The litigation in Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2020] EWCA Civ 578 raised a novel point relating to a commercial fishery sold by Law of Property Act receivers appointed by a mortgagee. Had title to the fish in the man-made lakes and pools on the land passed to the buyer? The mortgage made no reference to the fish – and the receivers had refused to warrant that they were included in the sale. So to whom did the fish belong?
The Court of Appeal has overturned the High Court’s decision in favour of the former landowner. It explained that English law, which dates back to Roman times, draws a distinction between wild animals and domestic animals. And, while it is possible to own a domestic animal, such as a domestic rabbit in a hutch, there is no absolute property in wild animals while they are alive.
However, qualified ownership of wild animals can arise in one of three ways. First, wild animals born on land ordinarily become the qualified property of the landowner until they can run or fly away. Secondly, landowners are entitled to hunt, take, keep and kill wild animals on their land, or to grant such rights to another as a profit à prendre. Thirdly, it is also possible to acquire a qualified property right in wild animals through possession and control of them, but such qualified ownership will fall away if they regain their liberty (unless they are likely to return – for example, to a pigeon loft or beehive).
The judge at first instance had accepted that the fish fell into this third category. They were in the landowner’s possession and could not escape into anyone else’s possession or into any kind of natural liberty. And the Court of Appeal did not disagree. But the judge had not explained how the previous owner of the fishery could retain that qualified right as against the new landowner, which had acquired the exclusive right to fish in the lakes and pools in the fishery by virtue of being the landowner, given that the previous owner was no longer the landowner and did not have any rights of entry to reclaim the fish.
Sir Timothy Lloyd drew an analogy with chattels owned by a landowner that are not included in a sale of land, but are left behind afterwards, and accepted that the sale of the land would not transfer title in the chattels to the buyer. But chattels are subject to absolute rights of ownership. So the seller might be able to demand that the buyer deliver the chattels to him (subject perhaps to reimbursement of any cost incurred) and might assert a claim in conversion if the new landowner refuses to return them.
But there is no absolute property right in wild animals. The rights that are capable of existing in them, through taking possession of them, depend on being in continued possession of them (unless the animal in question roams, but has a homing instinct and is likely to return). Therefore, the former owner’s qualified rights to the fish, whether as a landowner or through its possession and control of them, ended when the land was sold to the buyer.
The seller could have demanded payment for the fish, had it sold the land itself. But it lost possession of the fish when the receivers sold the land. And, as a result, its qualified property rights came to an end.
Allyson Colby, property law consultant
