2 Fixtures and Buildings
4.48 ‘Land’ includes, in a legal sense, not only the land itself, but buildings or parts of buildings, and objects attached to buildings on the land.111 Fixtures are objects which have been attached to the land so as to become part of it.
At common law, fixtures attached to the land by a tenant, so as to become part of it, become the property of the landowner and cannot be removed – the maxim applied was quicquid solo plantatur, solo cedit. This somewhat harsh rule was mitigated by the courts, in that trade fixtures, domestic fixtures and ornamental fixtures could be removed by a tenant before the end of his tenancy, providing (in the case of ornamental or domestic fixtures) that this could be done without substantial damage to the building. Agricultural fixtures were not regarded, however, as ‘trade’ fixtures,112 and were originally irremovable. Their removal was provided for by statute in 1923,113 and in the case of agricultural holdings is now provided for by s 10 of the Agricultural Holdings Act 1986.114 Section 8 of the Agricultural Tenancies Act 1995 gives farm business tenants a statutory right to remove fixtures that is, in some respects, wider than that enjoyed by tenants with 1986 Act tenancies.115 If an object brought onto the land by the tenant is not affixed it remains a chattel in the ownership of the tenant and can be removed by him without restriction.(a)Fixtures defined
4.49 Differentiating fixtures from objects which remain chattels is not always easy. The courts use two tests: the degree of annexation, and the purposes of annexation. If an object is physically attached to the land there is a presumption that it has become a fixture, however slight the attachment may be.116 Where an object can be removed intact without damaging the land, it will prima facie be a chattel – as for example a Dutch barn117 a greenhouse resting on a concrete plinth,118 a wooden shed119 or barn,120 or a wooden granary.121 An object attached in such a way as to be unremoveable without substantial damage will, on the other hand be prima facie a fixture eg a dynamo sunk in a concrete bed.122 Perhaps of more importance in the modern law, however, is the second test – the purpose for which the chattel was placed on the land.
If it was brought onto the land and fixed to the property for the better enjoyment of the object as a chattel (as opposed to improving the realty) it will not be a fixture. So, an ornamental tapestry attached to the walls of a house by batons, so as to better display it, was held to be a chattel, notwithstanding its physical attachment to the building.123 Ornamental statues, garden seats and vases placed in a country garden as part of an architectural scheme for the grounds were, however, held to be fixtures.124 The cases are not easy to reconcile, and were reviewed by the House of Lords in Elitestone Ltd v Morris.125 It was there held that a wooden chalet, resting on concrete foundation blocks in the ground, was a fixture because it had been constructed in such a manner as to make it impossible to remove it without substantially destroying the structure. The court there endorsed a common sense approach, viz. that if a house is constructed in such a way as to be removable, either as a unit or in sections, it may remain a chattel even though it is temporarily connected to mains electricity or gas services. But if it is constructed in such a way that it cannot be removed without its destruction then it cannot have been intended to remain a chattel, and will have become a fixture.126 The implications of this decision for the many types of temporary structure commonly brought onto agricultural land are obvious.127(b)Consequences of Annexation as Fixtures
4.50 If an object becomes attached to the realty so as to be a fixture, it becomes part of the land and accrues to the ownership of the freeholder – it becomes a ‘landlords fixture’ and cannot be removed by the tenant. If it can be removed under one of the exceptions at common law it will be a ‘tenants fixture’, and can be removed at any time during the tenancy, or even after the tenancy has ended if the tenant remains lawfully in possession. If the object remains a chattel it remains the property of the tenant who has brought it onto the land, and can be removed at any time.
4.51 At common law, the tenant was entitled to remove (i) trade fixtures ie objects brought onto the land for the purpose of carrying on his trade or business there (petrol pumps,128 shrubs planted by a market gardener,129 engines and boilers,130 and the like), (ii) ornamental and domestic fixtures, such as wood panelling,131 bookcases or stoves. Ornamental and domestic fixtures can only be removed, however, if they are not a permanent improvement to the property, and if the entire object can be removed. A sun lounge, conservatory or garage would not, therefore, be removable under this head.
4.52 At common law, as mentioned above, agricultural fixtures were not treated as trade fixtures, and so were not removable. This was remedied by statute, and a right of removal (subject to conditions) was enacted in successive Agricultural Holdings Acts, culminating in the 1986 Act. Prior to the introduction of the Agricultural Tenancies Act 1995, therefore, an agricultural tenant was entitled to remove ornamental and domestic fixtures (above), and agricultural fixtures under s 10 of the Agricultural Holdings Act 1986. The rights conferred by the 1995 are wider, and free of the restrictions applicable to removal under tenancies governed by the Agricultural Holdings Act 1986.132
(c)Statutory Right of Removal
4.53 Section 8(1) of the Agricultural Tenancies Act 1995 gives a farm business tenant the right to remove any fixture (of whatever description and whether affixed for the purposes of agriculture or otherwise) affixed to the holding by him, and any building erected by him on the holding. They can be removed at any time during or after the tenancy, provided the tenant remains in possession as tenant (eg under a new tenancy or while holding over as a tenant at will). This right is considerably wider than that enjoyed by tenants under the 1986 legislation. The right of removal applies to both agricultural and non-agricultural fixtures and buildings, and is all-inclusive: there is no separate right to remove domestic and ornamental fixtures.133 This is wider than the pre-1995 Act position, as some buildings could not be removed at common law if they were substantial and effected a permanent improvement to the holding.
The tenant may remove fixtures even if this entails causing substantial damage to the holding or buildings on it – provided only that he must not do any avoidable damage to the holding, and must (immediately after removing the fixture or building) make good all damage to the holding or buildings that is occasioned by the removal.134 The right of removal applies not only to a fixture erected or affixed by the tenant, but also to any fixture or building acquired by him.135 This would cover the case, for example, where an incomer purchases a fixture or building from an outgoing tenant, and would not be able to claim compensation for it because he has not (not having provided it himself) obtained the landlord’s consent to its provision as an improvement. While unable to claim compensation for any residual increase in rental value as an improvement, he would be able to remove the fixture or building at the end of his tenancy. The tenant’s right of removal cannot be varied by agreement, or by any custom to the contrary.1364.54 The latitude of the statutory right of removal conferred by s 8 is such that the tenant under a farm business tenancy has a free choice whether to remove a fixture or building, or to claim compensation for it as an improvement at the end of the tenancy.137 Moreover, the landlord does not have the option, as he does under the 1986 Act, of purchasing the improvement at a fair price. The tenant’s right to remove fixtures and buildings is only excluded in four situations:138
•The right of removal does not apply to a fixture affixed, or a building erected, in pursuance of some obligation. The obligation may be imposed by the tenancy agreement, or it may be imposed by statute or by statutory instrument. The tenant may be required, for example, to provide additional buildings or fixtures to comply with the Water Resources (Control of Pollution) Regulations 2010,139 which give the Environment Agency wide powers to require the erection of suitable silage and slurry containment facilities.
Clearly, it would be very inconvenient were the tenant to remove these at the end or the tenancy, and they must be left for an incomer. Similar considerations would apply to fixtures added to comply with public health legislation requirements. The tenant will not be without a remedy in most cases: if he has obtained the landlord’s consent, or that of the arbitrator, he will be entitled to compensation for improvements at the end of the tenancy, providing the other qualifying conditions for compensation are met.140 Note that if the tenant is not entitled to remove the fixture under this provision, he will not be able to rely upon any term of the tenancy agreement allowing its removal: s 8 is all inclusive, and admits no contractual variation of the tenant’s rights (or otherwise).141•The right of removal does not apply to a fixture affixed or a building erected instead of some fixture or building belonging to the landlord. The tenant will, however, be entitled to compensation if he has obtained the landlord’s or arbitrators consent.
•The right of removal does not apply to a fixture or building in respect of which the tenant has obtained compensation under s 16 of the 1995 Act, ‘or otherwise’. Clearly, to allow the tenant to remove the fixture, and perhaps sell it, would give the tenant a double benefit.
•The right of removal does not apply to a fixture or building in respect of which the landlord has given his consent, for the purposes of the compensation provisions142 on condition that the tenant agrees not to remove it, and which the tenant has agreed not to remove. This gives the landlord the option, when consenting to an improvement, of stipulating that the fixture or building remain on the holding for the benefit of an incoming tenant.