Introduction
This essay provides preliminary advice to Jo Shah, a client of Hendersons, regarding her purchase of Highgate Cottage in Todbury for £700,000. Written from the perspective of a graduate surveyor and a student of real estate law, it addresses three key issues arising from the transaction: the status of specific property features Jo believed were included in the sale, her contractual position given the unsigned contract by the seller Gerry McMahon, and the potential airspace encroachment by a neighbour’s satellite TV dish. The analysis draws on principles of property law, particularly distinctions between fixtures and chattels, contract formation, and property rights, to offer informed guidance. While this advice is intended as a starting point, it should be noted that complex legal matters may require Jo to consult her solicitor for definitive counsel. The essay is structured into sections addressing each issue, concluding with a summary of key findings and Implications for Jo’s next steps.
Property Features: Fixtures versus Chattels
One of Jo’s primary concerns is whether the features she admired at Highgate Cottage are included in the sale, as Gerry McMahon intends to remove them. In UK property law, the distinction between fixtures (items forming part of the land and included in the sale) and chattels (movable personal property excluded from the sale) is critical. This distinction is guided by two main tests: the degree of annexation (how securely the item is attached to the property) and the purpose of annexation (whether the item was intended to be a permanent part of the property) (Holland v Hodgson, 1872, as cited in Gray and Gray, 2011).
Applying these principles, the wool carpet in the lounge, if fixed to the floor, may be considered a fixture due to its custom design for the space, aligning with the purpose of annexation test. Conversely, if it is loose, it remains a chattel. The walk-in metal shipping container, being freestanding on a concrete base without services, is unlikely to be a fixture, as it lacks significant annexation (Elitestone Ltd v Morris, 1997). Its contents, being personal property, are clearly chattels. The garden path of flagstones, embedded into the ground, is very likely a fixture due to both annexation and purpose, forming part of the property’s landscaping. The metal bird feeder, merely pushed into the ground, lacks permanence and is a chattel.
The tapestries, though firmly tacked to the lounge wall, are arguably chattels if their purpose was decorative rather than integral to the structure, though their attachment strength may complicate this (D’Eyncourt v Gregory, 1866). The fitted air-conditioning unit, wired into the property, satisfies both tests and is almost certainly a fixture. The washing machine, not integrated, remains a chattel, as does the antique clock hung on the kitchen wall, which lacks any permanent fixation.
Generally, unless specified otherwise in the contract, fixtures are included in a property sale, while chattels are not (Gray and Gray, 2011). Jo should review the contract to confirm whether these items were explicitly included or excluded. If silent, she may argue for the inclusion of items deemed fixtures (e.g., carpet if fixed, flagstones, air-conditioning unit) but will have less ground regarding clear chattels like the container and its contents, which she particularly values as an antiques dealer. A practical solution could be to negotiate with Gerry to purchase specific chattels separately, reflecting their value in the final agreement.
Contractual Position: Is Jo Committed to the Purchase?
Jo’s uncertainty about her commitment to purchasing Highgate Cottage, despite having signed the contract while Gerry has not, warrants examination under contract law principles. In England and Wales, contracts for the sale of land must comply with the Law of Property (Miscellaneous Provisions) Act 1989, which requires such agreements to be in writing, incorporate all terms, and be signed by or on behalf of both parties (Section 2). Until both Jo and Gerry sign the contract, there is no legally binding agreement, and thus, no commitment to complete the transaction (Megarry and Wade, 2019).
At this stage, the process is typically at ‘subject to contract’ status, meaning negotiations are ongoing, and either party can withdraw without legal consequence until contracts are exchanged (i.e., both parties have signed and exchanged copies, often with a deposit paid by the buyer). Therefore, Jo is not yet committed to the purchase at £700,000, and she retains the flexibility to renegotiate terms, including the price or inclusion of specific items, in light of Gerry’s intention to remove the features. However, Jo should be aware that withdrawing or renegotiating could risk losing the property if Gerry is unwilling to compromise.
Given her statement that she might not have offered £700,000 had she known the items would be removed, Jo could consider requesting a revised price to reflect the reduced appeal and potential replacement costs. Alternatively, she might propose that Gerry leaves certain items (particularly fixtures) as part of the sale. These discussions should be documented, ideally through her solicitor, to avoid misunderstandings. While Jo is not legally bound at this point, prompt communication with Gerry is essential to clarify terms before proceeding to exchange.
Airspace Encroachment: The Satellite TV Dish
The final issue concerns a neighbour’s satellite TV dish, installed after Jo’s initial viewing, which partially intrudes into the airspace over Highgate Cottage’s patio and is deemed unsightly. In UK property law, ownership of land includes the airspace above it to a reasonable height necessary for the ordinary use and enjoyment of the property (Bernstein v Skyviews & General Ltd, 1978). If the dish physically encroaches into this airspace, it may constitute a trespass, particularly if it interferes with Jo’s use of the patio or diminishes the property’s aesthetic value.
However, determining the exact boundaries of ‘reasonable height’ can be complex and often requires legal interpretation. Gerry’s assertion that the neighbour lacks permission suggests the dish may be unauthorised, but this does not directly resolve whether it infringes on the Cottage’s airspace. Jo should first establish the precise positioning of the dish relative to the property boundary, possibly through a survey, to confirm encroachment. If confirmed, this could be addressed as a trespass or nuisance, though pursuing legal action may be costly and time-consuming (Megarry and Wade, 2019).
A more practical initial step might be to engage with the neighbour, via Gerry during the purchase process, to negotiate the dish’s removal or repositioning. If unresolved, Jo should seek legal advice to understand her rights and potential remedies once she owns the property. Importantly, this issue does not directly affect the current transaction unless it materially impacts the property’s value or desirability, in which case it could form part of price negotiations.
Conclusion
In summary, Jo Shah faces several challenges in her purchase of Highgate Cottage, each requiring careful consideration under real estate law. Regarding the disputed features, items classified as fixtures (e.g., potentially the carpet if fixed, flagstones, and air-conditioning unit) should typically be included in the sale, while chattels (e.g., shipping container, bird feeder, washing machine) are not, unless negotiated otherwise. Jo is not yet legally committed to the purchase since Gerry has not signed the contract, providing her leeway to renegotiate terms or withdraw if necessary. Finally, the satellite TV dish may constitute an airspace encroachment if it intrudes over the Cottage’s patio, though further investigation and possibly legal advice are needed. The implications for Jo are twofold: she should prioritise clear communication and documentation with Gerry to resolve disputes over the features and price, and she may need to prepare for additional costs or negotiations concerning the dish post-purchase. While this preliminary advice outlines her position, consulting a solicitor remains advisable for binding resolutions, particularly on contractual and airspace matters, to avoid unnecessary legal or financial burdens.
References
- Gray, K. and Gray, S.F. (2011) Elements of Land Law. 5th ed. Oxford: Oxford University Press.
- Megarry, R. and Wade, W. (2019) The Law of Real Property. 9th ed. London: Sweet & Maxwell.
