Ontario Real Estate Source
By Brian Madigan LL.B.
The most often quoted case dealing with the law of Fixtures in Ontario is the 1902 case of Stack v. T. Eaton Co.
Here is the test (in the words of the trial Judge) for determining whether an item is a fixture:
“I take it to be settled law:-
(1) 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 show that they were intended to be part of the land.
(2) That 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 chattels.
(3) That the circumstances necessary to be shown to alter the primâ facie character of the articles are circumstances which show the degree of annexation and object of such annexation, which are patent to all to see.
(4) That 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.”
The Rules
So, here are the rules:
Rule #1 – if it is not attached, then it’s a chattel
Rule #2 – unless the intention shows otherwise (fixture)
Rule #3 – if it is attached, then it’s a fixture
Rule #4 – unless the intention shows otherwise (chattel)
Rule #5 – Rules 1 and 3 create rebuttable presumptions
Rule #6 – The presumption may be rebutted by the degree of annexation
Rule #7 – The presumption may be rebutted by object or purpose of annexation
Rule #8 – the evidence required to rebut a presumption must be patent
Rule #9 – intention is to be determined according to an objective test.
This particular case is considered as a good statement of the law, and has been followed in countless cases. However, although the law seems clear, the rules are often applied differently in different fact situations.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com
