DEFINITION OF LAND

What is covered
1. Definition of ‘land’ under NLC
2. English Law of Fixtures: Holland v Hodgson
3. Degree of Annexation Test
4. Purpose of Annexation Test
5. Applicability in Malaysia: Goh Chong Hin v
Consolidated Malay Rubber Estate
6. Effect of a Retention of Title clause
7. Exceptions to the law of fixtures
Definition of ‘land’ under NLC
• S 5 NLC:
Land includes:
a) The surface of the earth and all substances forming that
surface;
b) The earth below the surface and all substances therein;
c) All vegetation and other natural products, whether or not
requiring the periodical application of labour to their production
and whether on or below the surface;
d) All things attached to the earth or permanently fastened to
anything attached to the earth, whether on or below the
surface; and
e) Land covered by water.
• 1st limb
• (d) all things attached to the earth or permanently
fastened to anything attached to the earth, whether on or
below the surface;
• 2nd limb
• (d) all things attached to the earth or permanently
fastened to anything attached to the earth, whether
on or below the surface;

• whether on or below the surface

Importance of defining what constitutes
land
1. To determine the right of a purchaser on certain items in
a sale and purchase transaction of a piece of land.
Example
• Mr A is the registered proprietor of a piece of land with a
house built on it. He wishes to sell the land to Mr B. Who
has the right over all the items attached to the house on
the land?
2. To determine the right of chargee banks over the land
charged to them as security.
Example
• Mr A is the registered owner of a piece of land. He applies
for loan from a bank. As security for the loan, he charges
the land to the bank. Therefore, if Mr A defaults in
payment, the bank can sell the land. Who has the right
over all the items attached to the house on the land?
Legal maxim on fixtures
• Quicquid plantatur solo, solo cedit
• "whatever is affixed to the soil belongs to the soil”
• This legal principle means that something that is or
becomes affixed to the land becomes part of the land;
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.
Fixtures and Chattels
FIXTURE CHATTEL
• a fixture is an item • a chattel is an item
that is attached to even if attached to
the land and the land, it is
immovable. removable.
• shall form part of • shall not form part of
land land
The English law of fixtures
Laid down in Holland v. Hodgson
• (1872) L.R. 7 C.P. 328
• 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. They could quite easily be removed.
The owner then mortgaged the mill and failed to keep up
the payments and the mill was repossessed. 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 introduced the degree and object of
annexation test:

“Thus blocks of stone placed one on the top of another without any
mortar or cement for the purpose of forming a dry stone wall would
become part of the land, though the same stones, if deposited in a
builder's yard and for convenience sake stacked on the top of each
other in the form of a wall, would remain chattels. On the other hand,
an article may be very firmly fixed to the land, and yet the
circumstances may be such as to show that it was never intended to
be part of the land, and then it does not become part of the land.”
• He continued:
“…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 shew that they were intended to be
part of the land, the onus of shewing 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 shew that it was intended all along to continue a chattel,
the onus lying on those who contend that it is a chattel."
English Law of Fixtures
• Two tests to determine if an article is a fixture or a chattel:

1. Degree of annexation test

2. Purpose/object of annexation test

• BOTH tests must be applied

Degree of annexation test
• An objective test on the physical attachment of the article.
• Raises a prima facie finding of fact by looking at the
degree to which an article is affixed to the land.
• (Raises a PRESUMPTION which can be rebutted by the
Purpose Test)

1. If an article is affixed to the land even slightly  the

presumption is that it is a fixture.

2. If an article is attached to the land by its own weight

 remains a chattel.
The Damage Factor

1. If the removal of the article would result in damage to

the article  the presumption is that it is a fixture.
2. If the removal of the article does not result in damage to
the article  cannot presume that it is a chattel but to
look at the purpose
Purpose of annexation test
• The prima facie finding in the Degree Test may be
strengthened or rebutted by the Purpose Test.

• Applying the degree test, if there is no physical attachment to

the land  the presumption is that it is a chattel.
• However, Blackburn J. in Holland v. Hodgson : "But even in
such a case, if the intention is apparent to make the articles
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 who put it there.
• The question is whether the object is
designed:

• To enhance the value and utility of the land

/ for the improvement or more complete
enjoyment of the land / for the use or
enjoyment of the land

• Or, for the more complete use or enjoyment

of the thing itself.
• If an article is attached to the land for the
better enjoyment of the land as a whole
so as to improve its usefulness and
value  strengthens the presumption that
it is a fixture.
• If an article is attached to the land merely
for the more complete enjoyment and
use of the item as a chattel  rebuts the
presumption that it is a fixture.
Mather v Fraser
• “where and article is affixed by the owner of
the fee, though only affixed by bolts and
screws, it is to be considered part of the
land, at all events when the object of
setting up the articles is to enhance the
value of the premises to which it is annexed
for the purpose to which those premises
are applied”.
Leigh v Taylor [1902] AC 157

• Madame de Falbe was the tenant for life of a mansion.

She had placed some valuable tapestries in the mansion
which were stretched on to hard match board and affixed
to the walls by nails. They could be removed with slight
disturbance to the walls. On Madame de Falbe’s death,
the court were required to determine whether the
tapestries had become fixtures belonging to the mansion
or whether they remained chattels.

• Held:
• The tapestries remained chattels and did not form part of
the mansion.
• Earl of Halsbury LC:
• “It never was intended to remain a part of the house; the
contrary is evident from the very nature of the attachment,
the extent and degree of which was as slight as the
nature of the thing attached would admit of. Therefore, I
come to the conclusion that this thing, put up for
ornamentation and for the enjoyment of the person while
occupying the house, is not under such circumstances as
these part of the house. That is the problem one has to
solve in each of these cases. If it is not part of the house,
it falls under the rule now laid down for some centuries,
that it is a sort of ornamental fixture, and can be removed
by whoever has the right to the chattel - whose it was
when it was originally put up.”
D'Eyncourt v Gregory (1866) LR 3 Eq
382
• 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:
• The tapestries were fixtures as they were integral to the
decoration of the room where they attached as wallpaper
or frescos. The statue of lions, the garden seats and
vases were also fixtures as they formed part of the overall
architectural design.
• Lord Romilly MR:
• "I think it does not depend on whether any cement is
used for fixing these articles, or whether they rest on their
own weight, but upon this--whether they are strictly and
properly part of the architectural design for the hall and
staircase itself and put in there as such, as distinguished
from mere ornaments to be afterwards added."
Berkley v Poulett [1976] EWCA Civ
1 Court of Appeal
• Lord Poulett sold his estate at auction on 2nd August 1968 to
Effold Ltd. Effold Ltd had agreed to sell part of the estate,
consisting of Hinton House, to Mr Berkley should they succeed
in purchasing the house at auction. Mr Berkley wished to turn
the house into a tourist attraction and wanted to keep as many
of the original features of the property. The completion of the
sale was delayed and did not take place until Nov 1968. During
this period, Lord Poulett had sold several items which Mr
Berkley claimed were fixtures and thus title had passed to him
under the contract of sale. The disputed items consisted of
several valuable paintings which were set into oak
panelling, a large marble statue of a greek athlete which
weighed half a tonne and rested on its own weight on a
stone plinth on the west lawn and a large sundial also resting
on its own weight outside the south wing.
• Held:
• The items were chattels. Scarman LJ indicated that the
object of annexation has greater significance than the
degree of annexation. The paintings were affixed for the
better enjoyment of them as paintings and the statue
and sundials were also placed for the better
enjoyment as chattels.
• Scarman LJ:
• “a degree of annexation which in earlier times the law would have
treated as conclusive may now prove nothing. 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. The relationship of the
two tests to each other requires consideration. If there is no physical
annexation there is no fixture. Quicquid plantatur solo solo cedit.
Nevertheless an object, resting on the ground by its own weight
alone, can be a fixture, if it be so heavy that there is no need to tie it
into a foundation, and if it were put in place to improve the realty.
Prima facie, however, an object resting on the ground by its own
weight alone is not a fixture.
• Conversely, an object affixed to realty but capable of
being removed without much difficulty may yet be a
fixture, if, for example, the purpose of its affixing be that
'of creating a beautiful room as a whole' (Neville J in In Re
Whaley [1908] 1 Ch 615 at p 619). Today so great are the
technical skills of affixing and removing objects to land or
buildings that the second test is more likely than the first
to be decisive. Perhaps the enduring significance of the
first test is a reminder that there must be some degree of
physical annexation before a chattel can be treated as
part of the realty.”
• Stamp LJ
• “I find it impossible to conclude that on the setting up of the panelling
around them they lost their character as chattels and became part of
Hinton House. They were still enjoyed as theretofore as pictures
albeit in a different setting and removed with little more difficulty than
any large framed portrait fastened to a wall by mirror plates. …That
statue was no doubt sited at a key point in the most advantageous
position in the grounds; and just as a picture is placed in a room not
merely for the purpose of its enjoyment as a picture but also to
embellish and beautify the room in which it is placed and may be
positioned for that purpose, so no doubt was the Greek athlete statue
sited. This particular statue if fixed at all to the plinth on which it stood
was removed with minimal damage and in my judgment it did not lose
its character as a chattel to be enjoyed as such by reason of being so
fixed. Similar considerations in my judgment apply to the sundial,
which was removed and was removed without any damage at all.”
Botham v TSB Bank (1996) 7 P & C R D
1 Court of Appeal
• Mr and Mrs Botham defaulted on their mortgage and
removed various items before the bank took possession
of the house. The Court of Appeal were required to
consider whether various household items were fixtures
or chattels.

• Held:
• The bath, lavatory and bathroom fittings were fixtures in
addition to the kitchen sink and units. The curtains,
carpets, light fittings, kitchen appliances such as washing
machines, dishwashers, cookers were chattels.
• Roch LJ:
• “If the item viewed objectively, is intended to be
permanent and to afford a lasting improvement to the
building, the thing 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.”
The degree and object of annexation test can
give different results even if the articles are
the same
Lyon & Co v London City and Midland
Bank [1903] 2 KB 135
• The claimants hired out some seating to Mr Brammall for use in
his cinema for a period of 12 weeks. The terms of the contract
granted an option to purchase the chairs but this option was
never exercised. The local authority required the seating in the
cinema to be fastened to the floor and therefore Mr Brammall
fixed the chairs to the floor with screws. Mr Brammall then
mortgaged the cinema to the defendant bank and defaulted on
payments. The defendants took possession of the cinema and
the claimant brought an action for delivery up of the seating
and damages for their wrongful detention. The defendants
argued that the seating had become fixtures and therefore title
had passed to them.

• Held:
• The chairs were chattels
• Joyce J:
• “No doubt a chattel on being attached to the soil or to a
building prima facie becomes a fixture, but the
presumption may be rebutted by showing that the
annexation is incomplete, so that the chattel can be easily
removed without injury to itself or to the premises to which
it is attached, and that the annexation is merely for a
temporary purpose and for the more complete enjoyment
and use of the chattel as a chattel…. These chairs did not
cease to be chattels on being screwed to the floor and the
property in them did not pass to the defendants.”
Vaudeville Electric Cinema v
Muriset [1923] 2 Ch 74
• Cinema chairs attached to the floor of the cinema by
screws were held to constitute fixtures despite the fact
they could be easily removed without too much damage.
They had been affixed in order to become a permanent
feature and to enable the building to be better enjoyed as
a cinema. Ownership of the chairs thus passed to the
bank when the claimant defaulted on their mortgage
payments.
The subjective intention of the parties will not
affect the question of whether a chattel has
become a fixture:
• Re De Falbe [1901] 1 Ch 523
• Vaughan Williams LJ said that there was not to be an
inquiry into the motive of the person who annexed the
articles, "but a consideration of the object and purpose of
the annexation as it is to be inferred from the
circumstances of the case.“

• Dixon v Fisher (1843) 5 D 775

• Lord Cockburn:
• "no man can make his property real or personal by
merely thinking it so." The matter has to be viewed
objectively.”
Elitestone v Morris [1997] 1 WLR
687 House of Lords
• Elitestone purchased the freehold to the land on which Mr
Morris’s bungalow (and 26 others)was situated. Elitesone
wished to demolish the properties on the land with a view to
redevelopment. Elitestone brought proceeding against all the
residence seeking possession of the land. Mr Morris defended
the action claiming protection under the Rent Acts. The Rent
Act would only protect Mr Morris if the bungalow formed part of
the realty. Elitestone argued that the bungalow was separate
from the land since it rested on its own weight on concrete
pillars and was not physically attached to the land.
• Held:
• Considering both the degree of annexation and object of
annexation (Holland v Hodgson) the bungalow formed part of
the realty.
• Lord Lloyd:
• “In the case of the house the answer is as much a matter of
common sense as precise analysis. A house which is
constructed in such a way so as to be removable, whether as a
unit, or in sections, may well remain a chattel, even though it is
connected temporarily to mains services such as water and
electricity. But 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…. I do not doubt that when
Mr. Morris' bungalow was built, and as each of the timber frame
walls were placed in position, they all became part of the
structure, which was itself part and parcel of the land. The
object of bringing the individual bits of wood onto the site
seems to be so clear that the absence of any attachment to the
soil (save by gravity) becomes an irrelevance.”
Application to Malaysia
• The English law of fixtures applies to Malaysia
• Goh Chong Hin v. Consolidated Malay Rubber (1924)
5 FMSLR 86:
Goh Chong Hin v Consolidated
April 1921 - Goh Chong Hin charged his land including buildings
and factory to SRMS Lechman Chetty (chargee).

There were machinery in the factory. Annexed by nuts and bolts

to concrete foundations sunk in the soil.

June 1921 – Goh Chong Hin executed Bill of Sale over the
machinery in the factory to Consolidated Malay Rubber Estates
Ltd (grantee)

October 1923 – The chargee by the consent of Goh Chong Hin

took possession of the land and the factory.

December 1923 - The grantee applied for order to seize and sell
the machinery by virtue of the Bill of Sale.
 Goh Chong Hin
(LANDOWNER)

land machinery

GRANTEE
CHARGEE
(Respondent)
 Item in dispute:
Machinery in the factory. Annexed by nuts and bolts to
concrete foundations sunk in the soil.

• Chargee: They are fixtures!!!

• Grantee/Respondent: They are chattels!!!

 the court held…

• Trial judge held in favour of grantee/respondent

• The machinery  chattel.

• On appeal, held:
• English law of fixtures applies.
• Applied the test laid down in Holland v Hodgson
• The machinery  fixture.
• Reason for decision:
• 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.

• (Note: The respondent/grantee had failed to rebut the

presumption that the machinery were fixtures.)
•
Points from Goh Chong Hin
1. The first case in Malaysia where the court applied the
English Law of Fixtures.
Sproule CJC:
“ I have no doubt that we are to apply in this
country the ordinary English law of fixtures”

2. In relationships between chargor and chargee, all fixtures

whether attached before or after the date of the charge,
pass to the chargee unless otherwise provided for in the
charge agreement.

3. The Degree Test raises a presumption that the machinery

was a fixture. So the onus of proof was on the grantee (who
contended that they were chattels) to rebut the presumption.
The Shell Company v Commissioner
• Underground tanks at petrol station buried two feet below
ground level, 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 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.

• Court: They are fixtures.

Effect of Retention of Title Clause
• Also called the Romalpa Clause

• Title to the goods remains vested in the seller

until fully paid by the buyer.

• Usually found in a hire-purchase agreement.

 Landowner / Chargor
/ Lessee

Owner of article
chargee
under hire-purchase
agreement / Lessor
Wiggins Teape (M) Sdn Bhd v Bahagia
Trading Sdn Bhd
• Issue:

• Whether a printing machine affixed by bolts to the

floor and ground of the defendants’ premises on a
land charged to the chargee has become a fixture
despite the existence of a hire-purchase
agreement by which the owner of the printing
machine had retained the title until full payment?
• There was a ‘retention of title’ clause.

• e.g. “the hirer is the absolute owner of the hired

item until full payment of the purchase price”
Court held…

The machine has become a fixture and passes to

the chargee notwithstanding the retention
of title clause.
Sungei Way Leasing v Lian Seng
Properties
• The defendant, owner of KL Plaza had took up 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 HP 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-cond. to any third party
 LANDOWNER
(Chargor/Lessee)

land air-cond.
unit

CHARGOR LESSOR
 Dispute:

• Lessor sought to remove the air-cond. unit from the

building.

• The chargee bank objected

 Held:
Although the air-cond. unit was in the nature of a fixture as
it was ‘custom-made’ for the building, the court must give
effect to the intention of the parties arising from the
hire purchase agreement. Thus, the lessor had a better
right to the air-cond. unit.

“The chargee was not entitled to the equipment affixed to

the land as there was a retention of title clause in favour of
the plaintiffs”
MBF Finance v Global PacificTextiles S/B
& Anor. [1993]
• Issue:

• Whether 2 sets of dyeing machines obtained under an

‘equipment rental’ agreement and affixed to the land are
considered part of the land?

• There was a retention of title clause.

• Defendant defaulted in paying the rental for the
equipment and the lessor terminated the agreement and
sought to remove the machines from the land.
• Defendant and chargee objected claiming the machines
had become part of the land.
 Held:

The retention of title clause rendered the machines to

continue as chattels although attached to the land.

Since the machines were installed in the factory

temporarily, their removal would not cause material injury to
the land.
Exceptions to the law of fixtures
• There are several exceptions to the law of fixtures:

1. Custom, e.g. Malay wooden house

2. Tenants fixtures
• Trade fixtures
• Agricultural fixtures
• Domestic fixtures
1. Custom
• An exception to the law of fixtures based on custom. E.g. a
Malay wooden house by custom is moveable property even
when the usual Malay plank house is built upon bricks and
pillars with foundations let into the soil, the house is
nevertheless a chattel.

Re Tiambi bt Ma’amin (1904) Innes 285

A Malay wooden house is moveable property and thus, a chattel
and can be removed.

Kiah v Som [1953]

A Malay traditional wooden house built on stilts are regarded as
personalty by proved custom and not subject to the English law
of fixtures.
2. Tenant’s fixtures
• Things which are annexed to the land for the purpose of
trade or of domestic convenience or ornament in so
permanent a manner as to become part of the land and
yet the tenant who has erected them is entitled to remove
them during his term or within a reasonable time after its
expiration.
• The law will presume that they were only put up with the
intention of being severed from the land and removed by
the tenant, and not for the purpose of improving the
reversionary interest of the landlord.
• Note that this exception only applies to tenants (in tenant-
landlord relationships), and not to landowners (chargor-
chargee).

• For landowners, the law is strict to presume intention of

permanent annexation.
• Mather v Fraser: “where and article is affixed by the
owner of the fee, though only affixed by bolts and screws,
it is to be considered part of the land, at all events when
the object of setting up the articles is to enhance the value
of the premises to which it is annexed for the purpose to
which those premises are applied”.
• Spyer v Phillipson [1931]
Held:
A tenant has the right to remove his fixtures provided no
substantial damage was done to the premises.

• Smith v City Petroleum [1940] 1 All ER 260,

Held:
A tenant could remove petrol pumps from the land because
they were trade fixtures and could be easily removed since
they were only bolted to the land. However, it was held that
the petrol tanks could not be removed because they have
become an integral part of the land and could not be easily
detached.