Fixtures: Fish out of water

On the sale of land, only those assets which are considered fixtures will pass with the land. When considering whether or not an asset is a fixture, the Court must consider the degree and purpose of annexation to the land.

In the recent case of Borwick Development Solutions Ltd v Clear Water Fisheries Ltd (2019), the High Court determined whether solar panels and fish in man-made lakes were fixtures.

The case

Borwick owned a commercial fishery, including a number of lakes and solar panels. A fixed charge receiver sold the fishery to Clear Water. The sale contract did not mention the fish in the lakes or the solar panels. Borwick claimed that these items remained its property.

Solar Panels

The Court held that the solar panels were fixtures and had passed to Clear Water. The panels were fixed to a metal frame and bolted onto a wooden platform, which was concreted onto the land. This degree of attachment suggested they were fixtures. The solar panels’ purpose was to power the fishery’s restaurant and so was not independent of the land.

Fish

The Court held that there was no absolute property in a living wild animal. It was possible to have a qualified property to the fish, through the industry of introducing and isolating them within a closed water system. This qualified property did not attach to the land and so did not pass on the sale of the land. This is the first reported case of the Court determining the legal nature of fish stocks in a commercial fishery.

Conclusion

Whilst the question of whether or not a certain asset will be considered a fixture is highly fact specific, this case is likely to be considered persuasive in relation to future cases involving solar panels and fish stocks. The case is also an important reminder that when buying or selling land, it should be considered which assets will be fixtures and to ensure that, where there is any uncertainty over particular assets, these assets are expressly dealt with in any contract.