Sale by mortgagee — Whether specified items annexed to property were fixtures — High Court holding items subject to mortgage — Declaration that items were fixtures — Bank entitled to sell as mortgagee
This motion concerned a flat known as 2 Mores Garden, 90 Cheyne Walk, London SW3. The bank, as mortgagee, claimed that specified items were fixtures in the flat and as such were subject to the bank’s mortgage so that it could sell such items as mortgagee and give a good title thereto to a purchaser. They applied to the court for a declaration to that effect. The disputed items included fitted carpets, light fittings, gas fires, curtains and blinds, towel rails, soap dishes, tap fittings and shower head, mirrors attached to walls of fitted bathroom, kitchen units, sink, “white goods” (including oven, dish washer, extractor fan, hob, freezer).
Held The declaration was granted.
1. Whether a chattel had been so affixed to land or buildings as to become a fixture depended on the object and purpose of the annexation and if the chattel could be removed without doing irreparable damage to the premises. Neither the method nor the degree of annexation, nor the quantum of damage that would be done to the chattel or to the premises by the removal, affected the question save in so far as they threw a light upon the object and purpose of the annexation.
2. If the object and purpose was for the permanent and substantial improvement of the land or building, the article would be deemed to be a fixture, but if it was attached to the premises merely for a temporary purpose or merely for the complete enjoyment and use of it as a chattel, then it would not lose its chattel character and it did not become part of the realty: see Leigh v Taylor [1902] AC 157.
3. The question whether an item was intended to be enjoyed as a chattel was an objective test and one had to have regard to all the circumstances.
4. Bearing those considerations in mind, once fitted carpets were put in the object was that they should stay until they were worn out. Although such carpets were removable they were clearly fixtures: see per Mervyn Davies J in Young v Dalgety plc [1987] 1 EGLR 116.
5. The light fittings were not merely lampshades, but attached to the property and became part of it, as fixtures.
6. The gas fires were mock coal gas fires fixed via pipes. They were of an appropriate size for the aperture of the fireplaces concerned. They were there to be enjoyed as fires in the rooms and not as chattels in themselves. On balance they were fixtures.
7. As regards the curtains and blinds it was accepted that the pelmets on the curtains were fixtures. The matching curtains and blinds were removable but, applying the same test in relation to the carpets, these particular curtains were specifically designed for the windows in question and should be regarded as fixtures.
8. The towel rails, soap fittings, tap fittings and shower heads were all clearly fixtures and it had been conceded that the mirrors attached to the walls of the fitted bathroom were fixtures.
9. Finally, the kitchen units and sink were manifestly fixtures. As regards the “white goods”, these were expensive items fixed into standard size holes and were removable. However, they were part of the overall fitted kitchen. They were all physically fixed, plumbed or wired in and in most cases aligned with/abutted to and not too easily removed from the fitted kitchen as a whole. In all the circumstances they too should be regarded as fixtures.
Vivian Chapman (instructed by Belvederes) appeared for the plaintiff; Arshad Ghaffar (instructed by Dickins & Co) appeared for the defendant.
