In Short v Kirkpatrick (1982) (High Court of Wellington) the tenants at a lawyer’s office had partitions installed that were affixed to the floor with ramjet pins and attached to the ceiling with nails. The partitions were removable partitions, and it was possible to remove the partitions without causing any damage to the premises.
The matter was brought before a judge and the question that was to be decided was whether the partitions were permanently affixed to the premises or were landlord fixtures or fixtures per se or whether the partitions were tenant fixtures (chattels). It was held that the partitions were tenant fixtures (chattels).
In Storer v Manchester City Council (1974) – The city council wrote to a sitting tenant (a sitting tenant is a tenant who is already occupying a property and has a legal right to stay on the premises) asking him if he wished to purchase the property he was residing in and if so to sign and return the council’s standard form agreement, which the tenant did.
Soon after a new council took over and did not wish to proceed with the agreement and put forward the argument that the agreement had not been signed on the council’s behalf. It was held that the council had made a valid offer and its acceptance constituted a contract, despite the fact that, it was not signed by the council’s representative.
In New Zealand Government Property Corp. v HM & S Ltd (1982) a tenant occupied a theater under a lease. The lease was granted in 1896 and the tenant had made the necessary renovations to make the premises suitable for the purpose it was leased. When the tenant vacated, the tenant removed the tenant fixtures.
The matter was brought before a judge and it was decided that where a tenant remains in possession of the items with the landlord’s consent or pursuant to a statutory provision, the tenant retains the right to remove the items when the tenant vacates.
Dunn L.J. – “If a tenant surrenders his lease and vacates the premises without removing the tenant’s fixtures, then he is held to have abandoned them. But if he surrenders his lease, either expressly or by operation of law, and remains in possession under a new lease, it is a question of construction of the instrument of surrender whether or not he has also given up his right to remove his fixtures. If nothing is said, then the common law rule applies, and he retains his right to remove the fixtures so long as he is in possession as a tenant”.
In Brogden v Metropolitan Rly Co. (1877), Brogden had supplied the Metropolitan Rly Co. for years without a formal agreement. The parties then intended to formalize the arrangement and the Metropolitan Rly Co. sent Brogden a draft. Brogden completed the draft, filled in some of the details that had been left out including the name of the arbitrator and sent it back. The draft was handed to a manager and no further action was taken and the parties continued as per normal until a dispute arose. Brogden argued that there was no contract in place between the parties.
It was held that the fact that the parties continued to deal as per normal after the draft had been returned with the changes, indicated that there was a willingness to continue with the arrangement. The fact that both parties continued with their obligations as agreed constituted a contact.
In N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1980) a PABX system rented by a tenant via a third party (a telephony service provider) was held not to be a fixture despite the fact that the PABX system was affixed to the premises/land and cabled through several rooms. The tenant had a ten-year lease on the premises/land with an option for renewal.
The degree of annexation was small i.e. the extent the system and its components were attached to the premises/land was minor and therefore they could not be regarded as fixtures.
In Harvey v Facey (1893) the plaintiff telegraphed the defendant asking “will your sell us Bumper Hall Pen?”. “Telegraph lowest price for Bumper Hall Pen”. The defendant replied “lowest price for Bumper Hall Pen £900”. The plaintiff then sent the defendant another telegraph stating that he accepted and requested that the defendant send him the title deed. The defendant refused and the plaintiff sued.
The Privy Council held that the defendant was merely supplying information i.e. it was an invitation to treat and not an offer.
In Berkley v Poulett (1976) the owner of an estate had agreed to sell part of his property (Hinton House) at an auction and the new owner intended to purchase the property intact because he wanted to turn it into a tourist attraction. The arrangement was concluded but the sale was delayed for a couple of years during which time the original owner had removed some paintings that were attached to a wood paneling, a sundial and an antique statute of a Greek athlete. Both the paintings, the sundial and the sculpture were of some value and the new owner brought an action against the original owner claiming that the paintings, sundial and sculpture were fixtures and therefore they could not be removed.
It was held that the paintings, the sundial and the sculpture were chattels and therefore they could be removed prior to the property changing hands. Once again, we have to look at the degree of annexation i.e. how attached the items were to the property and if the removal of the items would cause any damage to the property and if so try and quantity that damage in monetary terms.
In Payne v Cave (1789) the defendant had made the highest bid at an auction but withdrew his bid prior to the fall of the hammer. The plaintiff sued. It was held that goods at an auction were merely invitations to treat and the defendant’s bid is an offer which he can revoke at any time prior to acceptance.
Acceptance at an auction is indicated by the fall of the auctioneer’s hammer and therefore the defendant was free to withdraw his bid at any time prior to the fall of the auctioneer’s hammer.
In Jordan v May (1947) the matter before the court was whether an electric motor and batteries were to be regarded as fixtures or chattels and while the were both normally regarded as a single unit and it was necessary for both items to be in place for the motor to work or fulfil its purpose, it was possible to look at the items separately in order to identify whether they were fixtures or chattels.
It was held that because the motor was sunk into the concrete and held firmly in place or was held in place in a manner that made it difficult to remove or it could not be removed without causing some damage to the property, it was a fixture and because the batteries were resting on their own weight and could be removed easily without causing any damage to the property they were chattels.