Botham & Ors v TSB Bank Plc

An article becomes a fixture when the objective circumstances show both sufficient annexation to the land and an intention that it should form a permanent improvement. Attachment merely needed for the article’s ordinary use, particularly where removal causes no damage, generally leaves it a chattel.

In residential property, fitted carpets, curtains, ordinary light fittings, gas fires connected only by supply pipes and standard kitchen appliances will commonly remain chattels. Bathroom fittings and fitted kitchen units are fixtures where their annexation and function show a lasting improvement. The party asserting fixture status bears the evidential burden.

The appeal concerned a dispute between a mortgagor and mortgagee about household items remaining in a flat after enforcement of a possession order. Jacob J held that 108 of 109 disputed items were fixtures belonging to the mortgagee; only a wall-mounted electric razor was excluded.

The appellants challenged the refusal of an adjournment, the legal and evidential basis for the fixture findings, and the costs order. The Court of Appeal had to determine the proper fixture test, the evidence it could consider, and the status of nine groups of household items.

1. Disposition and adjournment. The appeal was partially allowed. Roch LJ delivered the leading judgment; the Vice-Chancellor agreed with it and Lord Justice Henry agreed. The refusal to adjourn was a discretionary case-management decision. The judge had sufficient material to conclude that the appellants had had ample time to obtain evidence and that further evidence would have limited value. The decision was not clearly wrong.
2. Burden and admissible evidence. TSB, as the party asserting that the items were fixtures, had to establish that case. The schedule describing the items was not proved by its deponent and did not comply with Order 41 rule 5(1) and (2). It was therefore not evidence. The agreed photographs were admissible. The bank could not use the schedule as fresh evidence on appeal because the requirements identified in Ladd v Marshall were not met.
3. Fixture principles. The governing approach was derived from Holland v Hodgson [1872] LR 7CP 328 and Berkley v Poulett and Others [1977] 261 EG 911. The court had to consider the method and degree of annexation and the object and purpose of annexation. Objective intention was inferred from the nature of the article and its attachment. Attachment intended to create a permanent improvement indicated a fixture. Attachment merely enabling ordinary use or enjoyment indicated a chattel. The possibility of removal without damage was an important indicator. The judge’s statement of these principles was correct, apart from reliance on Young v Dalgety plc [1987] 1 EGLR 116 in relation to fitted carpets.
4. Application. Bathroom fittings, including taps, plugs, shower heads, towel rails, soap dishes and lavatory roll holders, were fixtures. The fitted kitchen units, sink, mirrors and marble panels were also fixtures. Fitted carpets and curtains or blinds were chattels. Except for two recessed fittings conceded to be fixtures, the light fittings were chattels because the evidence did not establish substantial incorporation into the electrical installation; the approach in British Economical Lamp Company (Ltd) v Empire Mile End (Ltd) and another, Times Law Reports, Friday April 18th 1913 was applied. The gas fires were chattels because their only connection was the gas pipe. The standard white goods were chattels: their plumbing, wiring and placement in fitted units merely enabled ordinary use and did not demonstrate an incontrovertible intention to make a permanent improvement.
5. Concurrence and orders. The Vice-Chancellor added that affixing by an electrical plug alone could not make functional equipment a fixture and that the critical issue was objective intention inferred from the annexation. No order for costs was made below. The appellants received the costs of the appeal, subject to Legal Aid Taxation.

• Court of Appeal (Civil Division): Appeal partially allowed. The fixture findings were varied in respect of the disputed groups, with costs awarded to the appellants on the appeal.
• High Court of Justice: Jacob J, on 12 January 1995, held that all but one of the 109 disputed items were fixtures belonging to TSB as mortgagee.