Fixtures

Fixtures (Lat. figere, to fix), in law, chattels which have been so fixed or attached to land (as it is expressed in English law, “so annexed to the freehold”), as to become, in contemplation of law, a part of it. All systems of law make a marked distinction for certain purposes, between immovables and movables, between real and personal property, between land and all other things. In the case of fixtures the question arises under which set of rights they are to fall—under those of real or of personal property. The general rule of English law is that everything attached to the land goes with the land—quicquid plantatur solo, solo cedit. This, like many other rules of English law, is all in favour of the freeholder; but its hardship has been modified by a large number of exceptions formulated from time to time by the courts as occasion arose.

In order to constitute a fixture there must be some degree of annexation to the land, or to a building which forms part of it. Thus it has been held that a barn laid on blocks of timber, but not fixed to the ground itself, is not a fixture; and the onus of showing that articles not otherwise attached to the land than by their own weight have ceased to be chattels, rests with those who assert the fact. On the other hand, an article, even slightly affixed to the land, is to be considered part of it, unless the circumstances show that it was intended to remain a chattel. The question is one of fact in each case—depending mainly on the mode, degree and object of the annexation, and the possibility of the removal of the article without injury to itself or the freehold. In certain cases the courts have recognized a constructive annexation, when the articles, though not fixed to the soil, pass with the freehold as if they were, e.g. the keys of a house, the stones of a dry wall, and the detached or duplicate portions of machines.

Questions as to the property in fixtures principally arise—(1) between landlord and tenant, (2) between heir and executor, (3) between executor and remainder-man or reversioner, (4) between seller and buyer.

1\. At common law, if the tenant has affixed anything to the freehold during his occupation, he cannot remove it without the permission of his landlord. But an exception was established in favour of trade fixtures. In a case before Lord Holt it was held that a soap-boiler might, during his term, remove the vats he had set up for trade purposes, and that not by virtue of any special custom, but “by the common law in favour of trade, and to encourage industry,” and it may be stated as a general rule that things which a tenant has fixed to the freehold for the purpose of trade or manufacture may be taken away by him, whenever the removal is not contrary to any prevailing practice, or the particular terms of the contract of tenancy, and can be effected without causing material injury to the estate or destroying the essential character of the articles themselves (Lambourn v. McLellan, 1903, 2 Ch. 269). Agricultural tenants are not entitled, at common law, to remove trade fixtures. But the Landlord and Tenant Act 1851 granted such a right of removal in the case of buildings or machinery erected by a tenant at his own expense, and with his landlord’s consent in writing, provided that the freehold was not injured or that any injury was made good, and that before removal a month’s written notice was given to the landlord, who had an option of purchase. Under the Agricultural Holdings Act 1883 the tenant might, under similar conditions, remove fixtures, although the landlord had not consented to their erection. The Agricultural Holdings Act 1900 extended this provision to fixtures or buildings acquired, although not annexed or erected, by the tenant. Similar rights were created by the Allotments Compensation Act 1887, and by the Market Gardeners’ Compensation Act 1895. All these provisions were re-enacted by the Agricultural Holdings Act 1908.

Again, ornamental fixtures, set up by the tenant for ornament and convenience, such as hangings and looking-glasses, tapestry, iron-backs to chimneys, wainscot fixed by screws, marble chimney-pieces, are held to belong to the tenant, and to be removable without the landlord’s consent. Here again the extent of the privilege has been a matter of some uncertainty.

In all these cases the fixtures must be removed during the term. If the tenant gives up possession of the premises without removing the fixtures, it will be presumed, it appears, that he has made a gift of them to the landlord, and that presumption probably could not be rebutted by positive evidence of a contrary intention. His right to the fixtures is not, however, destroyed by the mere expiry of the term, if he still remains in possession; but if he has once left the premises he cannot come back and claim his fixtures. In one case where the fixtures had actually been severed from the freehold after the end of the term, it was held that the tenant had no right to recover them.

2\. As between heir and executor or administrator. The question of fixtures arises between these parties on the death of a person owning land. The executor has no right to remove trade fixtures, set up for the benefit of the inheritance. As regards ornamental objects, the rule quicquid plantatur solo, solo cedit was in early times somewhat relaxed in favour of the executor. As far back as 1701, it was held that hangings fixed to a wall for ornament passed to the executor; and, although the effect of this relaxation was subsequently cut down, it is supported by the decisions of the courts affirming the executor’s right to valuable tapestries affixed by a tenant for life to the walls of a house for ornament and their better enjoyment as chattels (Leigh v. Taylor, 1902, App. Cas. 157); and the same has been held as to statues and bronze groups set on pedestals in the grounds of a mansion house.

3\. When a tenant for life of land dies, the question of fixtures arises between his representatives and the persons next entitled to the estate (the remainder-man or reversioner). The remainder-man is not so great a favourite of the law as the heir, and the right to fixtures is construed more favourably for executors than in the preceding cases between heir and executor. Whatever are executor’s fixtures against the heir would therefore be executor’s fixtures against the remainder-man. And the result of the cases seems to be that, as against the remainder, the executor of the tenant for life would be certainly entitled to trade fixtures. Agricultural fixtures are not removable by the executor of a tenant for life.

4\. As between seller and buyer, a purchase of the lands includes a purchase of all the fixtures. But here the intention of the parties is of great importance. Similar questions may arise in other cases, e.g. as between mortgagor and mortgagee. When land is mortgaged the fixtures pass with it, unless a contrary intention is expressed in the conveyance; and this even where the chattels affixed are the subject of a hire purchase agreement (Reynolds v. Ashby, 1903, 1 K.B. 87). Again, in reference to bills of sale the question arises. Bills of sale are dispositions of personal property similar to mortgages, the possession remaining with the person selling them. To make them valid they must be registered, and so the question has arisen whether deeds conveying fixtures ought not to have been registered as bills of sale. Unless it was the intention of the parties to make the fixtures a distinct security, it seems that a deed of mortgage embracing them does not require to be registered as a bill of sale. The question of what is or is not a fixture must also often be considered in questions of rating or assessment.

The law of Scotland as to fixtures is the same as that of England. The Agricultural Holdings (Scotland) Acts 1883 (ss. 35, 42) and 1900 (as to market gardens) give a similar statutory right of removal. The law of Ireland has been the subject of the special legislation sketched in the article Landlord and Tenant. The French Code Civil recognizes the right of the usufructuary to remove articles attached by him to the subject of his estate on the expiry of his term, on making good the place from which they were taken (Art. 599); and there are similar provisions in the Civil Codes of Italy (Art. 495), Spain (Arts. 487, 489), Portugal (Art. 2217) and Germany (Arts. 1037, 1049).

The law of the United States as to fixtures is substantially identical with English common law. Constructive, as well as actual, annexation is recognized. The same relaxations (from the common law rule quicquid plantatur solo, solo cedit) as regards trade fixtures, and ornamental fixtures, such as tapestry, have been recognized.

In Mauritius the provisions of the Code Civil are in force without modification. In Quebec (Civil Code, Arts. 374 et seq.) and St Lucia (Civil Code, Arts. 368 et seq.) they have been re-enacted in substance. Some of the British colonies have conferred a statutory right to remove fixtures on tenants (cf. Tasmania, Landlord and Tenant Act 1874). In certain of the colonies acquired by cession or settlement (e.g. New Zealand) the English Landlord and Tenant Act 1851 is in force.

Authorities.—English law: Amos and Ferard, Law of Fixtures (3rd ed., London, 1883); Brown, Law of Fixtures (3rd ed., London, 1875); Ryde, on Rating (2nd ed., London, 1905). Scots Law: Hunter, Landlord and Tenant; Erskine’s Principles (20th ed., Edin., 1903). American Law: Bronson, Law of Fixtures (St Paul, 1904); Reeves, Real Property (Boston, 1904); Ruling Cases (London and Boston, 1894-1901), Tit. “Fixtures” (American Notes).

(A. W. R.)

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