‘… the law of fixtures is (and will always remain) a rough and ready mechanism by which competing claims of ownership over different things are settled. Behind a veneer of principle, the law lacks coherence and certainty and it is strongly arguable that it should not continue in its present form.’ [1]This essay seeks to examine the law of fixtures and chattels in England and Wales, as well as a clear analysis of whether current legislation lacks coherence and certainty; it will ultimately conclude that though statute may be minimal, common law remediates and ‘fills the gaps’ of the uncertainty of the law.
The law in England and Wales is composed of statutes (legislation passed in parliament) and common law (law interpreted by judges). Chattels are an item of personal property, other than freehold land, including tangible goods and leasehold items. A principle of land law, expressed in Latin, “Quic quid plantatur solo, solo cedit”, states that whatever is attached to the soil becomes a part of it. Thus, any chattels that are affixed to land, becomes part of the land and are known as fixtures. Regarding ownership, fixtures would be considered as part of real property and hence would belong to the land owner; while chattels are personal property and may belong to another. The distinction between fixtures and chattels is made by the physical degree of annexation to land. S.62(2) Law of Property Act[LPA] (1925)[2], states that a conveyance of land, having houses or any other building should include, and operate to convey with the land, houses, other buildings…fixtures…or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, or other buildings conveyed, or any of them or any part thereof. Multiple tests have been used to distinguish between fixtures and chattels, but a matter of precise analysis is used as a determining factor. Elitestone Ltd v Morris and Another established that the subjective intention of the parties will not affect the question of whether a chattel can become a fixture; however, where a chattel is physically attached to the land, will prime facie indicate that it is a fixture, Blackburn J. in Holland v. Hodgson[3], sums it up as; "Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry-stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels." According to the case of Holland v Hodgson, a less reversible and more permanently object affixed to land, is more likely to be defined as a fixture and becomes a part of the land. Wiltshear v Cottrell[4] and Walmsley v Milne[5] are authorities for this principle, where an object is fixed by the owner, though only affixed by bolts and screws, it is to be considered a part of the land, in all events where the object of setting up articles is to enhance the value of the premises to which it is annexed for the purposes to which those premises are applied. An object by object basis determines the test for the degree of annexation. Any object that rests merely on land due to their own weight was the key feature of the gravity test, in Hulme v Bingham[6], heavy machinery unattached to land was considered a chattel. This test was also used in Botham v TSB Bank PLC[7], it was held that appliances remaining in position by their own weight and are affixed electrically, would likely be a chattel. In Wansborough v Maton[8] and Rex v Otley[9] a wooden barn and a wooden mill were both held to not be part or parcel of real property. English law permits chattels to rest on land and not be a part of it; this includes sheds[10], bungalows[11] and house boats[12]. However, chattels found under the surface of the land belong to the landowner[13], unless they are items of treasure trove under the Treasure Act 1966. The owner of land has a right to sever any fixture whenever they wish, such item(s) will return to status of chattel. The vendor(seller) of the land can sever fixtures up until the contract of sale becomes binding. After the ownership of the land (and fixtures) transfers to the purchaser, the vendor cannot remove any fixtures. Additionally, regarding tenantship, if a tenant attaches their own personal property to land, it becomes a fixture and the property belongs to the owner(landlord); exceptions to this include ornamental and domestic fixtures[14], trade fixtures[15], and agricultural fixtures.[16] Michael Haley’s confusion in ‘The Law of Fixtures: An Unprincipled Metamorphosis?’ arises from the doubtfulness of the relationship between the degree and purpose of annexation tests, and secondly in practice the tests fail to answer everyday questions of lawyers and clients since there is no obvious superior legal rule that can be applied. After a clear and thorough analysis of the law, it can be stated that based on statute, the law of chattels and fixtures does hide behind a cover of principle. By interpretation, S.62 LPA 1925 simply states (in ‘layman terms’), that legal transferring of land which includes fixtures etc, by the Act, operates to convey such fixtures with the land. The law of fixtures vaguely exists in one section of one act. The haphazard development of law through cases inevitably leads to inconsistencies, not merely in terminology but also in substance. Elimination of this inconsistency by the implementation of precise statute concerning all areas of fixtures and chattels will ensure that buyers and owners are protected by the highest form of law, regardless of prior judges’ interpretation. Proper codification would make the law more accessible by providing a single clear agreed text. Sources of the general principles would rather be found in an Act of Parliament instead of a subsection in a statute, and thousands of cases. However, introduction of an Act of Parliament has many disadvantages. It can lead to confusion and new appeals; relearning current law and how to interpret it can be seen as wasting time and resources. It simply isn’t feasible to create a comprehensive statute, as it is impossible to include all the aspects of the law. Judges may also be threatened that the implementation of such can reduce the role of the courts and their ability to have flexibility within common law. One of the most substantial obstacles, despite however desirable it may be, would be to implement the Act itself; it would be very difficult to secure Parliamentary time to enact or amend a Bill specifically for fixtures, considering, that if the Bill is amended for fixtures, all other factors in S62(1)(2) LPA 1925 should also be included. One of the Pillars of the UK’s constitution is their flexibility; creating or amending legislation strips the court of their role and ultimately reduces the flexibility of the law. Rules established by Common Law, in addition to current statute provisions set out for fixtures and chattels are very much sufficient, and do not need amending nor being implemented as new law. Common Law plays a major role in the UK’s constitution, Michael Haley sought to undermine the position of the court by implying that the only ‘coherent and certain’ law is that of Parliament. [1] (M Haley, ‘The Law of Fixtures: An Unprincipled Metamorphosis?’ [1998] Conv 137, 144.) [2] S.62(2) Law of Property Act 1925 [3] Holland v Hodgson (1872) LR 7 CP 328 [4] Wiltshear v Cottrell (1853) 1 E & B 674 [5] Walmsley v Milne (1859) [6] Hulme v Bingham ([1943] KB 152 [7] Botham v TSB Bank (1996) 7 P & C R D 1 [8] Wansborough v Maton (1836) 4 Ad. & El. 884 [9] Rex v. Otley (1830) 1 B. & Ad. 161 [10] Webb v Frank Bevis Ltd. [1940] 1 ALL ER 247 [11] Elitestone Ltd v Morris and Another [1997] 1 WLR 687 [12] Chelsea Yacht & Boat Club v Pope [2000] EWCA Civ 425 [13] Waverley Borough Council v Fletcher [1995] 4 All ER 756 [14] Spyer v Phillipson [1931] 2 Ch 183 [15] Smith v City Petroleum [1940] 1 All ER 260 [16] s.10 Agricultural Holdings Act 1986.
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![]() Background: Anita has been working as a carer for an elderly lady named Mabel for a number of years. Mabel lives alone at home, and suffers with dementia and memory loss. If left unattended outside, Mabel will wander off. She has previously had a couple of near accidents, so Mabel’s family pay Anita to care for her. The family have also had locks fitted to Mabel’s gate to prevent her from wandering off by herself. Part of Anita’s contractual duties includes taking Mabel outside for supervised walks. Anita is late for her Saturday morning shift. She arrives at Mabel’s and takes her straight outside into the garden and opens the gate intending to take Mabel for a walk. At that moment Anita’s phone rings. Anita walks into the house, leaving Mavis in the garden. Anita leaves Mabel unattended for over an hour while she chats to her friend on the phone. During this time she fails to check on Mabel at all. Mabel wanders out into the road, is run over by a car, and dies. Anita finishes her phone call and walks out to the garden. She sees Mabel in a pool of blood on the road outside the house. She is devastated at her mistake and runs out of the house with tears streaming down her face. She passes one of Mabel’s neighbours, Arfan, who sees her and tries to stop her to ask her what has happened. Anita does not want to talk to anyone so she elbows Arfan in the chest to get him out of the way, and carries on running. Unknown to Anita, Arfan suffers with heart disease. Arfan dies from a heart attack as a result of the blow inflicted by Anita. Advise Anita with regard to her liability if any. R v Anita Offence: Gross Negligence Manslaughter This essay seeks to examine the criminal liability of Anita(defendant) for the death of Mabel(victim). Despite the actus reus for the offence of murder being present, there is no evidence which suggests that Anita intended to kill or inflict grievous bodily harm(GBH) upon Mabel. Mabel’s death was not a virtual certainty (by her wandering off), therefore there was no oblique intention either. Anita would not be criminally liable for murder due to the absence of mens rea, she should be then tried for gross negligence manslaughter. Gross negligence manslaughter is defined in the case of [R v Adomako], stating, where an owed duty of care is breached, resulting in death of a being which should have been a reasonably foreseeable risk, breach amounts to gross negligence. To determine Anita’s criminal liability, the five requirements listed in [R v Adomako] is to be tested. Stated in both [R v William-Smith] and [R v Miller], there is no general duty to act unless statute or common law states otherwise. Anita, however, did owe a duty of care to Mabel since it was her job as her ‘Carer’ to supervise her always. Anita is contractually bound to care for Mabel, just as Pittwood had a duty of care to individuals by opening and closing the level crossing gates at a train track. [R v Pittwood]. Anita breached her duty of care; a reasonable carer would not have left an old lady who was mentally unstable, suffering from dementia and memory loss to wander outside unsupervised with access to the road given Mabel’s history of prior ‘almost accidents’. In [R v Adomako], the doctor also breached his duty of care by failing to recognize that the respiratory tube had become disconnected from a patient during operation. Anita’s breach of her duty caused Mabel’s death. Factual and legal causation is applied. ‘But-for’ Anita not breaching her duty of care to Mabel, she would not have died, this test is seen in [R v White] where the defendant poisoned his mother’s milk intending to kill her, she took a few sips then went to bed, however she died in her sleep of a heart attack unrelated to the poison. Factual causation is satisfied. Anita was the operating and substantial cause of death, this is explained by the case of [R v Pagett], where the defendant used his pregnant girlfriend as a shield while engaging in ‘fire’ with the police. Anita, subsequently, need not be the only cause of death, [R v Benge], a foreman who worked on a train track negligently failed to give adequate warning to the train drivers approaching the works. Both the train driver and the foreman was the cause of the fatalities. The consequence of Anita’s actions was more than slight or trifling [R v Cato; Kimsey]. Factual and Legal causation are satisfied. Objectively, a reasonably prudent person would foresee (stated in [R v Singh]) the risk of death especially since the facts stated that Mabel had two near accidents resulting in the family putting locks on the gate. This is seen in [R v Mistra and Srivastava]. Questioning whether Anita’s act was grossly negligent is based on the jury, however, applying the objective test from [R v Adomako], Anita’s act can be identified as ‘so bad’ in all the circumstances, that it amounts to a criminal act. Similarly, in the case of [R v Litchfield], Anita’s knowledge and experience which she would have acquired as a ‘Carer’ should have alerted her to the danger of her act (opening gate) and omission (leaving Mabel unsupervised). After thorough examination of the facts and requirements established by precedent and common law on Anita’s criminal liability for gross negligence manslaughter, it is noted that Anita satisfies all the requirements for the offence, it can be said that Anita deserves a criminal sanction. However, the question of Anita’s ‘innocence’ is solely dependent upon the burden of proof and the jury. R v Anita Offence: Unlawful Act Manslaughter This essay seeks to examine the criminal liability of Anita(defendant) for the death of Arfan(victim). Despite the actus reus for the offence of murder being present, there is no evidence which suggests that Anita intended to kill or inflict grievous bodily harm(GBH) upon Arfan. Arfan’s death was not a virtual certainty (she merely inflicted battery upon Arfan), therefore there was no oblique intention either. Anita would not be criminally liable for murder due to the absence of mens rea for murder, she should be then tried for unlawful act manslaughter. Unlawful act manslaughter is defined in the case of [DPP v Newbury and Jones], stating, that death must have occurred from an intentional, unlawful and dangerous act. To determine Anita’s criminal liability, the four requirements listed in [DPP v Newbury and Jones] is to be tested. Anita deliberately/intentionally ‘elbowed’ Arfan in his chest to get him out of her way, there was intention to her act, but not the outcome. Based on the case of [R v Lowe], two parents neglected their child which subsequently died, it is said that liability can only be based on a positive act but not an omission. For Anita’s act to be unlawful, it must be a criminal offence [R v Franklin]. To prove that the act was unlawful, actus reus and mens rea is to be set out in full. [R v Lamb]. Battery is the intentional or reckless application of force to another person [Fagan v MPC]. The act of Anita ‘elbowing’ Arfan in the chest amounts to battery. Based on [Collins v Wilcox] the merest touch suffices as ‘force’. No defences can be applied to Anita, therefore force is unlawful. Anita intentionally applied force to Arfan to ‘get him out of her way’. She had direct intent; that is, her aim/purpose was to have Arfan move [R v Moloney]. Anita’s act was dangerous, based on [R v Church], an act is dangerous if a reasonable person foresees some harm, but the harm need not be serious. Applying the objective test, a reasonable person would foresee the risk/possibility of physical harm from ‘elbowing’ someone in the chest. [R v Dawson]- the defendants attempted to rob a petrol station with fake weapons, which caused the station attendant to have a heart attack due to heart disease. Anita’s act caused the death of Arfan, since he suffered a heart attack. Factual and Legal causation is applied. ‘But-for’ Anita not ‘elbowing’ Arfan in the chest, he would not have suffered a heart attack and died, this test is seen in [R v White]. Factual causation is satisfied. Anita was the operating and substantial cause of death, this is explained by the case of [R v Pagett], where the defendant used his pregnant girlfriend as a shield while engaging in ‘fire’ with the police. The consequence of Anita’s actions was more than slight or trifling [R v Cato; Kimsey]. Factual and Legal causation are satisfied. Similarly, in [R v Dawson], the victim died due to an unlawful act which resulted in a heart attack. Although it was reasonably foreseeable to the jury that the act of robbery was dangerous to a person with heart disease, the defendants were not aware of the heart disease and did not intend to cause harm to the attendant. The defendants were found to be not guilty of unlawful act manslaughter. The analysis of Anita’s ‘innocence’ is exclusively at the mercy of the burden of proof and the jury. However, after detailed scrutiny of the facts and requirements recognized by precedent and common law on Anita’s criminal liability for unlawful act manslaughter, it is distinguished that Anita satisfies all the requirements for the offence. It can be said that from a reasonable prudent person’s view, Anita deserves a criminal sanction. |
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September 2019
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