LAWCOMM 442 - Personal Property LN.docx-...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 9
Don Lye
part of the land, unless the circumstances are such us to shew that it was intended all
along to continue a chattel, the onus lying on those who contend that it is a chattel.”
Maori Trustee v Prentice
[1992] 3 NZLR 344
Defendant leased land and brought on to the land an old railway cottage. It is secured to the land
by concrete piles and connected to utilities.
Defendant wishes to remove the cottage at the end of the lease.
Plaintiff lessor/owner of land argues that it has become part of the land, it is no longer a chattel
and cannot be removed.
The presumption was that it was part of the land – because it was affixed to the land –
burden lay on tenant to rebut the presumption and show that the house was a chattel.
If you look at intention, you can say she always intended to move it. Why would you intend
to give it to the landlord? But it you look at purpose, shouldn’t the purpose of attaching it
to the land be permanency. You can start to see that subjective intention is not too
Intention – if subjective intention – why would the lessee bring a substantial asset
onto the land and intend to gift it to the landlord.
Purpose – objective purpose of bringing a cottage onto the land, for living in
Degree of annexation (fairly important here) –
Ability to remove the structure.
Pretty much anything can be removed ie. relocating a house – therefore not a
decisive consideration.
Judge concluded (burden of proof lay on tenant) and that the tenant had discharged onus
on them to prove that the house was a chattel not a fixture.
“It was the case for the plaintiff that the dwelling-house in question passed to the Maori
Trustee either as a fixture or as an improvement.”
“In summary the position was that property brought on to the land by a tenant
which became a fixture in accordance with established principles became a part of
the realty and must be left by the tenant as part of the landlord's reversion.”
“Although there are arguments both ways, in the end I have concluded that this particular
dwelling-house did not become a fixture.”
“The following evidence, in my judgment, supports the conclusion that the house
did not become a fixture:
1. This house was one that had been moved to the site rather than erected
on it.
2. There was no dispute on the evidence that it was quite capable of removal.
3. There was direct evidence of an intention not to make the house a fixture
in the evidence of Mr Prentice.”

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