Pursuant to s.15(1) Conveyancing and Law of Property Act, every conveyance of land, unless an exception is made therein, includes all houses, out houses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to such land belonging or in anywise appertaining, or with such land demised, held, used, occupied and enjoyed or taken or known as part or parcel thereof, and, if the conveyance purports to convey an estate in fee simple, also the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of the same land and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever of the grantor into, out of or upon the same land, and every part and parcel thereof, with their and every of their appurtenances.

Canadian jurisprudence has established that fixtures in relation to property are deemed to be included in the purchase unless specifically excluded by a party to the Agreement of Purchase and Sale. Moreover, the onus of establishing that an item is deemed a fixture to real property and thus forms part of the freehold estate rests with the party asserting it and is determined by the degree of annexation. Therefore, if you are a buyer of a home and can establish that the disputed item falls under the criteria of a “fixture” such item will be included in the purchase price of the property. If the item falls under the definition of a “chattel”, the item will remain the property of the vendor (unless the said item is specifically included in the agreement) and the vendor will be able to remove those chattels from the subject property. If a dispute arises as to whether the item is a fixture or chattel the court will make an assessment based on objective criteria. The subjective beliefs of the parties is not determinative and will not guide the court’s evaluative process. In making a distinction between a fixture and a chattel the court will consider the degree of annexation; the relationship of the parties interested in the land, the nature of the property in question, the purpose served, and the object of annexation. The common law test was set out in the leading case of Stack v. T. Eaton Co, wherein the court set out a series of principles to determine whether an item is attached or affixed to the land and  is therefore a fixture or whether the item is not attached or affixed to the land and is therefore a chattel. Those principles were based on their degree of attachment. The court held 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.
• 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 as chattels.
• The circumstances necessary to be shown to alter the primâ facie character of the articles  are circumstances that show the degree of annexation and object of such annexation, which are patent for all to see.
• The intention of the person affixing the article to the soil is material only so far as it can be presumed from the degree and object of the annexation.

Therefore, if you are a buyer and are unsure as to whether a particular item is a chattel or fixture come discuss your Agreement with us before signing. We can review your offer to purchase to ensure that those items are specifically set out because once the Agreement is signed and accepted, all parties will be bound to the terms contained therein and any items omitted will not form part of the real property conveyed to you on closing. It is therefore crucial that you have your agreement reviewed by a lawyer prior to signing to ensure that each potentially disputable item is addressed and that any terms in the agreement that are unfavorable to you or that can act to your detriment can be addressed with you prior to entering a legally enforceable contract of purchase and sale.

I always encourage my clients to include a clause for at least one (1) pre-closing inspection and that during that inspection they take a picture of the items (whether chattel or fixture) noting the make, model, and any serial numbers, so that should a dispute arise, or a bait and switch occur on closing, your evidence will be irrefutable should the matter become litigious.