If you sell a fishing lake, do you still own the fish in it? Our agricultural law experts look into commercial fishery rights when the land is sold.
We examine the Court of Appeal’s decision in the commercial fishery rights case of Borwick Development Solutions Limited (BDS) v Clear Water Fisheries Limited  EWCA Civ 578 where BDS tried to claim that they had rights to the fish in the lakes, even though they’d sold the lakes to Clear Water Fisheries Limited.
Facts of the commercial fishery rights case
- The fishing lakes were sold by BDS acting by a Law of Property Act (LPA) receiver by way of enforcement of the security of BDS’ mortgagee.
- The LPA receiver took the view that the charge did not extend to the fish in the lakes and the receiver gave no warranties to the buyer about the transfer of ownership of the fish.
- There were no rights of entry or rights of access over the land reserved for the benefit of BDS in the transfer, nor was there a reference to the fish in the sale contract.
- After completion, BDS claimed the right to remove its fish stock from the lakes and on meeting opposition from the buyer, BDS claimed damages from the buyer for conversion.
In this commercial fishery rights case, the Court decided that:-
- A commercial fishery business (‘BDS’) had no rights to the fish in fishing lakes after the land had been sold with the fish still in the lakes at the date of completion of the sale.
- As a matter of law, all fish are wild animals, even if the fish have been spawned in captivity and continue in captivity in an enclosed fishing lake from which the fish cannot escape.
- The fish in the lakes are wild animals, which means that there is no absolute property or ownership of the fish, whilst the fish are living, and the fish cannot be classified as “chattels” or “goods”.
- Before the fishing lakes were sold, BDS had acquired qualified rights in relation to the fish stock in the lakes arising from BDS’s purchase of the fish, its introducing of the fish stock into the lakes and then cultivating the fish stock and its acts of husbandry. These qualified rights in respect of the fish depended on BDS continuing to control and possess the fish but when the fishing lakes were sold without reserving to BDS rights of entry and access to take away the fish, BDS’s rights ended.
- The buyer (being the owner of the fishing lakes after the sale) has the right to control who may take wild animals found on its land. In the absence of a grant to BDS of a profit à prendre of fishery (the right to enter another’s land to catch and take away fish) or reservation of other sporting rights, BDS has no right to enter the buyer’s land to take away the fish in the lakes.
The question of who has the right to the fish in an enclosed lake on the sale of the land has not been previously decided by a court. This case shows that care should be taken, when drafting the sale contract/transfer, to consider the rights to the fish in the lake and the enjoyment of any sporting rights in the sale property. If these rights are to be enjoyed by the seller, then they must be expressly reserved.
If the fish stock is included in the sale of the land and the price is apportioned between the land and the fish, it is unlikely to mitigate the Stamp Duty Land Tax (SDLT) liability on the sale because the Court has stated expressly in this judgement that fish are not chattels and the rights to the fish are acquired by the buyer of the land as an incident of its ownership of the land. As such the price apportioned to the fish is likely to be charged to SDLT, along with the land. Similarly the price apportioned to the shooting/hunting rights of game or wild animals on the sale property is likely to be charged to SDLT.
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