Ownership of things attached to Land.

Ownership of things attached to Land

The general principle is that whatever is attached to the soil becomes part of it.

This justifies the principle that items of personal property, known as chattels, become land if they are attached to it so as to become part of it.

Once a chattel is attached to the land so as to form part of the land it becomes a fixture.

Where land is transferred, a conveyance of the land will transfer with it all the fixtures which are not expressly excluded.

From the moment an owner of land has entered into a contract of sell, he is no longer entitled to remove fixtures since they are automatically transferred along with the land to the purchaser.

Similarly, where land is subject to a lease, any chattels which the tenant attaches to the land so as to become fixtures will belong to the landlord and obviously the tenant will not be entitled to remove them when the lease comes to an end.

When does the chattel become a fixture?

This is usually determined basing on two factors;

1. The degree of annexation (the extent to which the chattel is attached to the land; the more firmly it is attached the more likely it is to have become a fixture.
2. The object of annexation or the reason why the chattel was attached to the land. ( For example art in comparison to wall paper. However firmly a tenant attaches a painting or art to the wall of the house, the landlord might not successfully claim it is a fixture if the object of the annexation was merely to enjoy the painting as art contrary to a tenant who puts wall paper for instance. Therefore the critical is “the degree of annexation and the purpose of annexation”.

Chattels resting on Land 

Articles not otherwise attached to the land other than by their own weight are not to be considered as  part of the land unless there are circumstances to show that they were intended to be part of the land. The onus of proving that they ceased to be chattels lies on they one who asserts that they have ceased to be chattels.

Buildings

For buildings, this depends on whether a house is built into the ground by its foundation wherefore its considered a fixture.

But where a building is merely resting on the land supported by its own weight then the determining issue is whether the house can be moved without demolition

Therefore, if a house or building was constructed in such a way that it cannot be removed at all, save by destruction, then it cannot have been intended to remain a chattel but to form part of the realty.

However anything portable, such buildings as mobile homes, mobile toilets, relocatable fabricated buildings are capable of retaining their status as chattels.

Rights to remove fixtures

1. The owner of land can remove any fixture whenever he wishes
2. A vendor can only remove fixtures he is entitled to remove as per his agreement with the purchaser. The effect of the agreement of sell is to pass ownership of land including fixtures to the purchaser immediately.

Can a tenant remove fixtures on termination or expiration of his lease?

Where a tenant has attached chattels to the land he is leasing such that they have become fixtures then they henceforth belong to the owner of the land except;

1. Where such fixture were added to the land purely for decoration or ornament
2. Where fixtures were installed for the purpose or carrying on business ( for example a tenant operating a restaurant can remove fixtures fixed for the purpose of cooking)
3. Agricultural tenant has a right to remove fixtures
4. The tenant with the right to remove fixtures must make good any damage caused by such removal to the land ( the liability to make good the damage is a condition of the tenant’s right to remove his/her fixtures: therefore the removal of the fixtures without making good the damage, being in excess of the tenant’s right of removal, is waste, actionable in tort just as much as removal by the tenant of the land lord’s fixture which the tenant has no right to remove is waste).

The tenant who fails to make good damage occasioned by the legitimate removal of fixtures is therefore liable to compensate the owner for any loss suffered.

However such things as holes left by the removal of screws or nails are unlikely to be actionable.

A tenant is not obliged to redecorate a wall after the removal of a fixture.

Ownership of chattels found on land

In all cases there is an obligation on the finder or occupier to take all reasonable steps to return the found item to its true owner.