24 September, 2019
Borwick Development Solutions Ltd v Clear Water Fisheries Ltd
What happened in this case?
Borwick created lakes on its freehold land and populated them with fish before running the site as a commercial fishery whereby anglers could come and fish for sport, returning any fish they caught.
Borwick later built a restaurant on the site funded by a loan. The Lender secured the loan over the whole site. Solar panels were acquired under an asset lease agreement and attached to the restaurant roof. The claimant used the solar panels to power the restaurant and returned any surplus power to the National Grid.
The restaurant was unsuccessful, and Borwick started negotiations to sell the site or part of it to Clear Water.
Negotiations broke down and the lender appointed Law of Property Act receivers who sold the land to Clear Water.
Were the fish and solar panels included in the sale?
To answer this, the court had to consider whether fish and/or solar panels were moveable items (chattles) or so affixed to the property that they formed part of it. If there were chattels then they should be returned to Borwick, since a legal charge can only be held over land and not chattles.
What was Borwick's case?
Borwick asserted that it owned the fish and the solar panels as their personal property and that could not form part of a property sale.
What was Clear Water's cases?
Fish, as living creatures, cannot be classed as chattels as they cannot be subject to rights of absolute ownership. At most, fish could only be subject to qualified property rights, which the defendant asserted had passed to them when they bought the land.
Clear Water argued that the solar panels were fixtures and so formed part of the property, therefore the title passed automatically when the defendant acquired the title to the land upon which they were affixed.
What was decided?
The fish belonged to Borwick and the solar panels belonged to Clear Water.
The claimant had introduced the fish to the land for the purpose of commercial fishing, and as such the claimant had a qualified property interest in the fish.
The solar panels had been bolted onto a wooden platform, which was secured in place by concrete. The solar panels were deemed to be fixtures, and ownership passed to Clear Water with the property.
Is there anything else I should consider?
It's not always obvious what items pass with a sale of land and disputes can easily arise over ownership rights, so you may need to seek expert legal advice.
For more information contact Laura Hallett Lea in our Dispute Resolution department via email or phone on 0333 207 1141. Alternatively send any question through to Forbes Solicitors via our online Contact Form.