Unaffixed and Unattached Fixtures

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Remember the basic rules for fixtures and chattels: 

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 changed 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. 

Those were the actual common law rules.  While the rules may seem simple enough, the conclusions may not always be clear. 

A fixture need not be affixed and an item which is affixed is not necessarily a fixture. The key element is intention, which is to be determined objectively from the facts.

For example, certain equipment installed in a building to manufacture papier mache pots, some of which was bolted to the floor for stability and some of which rested by its own weight were fixtures, having been installed to improve the usefulness of the building for manufacture, and thus subject to a mortgage of the land. 

Also, a forklift and spare parts for the equipment were determined to be constructive fixtures as they were essential to the use of or an extension of the equipment. 

These chattels while not physically attached to the property were dedicated to the use and improvement of the real property. 

Consequently, they were “annexed” to the land. Annexation is a legal conclusion based on the relationship of the item to the land. 

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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