Recently a case before the High Court has, for the first time, lead to the consideration of the legal nature of fish stock upon the sale of land.
In the case of Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2019] EWHC 2272 (Ch) the High Court was asked to determine issues surrounding solar panels and fish stock that remained at a property upon the completion of the sale where the contract for sale did not deal with either.
The former owner had owned a commercial fishery which included man-made lakes and pools together with a number of solar panels that powered their restaurant. The former owner argued that at all times he was the owner of both the fish stock and the solar panels.
The Court held that the solar panels and their ancillary equipment were fixtures on the property, which passed automatically on the sale to the new owner. This was because:
(1) the degree of attachment: the solar panels were fixed to a metal frame, bolted to a platform and concreted into the land; and
(2) their use was integral to the property itself: the solar panels’ purpose was to receive sunlight and convert it to electricity to power equipment at the property.
In relation to the fish, the Court highlighted that there was no absolute property in a living wild animal, but these fish had been introduced into, and isolated in, a closed water system by the former owner. Whilst the fish were contained in the lakes and pools the former owner had a qualified property title to them. As an example, the Court compared the fish to a domestic rabbit in a hutch. In that example it would not be the case that the title to the rabbit would pass automatically on a transfer of the property to a new owner. The existing owner has a qualified title to the rabbit whilst it remained in the hutch. As the contract did not address the title to the fish, they did not pass to the new owner upon completion of the sale and remained the qualified property of the former owner.
When selling property, it is important to consider what will pass with it to the new owner and whether rights relating to solar panels, animals and any other fitting or possession should be dealt with expressly in the contract to avoid any uncertainty.
For more information please contact Lucy Wiggins.