Meaning of the term. is used with different meanings sometimes; strictly speaking, it signifies things affixed to the freehold, but it may also be used as signifying chattels annexed to the freehold, but which are removable at the will of the person who annexed them (o). The rule at common law as to things affixed to the freehold is expressed by the maxim of our law, Quidquid plantatur solo, solo cedit; but this rule was found to operate in discouragement of trade, and in consequence there has gradually grown up a great mitigation of it. It may be stated generally that fixtures erected for the purposes of trade, ornament, or domestic use, and also agricultural fixtures (p), may be removed by a tenant as against his landlord, and it may in particular cases happen that custom gives a tenant a wider right than he would ordinarily have. When a tenant has the moved during right to remove fixtures, the removal by him must be during his tenancy, or such further period as he holds under a right to consider himself tenant (q), i.e., whilst permitted by the landlord to remain in possession, and if he does not remove them during that time he will lose his right to them, for they then become a gift in law to the landlord, unless indeed the landlord afterwards give a licence to the tenant to enter to remove the fixtures, and such licence would not be good unless under seal (r). Must be re tenancy. Originally no fixtures could be removed, but the old rule now mitigated. As before stated, originally nothing in the nature of a fixture could be removed and the mitigations of the old rule have arisen gradually; the first was in favour of trade fixtures, and subsequently other cases extended it to ornamental and domestic fixtures. There have been a very great number of cases upon this subject, and amongst the articles that have been decided to be removable by the tenant may be mentioned as in (0) 2 S. L. C. 182. (p) 14 & 15 Vict. c. 25; 38 & 39 Vict. c. 92, s. 53. (r) Roffey v. Henderson, 17 Q. B. 574. stances the following:-Chimney-glasses, sheds, blinds, ornamental chimney-pieces, wainscots, shelves, counters, pumps, partitions, shrubs and trees planted for sale (s). The fixtures, if removable, must be taken away without material damage to the inheritance, and the right of removal is, of course, liable to be controlled by express contract, so that, for instance, if a tenant covenants to keep in repair all erections built, or thereafter to be built, and surrender them at the end of the term, this will prevent him removing things which but for the covenant he might have removed (†). fixtures not fixtures. Under the exception to the common law rule in Elwes v. Mawe. favour of trade fixtures, it was decided in Elwes v. Mawe (u) (which is a case very generally quoted and referred to on the subject of fixtures) that this would not apply to allow tenants in agriculture to remove things erected for the purposes of husbandry, and Lord Ellenborough, in delivering the opinion of the Court to that effect said:"To hold otherwise, and to extend Reason of the rule in favour of tenants to the latitude contended agricultural for by the defendant, would be, as appears to me, to being removintroduce a dangerous innovation into the relative state able as trade of rights and interests holden to subsist between landlords and tenants. But its dangers or probable mischief is not so properly a consideration for a court of law as whether the adoption of such a doctrine would be an innovation at all; and being of opinion that it would be so, and contrary to the uniform current of legal authorities on the subject, we feel ourselves, in conformity to and in support of those authorities, obliged to pronounce that the defendant had no right to take away the erections stated and described in this case." These remarks shew the reason of the decision, and as the rule undoubtedly often worked hardship on (s) See a list of things decided to be removable and not removable in Chitty on Contracts, pp. 330-333. (t) West v. Blakeway, 2 M. & G. 729; Penry v. Brown, 2 Stark. 403. (u) 2 S. L. C. 162; 3 East, 38. Provision of 14 & 15 Vict. c. 25. Provision of 38 & 39 Vict. c. 92, s. 53. tenants, it has been altered by the legislature, it being now provided by 14 & 15 Vict. c. 25 (x), that all buildings, engines, or the like, erected by the tenant for agricultural purposes, with the consent in writing of the landlord, shall remain the property of and removable by the tenant, so that he do no injury in the removal thereof; provided that one month's notice shall be given before removal to the landlord, who within that time is to have a right of purchasing at a value to be ascertained by two referees or an umpire. The Agricultural Holdings Act, 1875 (y), also contains a provision on this subject, as follows:-" Where after the commencement of this Act a tenant affixes to his holding any engine, machinery, or other fixture for which he is not under this Act or otherwise entitled to compensation, and which is not so affixed in pursuance of some obligation in that behalf, or instead of some fixture belonging to the landlord, then such fixture shall be the property of and removable by the tenant: Provided as follows: 1. Before the removal of any fixture the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect of the holding. 2. In the removal of any fixture the tenant shall not do any avoidable damage to the building or other part of the holding. 3. Immediately after the removal of any fixture the tenant shall make good all damage occasioned to any building or other part of the holding by the removal. 4. The tenant shall not move any fixture without giving one month's previous notice in writing to the landlord of the intention of the tenant to remove it. 5. At any time before the expiration of the notice of removal, the landlord by notice in writing given by him to the tenant may elect to purchase any fixture comprised in the notice of removal, and any fixture thus elected to be purchased shall he left by the tenant, and (x) Sect. 3. (y) 38 & 39 Vict. c. 92. shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding; and any difference as to the value shall be settled by a referee under this Act as in case of compensation (but without appeal). But nothing in this section shall apply to a steam engine erected by the tenant, if before erecting it the tenant has not given to the landlord notice in writing of his intention to do so, or if the landlord by notice in writing given to the tenant has objected to the erection thereof" (z). The most noticeable difference between this provision and the one contained in 14 & 15 Vict. c. 25, is that under that statute only fixtures erected with the consent in writing of the landlord can be removed. need not be in "As to the operation of the Statute of Frauds, Contract for 29 Car. 2, c. 3, upon contracts exclusively for the sale sale of fixtures of fixtures, it appears to be settled that such contracts writing. are valid without the formalities prescribed by the 4th section of that statute. A transfer of fixtures simply appears to be nothing more than a transfer of the right which the vendor has to sever certain chattels annexed to the soil, but not part of the freehold. Such transfer therefore passes no interest in the realty, and accordingly it does not come within the operation of the 4th section of the statute" (a); but it may be noticed. that a contract for the sale of fixtures, if in writing, and they are above £5 in value, does require a stamp. land fixtures Upon a sale or mortgage of land, fixtures will pass on the sale or to the vendee or mortgagee, in the absence of any con- mortgage of trary intention; and with regard to the much-discussed pass without question of whether a mortgage of land with fixtures any special requires to be registered as a bill of sale, it has now When a mort (z) Sect. 53. (a) Chitty on Contracts, 337. words. gage of fixtures requires registration as a bill of sale. Distress. Requisites to enable a land lord to distrain. been decided that it does not so require, unless the mortgagee has power given him to deal with the fixtures apart and separately from the land (b). The most apt and proper remedy of a landlord for the recovery from his tenant of the rent due is distress, which is a remedy by the act of the party, being the right the landlord has of entering and seizing goods for the purpose of liquidating the amount due to him, the word being derived from the Latin distringo. A right of distress besides for rent exists in the case of cattle taken damage-feasant, and here the reason for the remedy is tolerably plain, because the distrainor may be said to be acting on the compulsion of the trespass, but in the case of the distress for rent the reason why it is allowed is by no means so clear, for there does not seem very much more reason why a landlord should have this peculiar privilege any more than a tradesman for a debt accruing for articles supplied for the use of the debtor's family. The following seem to be the requisites to the power of distress: 1. There must be an actual demise and not a mere agreement for a lease. 2. The rent must be certain, that is, the premises. must be let at a fixed rent; for if the tenant holds premises on a rent to be agreed on, or simply on their fair value, the landlord has no right of distress (c). 3. The rent must be in arrear; and rent does not become due until the very end of the day on which it is payable; but in the case of rent payable in advance, it (b) Ex parte Barclay, L. R. 9 Ch. App. 576; Ex parte Daglish, L. R. 8 Ch. App. 1072; on the Law of Fixtures generally, see Brown on Fixtures. (c) Arch. Landlord and Tenant, 113. |