What is a Fixture or a Chattel?
Whilst Lord Justice Rimer provided some clarification of the term vacant possession, there is still ambiguity in respect to the interpretation of chattels and the extent to which an occupier is obligated to remove them from the property under the requirement of giving up the premises with vacant possession. Early advice from solicitors should always be sought where vacant possession is not clear and in particular where there is a requirement to remove chattels. Whilst there is no clear definition, the following two tests can be applied.
What is the Extent or Degree of Annexation?
Is it physically attached to the property or freestanding? Can it be removed without causing damage to the property?
What is the Purpose and Intention of Annexation?
Is it intended to be permanent or has it become a lasting improvement? If the item is designed to be part of the property it may be interpreted as a fixture. If the item is fixed in such a manner as to allow removal without damage to the property, then it may be deemed to be a chattel. In all cases, annexation will be a matter of fact and degree. The following list demonstrates the difficulty in interpreting items definitively:
- Carpet may be considered a chattel if resting under its own weight. Carpet tiles adhered with tackifier are a grey area as they lack the quality of permanency to become a fixture, yet may be damaged if removed and unlikely to lie flat if relocated;
- Fitted kitchen units are fixtures although freestanding units are deemed to be chattels;
- Data cabling is another grey area, as these are usually laid with the specific intention to be used in that location only. However, the cabling is not fixed to the premises in a permanent manner.
- Partitioning – In most cases the partitioning will be deemed to be a chattel, as it will be non-structural, installed for the benefit of the occupier and can be removed without causing damage to the property. Furthermore, recent case law has clarified that it will be seen as an impediment to a landlord’s use and enjoyment of the property. Therefore it must be removed as part of a requirement in a break clause to give up the property with vacant possession. There is another issue, as yet untested in court. Removing partitioning on its own will leave an unsightly, potentially difficult to let demise, which may still trigger the second test as to whether there is a substantial obstacle to the landlord’s/buyer’s use and enjoyment of those premises. Further works such as repairs following removal and capping off services may also need to be considered.
