1B LAND (FIXTURES) Flashcards
Elitestone v Morris (HL)
- Authority for the fact that things can be classified either as chattles, fixtures, and part of and parcel of the land itself
- It was held that considering both: the degree of annexation and the purpose of annexation (Holland v Hodgson) the bungalow formed part of the realty
- Lord Lloyd quotes Holland v Hodgson to explain that considering both the degree of annexation and the purpose of annexation. The bungalow was part and parcel of the land itself. So the case added a third element the classification of object brought on to land.
- Elitestone had a property right in a land. Mr Morris lived in a wooden bungalow in that land and paid an annual fee to Elitestone. Elitestone wished to redevelop the land and brought proceedings to remove Mr Morris.
- For Mr Morris to be protected under the Tenancy Act 1977 he had to show that he had a property right in that land (a lease)
- Elitestone argued that Mr Morris could not have a property right in that land because he owned a wooden bungalow that is a separate object not forming part of any land.
- The CA accepted that argument – Mr Morris appealed to the HL, which allowed the appeal.’ The HL agreed with Lord L that Mr Morris’ bungalow was regarded as part of the land in relation to which Elitestone Ltd had a property right.
- ‘Lord Lloyd 689-93: He questions whether the bungalow ceased to be a chattel when it was built into the composite structure? He quotes Blackburn J in Holland v Hodgson to supply the answer. He said that it depends on the circumstances of the case, but mainly in two factors, the degree of annexation to the land, and the object of annexation to the land bearing in mind that the bungalow is part and parcel of the land itself. The third category proposed by him and not the second, which is a fixture.
¬ Degree of annexation: ‘the importance of annexation will vary from object to object. In the case of a large object, such as a house, the question does not often arise. Annexation goes without saying…’
¬ Purpose of annexation: If an abject is fixed with the intention to be removable then it may be a chattel. But an object that cannot be removed other than by deconstruction cannot have been intended to remain as a chattel. It must have been intended to form part of the realty. Lord Lloyd then applies the analogy saying that as each of the timer walls were placed in position, they all became part of the structure which was in itself part and parcel of the land.
• Conclusion
- A property right in land covers: i) the surface of the land itself, ii) anything that is part and parcel of that land (a house built on that land) iii) anything that is sufficiently attached to that land (such as a towel rail connected to the central heating system)
- When it is not clear whether the object falls into either ii) or iii) apply Lord Lloyd’s approach in Elitestone Ltd v Morris when a court has to look at both the degree of attachment to the land and the purpose of such attachment.
Chelsea Yacht & Boat Co v Pope - CA
- The case established that a houseboat, even if permanently moored does not form part of the land, as the degree of annexation is insufficient.
- Facts: A houseboat was moored to a pontoon and to the bank of the Thames. It was connected to the services but it could easily be untied and disconnected from the services. It was possible that it could be towed to a new location.
- Held: As the boat could be moved it had not become part of the land. And the mobility did not prevent it from being a permanent home.
- Tuckey LJ: Explains the requirement that what is required is ‘sufficient attachment to the land so that the chattel becomes part of the land itself’…the boat’s attachments ‘could simply be undone’.
Tristmire v Mew CA
- The case held that the houseboats did not form part of the realty whilst the degree of annexation was similar to that in Elitestone v Morris. The court examined the object of annexation. And it came to the conclusion that when the boats first came to the site they were easily movable and not intended to be part of the permanent structures. Hence the tenancy of the plots did not extend to the boats.
- Facts: The CA was required to determine whether two houseboats were part of the realty thus constituting a dwelling house or whether they were chattels. If they formed part of the realty the defendants who owned and resided on the boats would be protected from eviction under the Hosing Act 1988.
Botham v TSB Bank CA
- Held: The bath, lavatory and bathroom fittings were fixtures in addition to the kitchen sink and units. The curtains, carpets, light fittings, kitchen appliances such as washing machines, dishwashers, cookers were chattels.
- Roch LJ: If the item viewed objectively is intended to be permanent and to afford a lasting improvement to the building, the thing will have become a fixture. If the item is temporary and no more than is necessary for the item to be used and enjoyed, then it will remain a chattel.
- Facts: Mr and Mrs Botham defaulted on their mortgage and removed various items before the bank took possession of the house. The CA was required to consider whether the various household items were fixtures or chattels. The CA applied the same basic test as the first instance judges but reached a different conclusion.
Taylor v Hamer CA
- Held: Appeal allowed (Arden LJ dissenting) that there had been a breach of contract. An order to restore the flagstones to their original place was given.
- It was concluded that the paving slabs were included in the property, which was construed in harmony to what a reasonable person who knew what the parties knew at the time of contract would consider it meant.
- Facts: A defendant sold property that included garden paved with antique flagstone – D removed the flagstones before the sale. The reply to a pre-contract enquiry indicated flagstones had not been removed. The purchaser was entitled to restitution.
Leigh v Taylor HL
- Facts: A tenant for life in a mansion placed valuable tapestries in the mansion. They could be removed with slight disturbance to the walls. With time the court was required to determine whether the tapestries had become fixtures belonging to the mansion or whether they remained chattels.
- Held: Tapestries remained chattels and did not form part of the mansion.
- Earl of Halsbury LC: Explains that the tapestry was never intended to remain a part of the house. Emphasis is placed on the nature of attachment. He concluded that the tapestry was put as an ornament and for the enjoyment of the person while occupying the house and it is therefore not part of the house.
Holland v Hodgson
- Facts: The owner of a mill purchased some looms for use in his mill. The looms were attached to the stone floor and could easily be removed. The owner mortgaged the mill and fails to keep up the payments and the mill was repossessed.
- The question for the court was whether the looms were fixtures forming part of the land or whether they remained chattels.
- Held: The looms had become fixtures and thus formed part of the land mortgaged.
- Blackburn J: Introduced the degree and object of annexation test – ‘an article which is affixed to the land even slightly is to be considered as part of the land, unless…it was intended to all along continue a chattel’.
- UNDER THIS TEST, the question to be asked is whether the chattel was attached to the land to enable the object to be better enjoyed as a chattel, or for the more convenient use of the land.
- Blackburn J on the object of annexation: Paraphrased – blocks of stone placed on top of each other without any mortar become part of the land. However, if the same stone are deposited for convenience they would remain chattels.
Bernstein v Skyviews & General Ltd
- Skyviews took aerial photograph of houses and offered to sell the copies of the photographs to residents of the houses. Lord Bernstein was offered a photograph of his house. He began legal proceedings claiming that Skyviews had committed the wrong of trespass by flying over his land without permission.
- Griffiths J dismissed the claim finding that Skyviews had not interfered with Lord Bernstein property right. His points were:
- cases that use the latin maxim cujus est solum… have concerned structures attached to the adjoining of a land.’
- Lord Berntein claim is not that the aircraft interfered with the use of the land but that a photograph was taken from it. There is no law against taking a photograph. Hence, the act is not a trespass into the plaintiff’s air space.
Bocardo v Star Energy – SC
- Authority for the fact that drilling beneath a plot of land is a trespass to the person who has a property right in that land.
- The importance of the case lies in the SC’s refusal to extend the reasoning in Bernstein v Skyviews to the question how far below the ground the rights of a freehold owner extend. As a result, a freehold owner’s rights are better protected below ground than above it. In Lord Hope’s view, this reflects the developments of the cujus est solem maxim: that an owner’s right to the strata beneath his or her land was recognized first, and only then extended by analogy to the area above his land.
- McF points out that it is ‘worth noting that…the boundaries of the maxim may have responded to technological development.
Rosebery v Rocklee
- The legal principle is that where a lessee within the space builds an extension demised to him, the whole of the extension must be within the demise unless otherwise stated. Accordingly, the extension including its roof but not any airspace above it was demised to the claimant.
A Turner ‘Subterranean Property’ Conv 465
- Full title: Below the law? Issues in subterranean property law and practice – Adam Turner – Conv. 2011, 6, 465-485
- The journal draws attention to the need to establish the existence of any subterranean structures, focusing on the example of the emergency construction of the Post Office Works to highlight issues in underground land law practice such as ownership, compensation, rights to support for landowners above, land registration and boundaries.
- Discusses how the Land Registration Rules 2003 r.26 operates in practice with reference to the Channel Tunnel and Piccadilly Line extension to Heathrow railway tunnels.
• The journal concerns expropriation
• Expropriation: The act of taking privately owned property by a government to be used for the benefit of the public – in the UK this was due to the development of nuclear weapons during WWII.
• The j focuses on three examples where WWII forced the construction of key infrastructure underground. The examples are collectively known as the Post Office Works.
1. The Post Office Works and their purpose: - Program to safeguard vital long distance conversations during the war.
- Expropriation: Legal power and construction
- Right to support: liability pose privatisation
National Provincial Bank v Ainsworth
• In this chapter the case is used to highlight some of the difficult issues raised by the subject as well as some of the different approaches to tackling those questions. The case involves dispute between an occupier of land and a bank.
• Facts: Mr and Mrs Ainsworth lived together. Mr Ainsworth borrowed money and gave the bank a particular right (a charge) over his home. Mr Ainsworth had fallen behind on his repayments to the bank. The bank wished to sell the land.
a. Mrs Ainsworth refused to leave, the bank applied for an order for possession of the home.
b. Mrs Ainsworth resisted the application. The case reached the HL.
c. The majority in the CA led by Lord Denning MR found that Mrs Ainsworth had a right to occupy the land that bound the bank. On this basis the bank’s possession would fail. The HL reversed this finding.
d. HL ruling:
- The decision depended in part on the content of the question: in contrast to the CA, the HL found that Mrs Ainsworth’s right did not count as property right and so was not capable of binding the bank
- HL also found that Mrs Ainsworth had no direct right against the bank: the was nothing in the bank’s own conduct that placed it under a duty to allow Mrs Ainsworth to remain her home.’
• ‘Harris, ‘Legal Doctrine and Interests in Land’ – in the blue extract identifies two models that may inform a court’s approach when dealing with cases such as Ainsworth.
- The utility model of rationality: Based on what Weber sees as non-specialist expectation of how the dispute should be decided. Consists of weighing up, one side, and the practical advantages of favouring the occupier and, on the other hand, the practical advantages of finding for the bank.
- The doctrinal model of rationality: Based on what Weber calls ‘lawyers’ law’. The dispute is resolved by the application of specific legal rules, not by a general weighing of the consequences of finding favour of the occupier or the bank.’
• The CA’s approach in Ainsworth: The majority Lord Denning MR and Donovan LJ found in favour of Mrs Ainsworth. Lord Denning created a right that protected a party such as Mrs Ainsworth (the deserted wife’ equity’).
- In analysing Lord Denning’s approach, both of the models of legal reasoning can be used. The doctrinal model when explaining that to protect a deserted wife against a bank involves an extension of case law. In contrast, Lord Denning’s approach is motivated by the utility model; firstly he emphasises the vulnerability of Mrs Ainsworth, secondly Lord Denning’s conclusion ensures that the court has a wide discretion to reach whatever result it considers just.
- Denning’s approach is based in women’s vulnerability in the post war.
• ‘The HL’s approach in Ainsworth: Both the HL and the CA addressed the content question – did Mrs Ainsworth ‘deserted wife’s equity’ count as a property right, capable of not only binding Mr Ainsworth but also a third party such as the bank?
• The HL rejected Lord Denning’s analysis and overruled the CA in allowing the ‘deserted wife’s equity to bind a party other than the husband.’
• Lord Upjohn – expressed that the rights of the wife are regarded as personal between herself and her husband.
• ‘Lord Wilberforce – The appeal raised two questions…The general question is whether the respondent Mrs Ainsworth as the deserted wife of her husband, the owner of the house, has any interest in or right over it which is capable of binding the bank as the proprietor of a legal interest in the land.
- Lord W then turns to the general question of what is the nature of the deserted wife’s interest or right?
- The wife has no specific right to be provided with a house.
- Lord W separates property rights and personal rights. He then explains that for a right to be admitted into the category of property, or of a right affecting property, it must be ‘definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.’ ‘The wife’s right has none of those qualities, it is characterised by the reverse of them’.’
• Comparing the approaches of the CA and the HL…
• McF explains how there is concern to avoid ‘a radical departure from sound principle of real property law’ explained by LW. And that a decision in favour of Mrs Ainsworth can only be made if it is reconciled with the doctrinal technical rules of land law. And that those rules can only count as a property right if it was definable, identifiable…. Mrs Ainsworth’s right did not have those features, hence she could be removed from her home.
• We will come across rules that are subject to disapproval. Think if the rules should be changed and also how. Each cases raises questions of whether it would be better to reform existing land law rules through judicial intervention, or instead by legislation.
• ‘Developments after Ainsworth: Rights of Occupation…
- The Matrimonial Homes Act 1967 was established. (i) a spouse has a (qualified) statutory right to occupy a home owned by his or her partner; and (ii) that the statutory right to occupy is capable of binding a third party, such as a bank, only if the spouse registers the right of occupation before the third party acquires its right. The spouse’s right to occupy thus replaces the deserted wife’s equity. This is extended to husbands.
- The statutory rights to occupy now found in the Family Law Act 1996, was extended to civil partners by the Civil Partnership Act 2004.’
• ‘Property Rights in the Family Home…
- Despite developments after Ainsworth, the wider issue remains. It is not a question of whether the deserted wife’s equity based on a wife’s right to maintenance from her husband, can count as a property right and so bind a third party. Rather, the question is how can a partner (married or unmarried) acquire a recognized property right: a share of ownership of the family home?’
- ‘The weaknesses in LD’s arguments were exposed in the HL. The idea that equity could bind a third party such as the bank collapsed. The bank has no duty to maintain Mrs Ainsworth.’
- ‘As Kahn-Freund suggests, a focus on maintenance is outdated. The real issue is as to the ownership of property acquired by cohabiting partners. So for example, when a land is registered in the name of only one of the partners. Thus, as Freud suggests, there may be strong arguments that the other partner should nonetheless have a share of the benefit of the property.’
• ‘Conclusion…
- The case focused on whether the occupier had a private right to occupy the land. The question can be broken down into three further questions: the content, acquisition and defences questions.
- The content question considers the nature of a party’s right, and if it counts as a property right.
- The acquisition concerns how a private right can be acquired to use land.
- The Ainsworth case concerned those two Qs
• The judges different approaches to the utility and doctrinal models shows further tension in which a court should make a decision.’
• ‘Bernstein of Leigh (Baron) v Skyviews & General Ltd
- Skyviews took aerial photograph of houses and offered to sell the copies of the photographs to residents of the houses. Lord Bernstein was offered a photograph of his house. He began legal proceedings claiming that Skyviews had committed the wrong of trespass by flying over his land without permission.
- Griffiths J dismissed the claim finding that Skyviews had not interfered with Lord Bernstein property right. His points were:
- cases that use the latin maxim cujus est solum… have concerned structures attached to the adjoining of a land.’
- Lord Berntein claim is not that the aircraft interfered with the use of the land but that a photograph was taken from it. There is no law against taking a photograph. Hence, the act is not a trespass into the plaintiff’s air space.
• S.40 of the Civil Aviation Act 1949 makes clear that simply flying at a reasonable height over other’s land does not constitute a wrong against the landowner.
• Griffith J decided there is a limit on a landowner’s property right. So a property right allows a significant degree of control over a resource, that control must be limited.’
• Star Energy Weald Basin Ltd and another v Bocardo SA
- Authority for the fact that drilling beneath a plot of land is a trespass to the person who has a property right in that land.
- The importance of the case lies in the SC’s refusal to extend the reasoning in Bernstein v Skyviews to the question how far below the ground the rights of a freehold owner extend. As a result, a freehold owner’s rights are better protected below ground than above it. In Lord Hope’s view, this reflects the developments of the cujus est solem maxim: that an owner’s right to the strata beneath his or her land was recognized first, and only then extended by analogy to the area above his land.
McF points out that it is ‘worth noting that…the boundaries of the maxim may have responded to technological development.
