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Concept of Land

Conceptual background: Five Keys to Land Law Birks


[W]e are of the view that the proposition that a landowner may excavate his land with impunity, sending his neighbour's building and everything in it crashing to the ground, is a proposition inimical to a society which respects each citizen's property rights, and we cannot assent to it [The law] must instead take root in the terra firma of the principles of reciprocity and mutual respect for each other's property We believe that the true legal justification for the right of support is the legal principle encapsulated in the Latin maxim sic utere tuo ut alienum non laedas, which translates into English to: use your own property in such a manner as not to injure that of another. The importance of that principle is compounded in Singapore in view of our land use pattern, whereby all land available for commercial, industrial or residential purposes is used to a high intensity. The damage that might be caused if landowners were lackadaisical in their excavation works could be astronomical, not to mention the cost in human lives or injury to property.

Xpress Print Pte Ltd v Monocrafts Pte Ltd [2000] 3 SLR 545 at [37], [47]-[48] per Yong Pung How CJ DEFINITION OF LAND STATUTORY DEFINITIONS AVAILABLE

Land is treated differently from other assets. What one has is an estate in land. An important thing regarding an estate is the time factor. It is an interest in land measured by time. No one in a common law country owns land. The Crown or the Republic holds all land and if the State needs the land, all it has to do is follow the rules under the relevant statute. E.g. the Land Acquisition Act. The State does not exert its title; it follows the procedures under the Act. All land is derived from the State. No one owns land. All one can own is an estate. This is an interest in land measured by time. There is also a doctrine of tenure. This is the terms/conditions on which the land is held. This is difficult to see nowadays. Where it can be seen is in the lease. Ten in Latin refers to the act of holding.

Definitions There are various statutes that give us definitions of the word land. CLPA s 2: Includes land freehold and leasehold, or of whatever tenure and tenements and hereditaments, corporeal or incorporeal, and houses and other buildings and also an undivided share in land. LTA s 4: Land means (a) the surface of any defined parcel of the earth, all substances there under and so much of the column of airspace above the surface whether or not held apart from the surface as is reasonably necessary for the proprietors use and enjoyment, and includes any estate or interest therein and all vegetation growing thereon and structures affixed thereto.

PHYSICAL EXTENT OF LAND (in a 3-dimensional sense) Latin maxim: He who owns land owns everything above it reaching up to the skies and reaching down to the centre of the earth: reflects that land includes the trees, buildings, minerals and the airspace above it. This applies in Singapore through the Second Charter of Justice. Not a workable idea; this is now subject to: aviation rights land use planning controls Gold and silver belonging to the crown traditionally other statutes. Land Title (Strata) Act Strata allow for horizontal division of airspace Refers to so much of the column of airspace above the surface, whether or not held apart from the surface, as is reasonably necessary for the proprietors use and enjoyment LTSA introduced in 1967 to enable a purchaser to be registered as proprietor for any defined space, including airspace. In the past, owners of flats in Singapore were granted long leases, thereby making them coowners of a freehold, rather than outright owners as they are now. How far above and below the solum can someone claim rights? The higher strata of airspace is the commons, that belong to everybody and nobody. Aerial Photography: Bernstein v. Skyviews & General Ltd Bernstein was a TV producer and Skyviews was an aerial photography company. Bernstein was not happy when someone from Skyviews turned up offering him a photograph of his home. He claimed that Skyviews, inter alia, had intruded into his airspace. Held that in this case, the plane that carried out the photography was in fact in the upper stratum of airspace, outide the lower stratum which could reaosnably be called that of the proprietor of the solum. The plane was in the commons, open for exploitation and use of the public. Contra United States v. Causby, per Justice Douglas The landowner has got to have some rights over the superjacent airspace above his/her solum because if that were not so, he/she would not be able to do anything on his/her solum without committing a trespass. Where is the borderline then between the airspace that is subject to legitimate ownership and the airspace that is not? Kevin Gray: generally about 200m above ground Need to make a pragmatic distinction between higher and lower strata of airspace. Ones ownership rights extends only to the lower stratum. In Singapore, the strata is that which is reasonably necessary for

the enjoyment and use of the land. Parcel of land includes subterranean land as well Kim Beng Kee Pte Ltd v. Kosion Enterprise (S) Pte Ltd A purchaser entered into a contract to buy a piece of land,. He then found out that there was going to be a viaduct built that crossed over the corner of the land. There would thus be an intrusion of the airspace of the land. Held that within the lower stratum of airspace, the landowner had a right of ownership to everthing within that airspace with the result that the viaduct is going to be an intrusion into the property that was being sold. The purchaser was thus entitled in seeking to withdraw from the contract of sale because that which he had contracted to buy could not be delivered Court said viaduct was a derogation of the rights that came with the land

What is considered part of the land? Latin Maxim: Quid quid plantatur solo, solo credit. That which is attached to the land is part of the land. The threefold classification for determining whether objects that are brought into close association with the land are part of the land - Elitestone Ltd v. Morris: 1) Chattels 2) Fixtures 3) Constructions which are part and parcel of the land The question is essentially whether an object that is attached to the land is part of the land. Constructions which are part and parcel of the land A conveyance of land is deemed to include buildings, erections, fixtures, commons, hedges, ditches, fences Conveyancing and Law of Property Act, s 6 Statute s. 6 CLPA: deemed to include Buildings Erections Fixtures Commons, hedges, ditches fences What constitutes a building? At common law, buildings are regarded as part of the land as a general rule Pretty straight-forward if building is permanently fixed to the land Only gets complicated when the house is not annexed to the soil (Elitestone Ltd v. Morris) Question was whether a house resting on its own weight on concrete

pillars, which were built onto the ground (but not annexed to the soil) was part of the land or a mere chattel House of Lords said that for houses, the important test was the uses and purposes for which they were erected and designted. [A] house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel. It must have been intended to form part of the realty This question of purpose was an objective, not subjective one; i.e. the purpose which the object serves, not the intention of the person who put it there There is one exception based on local custom: Kiah bte Hanapiah v. Som per Murray-Ansley CJ there is a settled custom in this country (Malaya) that houses of this type are regarded as personalty in which ownership may be separate from ownership of the soil. I think effect should be given to this custom to the exclusion of the English law of fixtures However, this exception should only apply where there is proved custom Chua Sai Ngoh v Beh Ai Meng: specific to Malay stilt houses only; does not include a plank-walled house on concrete land. Contra Kwek Kim Hock v Ong Boon Siong per Taylor J The building in issue was a plank-walled house on a concrete floor. Held that the custom of separate ownership of land and building is a common incident in the country districts of Malaya and is a well-established variation from the principle of English law that a building becomes the property of the owner of the land. However, while it seems to be accepted that a custom exists in respect of Malay type houses resting on stilts, the question of zinc roofed, plank-walled structures on concrete floors is not clearly established. Taylor J in this case merely stated that there was such a custom, without more. The existence of such a custom has been flatly denied by Thomson J in Chua Sai Ngoh, and the correctness of Kwek is doubted.

Fixtures v. Chattels The distinction between fixtures and chattels is crucial in several situations: (i) Vendor v. Purchaser. When you sell a piece of land, fixtures pass to the purchaser e.g: Whether a statue in the garden of a plot of land purchased belongs to purchaser or vendor. (ii) Lessor v. Lessee (slightly more complicated, see below) Especially in a landlord-tenant relationship; at the end of a tenancy, do fixtures installed by a tenant pass to the landlord? (iii) Mortagee v. Mortgagor Security taken by lendor of money would be enhanced by fixtures on the land.

E.g. Whether chattel placed in the land by mortgagor can be sold by mortgagee when he exercises his rights. (iv) Property tax The question of what constitutes the property (fixtures) is important because property tax is levied on the property (ya). Application: Starting point: CLPA s.6 conveyance includes fixtures s. 4 LTA land includes structures affixed Therefore: fixtures accede to the realty are considered part of the land; Chattels do not Legal distinction that is made on the nature of an object attached to the land Whether something is a fixture or chattel Locus Classicus: Holland v Hodgson An article which is affixed to the land even slightly is to be considered part of the land, unless the circumstances are such as to show that it was all along to continue as a chattel, the onus lying on those who contend it is a chattel 2-limb test [Holland v Hodgson per Blackburn J; affirmed in Elitestone v Morris] (i) (ii) The (physical) manner & degree of annexation The object or intent of annexation.

The physical degree of annexation test History: Used to be heavily determinative, but later cases have shown that the object of annexation overrides the physical degree of annexation test Use: Raises a rebuttable presumption; Still influences result determines the burden of proof The Test Where the chattel is secured to the building by means of screws, nuts, nails & bolts, presumption is that it is part of the land, & the person who says that it remains a chattel has the burden of proof. Where the article rests on the ground by its own weight, it is prima facie a chattel unless shown it is intended to be part of the land. Holland v Hodgson Fixture: Manner of annexation of looms was by way of nails; the looms did not rest on the floor by their own weight. They were attached to the floor in that manner by the owner of the mill. If a structure can only be enjoyed in situ, and could not be removed in whole or in sections to another site, there is a strong inference that it should form part of the realty at that site & thus

cease to be a chattel. When the article in question is no further attached to the land than by its own weight it is generally considered to be a mere chattel.

Objective purpose of annexation Question of physical annexation does not answer the question completely so there is a need to examine the objective purpose of annexation This is an objective test The question of purpose centres on the purpose for which the object is serving, rather than the purpose intended by the person who put it there. The purpose test can override the presumption raised by the physical annexation test Question to ask is whether the purpose is to enhance the enjoyment of the chattel or the improvement of the realty Distinction is to be drawn between: [Hellawell v Eastwood per Parke B] Chattel attached for a temporary purpose and the better enjoyment of it as a chattel [chattel] Chattel attached for the permanent and substantial improvement of the land [fixture] Where presumption that something is prima facie a chattel is rebutted Part of the architectural design DEyncourt v. Gregory Prima facie chattel according to the physical test A collection of marble statues which rested simply on their own weight Held to be fixtures the underlying motivation was that they should accede to the reality, they were part of the architectural design intended to meld with the realty and become part of the land Escalators resting on own weight where set in specially constructed parts of the building for them People's Park Chinatown Development Pte Ltd v Schindler Lifts (S) Pte Ltd Prima facie chattel: Escalators rested on their own weight, were not bolted on Escalators were set in specific parts of the building that had been specially constructed for them Possible distinguishing fact! Escalators were not functioning/running yet Held to be fixtures Although they rested on their own weight, the underlying purpose was that they were to become an inseparable part of the building Heavy objects Chief Assessor & Comptroller of Property Tax v. Van Ommeren Terminal (S) Pte Ltd Prima facie chattel

Storage tanks rested on their own weights in sand pits Held they were fixtures. Even though they rested on their own weight, the storage tanks were placed on the property to improve or promote the enjoyment of the land rather than of the chattels themselves. Judge did not think any significance should be attached to the lack of bolting or attachment to the land they were heavy objects Where prima facie presumption of fixture was rebutted: Proportionality between value of chattel and quantum of interest in land may be a factor Spyer v. Phillipson A tenant for a term of 21 years had attached antique panelling and ornamental chimney pieces to the building by means of screws and nails. On the death of the tenant a dispute arose as to whether the panelling and the chimney pieces could be removed by the personal representatives of the deceased tenant. The court held that it was not likely that a person with a limited interest in the land would put in such valuable chattels with the objective of giving them away to the lessor. Note: where the person annexing the chattel is the owner of the freehold it would seem that the courts assume that the intention is to benefit the land

Plants accede to the land? Potted v. growing in garden soil S. 4 LTA vegetation growing thereon Therefore where plants are growing in garden soil run with then land by virtue of s. 4 Where potted, or otherwise not growing in soil [maybe climbing plants]: Apply Holland v Hodgson? Tenants Fixtures and Landlords Fixtures Rationale: The rule of fixtures seems to be very harsh where the person concerned annexing the chattels to the land had a limited interest in the land. Hence the development of the doctrine of tenants fixtures A concession made to the tenant Tenants fixtures legal classification: notwithstanding that certain chattels have become fixtures, they can be removed by the tenant during the continuance of the term or within a reasonable time after its expiration What is regarded as tenants fixtures: Where a tenant annexed machinery that was necessary for his trade which was carried on the premises, or where he had put in chattels which were ornamental e.g. chimney pieces Spyer v Philipson

tapestry Leigh v Taylor panelling Where not removed However, if they are not removed within the term, or soon after its expiration, they become landlords fixtures. Goh Chong Hin v. The Consolidated Malay Rubber Estates Ltd. Application: Riduan Bin Yusof v Khng Thian Huat (No. 2) Facts: Tenant took over commercial premises for use as a kindergarten. At the end of the tenancy, tenant said he was entitled to take away the rather expensive facilities he had installed for fire protection Court of Appeal agreed with the tenant Classic case of tenants fixtures Inconceivable that parties could have intended at the start of the tenancy to let all the expensive equipment remain in situ, effectively allowing the landlord to reap a windfall Where tenant still has right of removal i.e. within the tenancy term, and allowance for a reasonable time after its expiration he has property in the fixtures BP Refinery Singapore Pte Ltd v. Amazon Group Ltd Dispute over breach of contract. BP as lessee had erected on land a plant and equipment for their business of oil refining consisted of huge structures. Entered into an agreement to sell the equipment to Amazon. Amazon failed to keep up with installments. In its defence, alleged that BP had no title of the equipment since they were fixtures and acceded to the realty Held The equipment which BP Refinery, the lessee of the land, had erected on the land for their business were fixtures. Tenant had property in the fixture during the duration of the tenancy However they were tenants fixtures, BP refinery had the power to remove them during the term of the lease or within a reasoanble time after the expiry of the lease. It is only when the tenants right of removal was gone that it can be said that the landowner is also the owner of the fixtures.