Battles about Chattels Part 1 of 4
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Classification – chattels, fixtures, landlord’s fixtures, tenant’s fixtures, fittings, part of the building
If you visit an office building you will see a variety of things that, at one time or another, have been brought to the land. At one extreme there is the structure of the building itself – the foundations, main structure, roof and so on. This is made up of building materials that were originally brought to the site and put together to make up the structure. At the other extreme, you may see an office chair, sitting on the floor.
For a variety of different purposes, the law divides the things that have been brought on to land into different categories.
Things that are part and parcel of the land itself
Some things which are an integral part of a building are referred to as being “part and parcel of the land itself”.
Boswell v. Crucible Steel Co. [1925] 1 K.B. 119 the question was whether plate glass windows which formed part of the wall of a warehouse were landlord’s fixtures within the meaning of a repairing covenant. Atkin L.J. said, at p. 123: “…they are not landlord’s fixtures, and for the simple reason that they are not fixtures at all in the sense in which that term is generally understood. A fixture, as that term is used in connection with the house, means something which has been affixed to the freehold as accessory to the house. It does not include things which were made part of the house itself in the course of its construction.”
Elitestone v Morris [1997] 1 W.L.R. 687. A bungalow resting on concrete pillars which rested on the ground was part and parcel of the land, because it could only be removed by demolishing it.
Fixtures
Fixtures are things that were originally chattels, but which have become part of the land or building to which they are attached.
Landlord’s fixtures
A landlord’s fixture is a fixture which cannot be removed by the tenant. This can be either a fixture which was present when the lease was granted, or a fixture installed by the tenant. For dilapidations purposes, there is normally no difference between landlord’s fixtures and items that are part and parcel of the building. However, there may be lease covenants that only apply to fixtures, in which case it may be necessary to decide whether an item is a landlord’s fixture or part and parcel of the building.
Tenant’s fixture
A tenant’s fixture is an item which is:
1 annexed by a tenant to the land so as to become a fixture;
2 is so annexed either for the purposes of his trade or for ornament and convenience; and
3 physically capable of removal without causing substantial damage to the land and without losing its essential utility as a result of the removal
see Woodfall 13.141, Webb v. Frank Bevis [1940] 1 All E.R. 247; Young v. Dalgety [1987] 1 EGLR 116
In practice, the crucial question is normally whether the item can be removed and installed elsewhere, or whether the process of removing the item will result in its destruction. Normally, any damage caused to the building by removing the item can be made good and will not prevent it from being a fixture.
Where the landlord lets to the tenant a building containing a fixture, and during the tenancy the tenant replaces the fixture, the new fixture is still a landlord’s fixture: Sunderland v. Newton (1830) 3 Sim. 450
Chattels
A chattel is anything which is neither part and parcel of the land, nor a fixture. It is therefore a moveable, and not treated as being part of the land.
Fittings
Although the expression “fixtures and fittings” is sometimes found in leases, “fittings” has no status as a legal expression. If the expression “fixtures and fittings” is used, then depending on the context, it may be appropriate to interpret “fittings” as referring to chattels which are let with a property. For example, if offices are let with carpets which are not fixtures (as to which see below), they could fall within a covenant to “keep the landlord’s fixtures and fittings in good condition and where necessary replace them”.
Brudenell-Bruce v Moore [2012] W.T.L.R.
Framed paintings were not fixtures and nor were they “fittings”. Newey J said:
“… the Paintings do not represent “fittings”. The word “fittings” is not a legal term of art (see Woodfall, “Landlord and Tenant”, at paragraph 13.131). It is often used in combination with “fixtures” (as in “ fixtures and fittings”). That was the case in Berkley v Poulett (see [1977] 1 EGLR 86 at 88), but no one appears to have considered the addition of “fittings” important. Nor does reference to the Oxford English Dictionary suggest that the word “fittings” extends the scope of clause 1 in a relevant way. The Dictionary defines “fittings” as “ Fixtures, apparatus, furniture”. Clause 1 makes separate reference to “ fixtures” and “furniture”, and the Paintings would not normally be regarded as “apparatus”. Further, the word “fitted” would not naturally apply to the Paintings. A carpet or cupboard might be “fitted”. The Paintings were surely hung rather than “fitted”. The value of the Paintings is also, to my mind, of significance. Had the parties intended the Lease to extend to such valuable items, they might have been expected to refer to them specifically, not to rely on the somewhat vague word “fittings”.”
Tenant’s fixtures
Subject to any contrary provision in the lease, a tenant has the right to remove tenant’s fixtures at any time up to the end of the lease.
A tenant retains the right to remove tenant’s fixtures if he is granted a new tenancy: New Zealand Government Property Corp. v. H.M. & S. [1982] Q.B. 1145, CA.
The repairing covenant and covenant to yield up will normally require the tenant to leave the premises in good repair. This means that if fixture are removed, any damage caused by the removal must be made good: Spyer v. Phillipson [1931] 2 Ch. 183, Mancetter Developments Ltd v Garmanson Ltd [1986] QB 1212
Failure to make good the consequences of removal may amount to the tort of waste, in which case the director(s) of a tenant company may be personally liable for the cost of making good the damage caused by the removal
Mancetter Developments Ltd v Garmanson Ltd [1986] QB 1212
The director of a tenant company was held liable in waste for causing the company to remove industrial machinery without making good the holes made in the walls for the installation of the fans and pipes.
NB: This article is part of a series of four entitled ‘Battles about Chattels’ which addresses issues surrounding fixtures and chattels in dilapidations disputes:
- What are fixtures and chattels?
- Is it a fixture?
- What is a tenant’s obligation if a chattel is let with the building?
- Must a tenant remove tenant’s fixtures?
Stephen Jourdan QC covers all aspects of property and agricultural litigation, including insolvency, partnership, professional negligence, animal health and pollution claims, and acting as arbitrator and independent expert.
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