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owned by the proprietor and subsequent buyer

fittings that accede to the land will become part of the land with the result that they are owned by the proprietor and subsequent buyer of the land The general rule as to what is a fixture is expressed in the Latin phrase “quicquid plantatur solo, solo credit”, his is whatever is attached to the soil becomes part of the soil.

Chattels, on the other hand, remain as moveable property that do not accede and so will not form part of the integral heritable property. This therefore means that in absence of any express agreement in the contract of sale, the chattels may be removed from the land without any right of recourse by the purchaser. Section 62 of the Law of Property Act 1925 (hereafter LPA) confirms this distinction in English law.

As generally when selling the freehold estate in the land, the contract will automatically include everything which counts as land. Therefore should a seller wish to retain and remove such a fixture, this should be specifically excluded within the contract of the sale. So as it has not been mentioned whether there was an express agreement, Marget’s chances of getting a claim strongly rely on the fact whether the article is a fixture or chattel .

Firstly, for the bath tub we are going to use the two tests for determining whether it is an is a fixture or a chattel. The first test relates to the degree of annexation. If the object is annexed to the land then it is, prima facie, a fixture. So, in Holland v Hodgson [1] , spinning looms bolted to the floor of a factory were attached other than by their own weight and were fixtures. In Hulme v Brigham [2] , however, heavy printing presses which stood on the floor without any attachment other than the force of gravity, were chattels In Chelsea Yacht & Boat Co v Pope [3] , a houseboat which was moored to the bank and which moved up and down with the tide, was held to be a chattel.

The paramount test, however, was foreshadowed by Blackburn J in Holland case [4] , It requires looking at the degree of fixation, and the intention relating to the annexation. The courts these days look at the objective intention of the person who has affixed the object, though the degree of fixation may help to indicate what that intention was.

The degree of annexation test requires that the object is to be fastened to or connected with the land in some way for there to be a presumption that it is a fixture so that where patio lights were attached to the wall of a house they were held to be fixtures, as held in Hamp v Bygrave [5] If the object is not fixed but merely rests on its own weight there is a presumption that it is not a fixture and a presumption that, it is a chattel.

Therefore there would be a presumption that the old-fashioned ornate bathtub, which is not attached to the floor or wall and rests on its own is a chattel and has not become part and parcel of the land. This presumption can however be rebutted by applying the of annexation test. The courts in this test try to discover “the purpose which the object is serving…and not the purpose of the person who put it there” as per Lord Clyde in Elitestone Ltd v Morris [1997] [6] . This test is an objective one and not subjective; it is not concerned with the intention of the person who put the object there. It requires that the purpose of the object is to enhance the use and enjoyment of the land-to make a permanent improvement to the land for it to be a fixture.  So accordingly, the bathtub has a vital purpose in a bathroom and without it there will be a large empty gap and one less essential utility of the bathroom. Therefore, although it

could be easily removed after the disconnection of the plumbing, the entire fixture into which

it was built was intended as an integrated whole. So, it is more likely to be a fixture than a chattel and in that case marget would be able to get a claim against the seller of the house.

Similarly with the luxurious white carpet , we use the same two-limp test of the Holland case and as less details are provided , so the carpet could be both either a chattel or a fixture, depending on its type and use. As it could be a wall to wall fitted carpet, which is hard to remove from the ground or it could be simply be a easily movable large sort of rug. This leads to the result that the same object may constitute a fixture in one case, but a chattel in another. For example, in Leigh v Taylor [7] , tapestries nailed to a wall were held not to be fixtures, but in Re Whaley [8] , similar objects were held to be fixtures because the object of their annexation was to enhance the room. Lord Halsbury LC in Leigh v Taylor confirmed that the key test was the purpose of annexation, and this was confirmed in Hamp v Bygrave [9] where garden ornaments that formed part of a landscape display were held to be fixtures despite the fact they rested on the ground simply by their own weight. Sometimes the person who installs the articles also matters, according to the judgment of Botham v TSB. Bank plc [10] . Accordingly after more details being assessed we can use the test of the purpose of the article and its usefulness to determine the classification of the carpet.

Out of the four portable gas barbeque , is most likely to be a chattel as based on the degree of fixation, portable barbeque which can easily be moveable it would likely be considered a

chattel. However, the intention could be for it to remain a fixture, if it was to be a permanent improvement to the purpose and utilization of the garden , for example, the theme of the garden being one in which the barbeque stand blends in . So the attention of the person affixing the object must be gathered from the purpose for which, and the time during which the user contemplates fixing the object, according to Hobson v Gorringe [11]

As the annexation contributes to the enjoyment and use of the barbeque itself as opposed to the building.

In Re Whaley, [12] a portrait and a tapestry were held to be fixtures because of the way they were intended to become part of how the room was presented. The portable barbeque in the present case is described as being in a garden, but the mere existence of a garden is not sufficient for the barbeque to be considered part of the architectural design of the house and it is therefore likely to have remained a chattel. In the case of Berkley v Poulet [13] itself, a white marble statue of a Greek athlete weighing half a ton and standing on a plinth, was considered not to be a fixture. In the case Lord Justice Scarman went on to say “a degree of annexation which in earlier time the law would have treated as conclusive may now prove nothing. If the purpose of the annexation be for the better enjoyment of the object itself, it may remain a chattel, notwithstanding a high degree of physical annexation”. The degree of affixation cannot, however, be totally ignored. Lord Justice Scarman makes it clear that “if an object cannot be removed without serious damage to, or destruction of, some part of the realty, the case for its having become a fixture is a strong one”.

According to the argument above, the portable barbeque would be most likely to be a chattel unless evidence can be found of the previous house owner’s intention of making it a permanent improvement of the garden structure.

Finally the water feature, being the fountain system, The fountain in this case is described as being small and surrounded by a fishpond. The intention appears for it to become part of the architectural design of the garden and for it to be enjoyed as a part of the garden. It is therefore likely to be considered a fixture. As it enhances the beauty of the garden and gives out its shape. Now again in this again the fountain could have be either a chattel or a fixture. It all depends on the Owner’s intention and the purpose of its annexation. As a statue in two different cases is a chattel in one and a fixture in the other.

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