14 May, 2020
The recent Court of Appeal decision in Borwick Development Solutions Ltd v Clear Water Fisheries Ltd  EWCA Civ 578 addressed the thorny issue of whether rights in respect of fish contained in fishing lakes transfers upon sale of the property or whether they are in fact retained by the seller.
The transfer of the fishery in question contained no express provisions either transferring or retaining rights in relation to the fish contained in the fishing lakes. The Court of Appeal was asked to consider whether the seller had retained any rights in relation to the fish owing to the lack of provision to the contrary.
The Court of Appeal held that the seller did not retain any rights over the fish (as qualified property as opposed to absolute property). The basis for the Court of Appeal's decision appears to be that rights in relation to wild animals are based in either the property owner's rights of the soil or through industry/sense of effort which includes the purchase, introduction and husbandry of the animals but also crucially the possession of said animals. In the former it was held that the fish would have transferred to the buyer with the sale of the property and in respect of the latter it was held that rights arising from industry ceased when the seller was no longer in possession of the property and therefore by analogy no longer in possession of the fish. Accordingly, it was held that the seller did not retain any rights in respect of the fish contained in the fishing lakes.
The decision follows the accepted position that any sporting rights need to be expressly reserved. The importance of this decision to the agricultural industry in particular cannot be understated owing to the fact that animals are often an integral part of agricultural businesses and therefore agricultural property relating to such businesses.
The decision serves to reinforce the importance of making sure that any rights in relation to wild animals which are subject to a sale/transfer of property are considered fully and that provision for the transfer or retention of said rights is clearly documented. Forbes Solicitors have specialist agricultural property experts who can assist with agricultural land transactions.
Please also see our previous blog on disputes over fish and solar panels here: https://www.forbessolicitors.co.uk/news/45578/disputes-over-fish-and-solar-panels.
For more information contact Michael Rutter in our Agriculture department via email or phone on 0333 207 1147. Alternatively send any question through to Forbes Solicitors via our online Contact Form.