This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
Heirlooms. - Heirlooms are chattels which, by force of a special custom, descend with laud, e.g. Crown jewels.
Thus, heirlooms cannot, as a rule, be created now, for a custom is not binding unless it is immemorial.
Settled Chattels and Leaseholds. - Sometinfes chattels are settled upon trusts to follow certain freehold land, and are loosely but not correctly called heirlooms. They cannot be bound to follow the land absolutely for more than the lives of existing persons and their children. The reason of this is as follows: -
The freehold land is usually settled on A for life, with remainder to his first and other sons in tail.
But it is impossible to create an estate tail in personal property.
Thus, if leasehold land or chattels were settled on A for life remainder to his first and other sons in tail, on the death of A the leaseholds or chattels would vest in the eldest son absolutely.
Consequently, if the son died under 21, the freehold land would go to the next brother, but the leaseholds and chattels would be divided amongst all the brothers and sisters equally as his next of kin.
Hence settlements of leaseholds or chattels to go with freehold land usually provide that they shall not become absolutely vested in any tenant in tail of the land unless he shall reach 21, and if he shall die under 21 the leaseholds and chattels shall go to the next person entitled to the land.
If this were to apply to every tenant in tail who might hereafter be born, it would be void as a perpetuity: hence it must only apply to tenants in tail who are children of persons living when the settlement is made.
Usually life estates are given by the settlement to all the sons who are then living, and estates tail are given to their sons. Therefore the restriction will be confined within proper limits if it is confined to persons to whom estates tail are given directly by the settlement, excluding all those who take by descent from another tenant in tail, i.e. if it is confined to "purchasers" (a).
This object is attained and the restriction is kept within the rule against perpetuities by using the following words: - "Provided that the leaseholds shall not vest in any tenant in tail by purchase until he reaches 21."
Title Deeds. - Deeds relating to any land and the boxes in which they are usually kept pass to the person entitled to the land from time to time.
Fixtures. - The old common law rule was that everything which became fixed to the land belonged to the owner of the land. "Quidquid plantatur solo, solo cedit."
Many exceptions to this rule have since grown up, until the words "tenant's fixtures" have come to mean chattels fixed to the soil which may be removed by a tenant, and "landlord's fixtures" chattels which pass to the owner of the land.
The question whether chattels have become part of the land or not arises in three classes of cases -
(1) On the death of a tenant in fee simple, between the heir or other persons entitled to his
(a) See p. 6.
land, and bis next of kin or other persons entitled to his personal property.
This is a question of intention. The presumption is in favour of the heir, i.e. prima facie the chattels are part of the land.
(2) On the death of a tenant for life, between his executors and the remainderman entitled to the land.
This again is a question of intention. The presumption, however, is different, for the tenant for life naturally is not presumed to have intended to make a present of the chattels to the remainderman.
Re Hulse,  1 Ch. 406.
The tenant for life of land put up some fixed machinery.
Held, in the absence of proof that the tenant for life intended to make a present to the remainderman, the machinery belonged to the tenant for life, and passed to his executors on his death.
(3) Between Landlord and Tenant. - All fixtures belong to the landlord except those which are excepted by the rules of common law, or the Agricultural Holdings Acts, and some other statutes.
(A) Common Law Exceptions. - The tenant is entitled to remove any fixtures put up for the purposes of -
Penton v. Robart (1801), 2 East. 88.
The tenant erected a shed for making varnish. Held, he may remove it.
(2) Ornament, or
(3) Domestic convenience;
But he must remove them before the end of the lease, and must not damage the freehold.
Agriculture was held not to be a trade, and therefore tenants could not remove buildings and fixtures put up for the purposes of agriculture.
Elwes v. Maw (1802), 3 East. 38.
The tenant erected a "beaste-house" made of wood on a brick foundation.
Held, he could not remove it.
This was remedied by various Acts of Parliament (b).
(B) By the Agricultural Holdings Act, 1883 (c). - In the case of Agricultural holdings, where a tenant affixes to his holding any engine, machinery, or other fixture, or erects any building, it becomes the property of the tenant, and he may remove it before or within a reasonable time after the termination of the tenancy.
But (1) he must not do any avoidable damage; (2) he must make good all damage done; (3) he must give one month's notice of his intention to remove it; and (4) the landlord may purchase the fixture at a sum which would be a fair price to an incoming tenant.
The tenant must, of course, pay his rent and perform the other covenants under the lease before he can remove any fixtures; and he cannot remove them if he has put them up in the place of fixtures belonging to the landlord which he has removed.
This Act also gives a tenant a right of compensation for improvements made on the land, and has been further amended by the Agricultural Holdings Acts of 1900 and 1906 (d).
The latter Act provides for compensation to be paid to the tenant for damage done by game, and provides that all
(b) Landlord and Tenant Act, 1851 (14 & 15 Vict. c. 25), Agricultural Holdings Act, 1875 (38 & 39 Vict. c. 92).
(c) 46 & 47 Vict. c. 61.
(d) 63 & 64 Vict. c. 50, and 6 Ed. VII. c. 56.
covenants restricting the method of cultivation shall be void. And, by section 4, if the landlord gives the tenant notice to quit without good cause, or puts up his rent because of improvements made by the tenant, the landlord must pay special compensation for the loss suffered by the tenant by being obliged to quit his holding.