Definition OF LAND - what is considered as land under NLC PDF

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what is considered as land under NLC...

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DEFINITION OF THE LAND

Holland v Hodgson (1872)

Section 5 NLC

Facts: The owner of a mill purchased some looms for use in his mill. They were attached to the stone floor by nails driven into wooden beams. The owner then mortgaged the mill and failed to keep up the payments and the mill was repossessed.

a) The surface of the earth & all substances forming that surface b) The earth below the surface and all substances therein c) All vegetation and other natural products d) All things attached to the earth or permanently fastened to any thing attached to the earth, whether on or below the surface e) Land covered by water -The provision of section 5 of the NLC demonstrate that the term land has a very extensive meaning .

The question for the court was whether the looms were fixtures forming part of the land or whether they remained chattels. Held: the looms had become fixtures and thus formed part of the land mortgaged. Blackburn J said that:

-paragraph (d) did not provide explanation in determining whether a particular item form part of the land (fixture) or chattel.

“..an article which is affixed to the land even slightly is to be considered part of the land, unless the circumstances are such to show that it was intended all along to continue as a chattel …”

CHATTEL

Minshall v Lloyd

-Chattels are personal property that can be moved

Where it was laid down that the general rule that whatever is attached to the soil becomes part of the soil.

-E.g: furniture or household appliances -General determination: if the property can be easily moved without causing too much damage to the land or property in which it is affixed, then an argument can be made that it is a chattel. -It shall not form part of land. FIXTURE Section 5 (d) -Basic definition: a fixture is something that is attached to the land in such a manner that it becomes part of the land.

Follow the English law of fixture Section 3 of Civil Law Act 1956 adoption of English common law where if ‘there is no statutory provision in the federation’, it must be applied only in so far as the circumstances of the Federation and its inhabitants permit and subject to local customs. -Since the NLC does not give any definition of the word ‘fixture’, reference must made to English law on this subject. Quic quid plantatur solo solo cedit

-Fixtures are movable property, which are so affixed to the land or to building.

-"whatever is affixed to the soil belongs to the soil”

-It will lose the character of chattels and pass on with the ownership of the land.

-Under the English law, the general rule is that whatever is annexed to the land becomes part of it.

-Therefore, when land is sold, the title to the land will also include all fixtures

-This legal principle means that something that is or becomes affixed to the land becomes part of the land;

-an article attached to the land by its own weight is not to be considered part of land remains a chattel.

-therefore, title to the fixture is a part of and passes with title to the land and consequently whosoever owns that piece of land will also own the things attached.

-Rebuttable presumption ( raises a presumption which can be rebutted by the purpose test)

shell company of the federation of malaya ltd v commissioner of the federal capital of kuala lumpur [1961] The English law relating to fixture applies to Malaysia is clear from the judgment of this case. The Apps are the owners of holdings under which are constructed tanks for the storage of petrol. The tanks are buried two feet below ground level and are turfed over or covered with concrete. To remove them, the turf, concrete the item has to be taken up, the earth excavated, the concrete manhole boxes removed, all pipes connection unbolted and the tank with its concrete sinker weights then raised with blocks and tacks. The R, in determining the annual value of the holdings included the value attributable to underground storage tanks. Held: the underground petrol tank was a fixture within the definition of land in the NLC. How determine whether it is fixture or not under English law? two tests: both test must be applied 

Degree of annexation test/objective test

-Question of facts -raises a prima facie finding of fact by looking at the degree to which an article is affixed to the land. - an article which is affixed to land even slightly , the presumption that it is part of land (fixture).

-Not a conclusive test 

purpose/object of annexation test

-Look at the purpose (intention) why the chattel is affixed to the land we may ask the reason WHY and the intention of the person who attached the item to the land. If the purpose of annexation of the item is for the better enjoyment of the land or building as a whole so as to improve its usefulness and value, this would strengthen the presumption that the item is fixture. If the purpose or object of the annexation is merely for the more complete enjoyment and use of the item as a chattel, then rebut the presumption that it is a fixture and the item would remain a chattel not forming part of the land. -Used to strengthen or rebut the presumption of the first test -the inquiry is directed at the intention of the person who affixes the item. hellawell v eastwood (1851) Paintings or tapestries tacked on walls for purpose of enjoyment of the chattels as chattels. If a chattel stands on its weight, but the intention or purpose is to make it a permanent feature, then the article is not a mere chattel but a fixture d’eyncourt v gregory (1866) The court was required to determine if some tapestries, some ornamental statues of lions in the hall, staircase and gardens, some vases

resting in nitches and stone garden seats were fixtures or chattels. Held that tapestries were fixtures as they were integral to the decoration of the room where they attached as wallpaper. The statue of lions, the garden seats and vases were also fixtures as they formed part of the overall architectural design.

based on the degree test: the presumption is that the machinery were fixtures and applying the purpose test, the machinery were attached to enhance the value and utility of the land for a rubber estate. This strengthens the presumption that the machinery were fixtures. Holland v Hodgson Blackburn J:

botham v tsb bank (1996) Roch LJ: “ If the item viewed objectively, is intended to be permanent and to afford a lasting improvement to the building, the things will have become a fixture. If the attachment is temporary and is no more than necessary for the item to be used and enjoyed, then it will remain a chattel” In other words, the intention and the reason for annexation become vital in order to determine whether an object should be regarded as part of the land or should it still remain chattel. Application in Malaysia The English law of fixtures applies to Malaysia. Gong Chong Hin v Consolidated Malay Rubber (1924) Issue: Whether the machinery (suction gas engine, universal scrap washer, sheeting machines, creeping machines) in a factory that were annexed by bolts and nuts to the concrete foundations sunk in the soil are fixtures. Held that: English law of fixtures applies and the machinery is a fixture. It is well settled by that law that prima facie machinery affixed to earth becomes a fixture and part of the land The first case where the court accepted the English law of fixtures. In this case:

“Perhaps the rule is, that articles not 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 they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert that they have ceased to be chattels…” “..and that, on the contrary, an article which is affixed to the land, even slightly is to be considered as part of the land unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel” Commissioner of the Federal Capital of Kuala Lumpur [1964] Issue: Whether the underground tanks are attached to the land or not. Appellants are the owners of constructed tanks for the storage of petrol. Underground tanks at petrol station buried two feet below ground level, and are turfed over and covered with concrete. The manner of their removal, if it has to be done, shows how firmly the tanks are embedded in the earth. To remove the tanks, the turf, concrete or tarmacadam has to be taken up, the earth excavated, the concrete manhole boxes removed, all pipe connections unbolted and the tank, with its concrete sinker weights can then be raised with blocks and tackle. The tanks, when placed underground, were intended to remain there. Held: They are fixtures.

socfin co ltd v chairman klang town council a dispute arose as to the nature of the above ground storage tanks consisting of cylinders that were resting on pre-cast concrete pillars standing on a reinforced concrete raf foundation, for the purpose of storing palm oil.

-If the tenant does not remove them within a reasonable time/does not want to remove them, the landlord’s title towards the fixture becomes absolute. -Became the landlord’s title when it is affixed to the land. Spyer v Phillipson [1931]

it was held that these tanks be held to be fixtures. Exceptions to the general rule on fixture

Held: A tenant has the right to remove his fixtures provided no substantial damage was done to the premises.

General rule:

2. Ornamental fixture

whatever affixed to the land becomes part of the land Once the object is determined to be a fixture, the title over it will be hold by the person who owns the land. Exceptions: Landlord-tenant relationship lessor-lessee relationship) Vendor-purchaser relationship Chargor-chargee relationship Custom

(or

• Landlord-tenant relationship lessor-lessee relationship)

(or

   

-Definition: fixtures attached by tenant for ornament/ convenience in order to render it more habitable. -Example of ornamental fixtures includes curtains, chimney grates, blinds, and beds fastened to walls. 3. Trade fixture -These are fixtures attached by the tenant for the purpose of his trade or business.

1. Tenant’s fixture -Definition: fixtures affixed by tenant during period of tenancy.

-A tenant has the right to remove tenant’s fixture affixed to the land so long as he is in possession as a tenant. -They encompass those items that merchants annex to the premises to facilitate the storage, handling, and display of their stock for sale to the public -such as booths, bars, display cases and lights

Official Receiver (as liquidator of Allied Industries pte ltd (in liquidation)) v Chi Man Kwong & Ors Tenant has the right to remove the fixtures affixed to the land so long as he is in possession as a tenant -If the tenant renews his term, then he is entitled to remove his fixture at the end of his new tenancy. -If the tenant chooses to severe it at the end of the tenancy agreement, it would become the tenant’s chattel.

-that are usually removable without material damage to the premises •

Vendor-purchaser relationship

-The Rule: Unless the contract of sale indicates otherwise, all fixtures attached to the land at the time of the contract pass to the purchaser. •

Chargor-chargee relationship

-Rule: All fixtures, whether attached before or afer the date of the charge, pass to the chargee unless otherwise provided for in the charge agreement.

-Rationale: the charge is over the land which is defined to include all fixtures attached to the land, the charge will give the chargee security over all such fixtures to the exclusion of other persons in the absence of a contrary intention. Sungai Way Leasings Sdn Bhd V Lian Seng Properties Sdn Bhd & Ors,(Bank Bumiputra Malaysia Bhd & Ors (Interveners) [1989] The D, owner of KL Plaza had took a loan and charged the building. Later, a custom made air - conditioning unit bought under a hire purchase agreement, was affixed to the building. Clause 11 of the Hire Purchase agreement provided that the lessor was to remain as the owner of the unit and the lessee had no right to pass title of the air-conditioning to any third party. Principle: an agreement to the contrary in the charge would destroy the operation of the general rule. Held: where the D as owner of the land had agreed in writing with the Ps that ownership in the equipment although attached to the land, was not to pass but to remain in the Ps. The interveners (Bank) cannot insists that the Ps must surrender to them the value of their equipment which is in the premise •

Custom

-Where a custom exists in relation to a particular item that should be considered chattel in all circumstances and can therefore be removed by the claimant. -There are exception to this rule like in the case where proved custom allows for their removal. re tiambi bt ma’amin [1904] held: a malay wooden house is moveable property and thus, a chattel and can be removed. kiah bte hanapiah v som bte hanapiah Whether a Malay traditional house built on stilts which could easily be dismantled and

removed from one place to another is a fixture. Held: there is a settled custom in this country that houses of these types are regarded as personality in which ownership may be separate from ownership of the soil....