Final Answers on Land Law PDF

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1FINAL EXAMINATION LAND LAW JULAI 2020NAME: NUR NASEHA BINTI ABD RAHIMSTUDENT ID: 2019324457CLASS CODE: LAW 506 / GROUP BCOURSE CODE: LWNAME OF LECTURER: MADAM HAMSIAHDUE DATE: 15 JULAI 2020QUESTION 1 (a)Introduction:The definition of land stated under Section 5 , whereby includes land as generally,...

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FINAL EXAMINATION LAND LAW JULAI 2020

NAME: NUR NASEHA BINTI ABD RAHIM STUDENT ID: 2019324457 CLASS CODE: LAW 506 / GROUP B COURSE CODE: LW224 NAME OF LECTURER: MADAM HAMSIAH DUE DATE: 15 JULAI 2020

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QUESTION 1 (a) Introduction: The definition of land stated under Section 5 , whereby includes land as generally, a surface of earth, earth below the surface, things attached to earth, land covered by water, etc. The general rule laid down in the Latin maxim was quic quid plantatur solo, solo cedit which brings the meaning of “whatever affixed to the soil belongs to the soil”. Therefore it is important to determine whether the item is affixed to the land or not. This generally means that if an item that is attached to the land, it shall become parts of the land. Law: Generally, items that are affixed to the land which is immovable, normally is part of the land hence are more likely to be a fixture, while if a certain goods is affixed to the land but can be removed, it shall not form to the part of the land and more likely to be a chattel. The importance of determining is basically for the right of the owner and secondly, to determine the right of the charge banks, or the value of the house itself. The English law of fixtures is discussed in Blackburn J in HOLLAND v. HODGSON. In this case the owner purchased looms to use on his mill. They were affixed to the floor which is stone by the existence of nails driven into the wooden beams, assembling them together. They are easy to remove. The owner mortgaged the mill as well as he failed to keep up the payments. The mills were supposed to be repossessed. The question arose whether the looms were fixtures or whether they remained as chattels. It was held that the looms had become fixtures hence it shall form to be a part of the land that was mortgaged. The court also laid down 2 tests, which is the degree of the annexation test and also the purpose of the annexation test. Under the degree of annexation test, the court will look at how strong an article is to be attached to the land. If an item is attached to the land only on slight circumstances, the presumption is it shall be a fixture. The question arises whether the chattel can be removed easily, without any damage to it, or even the premises? Physical damage is which the damage caused was to be measured. If a goods has been strongly and rightly attached, and that it is likely to cause such great damage to the goods and the premise if removed. Thus, it shall prima facie be a fixture. If the article is affixed strongly, the percentage of it to become a fixture is higher. For instance, if a machinery or an engine is strongly attached to the ground with bolts is considered as a fixture. If the item is only affixed a little or in certain circumstances, is being there by own weight, then it is said to not have to be a fixture. In the case of GOH CHONG HIN v. CONSOLIDATED MALAY RUBBER where the item in dispute was a machine in the factory. It was fixed by bolts and also nuts to the concrete sunk in the soil. Chargee said they were fixtures. As for the Grantee, which was the respondent, said those are chattels. The judge was in favor of Grantee. But on appeal, it was held that the law of

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fixture applies; which was applied to the test laid down in Holland v. Hodgson. The machinery is to be held as a fixture. While under conceptual damage, the damage is not so obvious. Even so if a certain goods could be removed without hardships and with no obvious damage, yet it would cease to perform to why it was made for. For instance, a ceiling fan, if removed, would cease to perform its desired purpose. If the damage would be more visible upon removal, then more or less it shall constitute part of the land and be a fixture to the premise and land. In the case of LEIGH v. TAYLOR where Madame de Falbe was the tenant for life of the mansion. The valuable tapestries in the mansion placed by Madame de Falbe that were stretched onto a hard match board have been affixed to the walls by nails. They could be removed with slight disturbance to the walls. The court was required to determine whether the tapestries were a fixture or a chattel On Madame de Falce’s death and does or does not form part of the mansion. In another case of D’EYNCOURT v. GREGORY , the court was required to determine if some tapestries, ornamental statues of lions in the hall, staircase and gardens etx were chattels or fixtures. It was held that the tapestries were chattels as they were an integral part to the decoration of the room where they were attached as wallpaper or frescos. But the statute of lions, garden of seats and vaes was a fixture as they formed part of the overall architectural design. In determining a fixture or a chattel, the court will also consider the factor if there's damage. If the removal of the item would end up making the goods to be broken, or buildings itself, then the presumption is that it shall be a fixture. But then, if the removal does not result in damage at all, then it cannot presume that it is a chattel however, to look at the purpose. In THE SHELL COMPANY v. COMMISSIONER, If the removal has to be done,it will show how firmly the tanks are embedded to the earth. The tank is an underground tank at a petrol station buried two feet below ground level, turfed over, covered with concrete. To remove the tanks, the turf, concrete or tarmacadam is 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. The court held they are fixtures. The second test is the purpose of the annexation test which the prima facie in the degree of annexation test may be strengthened or rebutted by this test. The court basically will look at the purpose of intention served by the item. Blackburn J in the case of HOLLAND v. HODGSON said that “if the intention is apparent to make the article part of the land, they do become part of the land. Intention in this context is to be assessed objectively and not subjectively. It is the purpose which the object is serving which has to be regarded, not the purpose of the person putting it there.”

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The purpose of the annexation could also be for the enhancement of the certain value of land. In the case where the purpose of it to be affixed to the premise is to increase the value of the said land as in premise, the item would not be regarded as a chattel anymore and shall become a fixture to the premise. Another one when the purpose of it to be affixed; of a chattel is for the better enjoyment of it. Items nailed to a wall, where it is for the extra enjoyment of the items, however isn't affecting, increasing or decreasing the value of land and will not be regarded as a fixture. In the case of SHELL CO OF FEDERATION OF MALAYA LTD v. COMMISSIONER OF FEDERAL CAPITAL OF KL where the court held that underground petrol tanks that were 2 feet deep below ground and concreted over, with the intention that it should remain there permanently, should be considered as fixtures. The tanks when placed underground were intended to remain in site for as long as the filling stations continue in operation. In another case of GOH CHONG HIN & ANOR v. THE CONSOLIDATED MALAY RUBBER ESTATES LTD, a machinery, which were fixed to the foundation of the buildings and was attached into the soil with bolts securely, and it was classified as fixtures forming paper of the land. Conclusion: To conclude, an article, when determining the nature whether it is a chattel or a fixture, there are few circumstances that will be looked upon by the court. However, the most important thing is to determine whether it is a fixture or chattel by the use of the degree of annexation and the purpose of the annexation test.

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QUESTION 1 (b) Issue: Whether Repair Sdn Bhd has the right to reclaim goods for the equipment that had not been paid in full by Sabarla Sdn Bhd or recover any damages due to the non-payment of the said equipment? Law: Generally, according to Section 5 of National Land Code, land includes all things attached to earth or permanently fastened to anything attached to earth. It is important to determine whether an article forming part of the land or not. Fixtures refers to the item which is so attached to land or building and naturally becomes part of it. It is an immovable item which passes on with the ownership of the land. Chattel, on the other hand, refers to the item which is affixed to land but is easily put away. It isn't part of the land. The rule of fixture states in HOLLAND v. HODGSON which if an goods is affixed even slightly to be considered as part of the land, or the legal maxim quic quid plantatur solo, solo cedit, or known as whatever attached to the land becomes part of the land. In order to determine fixtures or chattels, there are two main tests that would be fulfilled, which is the degree of annexation test. The thing that would be considered is whether the item is strongly or slightly attached to the land, and secondly whether the removal of the item will cause great or small damage to the land. In short, the presumption is that the stronger the attachment of an ite, the greater the damage caused when removing the item. In the case of AUSTRALIAN PROVINCIAL ASSURANCE CO LTD v. CORONEO where the degree of annexation must be considered through the intention. The first test, however, is insufficient and the court must consider the second test, which is the purpose of the annexation test. The purpose of the annexation test frequently revolved around three questions; which is whether the item is intended to be permanent or temporary? If it's supposed to be permanent, then it is a fixture. Next, whether the item enhances the value of land? If it does, then it is a fixture and lastly, whether the item attached is for the better use of the chattel itself? If the answer is yes, then it is a chattel. However, certain situations are to be considered too, where the general rule of fixtures is held to not be applicable, as circumstances may be different and that determining chattels and fixtures might be hard. There are several exceptions highlighted but the main concern in regards to the current issue was the written agreement. When there is an express information or the law or any agreement made, in regards to the nature of the fixture, is said to be the explanation of having a written agreement. Clear limitation imposed on the ownership of the fixture had been clearly explained under the provision, which is that the article will pass along with the ownership.

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In the case of VAUDEVILLE ELECTRIC CINEMA v. MURISET a cinema was sold under a mortgage. Plaintiff fought to recover the value of paintings, cinema screen, advertising boards and seats, which they claimed all of those have been chattels. The court held that although the item can be removed by force, they still form to be a part of the cinema, and are part of the usual equipment of a cinema itself. Thus all items specified under the said mortgages as fixtures. In another case of REYNOLDS v. ASHBY & SON, their owner supplied machines to lease a factory on hire purchase were affixed to the floor of the factory by bolts and nuts. It could have been removed without causing a great damage to the premise. The lessee, however, defaulted the payment and the owner brought an action to recover the machines. Court held that the machines had been so attached to the land hence to pass by the mortgager to the mortgagee. Fixtures, whether attached to land before or after the date of the charge, will pass to the chargeee (bank) as part of the land, unless otherwise stated. Also extracted in the case of WIGGINS TEAPE (MALAYSIA) SDN BHD v. BAHAGIA TRADING SDN BHD & ORS, In this case, a property was charged to the bank in which an offset printing machine under a hire purchase scheme was affixed in that property to the floor by bolts. The issue in this case was whether the machine is a fixture and if it passes to the bank even if it were attached to the land after concluding the charge agreement, unless of course contrary was provided for in the contract. The charger failed in the loan repayment and the bank proceeded to enforce the charge. Application: In applying the provisions mentioned in the present case, if an equipment has been strongly affixed to the land, then the removal would cause damages to the land or buildings. Thus it becomes a fixture which forms part of the land. Applying the principle in the case of WIGGINS TEAPE (MALAYSIA) SDN BHD v. BAHAGIA TRADING SDN BHD & ORS, where a property was charged to the bank. This was on under a hire purchase agreement that a machine has been properly affixed in that property to the floor using bolts. Similarly in the present case, where the equipment has been affixed to be part of the land hence in general it is considered as a fixture and it shall move along with the mortgage. However, in the situation, the circumstances to be taken into consideration is because of the existence of a written agreement made by Sabarla sdn bhd and Repair sdn bhd. Hence, in the present case, when Sabarla sdn bhd entered into a contract with Repair sdn bhd, a manufacturing engine company of the equipment to Sabarla sdn bhd, where the whole equipment has been bolted, welded and fixed to the factory, it is said to have an exception under a written agreement. Hence, Repair sdn bhd which has not been paid full by Sabarla sdn bhd shall either get the payment or reclaim the goods and the equipment back, and that the bank, Borrow Bank, shall not sell the equipment as Repair sdn bhd still has rights to the goods. Borrow Bank does not have the possession of the equipment belonging to Repaid sdn bhd as there is an express provision between Repair sdn bhd and Sabarla sdn bhd that explains that titles to all engines and parts are to be reserved to Repair sdn bhd until full payment is given. Since Repair sdn bhd hasn't got the full payment, due to Sabarla sdn bhd ran into financial

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difficulties, thus Repair sdn bhd has the full rights of the possession of the equipment, and has the right to reclaim and took the goods back to them.

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QUESTION 2 (a) Issue: Whether the instrument of transfer in Form 14A was rejected by land office (Kuala Langat land office) on the grounds of execution and attestation of instrument of dealings? Law: Under the law, parties who are involved in transfer are called as transferor & transferee. It is one of the requirements that require registration. Generally, Section 215(1) of NLC has provided that the relevant instrument of transfer of any alienated land is Form 14A. Besides, there are around evelen processes of instrument and registration of dealings which are the preparation of instrument, execution of instrument of dealings, attestation of instrument of dealings, stamping of instrument, presentation of instrument at the relevant land, duty of the registrar, documents fit for registration, instrument is unfair for registration, withdrawal of instrument, registration of instrument and lastly is the power to correct. However, the relevant processes to be discussed relating to the issue are the execution of instrument of dealings and attestation of dealings. One of the instruments and registration is an execution of instruments of dealings. Section 43 has provided that the power on State Authority may be exercised only in favour of, and applications for the exercise may be accepted only from few certain bodies as per the provisions held under Section 42. This is to ensure parties have power to sign the instrument. Section 43(a) has stated that it must be natural persons other than minors. In order to determine the age of a minor, Section 2 of the Age of Majority Act is referred to as a person of eighteen years old is to be said to have attained the age of majority. Thus, a person below the age of eighteen shall be considered as a minor. a This can be cross checked to the case of TAN HEE JUAN v. TEH BOON KEAT which shows a minor cannot enter any contractual agreement. Besides, Section 210(2) of NLC stated that the execution of the instrument shall consist of the persons singing it or affixing his thumbprint on it. Section 210(3) stated that execution of instruments by corporations shall be effected according to the company’s constitution or by seal of the company. The court held that as based on the Tenth Schedule, a signature shall be in permanent black or blue-black ink. Next, it is an attestation of instrument of dealings. Section 211(1) provides that execution of any natural person needs to be attested by one of the officers in the Fifth Schedule. In this provision, it has been listed that any of the officers or other persons can attest the instrument of dealings; such as a Magistrate, State Director, the Registrar, a Land Administrator, an advocate and solicitor and a notary public. After it has been presented at the relevant Land Office, the documents shall be checked whether it is fit for registration or not. Section 301 provides that an instrument shall be fit for registration. There must be a proper instrument of dealing used, the instrument signed and

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attested, dealings are not contrary to any written law or restriction in interest, it does not delcrea or disclose the existence of any trust and lastly, the instrument has been duly stamped. Nevertheless, there is an effect of the instrument if it is unfit for registration. General rule can be seen in Section 298(1) whereby the Registrar shall reject it if the instrument is not fit for registration unless it consists solely of some formal defect of electrical error. Section 298(4) also states that the rejected instrument shall be returned to the body who presented the instrument. As in MOHAMAD BIN BUYONG v. PEMUNGUT HASIL TANAH GOMBAK where “the making of a prescribed memorial of the dealing in the register document of title under the hand and seal of the registering authority”. Application: In applying the provision to the present case, Wilson decided to transfer Lot 124 to his son, Bobby which was aged around 17 years old. However the act of transferring the lot to this son shall be void and not in line with the law, which requires the person whom the transfer would be made to, to be a person of the age of majority as per to Section 43 of NLC. Bobby is still a minor, as in Section 2 of Age of Majority Act, Bobby has not yet attained the age of majority which was supposedly, eighteen hence Bobby shall be regarded as a minor. As per TAN HEE JUAN v. TEH BOON KEAT shows that a minor cannot enter any contractual agreement. Only those under Section 43 can be accepted to be a transferee. Hence why the Form 14A was rejected by the Kuala Langat land office. Besides that, the Form 14A was also attested by Sharon, Wilson’s wife, who is working with a legal firm in Banting, Selangor, which shall not be valid as well. This is because his wife was not an officer as listed under Fifth Schedule. Only persons or officers that are mentioned can attest to the instrument of transfer. It is true that under this schedule (1) (e) that an advocate or solicitor can attest a document of transfer. Wilson’s wife might be working in a legal firm but it is not mentioned anywhere that she is an advocate or solicitor. Thus, rendering the attestment to be invalid. Hence, the document cannot be regarded as fit as in Section 301 as the dealings have contradicted the written law of Section 43. Hence, the Land Office of Kuala Langat may reject Form 14A made by Wilson on the said grounds. Conclusion: In conclusion, the reasons of the rejection of Form 14A by Kuala Langat land office is on the ground of execution of the instrument of dealings where the transferee i...