However, the extent of annexation is not sufficient for an item to be seen as a fixture. A second test, this time on a case by case basis is to be taken into account. The courts also look at the purpose of annexation. Indeed an object standing by its own weight, though prima facie a chattel, can be considered a fixture and vice versa. If the item is attached for the better use or enjoyment of the chattel, like tapestries for instance, its purpose will be to remain one no matter how it is attached to the land or the building. The item thus becomes a “chattel advocate” rebutting the fixture presumption. However, if the object is on the land for the better use of the land itself, then the chattel becomes a fixture even though it may only rest by its own weight. This situation can be seen in regards to landscaping. For example, a statue that is the entire part of the architecture of the land will be considered a fixture. De jure, the object becomes a “fixture advocate” rebutting the chattel presumption. This rebutting of the two original presumptions was found in the case of Holland v. Hodgson [1972] and established by Justice Blackburn.
This practical analysis of the use of the doctrine of Fixtures in the courts shows how important the two tests are as they involve the rights of two competing claimants. The law felt the need to create distinct forms of property to settle arguments between parties and to determine who owns what. This situation arose with the beginning of conveyance of land where property could go from one hand to another and thus “competing” interests developed between the seller and the buyer or the landlord and the tenant etc. For instance, while the legal owner will seek to rebut the fixture presumption in order to take as much as he can with him when selling the land, the buyer in contrast will seek to prove such items are part of the land in order to take possession of them. While one argues these items constitute personal property (i.e. chattels), the other will challenge it as being real property. The law of fixtures is thus a matter of dispute. The problem is not that it is a “rough and ready mechanism”. As we have seen, it considers the purpose of the attachment of the items on a case related basis. Indeed, “All circumstances must be considered in deciding whether or not an object is a fixture, with varying degrees of emphasis upon different factors from case to case.” It is rather a matter of application of the tests which go against one of the major principles of the Rule of Law evoked by Raz (certainty of the Law). “Despite the variety of the tests adopted, (or perhaps because of them), the simplest application of the test has led to confusion, inconsistency & uncertainty.” The issue lies here. With cases that have different interpretations, situations have arisen creating numerous exceptions to the general test and making the tests bulky. Consequently, the Doctrine of Fixtures creates inconsistencies. For instance, the tenant must be careful when attaching something to the land as it can become a fixture and therefore belong to the landlord even though this was not the tenant’s intent. The owner as a mortgagor must be careful because his personal property may be considered fixtures and go to the mortgagee along with the rest of the property if he fails to make his payments. Similar injustices may occur when the seller of goods may not be entitled to get them back (if it has not been paid for) if the buyer attaches the goods (such as central heaters) so that it becomes part of the land. However, the aim of the Doctrine of Fixtures is to strike a balance between competing claims, and it is to this day the only way to solve disputes in regards to personal and real property.
(b) Unlike the Doctrine of Fixtures, the question of ownership regarding found objects finds its principles in statutory context, namely the Treasure Act 1996 and the Treasure (Designation) Order 2002. Whether a person finding an object can claim ownership will depend on the nature of the object and on the circumstances.
If the object falls under the definition of treasure found in the Statute and Direction Order mentioned above (objects and coins over 300years old and at least 10% precious etc.), then, the object will always belong to the State. Whether the object was found over or under the surface is irrelevant.
If the object is not a treasure, then the ownership of the found object varies depending on the circumstances. If the true owner of the item can be found, the item must be handed back to him and the finder cannot keep it. If the actual owner cannot be found, the determination of whether the finder can keep the object will depend on whether it was found over or under the surface. If the object is found under the surface, than the finder cannot claim ownership as the Latin rule applies in this circumstance (“Cuius est solum, eius usque ad coelum ad inferos” i.e. the owner of land owns up to heaven and down to hell). The object then goes to the landowner. However, if the finder is not a trespasser, and if there is no clear intent by the landowner to exercise control over all objects found, all items found over the surface (which are not treasure and of which the owner is unknown, as mentioned above) can be claimed as being the property of the finder.
Before the Treasure Designation Order 2002, the law was clearly unsatisfactory. Indeed the Treasure Act 1996 would only rely on ascertaining the “intention of the original owner” as regard to whether a treasure was meant to be found or not. It was also limited to silver and gold items. Thus the finder could become the owner of items which were not treasure under the Law, but which should have been considered as such. This was an issue mainly with items of historical value which are an important part of culture and should be placed in museums for the benefit of all and not for the finder alone. The old law was also unjust as the landowners were rarely told of finds, and only the finders were rewarded in the case of a find of a treasure (noting they were often trespassers). Indeed, the people living on the property (landowner or occupier) were not eligible for es gratia awards.
Despite the fact that those issues have been recently settled, it cannot be said that the Law is completely satisfactory. The law relies upon no burden of proof. A finder can always claim to have found the object over the surface, and there is no means to prove the contrary. Also, the finder can always keep his find regardless of whether it is a treasure or not, and it will be hard for the State to exercise control in such circumstances. One might say the reward is an inducement to declare the find, but it is never commensurate to the value of the item found. The means taken by the State cannot be declared a hundred percent efficient. This said, it must be acknowledged that finding a solution to these issues is nearly impossible unless the State exercised strict control over land which would contravene the principle of ownership (though in theory the ownership of the Crown) and furthermore liberty itself.
1521words.
