GENERAL CONCEPTS OF LAND OWNERSHIPCHAPTER II OF LAND LAW

MEANING OF LAND• Dictionary : ‘Solid part of the earth’s surface, distinguish

from sea/water or air’• S. 5 NLC 1965 :

1. Surface of earth & substances forming it2. Below earth’s surface3. All vegetation & natural products4. Things attached to earth5. Land covered by water

• S. 5(d) NLC – Further extensions on fixtures/chattel.(No explanation on an items forms fixture or remains chattel)

LAW OF FIXTURESRULE & EXCEPTIONS• Fixtures : ‘Chattels affixed to land/ building on land becoming part of

land/building’• A moveable property (chattel) that affixed to land/building will become

fixture.• Latin maxim : quie quid plantatur solo solo cedi – Whatever attached to

land becomes part of land.• Principle: Minshall v Lyold

F: A leased colliery to B with right to put steam engine. Pursuance to rights vested, B erected several steam engines, which was affixed to soil. Engines were seized as result of default payment.

H: Engines considered as fixture as it was attached to soil.• Eng law applied in pursuant to S. 3 CLA 1957 in cases of absence in

Statutory Law.• Holland v Hodgson : Article fixed to land even slightly is considered

as part of land.

TEST DISTINGUISH F & C• Australian Provincial Assurance Co Ltd v Coroneo• 2 Tests laid :

• Whether it has been fixed with intention to remain in position permanently/ for indefinite substantial period.

• Whether it has been fixed with intent it shall remain in position only for temporary purposes.

• Holland v Hodgson : Court decide whether the machines affixed to land is considered as fixture?

• English law applies : (Halsbury’s laws of England)1. Degree of annexation- Mode & Extent of annexation- Where can it be easily removed without injuring itself/premise2. The purpose of annexation - Whether it was for permanent/substantial improvement of premise

OR for temporary purpose OR for complete enjoyment of a chattel.• Shell Co of Federation of Malaya Ltd v Commissioner of Federal

Capital of Kuala Lumpur

EXCEPTIONS TO GEN.RULE• General Rule : Once proved a fixture, item becomes part of land

and title passes to whoever is regarded as the title-holder of land.• MBF Finance Bhd v Global Pacific Textiles Industries S.B

F: D enter agreement hire purchase of 2 sets dying machines. 1st D charged all company’s assets & executed debentures in favour of Chargee as security. Art 14 of Equipment Lease Agreement states dyeing machine must be under the owner of the lessor even it was affixed to ground. Issue : Whether dyeing machines under lease agreement continue to be under the ownership of the lessor?

H: Machines are chattels & they’re installed in the factory temporarily and their removal will not damage the land.• If there is clear provision specifying the limitations imposed on the

ownership of fixture, the tests are inapplicable.• Sungei Way Leasing S.B v Lian Seng Properties S.B & Ors

H: Lessor entitled to air conditioning bcs Art. 11 of Lease Agreement prohibited transfer to 3rd Party.

EXCEPTIONS TO GEN.RULE• 2 Exceptions:

1. Customary Law Exceptions- Where custom exists in relation to a particular

item that it should be chattel in all circumstances & can be removed by claimant.

- Re Tiambi bt Ma’amin- Kiah Bte Hanapiah v Som bte Hanapiah2. Common Law Exceptions- Exempts items affixed by tenants/things

attached to land as being essential for trading or business/agricultural purposes or put by owner as domestic fixture/ornaments (Spyer v Phillipson)

EXTENT OF OWNERSHIP & ENJOYMENT OF LAND• NATURAL RIGHTS

UNDER S 44 NLC• No necessity for the

proprietor to seek permission to use land. Infringe? Liable for damages.

• Landowner need not necessarily be the registered owner, person acquiring land by way of lease/tol are entitled for the exclusive use & enjoyment of land.

• But not absolute rights.

• RIGHTS OF AIR SPACE• (1) – Whoever owns the

surface of earth also owns the the entire airspace.

• 44 NLC – Rights must be exercised in consideration of the followings:

- Subject to NLC / Any other written law

- Enjoyment must be reasonable & necessary & must be lawful

• Woolerton and Wilson LTd v Richard Costain Ltd.

EXTENT OF OWNERSHIP & ENJOYMENT OF LAND• RIGHTS BELOW SURFACE• 44(1)(a) - ..entitled to the exclusive use &

enjoyment of land below surface as is reasonably necessary to the lawful use/enjoyment.

• Upon applicant to prove reasonableness• Karuppannan v Balakrishnan; Chong

lee Chin & Ors- App bought hotel whose sewerage system,

manholes and septic tanks encroached Resp’s land. Owing to the trespass they can’t build land. Trial court grant injunction for app to remove encroachment.

• S. 45(2) – Minerals/Rock material & forest produce belongs to S.A. However any persons involved may apply to SA to use rock material & forest produce within the boundaries of alienated land.

• Rights not extend to extractions of mineral or metals found on land or moving it.

• To remove rock material, permit has to be obtain under s.70 NLC.

• RIGHT TO SUPPORT LAND• S.44(1)(b) – Referring to right not to loose

natural support from adjoining land – rights cannot be interfered by others.

• Conditions to claim right of support:- Land at lower must support land above it- Land must be adjoining with each other but

separate ownership- Natural state of land- No additional support be given beyond what

is on land.• 2 types:• Cross Right of Support of Adjacent

Land/Building• Support For Adjacent Slope Land• Madam Chiah Siam v Chop Choy Kong

Kongsi • D owned mine which had caused loss to P’s

pond because of the flowing water to P’s pond. P filed action. Court approved P’s application because the D’s mine is not anymore the natural use of land.

EXTENT OF OWNERSHIP & ENJOYMENT OF LAND• S. 44(1)(C) : Landowner has right in accessing land which also includes

foreshore & river.

• However subjected to provisions.

• S. 5 NLC : Land lying between the shoreline & low water mark of ordinary spring tides.

• S 46(1) : If land encroached by sea/river, it will revert back to State Authority in accordance to S. 49 NLC.

• S. 49 : Proprietor losses the encroached area.

• Area becomes the S.A’s when land increases by sea/river.• UNLESS the Director of Surveying provides otherwise.

• S. 53(1) : Land can be surveyed where due to time the land boundaries changed. Upon surveying, new boundary will be indefeasible.

• Effect of surveying: No claim can be made by proprietor but can only appeal against the decision of court.

EXTENT OF OWNERSHIP & ENJOYMENT OF LAND• Before Application of NLC :

o Re Sithambaram Chettiar App is the owner of land adjoined with the sea.Over the years, sea encroached land & the portion of land submerged.However, sea retreated & whole of it become above high water mark.Collector had refused to claim made by App since App failed in establishing the claim to land as the land has become the crown property.App applied certiorari.Held: Owner entitled to regain possession.

• If land affected by encroachment of sea, it does not form part of owner’s land.

• BUT : Land becomes State Authority’s & Proprietor losses the land unless Chief Surveyor provides otherwise.