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Berkley v Poulett [1976] EWCA Civ 1  Court of Appeal

Lord Poulett sold his estate at auction on 2nd August 1968 to Effold Ltd. Effold Ltd had agreed to sell part of the estate, consisting of Hinton House, to Mr Berkley should they succeed in purchasing the house at auction. Mr Berkley wished to turn the house into a tourist attraction and wanted to keep as many of the original features of the property. The completion of the sale was delayed and did not take place until Nov 1968. During this period, Lord Poulett had sold several items which Mr Berkley claimed were fixtures and thus title had passed to him under the contract of sale. The disputed items consisted of several valuable paintings which were set into oak panelling, a large marble statue of a greek athlete which weighed half a tonne and rested on its own weight on a stone plinth on the west lawn and a large sundial also resting on its own weight outside the south wing.

Held:

The items were chattels. Scarman LJ indicated that the object of annexation has greater significance than the degree of annexation. The paintings were affixed for the better enjoyment of them as paintings and the statue and sundials were also placed for the better enjoyment as chattels.

Scarman LJ:

“a degree of annexation which in earlier times the law would have treated as conclusive may now prove nothing. If the purpose of the annexation be for the better enjoyment of the object itself, it may remain a chattel, notwithstanding a high degree of physical annexation. Clearly, however, it remains significant to discover the extent of physical disturbance of the building or the land involved in the removal of the object. If an object cannot be removed without serious damage to, or destruction of, some part of the realty, the case for its having become a fixture is a strong one. The relationship of the two tests to each other requires consideration. If there is no physical annexation there is no fixture. Quicquid plantatur solo solo cedit. Nevertheless an object, resting on the ground by its own weight alone, can be a fixture, if it be so heavy that there is no need to tie it into a foundation, and if it were put in place to improve the realty. Prima facie, however, an object resting on the ground by its own weight alone is not a fixture. Conversely, an object affixed to realty but capable of being removed without much difficulty may yet be a fixture, if, for example, the purpose of its affixing be that 'of creating a beautiful room as a whole' (Neville J in In Re Whaley [1908] 1 Ch 615 at p 619). Today so great are the technical skills of affixing and removing objects to land or buildings that the second test is more likely than the first to be decisive. Perhaps the enduring significance of the first test is a reminder that there must be some degree of physical annexation before a chattel can be treated as part of the realty.”

Stamp LJ

“I find it impossible to conclude that on the setting up of the panelling around them they lost their character as chattels and became part of Hinton House. They were still enjoyed as theretofore as pictures albeit in a different setting and removed with little more difficulty than any large framed portrait fastened to a wall by mirror plates. …That statue was no doubt sited at a key point in the most advantageous position in the grounds; and just as a picture is placed in a room not merely for the purpose of its enjoyment as a picture but also to embellish and beautify the room in which it is placed and may be positioned for that purpose, so no doubt was the Greek athlete statue sited. This particular statue if fixed at all to the plinth on which it stood was removed with minimal damage and in my judgment it did not lose its character as a chattel to be enjoyed as such by reason of being so fixed. Similar considerations in my judgment apply to the sundial, which was removed and was removed without any damage at all.”

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