1. AK Notes Meaning of Land - 2018 PDF

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CITY UNIVERSITY OF HONG KONG School of Law LW3607A Land Law I Semester A, 2018/19 Topic 3 Meaning of Land

Part 1 - Introduction If your uncle has just bought a piece of land somewhere in Hong Kong with a house built upon it, what has he actually bought? The following questions need to be answered in connection with his purchase: ● ● ●

Will your uncle automatically own all the buildings erected on the land? Will your uncle own the oil painting that has been hung up on the wall of the living room of the house? How about the airspace above the land? If he owns all the airspace, your uncle will be able to sue for trespass each time an aeroplane flies over his land.

The answers to the above questions all hinge on one point – what does the term “land” embrace in the context of land law. To find out what the term “land” includes, we need to refer to both the general law and statutes.

Part 2 - Section 2 of the Conveyancing and Property Ordinance (Cap 219) (“CPO”) In Hong Kong, according to section 2 of the CPO,

“land" (土地) includes(a) land covered by water; (b) any estate, right, interest or easement in or over any land; (bb) the whole or part of an undivided share in land and any estate, right, interest or easement in or over the whole or part of an undivided share in land; and (c) things attached to land or permanently fastened to anything attached to land.

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Part 3 – Do the following form Part of Land?

(1)

Buildings and Other Construction erected on the Land Does your uncle own the house built on the land he has purchased? The Latin maxim “superficies solo cedit” means that a building becomes part of the ground. Buildings and structures erected on land, whether they are detached houses, garages, garden sheds or multi-storey buildings, would therefore most likely be regarded as part of the land, provided they are constructed on foundations set in the ground. Applying the principles examined above to the question as to whether your uncle owns the house built on the land, the answer is probably “yes” so long as the house has been constructed on foundations set in the ground. If it is not, the answer would be governed by the principles relating to fixtures, which will be considered below.

(2) Rights above and below the Land Does your uncle own the airspace above his land? The Latin maxim “cuius est solum eius est usque ad coelum et ad inferos” means that he who owns the land owns everything reaching up to the very heavens and down to the depths of the earth. It has been suggested, however, that this Latin maxim is now subject to so many qualifications that it is virtually worthless as a statement of contemporary law. 1 Some of the qualifications are:

(i)

Airspace Before the introduction of modern aircraft, the approach adopted by the courts used to be: the owner of the physical surface also owned the airspace above the land. Therefore, an owner of land was entitled to assert his/her rights and restrain others from trespassing onto it.

1

Gray "Elements of Land Law", p.6

2

Kelsen v. Imperial Tobacco Co. Ltd. (1957) 2 QB 334: Facts: The plaintiff applied for an injunction for the removal of an advertising sign which had been erected by the defendant above the plaintiff’s land and encroached over it by four inches.

The introduction of modern aircraft resulted in the increase in traffic in the airspace over privately owned land. Consequently, the court could no longer adhere strictly to the Latin concept of "he who owns the land owns everything reaching up to the very heavens." The modern approach and the justification for it have been set out in Bernstein v. Skyviews (1997) 2 All ER 902: Facts: (1)

The defendant took an ariel photograph of the country house of the plaintiff.

(2)

The defendant then offered to sell the photograph taken to the plaintiff.

(3)

The plaintiff relied on the Latin maxim of “cuius est solum eius est usque ad coelum et ad inferos” to justify suing the defendant for trespass.

Judgment: (1)

The court concluded that in light of scientific developments regarding the use of airspace, the traditional Latim maxim was no longer capable of balancing the rights of landowners against the rights of the public.

(2)

The court held, instead, that the rights of a landowner should be restricted to:

(3)

●

such height as is reasonably necessary for the ordinary use and enjoyment of his land; and

●

above that height, he has no greater rights in the airspace than any other member of the public.

As for the plaintiff’s suggested literal interpretation of the Latin maxim, the court’s comments were:

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If applied literally, it is a fanciful notion leading to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden. According to the judgment of Bernstein v. Skyviews, whether your uncle can enjoy rights to the airspace above his land depends largely upon the nature as well as the use to which he will put his land.

Statutes have also intervened in this regard in Hong Kong regarding the use of airspace. Under the Civil Aviation Ordinance (Cap 448), an owner is prohibited from bringing an action in trespass or nuisance in respect of aircraft which flies over his or her land at a reasonable height when landing or taking off from an airport.

(ii)

Rights to Objects below Land Surface Several statutes have been passed to deal with the rights of landowners in respect of objects found below land surface:

(a)

Mining Ordinance (Cap 285) Under the Mining Ordinance, all minerals found beneath the ground belong or are deemed to belong to the Hong Kong Government.

(b)

Waterworks Ordinance (Cap 102) According to the Waterworks Ordinance, the supply of water is within the control of the Water Authority. Furthermore, under the ordinance, it is an offence to take water unlawfully from waterworks (including reservoirs as well as catchments areas where privately owned land may lie) which are under the control of the Water Authority.

(c)

Treasure Trove – Antiquities and Monuments Ordinance (Cap 53) According to the Antiquities and Monuments Ordinance, articles, etc. found on land which are of interest by reason of their age or otherwise created by human agency before 1800 are defined as “relics”. Under the same ordinance, “relics” automatically belong to the Hong Kong government.

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(iii) Rights to Things Attached to Land How about the oil painting hung up on the wall of the living room of your uncle’s house? The Latin maxim of “quicquid plantatur solo, solo cedit” means whatever is attached to the soil becomes part of it. This maxim forms the basis of the principle that some chattels will be regarded as part of land if they become attached to it in such a manner as to become part of it.

Fixtures v. Chattels Chattels which have become part of land are termed “fixtures”. Fixtures are regarded as “things attached to land or permanently fastened to anything attached to land”, which expression forms part of the definition of “land” in section 2 of the CPO.

This implies that where a purchaser has entered into a contract with a landowner to buy his or her land, all those chattels on the land which qualify as fixtures will also be included in the sale (unless there is an intention to the contrary expressed in the contract).

Relevance of the owner’s “intention”- Who bears the Burden of Proof? In deciding whether a chattel has become a fixture, the court will try to ascertain the “intention” with which the chattel has been brought onto the land. Holland v. Hodgson (1872) LR 7 CP 328 Facts: The owner of a mill installed looms which were attached to the stone floor by means of nails driven through holes in their feet. 5

Judgment: (1)

The court held that by virtue of this attachment and despite the fact that they could be easily removed, the looms had become fixtures and therefore passed with the land.

(2)

Blackburn J stated:

ed to the land, even slightly, is to be considered as an article which is affix affixed part of the land, unless the circumstances are such as to show that it was intended all along to continue as a chattel, the onus lying on th those ose who chattel tel. contend that it is a chat tel (3)

Blackburn J also indicated that there are two relevant factors to be taken into account, namely "the degree of annexation and the object of the annexation".

The Tests Used – Who bears the burden of Proof? The court will apply an objective test, which means that a statutory declaration made by the landowner regarding his or her own intention regarding the chattel will NOT be decisive evidence. Two tests have been used by the courts to ascertain the owner’s “intention”, namely: ● ●

(a)

the degree of annexation test; and the purpose of annexation test.

The Degree of Annexation Test Under this test, an object which has been firmly attached to the land is presumed to be a fixture, but an object which is merely resting on its own weight is not. Nevertheless, so long as the object is attached to the land, no matter how light it is, prima facie it is a fixture. 6

One of the criticisms of the test of degree of annexation is that it is NOT decisive. For instance, due to advances in technology, those chattels which were once regarded as being "attached" to the land and thus difficult to remove without damaging the land may have now become much easier to remove, due to the help of modern technology.

(b)

The Purpose of Annexation Test Even if a chattel is attached quite firmly to the land, it will NOT qualify as a fixture if the reason for its attachment is for the better enjoyment of the chattel rather than the better enjoyment of the land. Leigh v. Taylor (1902) AC 157

Facts: A number of pictures affixed by screws driven into the panelling of the dining room had been removed by a landowner after he had contracted to sell his house. The purchaser, however, claimed that the pictures had become fixtures and should be sold with the land. Judgment: (1)

The court held that although the pictures were attached to the wall, they still retained their character as mere chattels because they had been fixed in such a way that they could be better enjoyed as pictures.

(2)

The court opined that the pictures in issue could be removed and easily replaced by other pictures.

(3)

It rejected the purchaser’s argument that the pictures had become part of an overall design for the room and that the design would be lost once the pictures were removed.

Degree of Annexation v. Purpose of Annexation In Berkley v. Poulett (1976) 241 EG 911 mentioned above, the Court of Appeal indicated that the "purpose of annexation" test was pre-eminent over the fact of physical attachment.

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Scarman LJ noted, however, that there was a close relationship between the two tests:

If the purpose of the annexation be for the better enjoyment of the object itself, it may remain a chattel, notwithstanding a high degree of physical annexation. Clearly, however, it remains significant to discover the extent of physical disturbance of the building or the land involved in the removal of the object. If an object cannot be removed without serious damage to, or destruction of, some part of the realty, the case for its having become a fixture is a strong one.

To sum up, for the question whether your uncle would also own the oil painting which has been hung up on the wall of the living room of the house, the answers are as follows: ●

if the oil painting has been hung up on a nail which itself is attached to the wall of the living room, the oil painting is presumed to be a “fixture”, according to the degree of annexation test;

●

as the purpose of annexation test is a more pre-eminent test, enquiries must be made as to the purpose of the annexation of the oil painting in the given manner. Was the oil painting hung up in the living room of the house for the better enjoyment of the land, or for the better enjoyment of the oil painting itself? •

If the answer is “for the better enjoyment of the land”, then the painting has become a fixture.

•

Alternatively, if the answer is “for the better enjoyment of the painting itself”, then the painting still remains a chattel.

Points to Note (i)

Self-Standing Objects

A chattel which is NOT attached to the land is presumed to remain a chattel. In Holland v. Hodgson (mentioned above), Black J stated:

articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the 8

onus of showing that they were so intended lying on those who assert that they have ceased to be chattels.

In Jordan v. May (1947) KB 427, Facts: The issue was whether an electric motor and batteries were fixtures. Judgment: As the motor was sunk in concrete, it was attached to the land and was therefore a fixture. BUT the batteries remained chattels because they were resting by their own weight. Once again, the purpose for which the chattels are allowed to remain on the land by their own weight is the pre-eminent test. In other words, the mere fact that there is NO attachment does NOT necessarily prevent a chattel from becoming a fixture.

Hamp v. Bygrave (1982) 266 EG 720 Facts: The vendors of land removed a number of items from their garden after entering into a contract with the purchasers, including a stone statue and other stone ornaments in the garden. Judgment: All the items were fixtures despite the fact that they merely rested by their own weight because they formed " part and parcel of the garden" and had been installed primarily to improve the land.

Also, it was held in D’Eyncourt v. Gregory (1866) Law Rep. 3 Eq 382 that ornamental statues of lions in the garden and house were fixtures because they were an integral part of the overall architectural design of the land. 9

BUT in Berkley v. Poulett (mentioned above), Facts: The vendor removed a half-ton statue of a Greek athlete from the garden which the purchaser claimed had been a fixture. Judgment: The Court of Appeal held that the statue had remained a chattel because it was NOT part of the architectural design to improve the land, as evidenced by the fact that a different ornament had previously stood in the same place.

(ii)

Air-Conditioners

In Hong Kong, the operation of the two tests can be seen in the contrast in the following cases involving air-conditioners, [refer to pages 11 to 13 of Nield, Hong Kong Land Law (2nd Edition)]:(a)

Irene Loong v. Pun Tsun-hang (1959) DCLR 192;

(b)

Penta Continental Land Investment Co. Ltd. v. Chung Kwok Restaurant Ltd. (1967) DCLR 22; and

(c)

Orient Leasing (Hong Kong) Ltd. v. N P Etches (1985) HKLR 292.

(iii) Large Objects According to the judgment of Elitesone Ltd. v. Morris and another (1997) 2 All ER 513, the traditional twofold distinction between chattels and fixtures can be confusing and it is better to adopt the threefold classification that an object brought on to land is : (i) chattel; (ii) fixture; or (iii) part and parcel of the land itself, 10

with objects in categories (ii) and (iii) being treated as part of the land.

In Elitesone Ltd. v. Morris and another (1997) 2 All ER 513, Facts: The structure in issue was a bungalow which was not “affixed” to the land, as it rested by its own weight on concrete pillars, without any attachment. Judgment: (1)

The House of Lords held that when one took into account of the degree and the object of annexation to the land, it was part and parcel of the land , that is, it fell within the category of being “part and parcel of the land”.

(2)

The House of Lords also held that the importance of the degree of annexation varied from object to object, and in the case of a large object, annexation to the land could be found as a matter of common sense – a structure could be firmly annexed to the land simply by force of gravitation.

(3)

In applying the object or purpose of annexation test, according to the House of Lords, the intent is to be assessed objectively, taking into account any number of relevant matters, such as whether the structure cannot be removed except by destruction or whether it is demountable and movable, such as a green house.

The views of the court were cited with approval in the Hong Kong judgment of Goldful Way Development Ltd. v. Wellstable Development Ltd (1998) 4 HKC 679.

Removal of Fixtures (i)

Owner v. Purchaser If a chattel becomes a fixture, its ownership will vest in the owner of the land and will change with the ownership of the land. In other words, a land owner will NOT be entitled to remove any fixtures when he or she sells his land without the consent of his buyer (unless the contract of sale of the land contains a provision to the contrary).

(ii) Mortgagor v. Mortgagee 11

Fixtures affixed before or during the life of the mortgage will become subject to the mortgage. They can only be removed with the consent of the mortgagee.

(iii) Landlord v. Tenant The tenant can remove trade fixtures or ornamental and domestic fixtures: (a) (b)

during the tenancy; or within a reasonable period after the expiry of his tenancy

PROVIDED that he/she can do so without causing substantial or irreparable damage to the land.

What are “trade fixtures”? “Trade fixtures” are articles attached by the tenant for the purpose of his or her trade or business. A shed for making varnish, shrubs planted by a market gardener and the fittings of a public house have been held to come within the category of “trade fixtures”.

What are “ornamental and domestic fixtures”? This category seems to extend only to chattels which can be removed without substantial injury to the building – Martin v. Roe (1857) 7 E. & B. 237, page 244. According to Grymes v. Boweren (1830) 6 Bing. 247, an article which can be moved completely is more likely to fall within this category than one which cannot. Therefore, although a convervatory on brick foundations has been held not to be removable, looking glasses, ornamental chimney pieces, window blinds, stoves, grates and kitchen ranges have all been held to be removable during the tenancy. Essential Reading: (1)

Bernstein v. Skyviews (1997) 2 All ER 902 (Attachment 1)

(2)

Elitesone Ltd. v. Morris and another (1997) 2 All ER 513 (Attachment 2)

(3)

Goldful Way Development Ltd. v. Wellstable Development Ltd (1998) 4 HKC 679 (Attachment 3) 12

General Reading: Thompson M P and George M, Thompson’s Modern Land Law (6th Edition) (Oxford, 2017) – pages 13 to 28 Gravells N P, Land Law (4th Edition) (Sweet & Maxwell. 2010) - pages 3 to 16

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Attachment 1 Bernstein of Leigh (Baron) v. Skyviews & General Ltd. Queen's Bench Division QBD Griffiths J. 1977 Feb. 2, 3, 4; 10 Trespass--Air space--Aerial photography--Landowner's rights in airspace above property--Whether flight over property for purpose of photography trespass and/or invasion of privacy--Application of statutory protection--Civil Aviatio...