Chattel, Mortgage & Mortgagor

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QUESTION:

Examine and consider the law pertaining to whether a chattel has become part of the land or not and discuss legal issues pertaining to the relationship between the mortgagee and the mortgagor.

AUTHOR:KATALILO JOY

INTRODUCTION

This paper will examine and consider the law pertaining to whether a chattel has become part of the land or not and discuss legal issues pertaining to the relationship between the mortgagee and the mortgagor.

The common man views land as the ground composed by soil and stones. This is true to some extent but legally land gets its definition from the latin concept which states that “ quic quid plantatur solo, solo cedit” meaning that whatever is attached to land become part of the land. With this in mind, one can define land as that comprising the ground, the subsoil, structures and objects such as buildings, trees and minerals standing or existing underneath the ground.

A Chattel is an object that can either be attached to land or not. A chattel that is attached to land and gained the status of being part of the land is called a fixture while that chattel that is on the land but is not a fixture is called a fitting. Determination on whether a chattel is a fixture or fitting can be done in many ways including the fact that that which has become a fixture cannot easily be removed from the ground it is on unless damage is done to the object and the land. It is also propagated that a chattel is a fixture if it passes to the purchaser together with the land or it is part of the security in a mortgage agreement[1].

For one to say that an object on the land is part of the land i.e is a fixture with certainity, the object has to fulfil two important aspects. These are: a) Degree of annexation: this aspect considers the attachment level to the land of the object being considered. If it is attached so that attempts to remove it injuries the land then the object in question is a fixture and thus is part of the land. The item should thus be so attached to the land that it becomes an integral part of the land. The case of Leigh and others v Taylor[2] and others explains this concept. In the case, a tenant for life had put up a tapestry on the walls of the house. Upon death, the estate of the deceased conflicted with the heir to the property as to whether the tapestry was part of the property or a fitting. It was held that the tapestry was a fitting and not a fixture as it could be detached from the wall of the house without damage to the wall or the house.

b) Purpose of Annexation: here one has to establish that the purpose of annexation was to permanently improve the property in concern for a chattel to be considered as part of the property. This means that even if a chattel’s level of annexation is such that it is so attached to the property to cause injury to the property upon its removal, it shall be considered a fitting if the purpose was for temporal improvement or enjoyment. It should be noted that items such as statues or others that rest upon their own weight can be fixtures as they were meant to be part of the architectural design of the land.

The case of Vaudeville Electric Cinema Co. Ltd v Muriset[3] refers. In the case, a cinema hall was put up as security for a loan. Upon failing to settle the loan, the cinema hall was reposed and sold. The owners of the hall contended that they be paid back the proceeds from the chairs in the hall as they were fittings and not fixtures.

It was held that the chairs were fixtures in that they were firmly affixed to the property and that they were there to make the hall more convenient as a cinema.

The above being the case, exceptions to the above tests exists. It is legally acceptable for someone renting a property to remove fixtures attached to the property if those fixtures are used for his trade. The case of smith v City Petroleum Company Limited[4]...
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