Published: Wed, 07 Mar 2018
Hamp v Bygrave (1983) 266 EG 720
The correct test to be applied when determining whether an item is a fixture or a chattel
The claimant purchased a house from the defendant. The particulars of sale mentioned several stone garden ornaments that rested by their own weight in the garden. It was stated by the claimant that enquiries were made regarding whether these items would be included with the sale and the defendant suggested that they would form part of the property passed. When the sale completed the claimant discovered that the items had been removed from the garden by the defendant, the claimant commenced proceedings for their return.
The issue in this context was whether items resting by their own weight were fixtures or chattels and whether pre-contract discussions added any weight to this matter.
It was held that the first test to be applied was the traditional test with regards to the degree of annexation to the property and the purpose of this annexation. However, it was also held that whilst both of the elements in these tests remained valid, the paramount test in a modern context related to the purpose of the annexation. This was necessarily a question of fact. The matter was decided firstly by stating that replies to the questions prior to the contract did not provide a warranty on the part of the defendant that the items would form part of the land and pass. However, secondly, these discussions did impact on the purpose of the annexation, which in these circumstances had the effect of causing the garden ornaments to be considered fixtures and in turn resulted in them to passing with the property. It was a secondary effect of these statements meant that the defendant was estopped from denying that the items were included in the sale.
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