What am I Buying? (1) The Land Itself. This chapter will enable you to achieve part of the following learning outcomes from the CILEx syllabus: - PDF

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Chapter 2: What am I Buying? (1) The Land Itself Outline 2.1 Introduction 2.2 The meaning of land 2.3 Fixtures and fittings 2.4 Limitations on the extent of land 2.5 Incorporeal hereditaments 2.6 Summary
Chapter 2: What am I Buying? (1) The Land Itself Outline 2.1 Introduction 2.2 The meaning of land 2.3 Fixtures and fittings 2.4 Limitations on the extent of land 2.5 Incorporeal hereditaments 2.6 Summary Aims of this Chapter This chapter will enable you to achieve part of the following learning outcomes from the CILEx syllabus: 1 Understand what is meant by land 2 Understand what will be purchased in a land transaction 2.1 Introduction In Chapter 1 you learnt the meaning of the term property. We are now moving on to examine the meaning of land in the context of property transactions. This is important because any purchaser of land will want to know precisely what it is he is purchasing. Fittings and Contents Form Jennifer has been working full-time for Baxter & Campbell Solicitors for two months and has been asked to send a Fittings and Contents Form to clients who are in the process of selling their house in the town of Turton Bridge. Jennifer is surprised how detailed the form is. 2.2 The meaning of land Land includes various tangible and intangible items which are attached to land. This is for the obvious reason that a buyer of land expects to receive various items with the land, such as the buildings constructed on it. If a seller wishes to retain (i.e. keep for himself) any items included in the definition of land, this must be expressly stated in the documentation, usually in a Fittings and Contents Form. The general rules governing what is included in the definition of land are from the common law and statute. UQ04 CLS 7 2.2.1 The common law There are two common law presumptions used to define the extent of land: he who owns the land owns everything extending to the heavens and to the depths of the earth ; and whatever is attached to the ground becomes part of it. These presumptions are subject to various limitations: see Statutory definition s205(1)(ix) Law of Property Act 1925 (LPA 1925) defines land as including: land of any tenure, any mines or minerals whether or not held apart from the surface, buildings or parts of buildings, whether the division is horizontal, vertical or made in any other way... and other corporeal hereditaments... and other incorporeal hereditaments. This statutory definition seems rather technical but is, in fact, fairly simple: tenure refers to the way the land is held (i.e. freehold or leasehold); corporeal hereditaments means physical or tangible objects (e.g. buildings); incorporeal hereditaments are various intangible rights associated with the land (e.g. the benefit of a right of way, or the benefit of a restrictive covenant over the land of another). 2.3 Fixtures and fittings This is perhaps the most contentious issue of all. As noted above, anything attached to the land becomes part of it. This includes buildings, trees and plants. Such an attached object is known as a fixture, and when the land is sold, leased or mortgaged, fixtures will also pass as a part of the transaction unless the seller makes it clear that they are not intended to pass. Other items that are not attached to the land are called fittings (sometimes referred to as chattels) and will not pass automatically with the land; unless agreed otherwise, the seller can remove fittings. What will stay and what will go? So, for Jennifer, the purpose of sending the Fittings and Contents Form to the sellers in Turton Bridge is to clarify by express agreement which fixtures will, and which will not, be sold with the land. This form needs to be completed prior to exchanging contracts. 8 UQ04 CLS 2.3.1 Why is a Fittings and Contents Form necessary? The transfer or sale of land must be by deed (s52 LPA 1925), whereas the transfer or sale of goods need not be by deed. The sale of goods and other items will usually be valid even though the transaction is verbal or merely written. When land is sold, it is important to distinguish between items that are part of the land (fixtures) and need to be transferred by deed, and those that are not part of the land (fittings) and that do not need to be transferred by deed. In order to avoid disputes over the unexpected removal of items such as garden sheds, greenhouses or rotary washing lines, the Fittings and Contents Form should be completed. What happens if the form is not completed? How do the courts distinguish between fixtures and fittings? The need for a clear agreement Jennifer remembers the excitement of moving into her new home with Barry just after they married, only to find that the dimmer switches had been removed from the living room and replaced with cheap rocker switches, and a freestanding radiator was missing from the workshop in the garage. Several rose bushes had been removed from the garden as had a stone bird bath and a splendid pot containing an azalea on the patio. Neither she nor Barry remembered agreeing to these items being removed. Now Jennifer is wondering whether they could have done something about it. At the time, neither Jennifer nor Barry was particularly concerned but perhaps they should or could have made a fuss Distinguishing between fixtures and fittings The traditional approach of the courts has been to make use of two tests to determine what amounts to a fixture. Neither of them is wholly satisfactory and there is a large degree of overlap between the two. The courts frequently use both tests together in order to reach a conclusion. Degree of attachment The first test looks at the degree of attachment of the object. If it is attached to the land other than by its own weight, it is likely to be a fixture. In Holland v Hodgson [1872] spinning looms were bolted to the floor of a mill. Being attached other than by their own weight, the looms were held to be fixtures. UQ04 CLS 9 The degree of attachment test alone cannot, however, be conclusive. If it were, then it could be argued that items such as pictures and curtains would be part of the land. Purpose of attachment The courts also adopt a second test, which looks at the purpose of the attachment: was the object attached for its own benefit in which case it is likely to remain a fitting or chattel or was it attached for the benefit of the land as a whole in which case it may well be a fixture? In Leigh v Taylor [1902] a tapestry that was nailed to the wall of the premises was held to be a fitting. Normally, one hangs a picture, painting or tapestry to show the object itself to its best advantage and not to benefit the house as a whole. There may be exceptions, such as where the object is part of a general decorative scheme. In D Eyncourt v Gregory [1866], for instance, the court held that marble statues of lions in a garden were fixtures as they were there to increase the owner s enjoyment of the land. Permanence of the attachment In addition to the above two tests, Botham v TSB Bank plc [1996] made clear that the permanence of the attachment is also relevant. How long the object is likely to be attached to the land is a quite separate issue from the degree of attachment. Lampshades and curtains are unlikely to be considered as fixtures, whereas light fittings and fitted shelves probably will be. It is difficult to determine whether some common household items are fixtures. Carpets frequently cause problems: if sufficiently fitted, they are probably a part of the land. On the facts in H E Dibble v Moore [1970], a greenhouse was held not to be a fixture. In Elitestone Ltd v Morris [1997] the House of Lords decided that a bungalow built on pillars was a fixture, and in Chelsea Yacht & Boat Co v Pope [2001] a houseboat moored by cables and ropes with connection to mains water and power was held to be a fitting. It is important to make quite clear, when selling land, what is being sold with the land and what is not. There were further developments in Taylor v Hamer [2002], where a large country house was offered for sale. The dispute concerned a number of flagstones, and whether they were to be included with the property. They were there when the buyer inspected and made an offer for the property, but were then removed prior to purchase. Since they were attached to the land only by their own weight, the seller would have been entitled to remove them, but he gave misleading replies when enquiries were made about them, and disguised their removal with grassland. The buyer brought an action for their return, and the Court of Appeal held that, for reasons of decency and common sense, the buyer was entitled to receive what he had been shown on inspection, and what he believed he would be receiving. In Peel Land and Property (Ports No. 3) Ltd v TS Sheerness Steel Ltd [2013] the court held that a number of items brought on to the site by the original tenant were not attached to the land and so remained the tenant s chattels and were removable. These included cranes, transformers, a bar mill weighing over 800 tonnes and a continuous casting machine weighing over 10 UQ04 CLS 2016 Copyright CILEx Law School Limited All materials included in this CLS publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of CILEx Law School Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. CILEx Law School Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. Published in 2016 by: CILEx Law School Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB British Library Cataloguing in Publication Data A catalogue record for this manual is available from the British Library. ISBN
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