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  • Overview

    As a general rule, when transferring an interest in land, any fixture which forms part of the land will be transferred with the land unless expressly stated in the sale contract.  Unlike fixtures, fittings do not attach to the land and therefore do not pass on a sale. However, it is not always clear what is included in a sale of land as illustrated in the case of Borwick Development Solutions Ltd v Clear Water Fisheries Ltd.

    In this case, Borwick Development Solutions Ltd (BDSL) owned a commercial fishery comprising nine man-made lakes where stocks of coarse fish were kept and also solar panels (and associated controls and a feed-in tariff meter).  BDSL experienced financial difficulties and subsequently a receiver was appointed to sell the fishery to Clear Water Fisheries Ltd (CWFL).  There was no express provision in the sale documentation regarding the fish stocks or the solar panels and, following the sale of the land, BDSL claimed that it retained ownership of both.

    The case was originally heard at the High Court in 2019.  It was held that the solar panels were fixtures on the property and therefore passed automatically with the sale on land. 

    The Court held that the solar panels became fixtures for 2 reasons:

    • The method and degree of annexation: The solar panels were fixed to a metal frame and were bolted onto a wooden platform which was concreted into the land. 
    • The object and purpose of the annexation: The panels’ purpose was to receive sunlight and convert it into electricity to power the site’s restaurant.  The purpose of the solar panels was not for their use and enjoyment independently of the land, but for their use as an integral part of the land


    With regards to the fish stocks, the court had to consider, for the first time, the legal nature of fish stocks in a commercial fishery.  It was initially held that the fish were fittings and therefore did not pass with the land. 

    However, CWFL appealed the decision in respect of the fish and the case was heard in the Court of Appeal.  The court considered the distinction between wild and domestic animals.  Which category an animal falls into is a question of law, rather than fact.  The classification also has consequences for the property rights.  Wild animals are not subject to absolute ownership however a person may acquire qualified property rights in one of two ways:

    1. By keeping a wild animal in their possession; and
    2. By being a land owner who has the exclusive right to hunt, take, keep and kill wild animals whilst they are on his land.


    The court held that the seller, BDSL, lost any qualified rights over the fish when the land was sold.  BDSL could not rely on rights based on keeping wild animals in their possession because by selling the land they had lost the right to access the land where the fish were kept. Nor could they rely on the second basis for retaining rights in the fish, since, having sold the land they were no longer an owner who could claim exclusive rights to any wild animals on the land.  As a result BDSL did not have any rights over the fish stocks and the ownership of the fish passed with the land.

    This case highlights that it is not always clear what is included in the sale of land.  Parties must be clear about what is included so that provisions can be added to the contract setting out what items are to be transferred and what is to be retained in order to avoid any future disputes.  

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Jargon Buster