[1] The law has moved away, to a very large extent, from using maxims written in Latin. But this common law principle used to be known by the maxim variously stated as 'quicquid plantatur' or 'fixatur solo, solo cedit' (Chitty J in Elwes v Brigg Gas Company (1886) 33 Ch. D. 562, at 567) or 'quicquid plantatur solo, solo cedit' (see Aircool Installations v British Telecommunications Plc [1995] CLY. 821 (Judge Edwards QC, unreported; Central London County Court) - which meant 'whatever is affixed to the soil belongs to the soil'.

[2] The chattel's independent title ceases to exist:

(1) irrespective of who does the legal affixing. The nemo dat quod non habet principle - that is, that a person cannot give what he does not have, will not stop the affect of legal affixing causing the independent title to cease to exist. Lord Lindley in Reynolds v Ashby & Son Ltd [1904] A.C. 466, said, at 475:

'the title to chattels may clearly be lost by being affixed to real property by a person who is not the owner of the chattels'.

So if A steals B's concrete, and pores it into the grounds as foundations for a house on C's land, the concrete will cease to have independent title as a chattel (and it will form part of C's land, under C's title to that land). Whether B will have a cause of action against A, for A's actions, is another matter.

In Gough v Wood [1984] 1 QB 713, Lindley LJ said (as he then was), at 718-719:

'Wright, J., went, I think, too far in holding “that one man's property cannot be taken away from him by being fixed in the land of another.” Cases can be put in which this might happen; and the law stated in Brooke's Abr. Property, 23, and reproduced (although with a wrong reference) in Bac. Abr. Trespass, E. 2, is, I take it, good law even now. It is there said: “If a piece of timber which was illegally taken from J. S. have been hewed, this action (viz., trespass) does not lie against J. S. for retaking it. But if a piece of timber which was illegally taken have been used in building or repairing, this, although it is known to be the piece which was taken, cannot be retaken, the nature of the timber being changed; for by annexing it to the freehold it is become real property.” If I employ a builder to build me a house and he does so with bricks which are not his, I apprehend that they become mine and that their former owner cannot recover them or their value from me. The old law expressed in the maxim, “Quicquid plantatur solo, solo cedit,” although much relaxed since the days of the year-books, has not yet been replaced by the rule which prevents the owner of real property from granting a better title than he himself has; nor has the maxim in question yet given way to the ordinary rules which are applicable to sale of chattels whilst still unfixed to land. It is not, however, necessary in this case to attempt to reconcile any conflicting principles of law; when it becomes necessary to do so attention will have to be paid to the judgments in the important cases of Holland v. Hodgson and Wake v. Hall.'

(2) even where the chattel's legal title holder (i.e. the chattel's owner) transferred possession of the chattel to a buyer, under a contract of sale which contains a still active retention of title clause (i.e. active until an event, for instance full payment has occurred; and that event has not yet occurred), and the buyer legally affixes the chattel to the land.

(3) Unless there is some:

(a) pre-existing relationship between the landowner and chattel's legal title holder, or

(b) estoppel type claim,

it would seem that, post legal affixing, the chattel's (former) legal title holder will have no cause of action against the landowner.

As to this Estoppel,

(i) in Ramsden v Dyson (1866) L.R. 1 H.L. 129 (described by Lord Briggs in Guest v Guest [2022] 3 WLR 911, paragraph 20, as '...the classic case about the doctrine of estoppel by acquiescence...'), Lord Cranworth said, at 140-141:

'If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.

But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights.

It follows as a corollary from these rules, or, perhaps, it would be more accurate to say it forms part of them, that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the land and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end. The Appellant contends that it is within this principle that Thornton is brought. He acquired, it is said, possession of the land in question as a mere tenant at will, or from year to year, to Sir John , and if on that infirm title he thought fit to expend a large sum in building, there is no principle of equity which prevents Sir John , or his devisees, from asserting their legal rights by determining the tenancy, and so obtaining the benefit of his expenditure.'

In Lord Kingsdown's famous dictum (while dissenting, but not on this point) in Ramsden, Lord Kingsdown said, at 170:

'If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation.'

(ii) see the judgment of Lord Briggs, giving the judgment of the majority, in Guest v Guest [2022] 3 WLR 911.

(iii) see also JS Bloor Ltd v Pavilion Developments Ltd [2008] EWHC 724 (TCC); [2008] 2 EGLR 85, Peacock v Imagine Property Developments Ltd [2018] EWHC 1113, and Blue Haven Enterprises Ltd v Tully [2006] UKPC 17.

[3a] In Melluish (Inspector of Taxes) v BMI (No.3) Ltd [1996] AC 454, Lord Browne-Wilkinson (with whom the rest of the House of Lords agreed), referred to it as 'affixation', at 470.

[3b] Two authorities here:

(1) For those looking for a simple illustrative authority, but only of persuasive authority, there is the case of Aircool Installations v British Telecommunications Plc [1995] C.L.Y. 821 (Judge Edwards QC, unreported; Central London County Court)('Aircool'). 

In Aircool, the Original Vendor was P, who manufactured and installed air-conditioning equipment. JG was the Original Buyer. P and JG entered into a contract, the P/JG contract ('P/JG Contract'), wherein: (i) P would supply and install air-conditioning equipment at a site/premises owned by D ('Land owner' - it seems that D owned the site/premises. The law report, which is a short one, is not very clear on this, referring to premises occupied by D, then later referring to the site as D's premises) ; but (ii) by a retention of title clause, P would retain title (i.e. ownership) to the air- conditioning equipment, until JG fully paid P.

JG then entered into a contract with D ('JG/D Contract'), wherein JG contracted that JG would install the air- conditioning equipment at the site/premises. As per the P/JG Contract, P installed the air-conditioning equipment in D's site/premises.

D paid JG, but JG only partially paid P. JG then entered liquidation. 

P had a claim for the unpaid sums against JG under the PJG Contract, but P brought proceedings against D under the Torts (Interference With Goods) Act 1977, asserting that P still held title to the air- conditioning equipment, and seeking its return to P. 

The air-conditioning equipment itself consisted of three pairs of units. Each unit in turn consisted of: (i) an internal unit which was bolted to internal walls in the premises and plugged into the mains electricity; and (ii) an external unit, which rested, without being attached, on paving slabs immediately adjacent to the external wall. Each paid of units was linked by insulated pipework containing refrigerant and electrical cabling. The pipework and cabling entered the building through a hole specially cut in the external wall, and was thereafter attached by means of a cabling tray to the internal walls. The evidence was that the equipment had taken two men between one and two weeks to install, and would take two men four to five days to remove. However, upon removal the equipment could have been re-installed in other premises.

The Judge held that: (1) Each pair of units must be regarded as one system; (2) the air-conditioning equipment had become a fixture (i.e. legally affixed to the building/land). This was because: (1) there was a sufficient degree of annexation; and (2) the purpose of its annexation was for the better enjoyment of D's premises, i.e. for the greater comfort of those working therein. The common law principle applied, and: (1) title to the air-conditioning equipment in P ceased; (2) title to the land (now) included title to the air-conditioning equipment; and (3) P's retention of title clause did not stop the common law principle applying.

(2) an Australian authority from the Supreme Court of Queensland: G James Safety Glass (QLD) Pty Ltd v The Joffe Group Pty Ltd (2003) 19 BCL 304 (Building and Construction Law Reports) ('Safety Glass'), a decision of Kiefel J. In Safety Glass, Kiefel J held that certain objects were fixtures (legally affixed). In essence, a 'Rainforest Sanctuary' theme park was being developed, which included the building of artificial structures to house live animals and other exhibits in a rainforest environment. Kiefel J said, on page 1:

'The plaintiff supplied and installed glass and aluminium extrusions which were used in the sanctuary. The basement level contains a glass-walled observation area into a crocodile pit. The ground level contains assorted glass-fronted dioramas, some of which contain native Australian animals, and the top level contains a restaurant...'

The project opened but failed, and receivers and managers were appointed, then a liquidator. The plaintiff was not paid for the materials supplied, however the plaintiff relied upon (very wide) retention of title clauses, which the plaintiff asserted had the effect that title to the goods or materials supplied was still retained by it. The plaintiff sought declarations that it was the owner of the aluminium and glass materials supplied and injunctions requiring all defendants to permit the plaintiff to have access to the site for the purpose of removing them.

Rather than set out the details of what was supplied (which is very detailed and voluminous), it is convenient just to set out Kiefel J's summary of the law (handed down prior to Botham). From page 6 to 8, Kiefel J said (referring to some English as well as Australian authorities):

'The general maxim of the law is that what is annexed to the land becomes part of the land and, on annexation, belongs to the owner regardless of whether the person affixing it had title to the goods: see Megarry and Wade "The Law of Real Property" 5th ed. p. 731; Halsbury's Laws of England 4th ed. vol. 27 para 142; Holland v. Hodgson L.R. 7 C.P. 328. The personal action for conversion against that person of course remains. What is a sufficient annexation for this purpose "is a question which must depend on the circumstances of each case, and mainly on two circumstances as indicating the intention, viz, the degree of annexation and the object of the annexation." (Holland v. Hodgson supra 328, 334). It is the reference to "intention" upon which the plaintiff has relied. It submits that the intention is that of the parties to the credit agreement (expressed in cll. 22 and 23) and is that the goods were not to become fixtures. Whilst Lord Blackburn in Holland v. Hodgson was speaking of the intention of the annexing party it was an intention to be inferred and one which was manifest or "apparent" as His Lordship went on to say. So much is clear from Hobson v. Gorringe (1897) 1 Ch. 182, 193 where the Court held that the question as to whether a gas engine became a fixture or not was not affected by the existence of a hire purchase agreement. "Now, in Holland v. Hodgson, Lord Blackburn, when dealing with the 'circumstances to shew intention', was contemplating and referring to circumstances which shewed the degree of annexation and the object of such annexation which were patent for all to see and not to the circumstances of a chance agreement that might or might not exist between an owner of a chattel and a hirer thereof. This is made clear by the examples that Lord Blackburn alludes to shew his meaning......" (Hobson v. Gorringe, 193)

The subjective intention of the party annexing or one shared with a supplier or hirer are not relevant. The object of the annexation must be determined from the objective circumstances: see Litz v. National Australia Bank Ltd (unreported decision of Connolly J. in No. 780 of 1986) and Bank of Melbourne v. C.B.F.C. Leasing Pty Ltd & Ors [1991] Q.Conv. R. 54-395. That is not to say that agreements concerning the chattels which may become fixtures will never have an effect. Whilst Hobson v. Gorringe held that the agreement did not prevent the chattel becoming a fixture, the Court went on to deal with the possibility that the contractual right to remove it might be enforced (but held that it did not). Clearly an owner may agree that persons such as a tenant shall be at liberty to remove something which has or will become a fixture. Such an agreement would bind the owner to permit the removal and the rights created by the owner in some circumstances may affect that owner's interests and the rights of others later acquiring an interest in the land. The cases to which the plaintiff referred in support of its claim of an equitable interest entitling it to enter upon the property and remove the goods (re Samuel Allen & Sons Ltd [1907] 1 Ch. 575; in re Morrison, Jones & Taylor [1914] 1 Ch.50; and Kay's Leasing Corporation Pty Ltd v. C.S.R. Provident Fund Nominees Pty Ltd [1962] V.R. 429) were concerned with these matters. Those cases however concerned the creation of an interest by the owner of the land, not by the tenant. Today it might also be that conduct on the part of the owner, falling short of express agreement, could suffice to create rights ...

In considering the purpose for which chattels are attached it may be relevant for the Court to consider the nature of the article itself (for example an attractive tapestry as in Leigh v. Taylor [1902] A.C. 157) or the fact that a structure, upon being built by the tenant, was to form part of the property to be leased by the landlord to the tenant: Reid v. Smith (1806) 3 C.L.R. 656, 668. But these are facts objectively ascertained. In Belgrave Nominees Pty Ltd. v. Barlin-Scott (Airconditioning) Pty Ltd [1984] V.R. 947, 941 (upon which the plaintiff relied) when His Honour referred to the Court having regard to the "relation and situation of the party making the annexation vis-...-vis the owner of the freehold or the person in possession" His Honour was I consider referring only to the fact of the relationship, not the subjective intention of any of the parties.

The development between the owner, the third defendant and GRS provided that GRS was to construct the rainforest sanctuary complex and on completion the third defendant would grant a tenancy of the demised premises which would include a complex constructed. The similarity with the features which Griffith CJ. considered important in Reid v. Smith (668) is apparent. The lease was to be for a term initially of ten years commencing in 1992 with eight options of five years' each in addition. These matters hardly assist the plaintiff. Clearly the structure into which the material ought to be incorporated was to remain for a long time. Further, cl. 13.1 required GRS at the expiration of the term to yield up the demised premises and the building which was defined to mean all buildings and other fixed improvements forming part of it.

The degree of affixation is for the most part substantial. Indeed even slight affixation is said to have the effect that the chattels are to be regarded as fixtures, the onus being on a party such as the plaintiff who contends they remain chattels to show otherwise: Holland v. Hodgson (supra) 335; Grigor v. International Harvester Co (Australia) Pty Ltd [1942] St. R. Qd. 238, 241. Although some distinction was sought to be drawn from the fact that these chattels were not affixed to the soil itself but to artificial rocks comprising part of the structure clearly when chattels are attached to a building already itself taken to be part of the land they also become fixtures: see Megarry and Wade (supra) p. 731. It is not suggested that those parts of the structure of the sanctuary in particular the walls, floors and stairs with which I am presently concerned were not to be considered as themselves part of the land.

The manner of installation here serves only to highlight what is otherwise apparent, namely that the glass panels and dioramas were intended to be part of the structure itself. Indeed this incorporation into the structure sets this case apart from the usual cases concerning the affixation of chattels. Whilst one may regard them individually as e.g. a tank or a showcase it is obvious that they were designed and constructed not as mere additions, which might have a temporary purpose, but as an integral part of the sanctuary itself. It was, I conclude, intended that they remain in position for so long as the sanctuary was present which was to be for a substantial period. In those circumstances they have become part of the land: see Holland v. Hodgson (supra), 336; Australian Provincial Assurance Co Ltd v. Coroneo (1938) 38 S.R.N.S.W. 700, 712; Bank of Melbourne v. C.B.F.C. Leasing Pty Ltd (supra) at 58, 997.

I have considered whether the mirrors fall into a separate category but was not persuaded that they were affixed for the purpose of the enjoyment of them as a chattel. Again, they were to be part of the facilities provided by the sanctuary building.

The Plaintiff has pointed out that some materials, notably the glass doors on hinges and panels held by sealant (not covered by concrete) could be readily removed. But it seems correct in principle that where the installation has been found to be a fixture portions of it which are removable, at least where they are an essential part of it, are likewise fixtures: Halsbury (supra) Vol. 27 para. 146 (where the authors give the example of doors and windows attached to premises).

[Counsel for the plaintiff] submitted that I ought to apply the findings of Thomas J. in South Bank Corporation v. Gondwana Rainforest Sanctuary Pty Ltd and Steelfinne Fabrications Pty Ltd (action 182/93) an unreported decision of Thomas J. of 10th February 1993 which case concerned another contractor to the Gondwana Rainforest Sanctuary. His Honour was dealing with the matter only at an interlocutory level and as His Honour stated his findings as to fact were not intended to be final. Clearly however what His Honour was concerned with was apparently a fully demountable structure sitting on columns.

In the present case it could not be said that the materials continued as chattels themselves nor could it be inferred that their annexation was merely for the better enjoyment of them as chattels themselves. They were to become part of the sanctuary structure. They facilitated the effective use of the structure itself designed as it was to contain exhibits. In the light of these findings, as to their incorporation into what is a permanent structure, it does not seem to me to be a strong consideration that items could be removed. In some cases where a chattel is so securely affixed that it cannot be detached without substantial injury that factor can provide strong evidence that permanent fixing was intended. In others a slight fixing might lead to the opposite conclusion (see the cases referred to in Coroneo's case p. 712, 713). The fact that an item attached could be removed if necessary does not prevent it being regarded as a fixture: Reynolds v. Ashby [1904] A.C. 466, 472 and The Commissioner of Stamps v. L. Whiteman Ltd (1940) C.L.R., 407, 411. Here the fact that it was intended to be permanent is to be inferred by reference to other objective indications. The difficulty observable in attempts to remove any of the structures, where concrete had been oversprayed, confirms that it was part of the structure and was not intended to be removed.'

[3c] In Holland v Hodgson (1871-72) L.R. 7 C.P. 328 in the Court of Exchequer Chamber (Blackburn J; Cleasby B; Channell B; Hannen J; Kelly CB; Mellor J), the land owner mortgaged his land, and then subsequently was adjudged bankrupt. The issue arose whether objects on the land: (1) were legally affixed to the land, so as to form part of the land which was mortgaged; or (2) not legally affixed to the land, such that title to the objects remained separate, and title to the objects vested in the trustee in bankruptcy upon bankruptcy.

To give more details, in Holland the land consisted of a wool yarn mill (the 'Mill'), wherein the land owner carried on the business of spinning and manufacturing wool yarn. The landowner mortgaged to a mortgagee ('Mortgagee'), the Mill 'and all fixtures which then were, or at any time thereafter should be set up and affixed to the premises,' (at 333). The Mortgagee failed to registered the mortgage as bill of sale (under the then applicable law). Subsequently, the landowner 'assigned all his estate and effects to the defendants as trustees for the benefit of his creditors' (at 333) - for present purposes the equivalent to a bankruptcy - the defendants being effective trustees in bankruptcy (the 'Trustees'):

(1) Under this assignment, the Trustees took possession of everything;

(2) as a result of the mortgage not being registered as a bill of sale, under the then applicable law, the mortgage was void as against the Trustees, in respect to fixtures (i.e the mortgage did not apply to the fixtures)(at 333).

The Mortgagee brought an successful claim against the Trustees, for trover (roughly equivalent to the tort of conversion) in respect of the looms in the Mill, the court finding the looms passed by the mortgage of the Mill as part of the land, and the action was therefore maintainable.

[3d] To give an example of 3 party (a tripartite) scenario:

A building materials supply company supplies building materials (the chattels) to a contractor/buyer, for incorporation into a building/land, and the building/land will be owned by a third party. In such a scenario, there is:

(1) the Original Vendor - the building materials supply company - who initially at least, holds legal title to the building materials (the 'chattels');

(2) the Original Buyer - the contractor/buyer - who contracts to purchase the materials (chattels) and, presumably, is contracted by the Land Owner (or at least contracted with another), to build on the Land Owners' land;

(3) the Land Owner, who owns the building/land of the building site/premises - and who may, depending on whether legal affixing occurs, own land with, or without, the materials being part of that land.

The Original Vendor has included in the supply agreement terms and conditions a retention of title clause over the building materials, until full payment is made.

The question of whether the chattels have lost title then becomes important, when the Original Buyer enters an insolvency procedure before the Original Buyer has paid the Original Vendor in full, such that the retention of title clauses appear, on first blush, to mean Original Vendor still has title to all the building materials supplied. While the Original Vendor will have a unsecured creditor claim in the Original Buyer's insolvency, for the unpaid price (where the Original Buyer has entered liquidation or administration, assuming permission is not sought to initiate/continue legal proceedings against the Original Buyer, this would be by a proof of debt), the Original Vendor wishes to assert its (apparent) proprietary rights over the building materials themselves. It may be however that some or all of the building materials were physically affixed to the land (whether to the land itself, or a building on the land), and the Land Owner (whether a third party landowner, or the contract/buyer, if the contractor/buyer is also the land owner) asserts that he, the Land Owner, owns the materials as they have become legally affixed to the land and so: (1) part of his title to the land; (2) the pre-existing title to the materials (the chattels) has ceased to exist.

[3e] Strictly speaking, facts in court are established in one of 4 ways: (1) by evidence; (2) by judicial notice; (3) by admission; or (4) by the effect of a presumption or assumption. There are no presumptions or assumptions in the law in this area; while (2) and (3) can conceivably arise, the focus will be on establishing facts through evidence.

[3f] The word 'chattel' has a long legal history in English law. In An Introduction to English Legal History (5th Ed) by Sir John Baker, in chapter 'Personal Property, Chattels and Things', it states, at 404:

'A convenient term used by common lawyers for personal property was 'chattels' (Latinized as catalla), a French word having the same root as 'capital'. The English equivalent 'cattle' came to be confined (after about 1500) to animals; but the legal chattel included all movable property, and also chattels real such as a term of years or a wardship severed from the seignory. 'Goods" (bona) was a synonym for tangible chattels, but it did not normally include chattels real, and it did not always include livestock. Goods and chattels were in turn usually distinguished from 'choses' (things) in action, which came to be regarded as a species of personal property but were 'things' only in an esoteric legal sense.'

For those interested in more legal history, describing the situation after 1500, the author states, at page 405:

'The distinction between land and chattels did not depend simply on movability. Title-deeds, door-keys, and uncollected loose minerals and windfalls, were all considered part of (or at least annexed to) the realty. They passed on a grant of the freehold, and they went on death to the heir rather than the executors. Animals and fixtures raised more complex questions. Domesticated animals were personal property, whereas unreclaimed wild animals and birds passed (as a kind of 'special property') with the land on which they lived. Things affixed to the realty might sometimes be regarded as chattels for the purposes of succession; for instance, certain classes of fixture placed by a tenant could be removed by executors. Even a building might not be part of the land, if it stood on pattens and was removable. It was once thought that an upper room in a house could not be a freehold, because it did not adjoin the soil; but it could hardly be a chattel, unless it was leased for years, and by 1500 'flying freeholds' were recognized. The key to the distinction between land and chattels annexed to land lay in the purpose and degree of annnexation. The mill-stone of a mill was regarded as part of the mill even while it was away being mended, whereas ploughs and ploughshares used to till the land were personal property. According to all the judges of England in 1647, dung spread on the ground was part of the realty whereas a heap of dung was a chattel. However, to say that something was part of the realty for the purpose of succession or transferring title was not to say that a real action lay for the thing independently of the land. There was no writ of right for muck or loose pebbles, independently of the land, though recovery of the land in a writ of right carried such things with it. But the same things when reduced into manual possession became chattels, could be recovered by the action of detinue, and could be the subject of larceny.'

And later, at 406:

'When a new thing was made by human industry - specificatio in the language of Roman law - it generally belonged to the maker; but a problem arose if he used materials belonging to another person. In the time of Edward IV it was held that the property vested in the maker if the new product was so different from the materials from which it was made that it could no longer be demanded by an action of detinue as being the same thing.28 But the fact that goods could not be demanded in detinue did not necessarily mean that they could not be reclaimed at all, for instance by legitimate self-help. If goods were taken wrongfully and made into something new, the owner of the materials was entitled to seize the new article without bringing any legal action. However, property was changed by specificatio in two cases. First, if the materials were no longer identifiable; for instance, if corn was made into bread, or barley into ale, or silver was melted down and cast in a new shape. Although the reason usually given was the practical one about seizure, there may also have been a more philosophical objection to treating a thing as continuing to exist when its nature had been transformed.29 The second case was where a thing was made to accede to the freehold, in which case there was neither a right of seizure nor a writ of detinue. This would be the situation if materials were built into a house.'

The author states, in a footnote to his last sentence, to: 'e.g. Phylpot v Frenche (1480) CP 40/872, m. 429 (demurrer as to leaded glass in a window); Henry's Case (1505-06) 94 SS 216 n. 4; probably the same as Bodon v. Vampage (1507) Caryll Rep. 540 (demurrer as to an oven cemented to the floor). See also OHLE, VI, pp. 733-8.'

[4a] In Holland v Hodgson (1871-72) L.R. 7 C.P. 328 in the Court of Exchequer Chamber (Blackburn J; Cleasby B; Channell B; Hannen J; Kelly CB; Mellor J), Blackburn J considered the case of Hellawell v. Eastwood (1851) 6 Ex. 295; 20 L. J. (Ex.) 154 ('Hellawell'). Briefly, the facts in Hellawell were that the defendant/landlord leased a mill to the plaintiff/tenant and, when rent was unpaid, the landlord seized (for the purposes of distraining) items in the mull, including cotton-spinning machinery called 'mules' (installed, it was inferred by the tenant only), some of which were (1) fixed by screws to the wooden floor; and other were (2) fixed by screws which were sunk in the stone floor, and secured by molten lead poured into them. An issue arose as to whether the mules could be distrained against, which in turn depended on whether the mules had remained chattels (and so could be distrained against) or not. Before the mules were attached to the floor, the mules undoubtedly were chattels, but the question was 'whether they lost that character by being attached to the floor in the manner described.' (at 561).

After dealing with some, for present purposes, irrelevant matters, Parke B, in delivering the judgment of the Court in Hellawell, said at 561:

'The only question, therefore, is, whether the machines when fixed were parcel of the freehold;'

In other words, had the mules become legally affixed to the land. Parke B then said, at 561:

“This is a question of fact depending on the circumstances of each case, and principally on two considerations; first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed integrè salve et commode or not without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the civil law, perpetui us–s causâ, or in that of the year book, pour un profit del inheritance, or merely for a temporary purpose and the more complete enjoyment and use of it as a chattel.”

In Holland, Blackburn J said that, subject to one observation (highlighted below), at 337:

'...we think that the passage in the judgment in Hellawell v. Eastwood does state the true principles.'

The one observation is that, at 337:

'...trade or tenant fixtures might in one sense be said to be fixed “merely for a temporary purpose;” but we cannot suppose that the Court of Exchequer [in Hellawell] meant to decide that they were not part of the land, though liable to be severed by the tenant.'

Blackburn J went on, at 337:

'The words “merely for a temporary purpose” must be understood as applying to such a case as we have supposed, of the anchor dropped for the temporary purpose of mooring the ship, or the instance immediately afterwards given by Parke, B., of the carpet tacked to the floor for the purpose of keeping it stretched whilst it was there used, and not to a case such as that of a tenant who, for example, affixes a shop counter for the purpose (in one sense temporary) of more effectually enjoying the shop whilst he continues to sell his wares there. Subject to this observation, we think that the passage in the judgment in Hellawell v. Eastwood 42 does state the true principles...'

As an aside, Holland, Blackburn J did doubt how the court in Hellawell had applied this principle of law, to the facts in Hellawell. Blackburn J said, at 337:

'though it may be questioned if they were in that case correctly applied to the facts.' 

In Hellawell, the doubted decision on the facts was that 'we cannot doubt that the machines never became a part of the freehold' (at 561). In Reynolds v Ashby & Son Ltd [1904] A.C. 466, Lord Lindley said of Hellawell and its decision that the mules were chattels, not legally affixed (fixtures), that it 'is of questionable authority' (at 473)

[4b] In Elwes v Brigg Gas Co (1886) 33 Ch D 562 ('Elwes'), Chitty J had to determine who had the better claim, as between a lessee (defendant) and a lessor (plaintiff), to a prehistoric boat found on land demised by the lessor to the lessee. The prehistoric boat was found 6 feet below the surface, while the lessee gas company was excavating to build foundations for a gas works. Chitty J determined that the scope of what was demised in the lease, did not include the prehistoric boat, so the lessor had the better claim to it ('The boat did not pass to them by the mere demise; a lease being only a contract for the possession and profits of the land' (569) and 'it would be unreasonable to infer that it was intended to be included' (570). It did not matter that the lessor was ignorant of the prehistoric boat's existence. This conclusion meant that it was not necessary to determine whether the prehistoric boat: (1) was a 'mineral'; (2) was part of the soil by reason of its having become permanently affixed to it; or (3) ought to be considered a chattel (570)(as in, it had retained its character as a chattel (566)). But Chitty J did note the following arguments, and made the following obiter comments, about whether the prehistoric boat:

(1) was a part of the soil (i.e. (a subtype of) legally affixed), Chitty J said, at 567:

In support of the contention that it ought to be deemed in law as part of the soil in which it was embedded, reference was made to the principle embodied in the maxim, “Quicquid plantatur ,” or as it is sometimes stated (see Broom's Legal Maxims [6th Ed. p. 376] and the judgment in Climie v. Wood [Law Rep. 3 Ex. 257 , 260] “fixatur solo, solo cedit .” This principle is an absolute rule of law, not depending on intention; for instance, if a man digs in the land of another, and permanently fixes in the soil stones or bricks, or the like, as the foundation of a house, the stones or bricks become the property of the owner of the soil, whatever may have been the intention of the person who so placed them there, and even against his declared intention that they should remain his property. Nor does it appear to me to be material that the things should have been placed there by the hand of man; it would seem to be sufficient if they have become permanently fixed in the soil by the operation of natural causes.'

(2) had retained its character as a chattel, Chitty J said, at 567 to 568:

'In support of the contention that the boat always remained a chattel, it was or may be urged that, though embedded in the soil, it always was distinguishable from the soil itself, and preserved its original character of a chattel, which it certainly now is. Not long ago there was discovered, in the course of making excavations in Hampshire, a jar containing Roman coins - not gold or silver coins, and therefore not falling within the royal prerogative of treasure trove: apparently the coins formed the small change of the treasure of a Roman legion. Could it be said that the jar or the coins were part of the soil within the principle referred to? Similarly a short time since there was found beneath the soil (I believe in Devonshire ) a Roman lamp of ingenious construction made of lead, and in an excellent state of preservation: a similar question may be asked of the lamp.'

(3) was a 'mineral' (the lease expressly reserved to the lessor 'all...minerals...'). Chitty J said, at 566 to 567:

'In support of the contention that it was a mineral, reference was made to the case of Hext v. Gill [Law Rep. 7 Ch. 699], and to the statement in the judgment of Lord Justice Mellish (with which Lord Justice James concurred), that the term “minerals” includes every substance which can be got from underneath the earth for the purpose of profit. The terms of this definition are wide enough to include the boat; but I am not aware that the term “minerals” has ever been held to include anything except that which is part of the natural soil. Unquestionably coal is deemed in law a part of the natural soil, without regard to what geologists may shew to have been its origin. In law the natural processes by which the trees of a forest have become coal are not investigated: the result only is considered. But the boat has not become petrified or fossilised; it always has been distinguishable from the natural soil itself. If, therefore, I were required to decide the question, I should hold that it is not a mineral.'

However, Chitty J reached no concluded view on these arguments, stating at 567: 'But, as I have said, it is not necessary to decide these or the like interesting questions in the present case.'

Note Chitty J found, at 568, that prior to the lease being granted, the lessor had possession of the prehistoric boat, because he possessed the soil to the centre of the earth. To be contrasted (according to Auld LJ in Waverley BC v Fletcher [1996] QB 334, CA, 345) with objects found on the ground, see Hannah v Peel [1945] 1 KB 509, and the extra nuanced approach explained by Donaldson LJ in Parker v British Airways Board [1982] QB 1004, QB

[4c] In Leigh v Taylor (sometimes known as In Re De Falbe)[1902] AC 157, Earl of Halsbury LC in the House of Lords said, at 158-159:

'One principle, I think, has been established from the earliest period of the law down to the present time, namely, that if something has been made part of the house it must necessarily go to the heir, because the house goes to the heir and it is part of the house. That seems logical enough. Another principle appears to be equally clear, namely, that where it is something which, although it may be attached in some form or another (I will say a word in a moment about the degree of attachment) to the walls of the house, yet, having regard to the nature of the thing itself, and the purpose of its being placed there, is not intended to form part of the realty, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable and goes to the executor.

My Lords, we have heard something about a suggested alteration of the law; but those two principles appear to have been established from the earliest times, and they are principles still in force. But the moment one comes to deal with the facts of each particular case, I quite agree that something has changed very much: I suspect it is not the law or any principle of law, but it is a change in the mode of life, the degree in which certain things have seemed susceptible of being put up as mere ornament, whereas at an earlier period the ruder constructions rendered it impossible sometimes to sever the thing which was put up from the realty. If that is true, it is manifest that you can lay down no rule which will in itself solve the question; you must apply yourself to the facts of each particular case; and I am content here to apply myself to the facts of this case.'

Later, he said, at 161:

'My own view is that, going back for some centuries, the real differences of opinion, which apparently on the surface have been entertained by different judges, have not been at bottom differences in the law at all, but the facts have been regarded in different aspects according to the fashion of the times, the mode of ornamentation, and the mode in which houses were built, and the degree of attachment which from time to time became necessary or not according to the nature of the structure which was being dealt with. The principle appears to me to be the same to-day as it was in the early times, and the broad principle is that, unless it has become part of the house in any intelligible sense, it is not a thing which passes to the heir.'

Lord Shand said, at 162 and 163:

'...there has been no change of the law; but I rather think that in the progress of time the law has been developed in the direction of holding what would at one time have been held to be parts of a building to be now temporary fixtures only, removable by the person who attached them to the building or his personal representative, and I think that this later view should be maintained.'

'It appears to me to be a sound principle...that where a tenant for a time or a tenant for life has purchased tapestries or pictures and affixed them to the walls for the purposes of ornamentation, he is entitled to remove them, and his executor has the same right. That principle, as it seems to me, is decisive of this case.

'...there has been an attempt to shew that there was here such a degree or character of annexation as to make these tapestries permanent additions to the house. I doubt whether there could have been such annexation by a tenant where the purpose of the annexation is ornamental. However firmly a tenant may put up such ornaments as pictures or tapestries upon the walls, I confess I think he is entitled to remove them, if during his tenancy he desires to do so, in order it may be to substitute others in their place, or to take them away altogether, and the same would be true at the end of his tenancy, at least where they are not built in, so as to be really parts of the permanent building. His position is that of a temporary occupant, having put up things for temporary purposes. He will be bound to take care that no damage occurs to the walls which he does not put right; but that is a different matter from an obligation to leave chattels which have not been built in as additions to the house, and which remain so when his tenancy ends.'

See the passage quoted in footnote 12 below, from Taylor Wimpey Plc v Revenue and Customs Commissioners [2017] UKUT 34 (TCC), wherein the Upper Tribunal dismissed as a factor/determinative factor, that Taylor had intended the objects to pass with the land.

[5] In Botham v TSB Bank Plc [1996] Lexis Citation 5162 ('Botham'), Roch LJ (with whom Sir Richard Scott VC and Henry LJ agreed) said, at page 5:

'The other authority to which the judge specifically referred during his judgment was that of Young v Dalgety plc 281 EG 427, [1987] 1 EGLR 116. In that case the Court of Appeal did not disturb the decision of Mervyn Davies J that fitted carpets were fixtures, although the Court of Appeal did not expressly agree with that finding.

In my judgment, no criticism can be made of the judge's statement of the tests and principles which had to be applied in this case save for his reliance on the last authority in respect of fitted carpets.'

[6] In this passage from Botham v TSB Bank Plc [1996] Lexis Citation 5162, the judge refers to the decision in Leigh v Taylor. The case of Leigh v Taylor (sometimes known as In Re De Falbe) went to the House of Lords [1902] AC 157, which affirmed the decision of the Court of Appeal ([1902] 1 Ch 523.

Before quoting from Earl of Halsbury LC's judgment, it is important to note the question at the heart of the decision. It related to some valuable tapestries that were attached (to use a neutral term) to the walls of Luton Hoo, a maison house. The 'owner' of Luton Hoo has been a certain Madame de Falbe when they were attached, and she had subsequently died. During her life, Madame de Falbe had been a tenant for life of Luton Hoo. When she died:

(1) her tenancy for life ended (obviously) and her remainderman (heir) 'owned' Luton Hoo, and anything legally affixed to Luton Hoo.

(2) her chattels were to go to her executors, presumably, for distribution pursuant to her will.

The issue then was, had these valuable tapestry become legally affixed to Lutoo Hoo, or not?

Stirling LJ in the Court of Appeal [1901] Ch 1, 523, at 538, put this question as follows:

'The question is whether these tapestries still form part of the estate of Madame de Falbe, the tenant for life, or whether they pass to the remainderman as annexed to the freehold.'

In the House of Lords, Earl of Halsbury LC said, at 159-162, when finding the tapestry had remained a chattel:

'Here are tapestries which, it is admitted, are worth a great deal of money. I put the case: Suppose this had been a tenant from year to year, and she put up these things, is it conceivable that a person would for the purpose of a tenancy from year to year put up these things exactly in this way if thereby they made a present of 7000l. to the landlord? That, I observe, startled [counsel for the heir] he would not acquiesce in that; but in logic I am unable to sever the two sets of facts which I suggest. It is all very well to say that there is a difference between the cases of an heir and an executor on the one hand, and a landlord and a tenant on the other; but if you grant the proposition that it must depend upon the purpose of the annexation, and you must attend to the degree of the annexation, I am wholly unable to frame a hypothesis of a state of things in which these two principles will not decide the question, whether you are dealing with a landlord and tenant, or whether you are dealing with a tenant for life and a remainderman, or with people standing in any other relation to these things. In this case Madame de Falbe stood as tenant for life to the remainderman.

My Lords, we come then, in my view, to the determination of the question upon the principles I have pointed out, applying them to the particular facts of this case. What are they? Here we have objects of ornamentation of very great value. Undoubtedly their only function in life, if it may be so called, is the decoration of a room. Suppose the person had intended to remove them the next month or the next year or what not, I do not know, notwithstanding the ingenious effort that has been made by [counsel for the heir], in what other way they could have been fastened than they were. We have seen the hard matchboard to which they were fastened in the first instance; then canvas was stretched on it, and the decoration of the wall as it originally stood was perfectly preserved except to the extent to which the nails were driven into the wall; they were necessarily driven into the wall, because otherwise the tapestry could not have been stretched out firm, as it was. I do not know any other mode by which the large one, for example, fourteen feet long, could have been placed there as it was. One has immediately before one's mind's eye cases of pictures of another sort, and after all, although this tapestry is very valuable, as I understand, and very beautiful, it is only a picture made in a particular form - it is a picture, whether woven or worked or what not, made for the purpose of ornamentation. When one looks at it and sees what it is, I should have thought, if ever there was an extreme case in which it would have been impossible to suppose that the person intended to dedicate it to the house, it was the case of these tapestries, which can be, and in fact have been, removed without anything but the most trifling disturbance of the material of the wall.

Under those circumstances I can entertain no doubt, now that we have had the whole case before us, that there is nothing which points to any intention to dedicate these tapestries to the house. There is nothing in the nature of the attachment which is necessarily permanent. My Lords, a number of words have been used, such as “only very slightly attached” and “not permanently attached.” They really often assume the very question in debate. Looking at the piece of boarding on which the canvas was stretched and on which this tapestry went, I can hardly imagine how a piece of tapestry of that extent, fourteen feet long, stretched against a wall, could be more slightly attached than this was. Under those circumstances it appears to me that the thing is so easily susceptible of being removed, and has in fact been removed, without any damage or material injury to the structure of the wall, that to my mind, so far as it is dependent upon a question of fact, it never was intended to form part of the structure of this house; and that, after all, is what the meaning of “the benefit of the inheritance” comes to, though expressed in different words. It never was intended to remain a part of the house; the contrary is evident from the very nature of the attachment, the extent and degree of which was as slight as the nature of the thing attached would admit of. Therefore, I come to the conclusion that this thing, put up for ornamentation and for the enjoyment of the person while occupying the house, is not under such circumstances as these part of the house. That is the problem one has to solve in each of these cases. If it is not part of the house, it falls under the rule now laid down for some centuries, that it is a sort of ornamental fixture, and can be removed by whoever has the right to the chattel - whose it was when it was originally put up.'

[7] This factor was consider in the Supreme Court case of Dill v Secretary of State for Housing, Communities and Local Government [2020] 1 WLR 2206 ('Dill'), a case in which Lord Carnwath gave the only judgment (to which all the other Supreme Court Justices agreed). Now, before considering what Lord Carnwath said, it is necessary to say a little about the issue before the Supreme Court, as it was not directly about the English law of fixtures, but, given a word in a statutory test had been found to act/operate in the same way as the English law of fixtures, Supreme Court considered what the English law of fixtures was.

In short, the Supreme Court had to consider, amongst other things, section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which read:

'“In this Act ‘listed building’ means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act- (a) any object or structure fixed to the building; (b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1 July 1948, shall … be treated as part of the building.”'

Lord Carnwath said, at paragraph 13, that he would 'refer to the second part of subsection (5) (“and for the purposes of”) as “the extended definition”.'

Within both (a) and (b) of that Extended Definition, there appears the word 'fixed', which defines a type of connection between the 'object or structure' and a building. As to the meaning of this, Lord Carnwath said, at paragraph 38:

'38. The extended definition, first introduced in the Town and Country Planning Act 1968, seems to have been designed to clarify the position following the case of Corthorn Land and Timber Co Ltd v Minister of Housing and Local Government (1965) 17 P & CR 210. Corthorn concerned a building preservation order made under section 30(1) of the Town and Country Planning Act 1962, prohibiting the removal from a listed building of various portrait panels, wooden panels, a large wood carving of the Crowning with Thorns, and a large wooden equestrian figure of St George and the Dragon. The issue was whether they were part of the listed building. In deciding that they were, Russell LJ applied a property law approach, saying, at p 217:

“It is not, in my judgment, open to serious doubt that these items were all fixed and annexed in their places as part of the overall and permanent architectural scheme and intended in every sense to be annexed to the freehold …”

In Debenhams plc v Westminster City Council [1987] AC 396 , 408–409 Lord Mackay of Clashfern confirmed that the word “fixed” in the extended definition was to have “the same connotation as in the law of fixtures … so that any object or structure fixed to a building should be treated as part of it”, thereby “[putting] beyond question the matter that was decided by Russell LJ in the Corthorn case”. [bold added]

Lord Carnwath continued, at paragraph 39:

39. Corthorn was not concerned with objects or structures within the curtilage of a listed building. We were not referred to any contemporary information as to the derivation of that part of the extended definition in the 1968 Act. It can be assumed to have been a recognition of the important part often played by such objects in the overall architectural composition or setting of a listed building, even though the architectural quality of the curtilage structure itself is not part of the test. The requirement that they should “form part of the land” is clearly designed to tie this part of the definition, like the first part, to real property concepts under the common law.

Given the Extended Definition tests is to have the 'same connotation' / is tied to the English law of fixtures, Lord Carnwath considered what the English law of fixtures was. At paragraph 40 onwards, he said:

40. It is not known what if any assumptions would have been made in 1968 about how the common law would treat statues or other ornamental objects resting only by their own weight. Reliance may have been placed on the then current edition of Megarry & Wade, The Law of Real Property , 3rd ed (1966) which stated: “Statues, figures, vases and stone garden seats have been held to become part of the land because they are essentially part of the design of the house and grounds, even though standing by their own weight.” This was supported by a footnote reference to D’Eyncourt v Gregory (1866) LR 3 Eq 382 , but with a cautionary note: “the authority of this decision is not great; see In re De Falbe [1901] 1 Ch 523 , 531, 532”.

41. Some years after the 1968 Act the treatment of such objects in real property law was considered by the Court of Appeal in Berkley v Poulett [1977] 1 EGLR 86. The dispute was about certain pictures and other objects which, it was said, should pass as fixtures on the sale of a house. The disputed items included a statue and sundial in the garden. The court was agreed that the sundial was a chattel, but there was disagreement as to the sculpture. Scarman LJ, in the leading judgment (pp 88–89), with which Stamp LJ in substance agreed (p 96), explained that, following Leigh v Taylor [1902] AC 157:

“The answer today to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation.”

Having discussed the principles and the other objects in dispute, he turned to the statute and sundial. The latter was “a small object” which had been detached from its pedestal many years earlier and thus “ceased to be part of the realty”. Of the statue he said:

“The statue was heavy. It weighed 10 cwt and stood 5 ft 7 in high on its plinth. There is an issue as to whether it was cemented into the plinth or rested on its own weight. The question is not decisive, for, even if it was attached by a cement bond, it was (as events proved) easily removable. However, upon the balance of probability, I agree with the Vice-Chancellor in thinking it was not attached. The best argument for the statue being a fixture was its careful siting in the West Lawn so as to form an integral part of the architectural design of the west elevation of the house. The design point is a good one so far as it goes: it explains the siting of the plinth, which undoubtedly was a fixture. But what was put upon the plinth was very much a matter for the taste of the occupier of the house for the time being. We know that at one time the object on the plinth had been a sundial. At the time of the sale it was this statue of a Greek athlete. The plinth's position was architecturally important: it ensured that whatever stood on it would be correctly positioned. But the object it carried could be whatever appealed to the occupier for the time being. Sundial or statue - it did not matter to the design, so long as it was in the right place - a result ensured by the plinth which was firmly fixed into the ground. Being, as I think, unattached, the statue was, prima facie, not a fixture, but, even if it were attached, the application of the second test would lead to the same conclusion.”

42. Goff LJ took a different view of the statue (p 90) which had been placed at a “focal [point] in the grounds”, not for better enjoyment as a chattel but “for the permanent enhancement of the beauty of the grounds”, a case “where resting upon its own bulk was a sufficient annexation”. On that point he regarded D’Eyncourt v Gregory LR 3 Eq 382 as still authoritative, not overlooking the criticisms in In re De Falbe [1901] 1 Ch 523, which in his view related to the inferences drawn from the facts, rather than “the principle that a thing may be a fixture because it is part of the architectural design”.

43. As I read the judgments the difference was not as to the principle, but as to its application to the particular facts. This view accords with the current 9th edition of Megarry & Wade (2019), para 22-010, which repeats the relevant passage from the earlier editions, with the same case references, but adds: “the principle that an object resting on its own weight can be a fixture if it is part of the overall design of the property has been approved: Berkley v Poulett [1977] 1 EGLR 86 , 89.” Although that is not a precise formulation, it follows in my view that a statue or other ornamental object, which is neither physically attached to the land, nor directly related to the design of the relevant listed building and its setting, cannot be treated as a curtilage structure and so part of the building within the extended definition.

44. Further confirmation of that approach can be found in a much more recent judgment of the High Court. It was held that a Henry Moore bronze sculpture “Draped Seated Women”, weighing 1,500 kg and resting on a plinth, which in 1962 had been placed by the London County Council in a new housing estate, under its policy of promoting works of art in public places, remained a chattel rather than part of the land ( Tower Hamlets London Borough Council v Bromley London Borough Council [2015] LGR 622) . The judge (Norris J) noted as material that the sculpture was “an entire object in itself”, resting by its own weight on the ground, and able to be removed without damage, and that it did not form part of an integral design of that estate (para 17).' [bold added]

By analogy then, the question can be asked, to determine whether an object is legally affixed to the land: is the statue or other ornamental object directly related to the design of the relevant building and its setting?

[8] The full quote from Blackburn J in Holland v Hodgson (1871-72) L.R. 7 C.P. 328, when defining these types of materials, at 333, is as follows:

'Trade and tenant's fixtures are, in the judgment in that case, accurately defined as “things which are annexed to the land for the purposes of trade or of domestic convenience or ornament in so permanent a manner as to become part of the land...'

The earlier case he refers to was Climie v Wood (1868-69) L.R. 4 Ex. 328.

[9] In Boyd v Shorrock (1867-68) L.R. 5 Eq. 72 (1867)('Boyd'), Sir W Page Wood VC held that the principle enunciated in (1) Ex parte Barclay 5 D. M. & G. 403; followed in (2) Mather v. Fraser 2 K. & J. 536 was the right one, before stating what the principle was, at 78, that:

'if the tenant has affixed to the freehold, during his tenancy, articles in such a manner as to make it appear that during the term they are not to be removed, and that he regards them as attached to the property, according to his interest in the property, then, on any dealing by him with the property to which these articles are affixed, the Court would presume that he meant to deal with the property as it stood, with all these things so attached, and to pass the property in its then condition.

On the facts in Boyd, Sir W Page Wood VC said, at 78 -79:

'Now the intention in this case clearly was, that everything should pass. These particular things are mentioned, but that is not the immediate contest before me. In what character do they pass? Were they intended to pass as fixtures which were attached to the property during the tenant's interest in the property, or were they assigned as chattels as to which no such intention (of attaching them) can be found to exist? The intention of the deed was to assign, in the first place, all the landlord's fixtures, and then other fixtures of some sort; the language used being, “the looms and other machinery, whether fixed or moveable.” Of course, as to all the chattels which are not fixed, they would simply pass in the ordinary way, as chattels, by way of assignment, in the nature of a bill of sale, which would require registration. As to all the chattels which were affixed in the same way as in Ex parte Barclay, it appears to me that they were intended to pass, and did pass, with the property. The question is, whether or not the chattels were intended to be affixed during the tenant's interest, and whether he passed his interest in the property as it existed. The mortgage was not intended to be raised by sale of the fixtures, and there could be no power in the mortgagor of removing them during the time the mortgage existed; they must continue in the mill, and in that sense they must be affixed to the mill. These cases, of course, have their own peculiar difficulties, but the definition, as far as it goes, given in Ex parte Barclay really concludes the case:

“By ‘fixtures’ we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be machinery, using a generic term; and in houses, grates, cupboards, and other like things.”

[10] As to the tenant's right of severance:

(1) in Holland v Hodgson (1871-72) L.R. 7 C.P. 328 in the Court of Exchequer Chamber (Blackburn J; Cleasby B; Channell B; Hannen J; Kelly CB; Mellor J) ('Holland'), Blackburn J set out the basic right, at 333:

'Since the decision of this Court in Climie v. Wood [Law Rep. 4 Ex. 328] it must be considered as settled law (except perhaps in the House of Lords) that what are commonly known as trade or tenant's fixtures form part of the land, and pass by a conveyance of it; and that though if the person who erected those fixtures was a tenant with a limited interest in the land he has a right, as against the freeholder, to sever the fixtures from the land...'

Blackburn J also said, at 333:

'Trade and tenant's fixtures are, in the judgment in that case, accurately defined as “things which are annexed to the land for the purposes of trade or of domestic convenience or ornament in so permanent a manner as to become part of the land, and yet the tenant who has erected them is entitled to remove them during his term, or it may be within a reasonable time after its expiration.” It was not disputed at the bar that such was the law; and it was admitted, and we think properly admitted, that where there is a conveyance of the land the fixtures are transferred, not as fixtures, but as part of the land...'

In Crossley Brothers Ltd v Lee [1908] 1 KB 86, Phillimore J said, at 89-90:

'From my point of view there are only two classes of fixtures, putting aside certain special things like gas fittings, which are provided for under a particular Act of Parliament. The two classes are, first, those fixtures, which when once implanted in the soil, become part of the soil and are irremovable except with the consent of the landlord; and, secondly, those fixtures which a tenant is entitled to sever during his tenancy, but which, until they are severed, form part of the freehold, and, if the tenant does not sever them, remain so for all time.' (it is not clear what Act of Parliament is under consideration in this passage)

(2) the rationale seems to be that it is recognised that the common law principle of legally affixed materials becoming part of the land ('legal affixment') and ceasing to have their own title, can work an injustice to tenants. A tenant may legitimately wish to physically affix materials to the building/land, but upon doing so, those materials are likely to be deemed to have become legally affixed, and become part of the building/land. During the currency of the leasehold title, the leasehold title will include the materials so legally affixed, but when the leasehold title comes to an end, the materials would form part of the freehold title and tenant would have not title to them. He would lose use of what might be valuable materials - a windfall to the freehold and a unjustified loss to the tenant. 

To address this injustice, the law recognises a tenant's right, as against the freehold title holder.

(3) the tenant's right of severance is against the freeholder (or, though not stated in Holland, any intermediate landlords), not against the tenant's mortgagees. In Holland, Blackburn J said, at 333:

 '...yet if he be a mortgagor in fee he has no such right as against his mortgagee.'

A tenant right of severance, is itself, mortgageable (see Holland, at 334); quere assignable

(4) 'Fixtures' (i.e. objects legally affixed - though not, for clarity, coming under the term 'part of the land') can be either: (a) tenant's fixtures; or (b) landlord's fixtures. To know whether the tenant has a right of severance in relation to objects, a determination needs to be made as to whether the legally affixed objects, are, either: (a) tenant's fixtures; or alternatively, (b) landlord's fixtures. The affixer tenant's right of severance applies to tenant's fixtures, but not landlord's fixtures. In Young v Dalgety [1987] 1 EGLR 116, Fox LJ said, at page 7:

'In general, fixtures attached by tenants for the purposes of their trade or business will be tenants' fixtures.'

In determining that certain items were tenant's fixtures, Fox LJ said:

'I accept that the attachment must be such that, on removal, it would not lose its essential character. In that connection the learned Judge referred to Webb v. Frank Bevis, Ltd. (1940) 1 All Eng. Law Reps, 247...' and

'It is accepted of course that an article must be capable of being removed without irreparable damage to the demised premises.'

(5) agricultural tenancies are treated differently: (a) at common law, agricultural fixtures are not regarded as falling within this trade fixtures exception; but (b) Parliament has intervened, bringing forward: (i) Agricultural Holdings Act 1986, for tenancies of agricultural holdings; and (ii) Agricultural Tenancies Act 1995, for farm business tenancies.

Examples of the distinction between what are tenant's fixtures and those which remain the landlord's are provided by New Zealand Government Corporation v. H.M. & S Ltd [1982] 1 Q.B. 1145, 1157 where the Master of the Rolls held that improvements to a structure by the provision of windows and doors could not be termed tenant's fixtures.

[11a] Seemingly this is who typically installs such object, rather than who in the particular case, installed the object. See the quote from Taylor Wimpey Plc v Revenue and Customs Commissioners [2017] UKUT 34 (TCC) set out in footnote 12 below

[11b] There are many authorities involving different types of objects being physically annexed to land/buildings (and so potentially legally affixed to land) - too many to go through for the purposes of this article. But that does not mean attention cannot be drawn to the case is Melluish (Inspector of Taxes) v BMI (No.3) Ltd [1996] AC 454 ('Melluish No.3'), where a few circumstances/contexts were mentioned as being uncontroversial occasions when objects were legally affixed to land/buildings.

In Melluish No.3, Lord Browne-Wilkinson (with whom the other Law Lords agreed), had to consider whether some appellant taxpayer companies (the 'Companies') were entitled to certain capital allowances. The Companies were entitled to the capital allowance if the object 'belongs' to the Companies. Now these Companies were '...carrying on the business of finance leasing i.e. the purchase of plant and the leasing to end-users of the plant they have purchased.' (paragraph 1). As Lord Browne-Wilkinson said:

'The particular problem in the present case arises from the fact that the plant purchased by the [Companies] (e.g. central heating) was incorporated into the structure of buildings owned by the lessees of the plant. In consequence they became fixtures. Under the general law, chattels fixed to the land become the property of the owner of the land.'

What was the 'plant' which were becoming legally affixed to the land/buildings?

'The nature of the plant is such that, for the most part, it has to be fixed to the structure of the building in which it is installed so that, on being so fixed, it would on ordinary principles of the general law be regarded as a fixture. Various types of plant and machinery are involved, viz. (a) central heating installed in council flats and houses; (b) video door entry systems installed in blocks of council flats and alarm systems in sheltered housing accommodation; (c) lifts installed in council car parks; (d) boilers installed in council offices; (e) cremators installed in a council crematorium; (f) ventilation and filtration plant installed in a council swimming pool.' (paragraph 4)

[12] In Taylor Wimpey Plc v Revenue and Customs Commissioners [2017] UKUT 34 (TCC), Warren J (with Judge Roger Berner), overturned decisions of the First Tier Tribunal ('FTT') in respect to fitted carpets, holding that it was not open to the FTT to hold differently from that held in Botham v TSB Bank Plc [1996] Lexis Citation 5162. At paragraphs 114-117, the Upper Tribunal said:

'114. The FTT went on to find, in relation to carpets, that the fitted carpets that formed part of the Claim Items were fixtures. In doing so the FTT declined to follow the Court of Appeal in Botham and others v TSB Bank plc (1997) 73 P&CR D1 . In that case the Court considered a wide range of items, including relevantly to this appeal white goods in the kitchen, namely an oven, dishwasher, extractor, hob, fridge and freezer, kitchen units and work surfaces, including a fitted sink, and fitted carpets cut to size and kept in place by gripper rods. The kitchen units, work surfaces and sink were held to be fixtures, but the white goods were not, even though they were wired and plumbed in. The fitted carpets were also held not to be fixtures.

115. With regard to the fitted carpets, those were considered alongside curtains and blinds. The Court took the view that the carpets were attached to the building in an insubstantial manner, there was no intention to effect a permanent improvement to the building and the removal of the carpets would have no effect, damaging or otherwise, on the fabric of the building. It was not a case where carpet or carpet squares had been affixed to a concrete screed in such a way as to make them part of the floor.

116. The FTT took the view that it was entitled to depart from the judgment of the Court of Appeal because the facts were different. It was significant, reasoned the FTT, that in Botham v TSB Roch LJ had taken the view that fitted carpets were not installed by builders, whereas in Taylor Wimpey's case they were so installed. The FTT also took its own view, though it appears without any evidence, that a fitted carpet is cut to size, fitted by expert fitters with tools and held down by gripper rods nailed to the floor, and that it would have the necessary degree of annexation to qualify, in principle, as a fixture. The FTT then went on to find that because Taylor Wimpey intended the carpets to pass with the dwelling, that was a sufficient intention, or object of annexation, for the fitted carpets to qualify as fixtures.

117. We do not agree. In our judgment, the FTT erred in law in this respect. It was not open to it to find that fitted carpets, held by gripper rods as in Botham v TSB , had the requisite degree of annexation, when Botham v TSB had decided to the contrary. The FTT appears to have considered it material that the gripper rods themselves were nailed to the floor, but that is not material to the degree of annexation of the carpets themselves. The Court of Appeal concerned itself instead with the ease at which the carpets could be lifted off the gripper rods. That was the appropriate test, and by failing to adopt it, the FTT erred in law. The only conclusion available to the FTT was that the fitted carpets were not fixtures.'

[13] In Botham v TSB Bank Plc [1996] Lexis Citation 5162 ('Botham'), Sir Richard Scott VC said under the sub heading 'Light Fittings', at page 12:

'Light fittings may or may not be so incorporated into the wall or ceiling to which they are fixed as to become fixtures. If they are to be held to have lost their identity as chattels, evidence of the nature of annexation is essential. In the present case there was no admissible evidence to justify a conclusion that the light fittings had become fixtures. Save for the fittings recessed into the ceilings that were conceded to have become fixtures (photographs 129 and 138), I would allow the appeal in respect of the light fittings.'

In British Economical Lamp Company (Ltd) v Empire Mile End (Ltd) (1913) 29 TLR 386, a division of the Kings Bench (A T Lawrence J and Lush J) heard and dismissed an appeal by the plaintiff British Economic Lamp Company ('BELC') against a recorder having dismissed their claim in detinue (a now obsolete cause of action) against the defendant owner of a theatre ('EME'). In short, BELC hired out lamps to a tenant of the theatre. The tenant did not pay rent and the landlord, EME, re-possessed the theatre (while the lamps still in situ in the theatre). A dispute arose as between EME as owner, and BELC, as to ownership of the lamps. While in the author's opinion: (1) the decision to dismiss the claim can be ignored for present purposes (since the dismissal of the claim in detinue seems technical, and the refusal to accept there might be a claim in conversion, just seems wrong by modern standards); and (2) A T Lawrence J's judgment does not properly address who held title to the lamps, and A T Lawrence J's judgment did not expressly agree with Lush J's judgment (it coming before Lush J's judgment), the Botham case did refer to Lush J's decision, at least on one point, favourably. To quote the main part of Lush J's judgment:

'This was an action of detinue brought to recover a quantity of electric light filament lamps or their value, and damages for their detention. The plaintiff's had let the lamps on hire to the lessee of a theatre. The defendants were the lessors and they had re-entered for non-payment of rent, no demand for the lamps having then been made. The action was tried in the Mayor's Court, before the Recorder. At the close of the plaintiffs' case, and while the defendants' case was being opened, the Recorder interposed, and said that in his opinion the lamps were trade fixtures and, therefore, gave judgment for the defendants. I regret to be unable to agree with this view. A filament lamp, although fitted or fixed in its socket, is only temporarily fixed with a view to the efficient use of the chattel itself, and that being so it does not, In my opinion. cease to be a chattel or pass to the land lord when the term comes to an end merely because it happens to be in the socket at that time. It as contended before us that the principle laid down Ex parte Astbury [L.R., 4 Ch. App., p. 630] applied, and that the lamps being part of the complete system of installation which itself was a fixture attached to the premises, the filament lamps were themselves also fixtures. What was decided in Ex parte Astbury was that the fitted rolls- not only those actually in the rolling machine but one or two Or different sizes also suppled to be used the machine were part of the rolling machine, and that as the rolling machine massed as a fixture under a mortgage of the premises the rollers themselves passed as fixtures. I do not think that that decision applies to this case. The rolls in Ex Parte Astbury were no doubt part of the rolling machine : there was no compete rolling machine without them; no operation could be performed by the machines without the rolls. But the lamps were not, I think, part of the installation. The installation is complete though no lamp may be supplied or be in the socket. The lamp is placed there to be operated upon by the wire installation. It is really in the nature of fuel for the installation. The installation produces no heat or light without them any more than a furnace produces heat without the fuel. The filaments in the lamps are consumed by the electric current in the installation as the fuel is consumed by the furnace. But as the fuel is no part of the furnace so, in my view, the lamp is no part of the installation. That which is attached for the purposes of being consumed cannot, as it seems to me, be said, to be part of that which is intended to consume it within the meaning of the decision in Ex parte Astbury. I think that there is no real analogy between that case and this, and that the lamps are mere chattels whether they are fitted in the sockets or waiting to be used as the occupier may require them. Assuming, however, that the lamps were chattels and not fixtures, I am of the opinion that no cause of action has been shown...'

In Botham, reference is made to the case of Young v Dalgety [1987] 1 EGLR 116, CA ('Young'), however, not on the issue of light fittings (but on the other aspect to the Young case, as to fitted carpets). Young is not a particularly useful authority.

Before quoting from the case, it should be noted that the case of Young came before Mervyn Davies J at first instance, before the appeal in the Court of Appeal (Fox LJ, Parker LJ and Glidewell LJ). In the Court of Appeal, only Fox LJ gave a reasoned judgment, and Fox LJ said, at page 4, of the light fittings:

'With regard to the light fittings...these consisted of fluorescent tubes contained in glass boxes fixed securely to the plaster of the ceiling. However, during the course of time, the lessees had in part substituted for those light fittings standard lamps which provided diffused lighting in an upwards direction.

However what originally ought to have been was the fluorescent tubes contained in glass boxes which were securely affixed to the plaster of the ceiling.'

Later, at page 7, Fox LJ said:

'The Judge decided that ...the light fittings were fixtures. The light fittings were securely fitted to the plaster of the ceiling.'

The Court of Appeal though did not expressly agree with that finding (i.e. that the light fittings were legally affixed to the land). Fox LJ merely 'assumed' that they were fixtures, not actually expressly agree with that conclusion. Fox LJ said, at page 7:

'The lessees have contended that these items were not fixtures, but for the purposes of this case I am prepared to assume that the learned Judge was correct in his conclusion that they were fixtures. Therefore, on the assumption they were fixtures, the next question is:...' [bold added]

The reader therefore is left merely with the first instance's conclusion, unsupported by the Court of Appeal.

For a case where ornamental fittings are discussed Leigh v Taylor [1902] 1 Ch 523, CA (approved [1902] AC 157)

[14] See Taylor Wimpey Plc v Revenue and Customs Commissioners [2017] UKUT 34 (TCC), paragraph 118, where Warren J (with Judge Roger Berner), agreed that the First Tier Tribunal's approach was consistent with Botham v TSB Bank Plc [1996] Lexis Citation 5162 in respect to white goods (and kitchen fittings):

'In particular, the FTT was careful to draw a distinction between white goods that were merely plumbed or wired in (holding, as in Bolton v TSB, that those Claim Items were not fixtures) and those which were fixed by screws, for example to the kitchen units or the wall, which the FTT held were fixtures. Those conclusions were open to the FTT, and there is no error of law in those respects.'

[15] In Tower Hamlets London Borough Council v Bromley London Borough Council [2015] LGR 622, Norris J said, at paragraph 16:

'It is always a question of fact in the individual case whether something has remained a chattel or become a fixture; other cases therefore serve as no more than illustrations of the application of the relevant principles. Conventionally, those principles require the application of two tests: (a) the method and degree of annexation; and, (b) the object and purpose of annexation. Generally, the second of those tests is taken to be the more significant and can enable a Court to decide when an object is a chattel, or is a fixture, or is part and parcel of the land itself. In Elitestone Limited v Morris [1997] 2 All ER 513 at 518j Lord Lloyd noted:—

“Many different tests have been suggested, such as whether the object which has been fixed to the property has been so fixed for the better enjoyment of the object as a chattel, or whether it has been fixed with a view to effecting a permanent improvement of the freehold.”

This, and similar tests are useful when one is considering an object such as a tapestry, which may or may not be fixed to a house so as to become part of the freehold: see Leigh v Taylor [1902] AC 157.'