The basic common law rules utilized to determine if an item is a fixture were set out in the Ontario case, Stack v. Eaton (1902) 4 OLR 335 (O.C.A.) as follows:
“(1) That articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land.
(2) That articles affixed to the land even slightly are to be considered part of the land unless the circumstances are such as to show that they were intended to continue chattels.
(3) That the circumstances necessary to be shown to alter the prima facie character of the articles are circumstances which show the degree of annexation and object of such annexation, which are patent to all to see.
(4) That the intention of the person affixing the article to the soil is material only in so far as it can be presumed from the degree and object of the annexation.”
So, let’s have another quick look at these rules:
1) if the item is not attached, it is presumed to be a chattel,
2) if the item is attached, it is presumed to be a fixture,
3) the presumption of the item being either a chattel or a fixture can be rebutted, if on visible inspection it may be seen:
a) the degree of annexation, and
b) the object of annexation.
4) the intention of the affixing party is not material, unless such intention can be determined, presumed or inferred simply by examination of the item itself.
That means if it’s attached, it’s probably a fixture. If it’s not attached, it’s probably a chattel. If the party placing the item upon the property was doing so to improve the property, then this item is a fixture. If there were no intention to improve the property, but the item was indeed affixed, then this item is still a chattel. Intention is to be inferred from examination of the item. And, there are two factors here: the degree (or amount) of annexation, and the object or purpose of the annexation.
You are not permitted to call outside evidence of intention. The real intention of the party is not relevant. The determination is to be made objectively on the basis of examination of the item.
So, that’s it. Those are the actual common law rules. Beyond that, legal practitioners will have to apply those rules and arrive at a determination based upon the application of the rules to the facts in a particular case.
This has been the case for over a century (120 years), so, it’s not likely to change anytrime soon!
Brian Madigan LL.B., Broker