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Attachment, alteration and mixing

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This page will discuss a number of miscellaneous topics concerning the law of personal property: attachment, alteration, mixing, tracing and finding.

Attachment

Attachment concerns the debate over whether a particular item of property has been attached to land (a fixture), or whether it remains as a separate item (a chattel). This question becomes important where a purchaser or chargee of land seeks possession of that land: has the item of property become the property of the new owner or chargee or not?

General test

The general test for attachment has two elements: the degree of actual attachment, and the intention to attach.

  • Hellawell v Eastwood (1851) – consider the mode of annexation of an item of property (could it be removed without damage) and its purpose (for enjoyment, or to improve land)
  • Holland v Hodgson (1872) – intention was given precedence over actual attachment

Intention

According to Elitestone v Morris [1997], intention in attachment is an objective standard, such that in Hobson v Gorringe [1897], a gas engine inside of a mill was treated as a fixture even though it had an identification plate suggesting a contrary objective intention.

Actual attachment

  • Ellior v Bishop (1855) – house keys were classed as a fixture
  • Wake v Hall (1883) – a boiler house and engine room built on land seized under customary mining rights were chattels as they were easy to remove and the freehold owner had no financial investment in them (though if they were bailed, Gorringe may have applied, oddly)
  • Elitestone v Morris [1997] – a bungalow was a fixture, even though it only rested under its own weight on pillars. Removing it would destroy it and the tenant ought to be protected
  • Neylon v Dickens [1979, New Zealand] – a prefabricated building was easy to remove, despite being connected to utilities, so was classed as a chattel

Attachment to person property

It is possible to attach property to other (personal) property. However, Hendy Lennox v Grahame Puttick [1984] illustrates that even were separation might take several hours (generators from engines), attachment may still not be found.

Alteration

Where the essential characteristics of an item of property are lost, it will classed as a different item of property.

  • Appleby v Myers (1867) – where materials are worked into the property of another, they become part of that other property
  • Chaigley Farms v Crawford Kaye & Grayshire Ltd [1996] – a cow’s carcass is a new item of property after it is slaughtered

Usually, that new property will vest in its manufacturer, as the new item is usually more valuable.

  • Borden (UK) v Scottish Timber Products Ltd [1981] – resin ceased to exit when mixed with wood chips in heat
  • Clough Mill v Marten [1985] – this rule can be contracted out of, but title retention (until payment) clauses will become ineffective
  • Jones v De Marchant (1916, Canada) – where goods are processed without consent, property remains with the goods’ provider. Beaver skins stolen and combined with others into a fur coat did not transfer property in the skins. The victim of the theft was entitled to the whole coat.

Mixing

Where similar or identical items are mixed together, it will be said that owners of the items mixed are tenants in common of the mix, as evidenced by Spence v Union Marine Insurance (1868), which concerned cotton balls.

  • F S Sanderman & buy xanax uk paypal Sons v Tyzack & Branfoot Shipping Co [1913] – tenancy in common will not be found where mixing is wrongful, unless substantial injustice results
  • Indian Oil Corporation v Greenstone Shipping [1987] – tenancy in common will be found where mixing is accidental, but damages will be available against the mixer if loss results

If a mix is lost, it is uncertain what the result would be.

Tracing

If property is transferred without the consent of its owner, the owner may be able to trace that property. It was said in Socawen v Bajwa [1996] that tracing is a process rather than a remedy, but this is open to criticism.

There are several advantages to allowing tracing claims:

  • Taylor v Plumer (1815) – priority through insolvency where gold was purchased by a broker without consent
  • F C Jones & Sons v Jones [1997] – quantum of claim can be increased, allowing a £50,000 ROI of £11,000 taken without consent to be traced
  • Lipkin Gorman v Karpnale [1991] – remote third parties can be sued, including a casino owner who took client money gambled by a solicitor

According to Re Diplock [1948], tracing is limited to the extend of a fiduciary relationship in equity, but at common law, according to Taylor v Plumer (1815), tracing will be permitted as long as a direct substitute can be identified.

Equitable presumptions have widened the scope of tracing at common law:

  • Clayton’s case (1816) – first in, first out rule for tracing through mixed funds
  • Re Hallett (1880) – where a wrongdoer mixes his own money with an innocent person’s money, he withdraws his own money first
  • Banque Belge Pour L’Etranger v Hambrouk [1921] – mixing not an issue
  • Re Diplock [1948] – can’t trace through mixing at common law, can in equity
  • F C Jones & Sons v Jones [1997] – Lord Millett said that in Taylor v Plumer, Lord Ellenborough had not been trying to establish tracing rules at common law. But now, the rules have become too established to be revoked

The remedy in tracing is for money had and received, not conversion, as a person may not be retrospectively turned into a wrongdoer when another decides to trace his own property. As such, in Likpin Gorman v Karpnale [1991], the casino owner was only liable for his net gain. Any money paid out in winnings could be set off against traceable money received.

In Foskett v McKeown [2011], it was said (obiter) that there is now no distinction between equitable and common law tracing; there is just the remedy of tracing.

Finding

Where a person ‘finds’ the property of another, he may take a possessory title to that property. This is with the exception of treasure, which under the Treasure Act 1996, will belong to the Crown. A finder may assert his rights over anyone except the true owner of the property, as illustrated by Armory v Delamirie (1722), where a jewellery store was liable for keeping hold of jewellery held on behalf of a chimney sweep, under the (irrelevant) belief that the jewellery had been stolen by the chimney sweep.

Finders vs landowners

There is a debate over who should gain title to property where a finder finds apparently abandoned property on the land of another: the finder, or the landowner. Two cases do not easily reconcile:

  • Bridges v Hawksworth (1851) – a commercial traveller handed bank notes to a shopkeeper found in a parcel on the floor of the shopkeeper’s shop. The finder succeeded against the shopkeeper given the shopkeeper’s lack of control over the parcel
  • South Sattfordshire Water Co v Sharman [1896] – 2 gold rings were found by a pond-cleaner, and were said to be the property of the landowner

Parker v British Airways Board [1982] attempted to reconcile these two cases. A bracelet was found in a British Airways lounge, and handed in with instruction to return the bracelet to the finder if the true owner was not found. British Airways sold the bracelet for £850, and British Airways, relying on instructions issued to employees, were successfully sued in conversion by the finder. According to Lord Donaldson, to take rights to chattels found, control must be exercised by an occupier. British Airways should have manifested their intention to control, perhaps through a sign or regular searches.

The debate can now be illustrated as follows:

  • Is the property attached to land?
    • Yes – land owner has better title (Staffordshire Water)
    • No – is the area open to the public?
      • No – occupier has better title (Staffordshire Water)
      • Yes – did the occupier exercise the required control
        • No – finder has better title (Bridges v Hawksworth, British Airways)
        • Yes – landowner has better title

Finders’ obligations

According to Parker v British Airways Board [1982], a finder must take reasonable measures in the circumstances to attempt to reacquaint the true owner of found property with the property, and take care of the property in the meantime. Only then may title be assumed.

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