What is the law on fixtures between a mortgagor and mortgagee?

Saskatchewan, Canada


The following excerpt is from Hamilton v. Lindsay, 1923 CanLII 59 (SK QB):

The law on fixtures as between mortgagor and mortgagee is fully discussed in Haggert v. Town of Brampton, 1897 CanLII 14 (SCC), 28 S.C.R. 174. King, J., at p. 182, says: In passing upon the object of the annexation, the purposes to which the premises are applied may be regarded; and if the object of setting up the articles is to enhance the value of the premises or improve its usefulness for the purposes for which it is used, and if they are affixed to the freehold even in a slight way, but such as is appropriate to the use of the articles, and showing an intention not of occasional but of permanent affixing, then both as to the degree of annexation and as to the object of it, it may very well be concluded that the articles are become part of the realty, at least in questions as between mortgagor and mortgagee.

Dealing generally with the articles in question, the evidence satisfies me that the object of setting-up the articles was to improve the usefulness of the property and showed an intention not of occasional but of permanent affixing. I will now deal with the articles separately: (1) The barn: This consisted of two sides, one end and a roof and was placed against and spiked to another barn. It rested on sills on the ground. (2) Three pumps: These were set in the wells in square holes. (3) 60-barrel water tank: The tank was not fixed to the ground but rested on its own weight, but attached to the tank was a conductor pipe which connected the eaves-trough with the tank. Articles no further attached to the land than by their own weight may become fixtures if the circumstances are such as to show that they were intended to be part of the land. [Holland v. Hodgson, L.R. 7 C.P. 328, 41 L.J.C.P. 146.]

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