•    Fixtures are items that have been attached to the land to become part of the land itself
o    If land is sold, fixtures pass with the land
    -    Colegrave v Dias Santos
o    If house mortgaged, fixtures are part of mortgagee’s security, whether attached before or after the mortgage
    -    Meux v Jacobs
o    If land is leased or occupied by life tenant and possessor affixes something to the land the tenant will only have limited rights to remove it as it will be considered part of the landlord’s property
o    Upon death, fixtures pass to those entitled to the land, not those entitled to the chattels
    -    Re Whaley

Difference between a chattel and a fixture
•    Law used to be that if something was fixed by any means it was a fixture
o    Degree of annexation from the land remains a factor, but no longer is as important as once was: Now used as determining intention
•    Present rule

Two limbed Test:
1.    Purpose of bringing item
2.    Degree of annexation

o    Holland v Hodgson (1872) LR 7 CP 328
o    FACTS
    -    Owner of mill took out mortgage
    -    Heavy looms on property, needed to be tied down firmly while they were being used
•    Had splayed feet with holes through which spikes were driven
•    Although bolted down, easily movable
    -    Business defaulted on the mortgage, mortgageor claimed the looms
o    HELD - Held to be fixtures
•    Brought onto land to enhance mill’s value and usefulness
    -    Court gave examples
•    If landowner builds stone wall consisting merely of a few bricks resting on each other
o    Although easily movable, it is a fixture
•    If builder stacks a few bricks on top of each other in the shape of a wall until they are used
o    Chattels
 
Whether an item is a fixture or a chattel will depend primarily upon the intention with which the item was put in place
•    If item placed on the property for better enjoyment or use of the property then it is a fixture
•    If thing was brought onto the property for the better enjoyment of use of the thing itself, then it will be regarded as a chattel
o    Leigh v Taylor

Things to consider to determine fixture or chattel:
o    Period of time intended to stay
    -    Indefinite time: probably a fixture
    -    Temporary purpose: probably chattel
o    Degree of fixation
    -    Damage likely to be caused by removing item
•    More damage means likely to be fixture
o    Status of person bringing the item
    -    If short term tenant brings something onto land, likely to be chattel
•    Australian Provincial Assurance Co Ltd v Coroneo [1938]
o    FACTS
    -    Question whether chairs in cinema are chattels or fixtures
•    Chairs on in place for temporary time
o    HELD - Chairs were chattels

Two prima facie rebuttable presumptions to help determine whether fixture or chattel
•    Where the item is affixed to the land it is presumed to be a fixture
o    Burden of proof lies with those who assert otherwise
•    Where the item is not affixed to the land it is presumed to be a chattel
o    Burden of proof lies with those who assert that it is
•    Holland v Hodgson(1872) LR 7 CP 328

Rebuttable presumption that where the item is not affixed to the land it is presumed to be a chattel
•  
 Reid v Smith[1906]
o    FACTS
    -    In order to protect against white ants, timber house built so it rested on the surfact of the land without any foundations
o    HELD
    -    Intention obviously that house should be a fixture
•    Presumption rebutted

•    Permanent Trustees v Esanda (1991)
o    FACTS
    -    Prefabricated house transported in two halves to a nursery to provide accommodation for seasonal workers
    -    Property mortgaged and repayments defaulted
o    HELD - Chattelm: House obviously meant to be transportable

Overall design of house may be relevant
•    Gregory’s Case [1866]
•    FACTS
o    Person builds a grand manor house
o    Owner installs marble garden furniture and marble lions resting freely by their own weight
o    Sold property
•    HELD
o    Fixtures – part of the overall design of the house
•    Berkley v Poullet (1976)
o    FACTS
    -    Grand old English manor sold
    -    One room contained great old paintings of families ancestors which hung in recesses which had been crafted to accommodate them
o    HELD - Pictures chattels – not part of the overall design of the house

Relevant intention is Objectively Determined
•    Although modern cases suggest looking to actual subjective intention to assist in determining the period of time the item intended to remain in position, and the function to be served by its annexation

Objective intention, gathered from facts that are ‘patent for all to see’
•    Hobson v Gorringe [1897]
o    FACTS
    -    Gas cylinder engine leased from a gas company by mill owner
    -    Gas company says at all times engine is to remain its property
    -    Mill owner gets mortgage from Gorringe who assumes engine is part of the mill
    -    Mill owner defaults, Gorringe demands engine
o    HELD - Gorringe gets engine
•    Objectively, a reasonable man might presume that the engines were part of the realty

•    Kolim’s Case: Pan Australian Credits v Kolim
o    FACTS:
    -    Owner builds large commercial building which leaves room for air conditioner plant
    -    Owner leases air conditioner plant
    -    Owner mortgages property and defaults
    -    Mortgager unaware that air conditioner not part of the property, and claims the air conditioner
o    HELD - Mortgagor has right to the air conditioner
•    Objectively, reasonable man might presume that air conditioner was part of the realty

Right to remove fixtures
•    Two categories in which may be a right for tenants to remove fixtures:
1.    Tenant and Landlord
    -    If tenant brings fixture onto landlord’s property
    -    Cannot remove items a previous tenant brought onto the land
2.    Life tenant and remainder
    -    If life tenant brings fixture onto property and affixes it, does it belong to tenant or remainder holder?

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