What is the test for annexation of property?

Alberta, Canada


The following excerpt is from Johnson v. Mah, 1985 CanLII 1212 (AB QB):

In the case of Haggert v. Brampton (1897), 1897 CanLII 14 (SCC), 28 S.C.R. 174 at 182, we find this quote by King J.: 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. In my view, that quotation is applicable to the case at bar as well. This is not a case of a tenant having brought chattels onto the land for the duration of his tenancy with the intention of removing them again at the end of his tenancy. This is a case of an owner equipping a premises to be a restaurant and, as such, it appears the chattels in dispute were brought onto the land and annexed thereto even including the dividers which only rest on the premises by their own weight to make them part of the whole restaurant operation. Having so concluded, it appears there is no alternative but to declare that the chattels in dispute became and are part of the realty and, as such, belong to the plaintiffs. The claim of the defendants to them is dismissed with costs. Application dismissed.

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