At least they left the fence posts

Re: At least they left the fence posts

Postby Collaborate » Sat May 21, 2016 10:58 pm

A reading of the case law would show that the intention of the landowner is not relevant.

Dixon v Fisher (1843) 5 D 775

Lord Cockburn:

"no man can make his property real or personal by merely thinking it so." The matter has to be viewed objectively.”

In Elitestone v Morris [1997] 1 WLR 687 House of Lords, the court had to consider the status of a bungalow that merely sat atop a concrete slab.

Lord Lloyd:

“In the case of the house the answer is as much a matter of common sense as precise analysis. A house which is constructed in such a way so as to be removable, whether as a unit, or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel. It must have been intended to form part of the realty…. I do not doubt that when Mr. Morris' bungalow was built, and as each of the timber frame walls were placed in position, they all became part of the structure, which was itself part and parcel of the land. The object of bringing the individual bits of wood onto the site seems to be so clear that the absence of any attachment to the soil (save by gravity) becomes an irrelevance.”

You don't need to destroy a fence panel to be able to remove it, whatever the intention.
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Re: At least they left the fence posts

Postby Conveyancer » Sat May 21, 2016 11:21 pm

Intention is relevant:

"An article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended to all along continue a chattel, the onus lying on those who contend that it is a chattel."

"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."

Holland v Hodgson (1872) LR 7 CP 328

The test is whether the thing is fixed to enable it to be enjoyed or to improve the land. I do not think there can be any doubt that a slotted-in fence panel is a fixture just as a dry stone wall is a fixture. It is simply the case that the fence has been designed to make replacing panels easier.
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