the
Commonwealth Caribbean to tenant’s fixtures.
The Statute law in Belize, Guyana and Trinidad & Tobago provides for the abolition of the doctrine quicquid plantatur solo solo cedit . Section 13 of the Belize Landlord and Tenant Ordinance provides that all such fixtures affixed to the tenement by a tenant and any building erected by him for which he is not entitled to compensation under law, or which is not affixed in pursuance of some obligation to the landlord, shall be the property of and be removable by the tenant before or after the

termination of the tenancy. A similar provision exists in Guyana Landlord and Tenants Act s.15 and
Trinidad & Tobago Landlord and Tenant Act, 1981 s.27 (not yet proclaimed).
The provision vests in the tenant the right to remove any such fixture which he has annexed to the land subject to the following conditions:
1.
Payment of all rents and obligations;
2.
Repair of any damage to the land on removal of the fixture;
3.
One month notice of intention to remove the fixture;
4.
The landlord has the right to pay a fair value for and keep the fixture by electing to purchase on receiving notice of the tenant’s intention to remove it.
The last provision has the effect of depriving the tenant of his Common Law rights. Under the C/L a tenant can remove any fixture used for trade or ornamental purposes and statute also allowed a tenant the right to remove fixtures used for agricultural purposes without any reference to the landlord and the landlord did not have the right to demand against the will of the tenant to buy him out of his property which was used for trade, ornamental or agricultural purposes. However, the provision extends the rights of the tenant to fixtures used for residential purposes.
The Barbados Property Act 1979 s.163 differs from the provision in Belize, Guyana and Trinidad
& Tobago. It provides explicitly that the right of removal created and the compulsory acquisition powers vested in the landlord by Statute are subject to any contrary intention expressed or contained in the lease or agreement. Though not expressed, it is submitted that the Court will give effect to any such contrary intention indicated in a lease or tenancy.
In Barbados the jurisdiction of the Court is not limited, as in other territories, to disputes relating to the value of the fixture to be acquired by the landlord. The Bajan courts have vested in them additional powers to determine whether or not the chattel should be removed. It would require an extremely strong case to get a court to deny a tenant of the fruits of his investment. The tenant’s sentimental attachment to the fixture will operate to adversely undermine the claim of the landlord, except where the removal of the fixture will result in its destruction. An economic loss resulting from a substantial and irreparable damage to the land caused by removal of the fixture may be one of the factors that would lead to a judgment in the landlord’s favor.
Also under the Barbados Property Act there is no requirement on the tenant to give notice of his intention to remove the fixture; the landlord has to take the initiative to institute court proceedings if he desires acquisition of the title to the fixture.

It does not appear that the Barbados provision solves the question of definition of a fixture. It merely deals with right of removal by way of s.163 (1). This provision cannot be interpreted to encompass a chattel house which is not affixed to the land. It only affects chattels which have been so erected or affixed as to become fixtures.
As explained in an article found in the Caribbean Law Review entitled Chattel Houses and
Mobile Homes, legislation cannot and does not resolve all difficulties: some chattel tenants cannot afford to purchase the freehold; some landlords cannot afford to pay the cost of a house as compensation in termination of the tenancy; not all occupant-constructed housing comes within the scope of a given statute; and not all jurisdictions have enacted legislation. In the absence of statutory protection, tenants must look to the Common Law.