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to three majority) initially reached the same conclusion as Beaulane, this was soon reversed by the Grand Chamber (ten to seven majority).
The outcome was that the challenge to adverse possession failed. The judges accepted that Article 1 was engaged. However, adverse possession was treated as a control of use, rather than a deprivation; this is because it sets out to regulate land ownership. Though both control and deprivation are caught by Article 1, control is more readily shown to be consistent with human rights. It is a fair observation that the differences between the judges were largely based on the extent of the margin of appreciation allowed to legis-latures to settle national legal structures. All the judges thought the 2002 reforms well justified, but the majority concluded that this was not enough to condemn the law prior to 2002. It may be worth stressing that there was never any prospect of challenging adverse possession as it operates in unregistered land or after 2002.
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Is adverse possession justified today?One obvious issue is whether we are considering registered or unregistered land. Given the prevalence of registered land today, we will concentrate on that area. As has been seen, adverse possession will operate only if the owner fails to object or the true owner and adverse possessor are neighbours. Even where the parties are neighbours, the adverse possessor must reasonably believe that the land is theirs.
This establishes a reasonable balance between the rights of the owner and the need to encourage efficient land use and to recognise boundaries on the ground. It is unfor-tunate that what counts as adverse possession is so complex: all the old rules still apply to registered land. However, the simplifications confirmed by the House of Lords in Pye may diminish this problem. The broader scope for adverse possession following Pye may be criticised as leading to a disproportionate response (because of its effect on the owner). However, this matters little now that the 2002 Act minimises the circumstances in which adverse possession operates.
For unregistered land, adverse possession can be justified as helping to establish ownership. The impact of Pye in the House of Lords may render its application un-reasonably wide, but this is of limited importance given the small (and reducing) numbers of unregistered titles.
Main issues and rules: fixtures
The law of fixtures deals with the effect of fixing moveable objects to land. Let us con-sider a very simple and typical sort of example. Frank, the owner of a house, installs a new and expensive bath in his bathroom. The bath is very clearly a fixture (applying principles considered below) and becomes part of the land. If he contracts to sell the house to Geraldine, then Geraldine is entitled to the bath. Frank cannot (in the gap between the contract and the later transfer to her) remove the bath and substitute a cheaper one. A contrasting example is wiring in an electric cooker. The degree of con-nection of electrical items such as cookers is not such as to make them fixtures. Even after
Main issues and rules: fixtures
Frank contracts to sell the land, the cooker can be removed and there is no need for him to provide any substitute. If Geraldine wants to acquire the cooker, she will need to specify this in the contract.
We will consider a number of issues relating to fixtures. The first concerns the circum-stances in which status as a fixture is important (sale of the land has just been seen to be one example). Next is the question of when an object is a fixture – how and why do we distinguish between baths and cookers? Finally, we ask when fixtures can be removed.
This is most commonly an issue when tenants have installed fixtures. Can they be removed when the lease ends?
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The significance of fixturesWe shall consider three situations. The first two involve fixtures being installed by the owner of the land; the third involves installation by non-owners, tenants for example.
Fixtures installed by the owner of the land who owns the fixtures
The immediate effect of installing the fixture is small: the owner can remove it the fol-lowing day! It becomes important when somebody else acquires an interest in the land, as in the above examples when Geraldine buys from Frank. Similar reasoning applies if Frank leases the land to Harry: the fixture becomes part of the land to which Harry is entitled. Frank cannot remove it. Although the same applies to mortgages, it is unrealistic to say that fixtures can never be removed. Otherwise, householders could not replace a cracked bath without consulting their building society! There is an implied permission for the owner (mortgagor) to remove fixtures in the normal course of the upkeep and improvement of houses.
Fixtures installed by the owner of the land who does not own the fixtures Again, the fixture is part of the house and is owned by the owner of the land. The original fixture owner has lost it. That is the land law answer, though there may well be tort liability for wrongfully using the property of another.
Most cases have concerned objects hired to the owner of the land, usually in a busi-ness setting. The rules whereby objects become fixtures are frequently inconsistent with the wishes of the fixture owner. In Re Samuel Allen & Sons Ltd,16machinery was acquired under a hire purchase agreement.17It was stipulated that the seller of the machinery had a right to remove it. This right to remove was effective to bind a subsequent mortgagee of the land (the right to remove is a proprietary interest binding successors in title). Though a mortgagee would normally acquire the machinery as a fixture, this was effectively defeated by the right to remove. The case illustrates how some fixture rules can be circumvented by appropriate terms in the contract.
16 [1907] 1 Ch 575.
17 Hire purchase is used for purchase on credit. Ownership of the object passes at a later stage when the purchase money has been paid. In the meantime, the buyer is a hirer of the object.
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Fixtures installed by non-owners
Nearly all the cases have involved non-owners who are tenants under leases or (in the past) holders of life interests. The theoretical position is that the fixture belongs to the owner of the land. To make a gift of the fixture to the owner rarely meets the expect-ations of the parties. It also has the undesirable effect of discouraging improvement of the land. In response to these concerns, the law permits certain types of fixture to be removed (considered below).
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When is there a fixture?Unsurprisingly, fixing an object to the land provides the prima facie answer, the only issue being the degree of fixing required. In his classic analysis of the area in Holland v Hodgson,18Blackburn J starts by stressing the role of fixing the object. However, inten-tion is also crucial. He provides these instructive examples:
(1) A dry stone wall. With such walls, stones are placed on top of each other, without any fixing or cement. The nature of a wall, nevertheless, is such that it is intended to be permanent. This is a fixture, despite the stones not being connected to the land save by gravity;
(2) An anchor embedded in the underwater soil to hold a ship steady. It is clear that the fixing is temporary, designed to benefit the ship and is readily undone. Despite the physical fixing, this is not a fixture and the shipowner does not lose ownership of the anchor.
A question that has given rise to constant difficulty is as to when intention will overcome a small amount of fixing. In Holland itself, machinery firmly nailed to a factory floor was held to constitute a fixture. The contrary conclusion is reached for carpets tacked to a floor. Although the situations look similar, carpets can very easily be removed. The test is sometimes said to be whether the fixing is designed to make the object part of the structure or to allow the object to be enjoyed. This might be useful for some decorative objects, but it provides little help on the facts of Holland.
The nature of the relevant intention was considered in Melluish v BMI (No 3) Ltd.19The House of Lords established that it is irrelevant whether or not an object was intended to be a fixture: the law determines what is a fixture. Intention is relevant only in so far as it shows the purpose of fixing. Take the carpet example. Carpets are fixed to the floor to stop them from slipping, not for any purpose related to the house.
Two factors may be of use in deciding some cases. It can happen that a loosely fixed object may be part of something else which is clearly a fixture. A simple example is pro-vided by a toilet. The lid to the cistern can often be lifted off: it rests there by its weight alone. Yet it is obvious that it forms part of the toilet and nobody doubts that the toilet
18 (1872) LR 7 CP 328 at p. 335 (Exchequer Chamber). For the earlier law, see Luther (2004) 24 OxJLS 597.
19 [1996] AC 454 at p. 473.
Main issues and rules: fixtures
is a fixture. The second factor is whether any significant damage will be caused by removing the object. The courts are quick to conclude that there is a fixture if such damage is likely.
Among normal household objects, baths, cookers and carpets have been mentioned.
Botham v TSB Bank plc20provides useful guidance as to how fixtures principles apply to many household objects. As well as baths, fitted kitchen units were treated as fixtures.
These are objects that one expects to be part of houses, as well as being firmly fixed to the house. However, items such as cookers, refrigerators and washing machines (even if in fitted units) are not fixtures. They can readily be removed without significant damage and are not generally viewed as part of the house. Likewise, carpets, curtains and most light fittings were also held not to be fixtures.
So far we have considered what may be described as ‘lightly fixed’ objects. When, apart from dry stone walls, will objects be fixtures without being physically fixed to the land? There are few examples, though an interesting one is a house which rests on piles or pillars (a common building method in some parts of the world). More controversially, D’Eyncourt v Gregory21held that unfixed objects such as carved figures and vases were part of the architectural design of a house and therefore fixtures. The theory looks sound, but the same result has very rarely been reached in later cases. The courts are reluctant to find fixtures without some degree of fixing.
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Rights to remove fixturesThis section considers rights of tenants and life interest holders to remove fixtures, ignoring any express terms in the lease or settlement. Let us take two examples, in each of which there is a fixture. The first is a life interest holder who fixes tapestries to walls.
The second is a shopkeeper tenant who fixes counters and display cabinets for his stock.
In both cases, it would seem unduly generous to the owner of the land to allow him to make a windfall profit at the expense of the life interest holder or tenant. Equally seriously, occupiers would be discouraged from improving the land.
The courts have evolved rules whereby trade or ornamental fixtures can be removed, applying to both examples just given. Trade fixtures are those fixed in the course of carrying out a trade and would cover the shopkeeper example. Tapestries would be ornamental fixtures. Relatively minor damage is not a problem, so long as it is made good.
However, it should be noted that not all fixtures fall within the trade and ornamental categories. Suppose a tenant replaces the main window of a shop. This is an integral part of the premises and cannot be removed; it is called a ‘landlord’s fixture’.
A final point to remember is that the tenant can run two arguments. The first is that there is no fixture in the first place. If this succeeds, then the tenant can remove the object. Some earlier cases showed reluctance to find an intention to fix in the leasehold setting, but that probably does not survive the Melluish analysis of intention as discussed above. A tenant who fails in the first argument can fall back on the second: the right to remove trade or ornamental fixtures.
20 (1996) 73 P&CR D1.
21 (1866) LR 3 Eq 382.
Main issues and rules: fixtures
Adverse possession and fixtures
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Pye v Graham [2002] UKHL 30
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Assessing the law on fixturesEvery system of law has to deal with objects affixed to land. It is inconceivable that a house built on land could be viewed as a pile of bricks, separately owned and being capable of being reclaimed separately from the land. The more difficult questions are whether the courts employ the most appropriate tests for what counts as a fixture and whether the consequences are appropriate.
On the first point, the examples given in Holland demonstrate that the physical act of fixing cannot be determinative in all cases. Nevertheless, it has also been seen that the intention test is difficult to apply. To aid certainty, it seems preferable to concentrate on the level of fixing, allowing intention to come into play when there is a low level of fixing, easily undone.
So far as removal is concerned, the law seems to allow reasonable rights of removal by tenants and holders of life interests. These are persons who have most to lose from the law of fixtures. However, it has been observed that some objects (windows, central heat-ing, lifts) cannot be removed. That seems reasonable on account of the damage involved, but it means that no compensation is payable. That outcome might be regarded as rather harsh, though it may be a comment on the law relating to leases as much as on the law relating to fixtures.
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