Land, Fixtures and Chattels

 Traditionally categorized property rights over the nature of the object over which
the rights are held/ the bundle of rights asserted in respect to it.
 Two categories:
o Real property (realty)
o Personal property (personalty)

Land
 Defined as rights over land and anything annexed to it – may also include airspace –
‘immoveables’
 Corporal reality (rights of the land itself)/incorporeal realty (rights over the land)
 In addition to physical earth – anything attached to it, or the airspace above it
 Chattel – considered affixed – annexed to the property

Personalty
 Two kinds;
o Chattels (real or leaseholds)
o Pure personalty
 Leaseholds: classified as personalty for historical rather than conceptual reasons
 Essential feature of real property was a right to repossession of the land or thing

Choses in possession
The term denotes a tangible personal property – directly impacts over which property rights
are created over it.
Choses in action
 Property rights over intangible things, covering rights as diverse as intellectual
property
 Transferal of rights issues regarding tangibility of property
 Example – tangible (book) v intangible (copyrights over the book)

Land
 Cuius est solum eius est usque ad coelom et usque ad inferos – ownership of land
extends up to heaven and down to the centre of the Earth
 There are limitations on that for practical reasons – airspace and subsoil in
particular.
Airspace
 Subject to zoning laws, the owner of land may use his or her airspace to build to any
height and for any purpose (Victoria Park Racing Co v Taylor)
 As much airspace as is necessary for the ‘reasonable enjoyment of the land’
(Bernstein of Leigh v Skyviews & General Ltd)
 Inspecting land from an adjacent property is not trespass or nuisance either (Victoria
Park Racing Co v Taylor)
 Invasions of land space belonging to owners with exclusive rights is considered
trespass.
 Crane jibs and bullets can be considered trespass - plaintiff could be entitle to an
injunction to stop the interference – (Davis v Bennison and Woolerton v Costain)
 Injunction may be rejected if trespass is trivial or previous offers of compensation
were rejected
 Statutes now provide for certain kinds of trespass with permits – building, repair, or
maintenance of adjoining land.
 Overhanging trees don’t constitute trespass because the intrusion is ‘consequential’
as opposed to direct – nuisance, (proof that it caused actual damage)

Subsoil
 Very little authority on this matter
 Airpace rights = subsoil rights?
 State has special rights (Crown Lands Act 1884) over specific minerals and resources
– gold and silver must belong to the crown
 English – rights extend as deep as is practicable

Natural Rights
 Support from adjacent land owners, water
 See Chapter 12

Boundaries of Land
 Artificial or natural boundaries
 Artificial – fixed until the owner agrees to shift the,
  Natural – shift from time to time by natural forces – erosion, accretion
Tidal waters
 Owner owns the land up to the mean high-water mark – assessed annually
 Held under the Torrens system
 Land bellow the mean high – water mark belongs to the crown in right of the state

Non – Tidal Waters

 Common law – owner retains exclusive rights to the alveus (bed) (contained) - Not
contained – up to the middle line (medium filum) of the water – Torrens title
 Obsolete not – s 172 Crowns Act 1989 (NSW) – owners’ rights end where land and
water meet

Accretion and Erosion

 Only applies of changes are gradual (can’t be seen with the naked eye)
 Increase in land will be to the owner’s benefit
 Erosion is opposite – to the crown
 Applies equally in tidal and non – tidal land
 S 172(4) Crown Lands Act 1989 – don’t apply to non-tidal lakes
 Applies to Torrens and old system – unless excluded by agreement (Southern centre
of theosophy Inc. v South Australia)
 Limitations on doctrine of accretion can be varied in the conveyance – changes in
boundaries by natural; forces – movable freehold’

Fixtures
General principles
 Fixtures are chattels which have become a part of the land – annexation
 What is attached to the soil becomes a part of the soil
 Holland v Hodgson: The court will look for the degree of annexation of the chattel
and the objective/ purpose (circumstances) of the annexation to determine
whether a chattel has been annexed to the land
 National Australian Bank Ltd v Blacker: considerations (regarding the
objective/purpose): enjoyment of the item or the land itself, nature of the item,
purpose of the annexation temporarily or permanently.
 Agripower Barraba Pty Ltd v Blomfield – a greater (abstract) emphasis has been
placed on the purpose over the degree
 Degree remains as the determination of the onus of proof – even the slightest
attachment creates the presumption of a fixture. More attachment = stronger
presumption (Leigh v Taylor, Re Whaley and Norton v Dashwood)
 Standard social or architectural practices mmay be used to imndicate the object of
annexation (Belgrave Nominees Pty Ltd v Barlin Scott Air - conditioning (Australia)
Pty Ltd, Elitestone v Morris, Ried v Smith etc)
 All chattels annexed to the realty before a contract of sale pass tp the purchaser
unless excluded from the agreement – when passed on by will, all fixtures included,
mortgages?
Tenants Fixtures
 Fixtures are no longer the property of the tenant after lease ends – may even be a
breach if part of the agreement
 (Penton v Robert) Common law rules – during the lease, fixtures are the landlord’s
property subject to the tenants right to remove it.

Trade, domestic or ornamental fixtures

 Tenant can remove fixtures of these kind and didn’t intent for them to be permanent
 To determine intention – whether removal would cause material injury to the land +
would cause destruction to the fixture tenant for life is different for a leasehold
tenant, although not distinguished yet
 S133B(2) Conveyancing Act 1919 (NSW), if a right to make improvements is included
in the lease, but dependent on landlords consent, consent mustn’t be unreasonably
withheld.
 Landlords can’t withhold consent for a ‘minor fixture’ but can for any other fixture.

Time for removal

 Unless in the agreement a tenant may remove fixtures any time prior to termination
of the lease
 If they don’t it is presumed to be given (voluntarily) given to the landlord
 2 exceptions:
o Short tenancies = period of time to remove fixtures
o Forfeiture/surrender = remove fixtures where they retain right of possession
 Once they quit tenancy, lose all right to fixtures

Exception
 Agricultural tenancies or residential tenancies – these are governed by statutes
 (Agricultural Tenancies Act 1990 (NSW)) Agricultural – right to remove fixtures –
subject to landlords right to purchase at a reasonable price – not covered: (Ewles v
Maw) – no right to remove fixtures
 Residential – remove fixtures from the premises if they were annexed in accordance
with the term of agreement
 If tenant cause damage by the removal of the fixture affixed by the tenant, the
tenant must notify the landlord without delay and provide compensation

Chattels annexed by mistake or a person with no title

 Brand v Chris Building Co Pty Ltd – accidently built has on wrong block – became the
property of the owner of the realty
 Same case where property is stolen and innocently annexed.

Easements distinguished from other types of rights

Natural rights
 An easement must be created, doesn’t already exist naturally
  Natural rights are inherent features of ownership
 Generally protected by law of tort – found in relation to rights to use, enjoy, exclude
and alienate
 Common law principles significantly modified by statutes – (in place of nuisance – s
177 Conveyancing Act)
 Supporting land = natural surface of the land, subsoil and subsurface water – not
building structure unless its replacing support land
 Negligence – sue in cases of reasonably foreseeable damage caused by withdrawal
of support
 S 177 Conveyancing Act also – creation of an easement for removal of support
 Natural right – flow of water in a definite channel – not to underground – no natural
right to light

Cases
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd
Facts:
Commercial development… crane… asked… refused… did it anyway… plaintiff wanted
injunction/damages…
Held:
whether it may interfere with uses – more nuisance than trespass – injunction granted…
complete construction with minimum trespass on plaintiff land…

Belgrave Nominees Pty Ltd v Barlin-Scott Air-conditioning (Aust) Pty Ltd (1984) VR 947
Facts
 The Plaintiffs were owners of two buildings. Entered a contract with the Builder for
renovation of their buildings.
 The Builder subcontracted the Defendant to supply & install an air-conditioning
plant.
 The Builder was going into liquidation and stopped paying the Defendant, so the
Defendant stopped his work.
 The Plaintiff, upon realising the contract with the Builder has failed, contracted with
the New Contractor to finish the job.
 The New Contractor also subcontracted the Defendant.
 However, shortly after, the Defendant, without the knowledge or consent of the
Plaintiffs, removed the air-conditioning plant.
Held
 According to Holland v Hodgson, the general rule is that if an article is annexed
(attached) to land by something more than its own weight, it is a fixture, unless the
intention shows it was intended 'all along' to be a chattel (and vice versa - if not
attached, then chattel unless intention shows otherwise).
 This established degree of annexation and intention as the things which the judge
considers in determining whether something is a fixture.
 Attachment or annexation gives rise to a presumption that the object is a fixture
(and vice versa). Intention can then overpower this presumption, but the burden of
proof lies with the party trying to disprove the presumption.
  Intention 'all along' is hard to define, and it has been considered in many cases. In
determining this intention, the court considers:
o the nature of the chattel;
o the relation and situation of the two parties;
o the mode of annexation;
 Secure fixing, such that the chattel cannot be removed without
significant damage, provides strong, but not conclusive evidence that
the chattel was intended to be a fixture
 Insecure fixing likewise provides strong, but not conclusive evidence
that the chattel was not intended to be a fixture.
o the purpose for which the chattel was fixed.
 If the chattel has been proved to be fixed for a temporary purpose, it
is not a fixture
 In this case, the plant was of an essential nature to the building and was positioned
and fitted in such a way as to form as essential part of the building. The units were
sufficiently annexed to the buildings to make them fixtures.
 Even slight fixing to the land is sufficient to raise the presumption that a chattel is a
fixture so that the onus of proving otherwise rested upon the defendant who failed
to discharge it.
 In this case, an order for damages is not an adequate remedy. The Plaintiff may
obtain a mandatory injunction compelling the defendant to complete the plant.

McKeown v Cavalier Yachts

Facts
A yacht which was promised to the plaintiff was not delivered by the defendant. Meanwhile,
the defendant made several improvements to the yacht.
Held
Granted specific restitution to the plaintiff and compensation to the defendant for the
improvements he had made.

NH Dunn Pty Ltd v LM Ericsson Pty Ltd (1980) ANZ ConvR 300
Fixtures need to be considered in the circumstance, purpose/ object of attachment…
defendant lost … temporary enjoyment and held down for stability not permanent
attachment of the realty.