Dox 4 Dio Segond Le MD Sg UL OD | ac | eee SSE 2 ad (2005) 13 HUMLI 103 THE LEGAL CONCEPTION OF ‘LAND’ UNDER MALAYSIAN LAND LAW: A COMPARATIVE APPRAISAL Hunud Abia Kadouf* ABSTRACT “Land”, is a subject that draws the concern of both, law, and economy; and the society at large. As a form of property it is, undoubtedly, impregnated and muddled with conflicting legal concepts. Its physical nature of permanency and durability has Jurther endowed it with a unique capability of hosting multipilicity of rights and interests that could in turn be held, enjoyed and controlled by different persons or bodies at the same time. As these rights and interests over land may tend to converge, conflict between the parties involved are inevitable. The need to avoid or rather minimize these conflicts and thus be able to determine who owns or is entitled to what over the land made it necessary to define legally what actually constitutes or should be considered as land. The statutory definiiton of ‘land’, however, is grossly insufficient that the Malaysian courts have to turn to English common Jaw to fill in the gaps. This paper tries to highlight these aspects through a comparative analysis of the case law. Associate Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia.104 TIUM LAW JOURNAL VOL. 13. NO, 1, 2005 INTRODUCTION Many would agree that the obvious is always the most difficult to explain. Everyone of us knows what land is; yet most of us would find it difficult to give any precise definition to what is meant by ‘land’. That is because the term ‘land’ may carry different meanings to different people depending on the context, purpose and the reason for which the term is being used. For a layman or a novice law student, it would appear not only futile but also nonsensical to ask a question such as what is meant by ‘land’, For a trained lawyer or an academic the question has a far reaching importance. To them land is regarded as a piece of property, a commercial commodity that possesses an economic value. Land is, therefore, considered as a legal phenomenon, a subject matter upon which rights, titles and interests would either be created, acquired or disposed of. Its precise definition is, therefore, vital for adjudication purposes or for resolving disputes over it. THE LEGAL MEANING OF ‘LAND’ A number of terms are used, especially under the common law tradition, to describe the juridical nature of land. Land is referred to as ‘corporeal hereditament’ in contrast to ‘incorporeal hereditament.” It is also called ‘real property’ or (realty) in contradistinction to ‘personal property’ or (personality). The terms ‘real’ and ‘personal’ have historical connotations as they were used in relation to the types of actions available for the different types of property under English common law. Thus, (teal actions) for land and other interests therein and (personal actions) for chattels and all other personal property for which only damages may be recoverable. It is said that early English law allowed a dispossessed landowner not a mere right to a pecuniary reward, but also a right to recover his land by ‘real action’ by physically returning the land itself. _ ‘Corporeal’ or ‘tangible’ are those types of property that could be sensed physically in contrast to ‘incorporeal’ or ‘intangible’ referring to those forms of interests in property that can only be concieved mentally. Both types ate referred to as ‘hereditaments’ as being capable tobe inherited. On this point see Cheshire and Bumn’s, Modern Law of Real Property, 13" ed. (London, Butterworths 1982) 135-136.The Legal Conception of Land’ Under Malaysian Land Law 105 The term ‘immovable’ and ‘movable’ are also employed to describe land and chattels respectively. It is interesting to note that Islamic Sharia does not appear to concern itself with the question of land definition as such. Rather, the early Muslim jurists seemed to have interested themselves with land classifications and its types for administration purposes. The definitional aspects could be seen — if ever- upon considering land in its generality as a species of property (mal) For that purpose Islamic Shari’a classifies property into ‘agar or mal thabit and mangool- immovable and movable respectively. Though no conceptual difference is observable between the common law approach and the Islamic Shari’a as regards this undestanding of land; nevertheless, early common law notions of real actions or personal actions did not find place under Islamic Sharia. But the concept of realty and personalty employed by the common law exists under Islamic Sharia and is referred to as hag ‘aini (realty) and haq shakhsi (personalty). However, it should be remarked that although some of the above- mentioned notions concerning land (both from common law and Islamic Sharia) have infiltrated into Malaysian land law, nevertheless their judicial usage do not always or necessarily tally with the original meanings as obtamed either under common law or Shari’a rules. To most of us, land is no more than a physical appearance, which we are well familiar with. According to New Oxford English Dictionary land is defined as: “The part of the earth’s surface that is not covered by water, as opposite to the sea or the air.” But would such definition suffice our purposes as lawyers? For a lawyer, land is conceived as a three dimensional object It comprises of a surface, height (air space above) and depth (whatever that is found beneath such as minerals etc.). It is regarded as a piece of property upon which various rights; interests, claims and titles are established. These multiple rights and interests, as pointed out above, could be held and enjoyed simultaneously by numerous persons at the same time. This, however, may give rise to endless disputes if the types of rights or interests held are not defined closely. It is because of that we need to know what land actually constitutes of. . The New Oxford English Dictionary. Kevin Gray, Elements of Land Law, (London, Butterworths) 1987, 17.106 TIUM LAW JOURNAL VOL. 13. NO, 1, 2005 THE COMMON LAW CONCEPTION OF LAND At common law land includes not only the physical part of the earth but also things that are found on it naturally or those that are created artificially by man. The Latin maxim quicquid plantatur solo, solo cedit is often used in law quarters to signify the above meaning.‘ Another Latin maxim relevant to the land definition and to our discussion as well is: Cujus est solum ejus est usque ad coelum et ad inferos. It literally means that ‘whose is the soil, his is also that which is up to the sky and down to the depths of the earth.’5 According to Gray, the maxim seems to indicate ‘extended significance of the term ‘land.’ But this maxim does not appear to define or tell us what land actually is. It rather refers to the extent and the limits of the proprietor’s enjoyment of his land which under the circumstances may include not only the surface of the Jand but may extend above to comprise the airspace and below to the depths of the earth. STATUTORY DEFINITION OF ‘LAND’ It is common, in most legislations dealing with land,’ to find a section interpreting or defining what the term ‘land’ refers to. According . See Mohamd Yusoofv. Murugapppa Chettiar [1941] 1 MLJ240 at 244, 246; Yap Phooi Yin &Anor v, C.M. Boyd [1982] 1 MLI 151 at 152. 7 For the exceptions to this maxim reference should be made to the Civil Aviation Act 1969; The Antiquities Act 1976; the minerals etc. (discussed later under extent of ownership). ‘ Kevin Gray, op.cit., 16. af Cf. Zam Kam Cheong v. Stephen Leong Kong Sang & Anor [1980] 1 MLJ 36 where the court mentioned that in Sabah Land Ordinance (Cap. 68) “No definiton of land is to be found ...” per Salleh Abas F.J. (as he then was) at 41. But that under section 3 of Sabah Interpretation Ordinance No, 34/1968, “land” is considered as a form of ‘immovable property.” 8 See 205 (1) (ix) of Halsbury s Statutes of England and Wales, 4" ed, Vol. 37, London Butterworths, 1987. Cf. Singapore Land Titles Act Cap 1957 1994 Ed. S 4, that reads as follows: “land” means (a) the surface of any defined parcel of the earth, and all substances thereunder, and so much of the column of air above the surface, whether or not held apart from the surface, as is reasonably necessary for the proprietor’sThe Legal Conception of Land! Under Malaysian Land Law 107 to section 5 of the National Land Code 1965 ‘land’ is interpreted, rather than defined, as follows: “land” includes— a) that surface of the earth and all substances forming that surface; b) the earth below the surface and all substances therein; ©) 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 any thing attached to the earth, whether on or below the surface and e) land covered by water.”” This definition of what should be counted as land surely embodies, as has been indicated above, the common law notion of land expressed in the Latin maxim: quicquid plantatur solo, solo cedit (whatever is affixed to the soil belongs to the soil),! Seen closely, on one hand, the definition of the term ‘land’ under the Malaysian National Land Code 1965 appears somewhat simpler compared to its complicated English counterpart.'’ On the other hand, the word ‘land’ has been given more elaborate meaning in the Limitation Act 1953 (Revised-1981) than under the National Land Code 1965. ‘Land’ is defined under the Limitation Act use and enjoyment, and includes any any estate or interest therein and structures affixed thereto; or (b) any parcel of airspace or any subterranean spaceheld apart from the surface of the earth and described with certainty by reference to a plan... and includes any estate or interest therein and all vegetation growing thereon and structures affixed thereto. Cited in Tan Sook Yee, Principles of Singapore Land Law (Butterworths Asia, Singapore. Malaysia. Hong Kong) 1994, 13, : See also s, 3 of the Interpretation Acts 1948 and 1967 (Act 388). oe Cf. per Rigby J. in Evelyn Saw Hee Li v. Ban Tit Sun [1959] 1 MLJ 146 at 147 in which the court tried to differentiate between vacant land and subsequent erected ‘premises.’ According to the court “land, qua land, does not come within the definition of “premises,” at 147; See also Saadian bte Karim v. Ong Ting Chai [1996]5 MLJ 646 at 657-658. : Definition of land under the English Law of Property Act 1925 is stuffed with technical terms such as, ‘tenure,’ ‘corporeal,’ ‘hereditaments,’ ‘manor,’ ‘advowson’ etc. that make it difficult for a lay person to comprehend.108 ITUM LAW JOURNAL VOL. 13. NO, 1, 2005 1953 to include inter alia ‘...rent charges and any legal or equitable estate or interest in land including an interest in the proceeds of sale of land ...but ...does not include any right of way,’? easement, servitude...” etc.!3 However, both common law and the Malaysian statutory conception agree that land, in legal terms, includes not only the physical surface of the earth but also trees, buildings, the air space above and minerals below. One major difference between definition of land under the National Land Code 1965 compared with English or Singapore (basically based on English definition) is that, while the English and the Singapore statutes include in their definition rights and interests as to form part of land; Malaysian National Land Code 1965 provides only for the physical aspect of land and leaves other ‘incorporeal’ type of rights, classified as land, e.g. easements and other interests etc. to be provided for under separate provisions’4 or to be pronounced by the courts whenever recognizable either under the law or equity as the case may be. But this simple version of the Malaysian definition has its own problems since judges have found themselves obliged to refer to English common law to explain what in actual situation may form part of the land.'S It has been observed that some of the definitional aspects ¢.g. cujus est solum, ejus est usque ad caelum et ad inferos (to whomsoever the soil belongs, he owns also to the sky and to the depths that the owner of a piece of land owns everything above and below it to an indefinite extent) has not been indicated in the National Land Code 1965; but has invariably been applied by the Malaysian courts to amplify the unclear statutory definition of land. For example, courts have had to determine at what point would a thing that has been attached or affixed to the land becomes part of it. Or under what legal circumstances such a thing, though apparently attached, would still be classified as a chattel. As a matter of common legal knowledge ‘the general maxim of law is, 7 Cf. per Edgar Josef Jr J. in Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 at 243. ae See section 2 of the Limitation Act 1953 (Act 254) (Revised-1981); see also Trustee Act 1949 (Act 208) section 3 under which “land” is defined as including “any interest therein and also an undivided share of land.” 4 See s. 44, See also Parts Seventeen and Twenty-Eight of the NLC. However, the term ‘immovable property’ has been defined in the Interpretation Acts 1949 and 1967 (Act 388) as: “immovable propert” means land and any interest in, right over or benefit arising or to arise out of land.”The Legal Conception of Land? Under Malaysian Land Law 109 what is annexed to the land becomes part of the land...” and thus passes to whoever owns the land. Objects so attached are referred to as “fixtures.” So what is a ‘fixture’ and how would it be determined in law? Whether the rule is absolute or is curtailed by some exceptions is what we intend to discuss in the following pages. FIXTURES AS LAND A ‘fixture’ in fact is a ‘chattel’ that has lost its original nature of being movable simply because of its merger into, attachment or annexation to the realty or earth!’ and by this process has acquired the quality of land itself. It is only when an object has been attached or so affixed to land or a building on land that it loses its original character and becomes in law part of the land.'* Apart from section 5 (d) of the National Land Code 1965, Malaysian law does not provide what constitutes a ‘fixture,’ and since ‘the distinction between ‘fixtures’ and ‘chattels’ is not entirely straightforward”!? Malaysian courts, therefore, have to refer to common law concepts in order to determine whether an object has become a fixture or not.”” The categories of things mentioned under s 5 (d) of the Code to be ‘attached to the earth or permanently fastened to any thing attached to the earth’ seem to be unlimited in nature. These may include bridges Me Per Blackburn J in Holland v. Hodgson (1872) LR7 CP 328 at 334, See per Salleh Abas F.J. in Tam Kam Cheong v. Stephen Leong Kon Sang & Anor: [1980] 1 MLJ36 at41. Cheshire and Burn’s, op. cit., 136-137. See also Australian Provincial Assurance Co Ltd., v. Coroneo [1938] 38 S. R. 700 per Jordan, C.Jat 712 ff 7 Kevin Gray, op.cit,, 21. See Goh Chong Hin v. Consolidated Malay Rubber Estates Ltd., [1924]5 FM.S.L.R. 86; The Shell Company of the Federation of Malaya Ltd. v. Commissioner of the Federal Capital of Kuala Lumpur {1964} MLI 302; Soefin Co. Ltd. v. Chairman, Klang Town Council [1964] MLJ325.110 IITUM LAW JOURNAL VOL. 13. NO. 1, 2005 and things such as buildings” and houses.” It was held in Collector of Land Revenue v. Ang Thian Soo® that any form of physical and economic improvements to land, e.g. changing the existing use of land to a more valuable use, becomes part of the land 4 Not only that but also anything that is permanently affixed to anything that is in tum attached to the land become-both of them-part of that land. Further examples may be found in things such as: built-in cupboards in houses or offices, air condition units fitted into the walls, lighting and wiring, ceiling fans, frame shelves, heavy machinery and other factory or industry equipments. Things thus attached to the land are known as ‘fixtures.’ However, whether an object is a ‘fixture’ or a ‘chattel’ is a question of law to be determined by the court.”5 The legal position is that once it is determined that an object is a fixture then there are certain legal restrictions to their removal since they would, in law be classified as land and would no longer be regarded as chattels. A vexing legal problem might arise since it is not always an easy matter to determine whether a certain object, which has been affixed to the land, remains chattel or has actually become part of the land. Furthermore, at what point in time would such an object be regarded as a fixture? This is necessary, as it becomes vital for dispute resolution between the parties. A dispute may probably arise between vendor and purchaser, or the chargee and the chargor, or the lessee and the lessor or any third party over the ownership of a particular object attached to the land after or at the time a certain transaction concerning land has taken place. The maxim quicquid plantatur solo, solo cedit raises only a legal presumption that needs to be proved. The onus of proof shifts each time a See Goh Eng Wah v. Yap Phooi Yin & Anor [1985] 1 MLJ 329 (PC.). The Board advised in this case that when leasing a piece of land then, unless otherwise agreed, the rental value of the land should presumably include the value of any buildings on such land. See also Collector of Land Revenue v, Ang Thian Soo [1990] 1 MLJ 327 at 330. a See Punca Klasik Sdn Bhd v. All Persons in Occupation of the Wooden House Erected 0 a Portion of Land held under Grant No 26977 for Lot 4271] in the Township of Johor Bahru, Johor and Another Action (No 2) [1996] 5MLJ 92 at 116. 3 [1990] 1 MLI327.at 330. 4 Ibid. 2 Reynolds v, Ashby [1904] AC 466 cited in Cheshire and Burns, op.cit., B7.The Legal Conception of Land? Under Malaysian Land Law 111 a question arises whether a thing is a fixture or a chattel. The result would be simple: if the item is considered as a fixture then it will be regarded as part of the immovable property and goes with whoever owns the land; but if held as a chattel then it can be removed by whoever lays a rightful claim to it. It is rightly mentioned that section 5 (d) of the National Land Code 1965 ‘merely looks at the physical aspect of the annexation, [and] does not by itself determine whether an article is a fixture or a chattel.’?° This lacunae made Malaysian judges turn to English jurisprudence for help in order to determine what circumstances would render an affixed article to become part of the land and under which circumstance such an article would still continue to remain a chattel. The trend was set by Sproule (C.J.C.) in Goh Chong Hin & Anor v. The Consolidated Malay Rubber Estates Ltd* as an authority for the application of the English law of fixtures to Malaysian cases. He was of the opinion that the legislature of the then Federated Malay States had already declared a policy of adopting English law on the matter. Accordingly, ‘...the draftsman of section 2 of the Registration of Titles Enactments used such apt words for the introduction of the English law of fixtures as to make it appear likely that even then, in 1911, the legislature intended its adoption.’ The distinction between ‘fixtures’ and ‘chattels’ revolves around both questions of law and fact. However, to determine whether a thing has become a ‘fixture’ is a pure question of law to be decided, as indicated, by the court. The distinction, therefore, ‘seems largely to turn on two separate but related tests’ viz., i} Degree of annexation ii) Purpose or object of annexation. The two tests are developed by the English common law in order to determine the intention of the original owner regarding the object so ie Teo Keang Sood and Khaw Lake Tee, Land Law in Malaysia: Cases and Commentary, 2" ed, (Butterworths Asia, Malaysia. Singapore. Hong Kong 1995) 93. [1924] 5 RM.S.L.R. 86; see also per Mills J. in Goh Eng Seong v. Tay Keng Seow & Ors. [1936] 1 MLJ40. Goh Chong Hin, ibid at 95, 91. See also, ibid, per Farrer-Manby, J.C., at 401. Kevin Gray, Elements of Land Law, op.cit., 21.112, TIUM LAW JOURNAL VOL. 13. NO. 1, 2005 annexed. Nevertheless, the intention of the person who annexes the item becomes relevant only in so far as it could be inferred from the circumstances relating to degree and purpose of the annexation. For that reason the decision in one case might not necessarily be a good guide in another? DEGREE OF ANNEXATION Obviously, a “fixture is a thing once a chattel which has become land in law through having been fixed to land”! permanently. The word ‘permanently’ used under section 5 (d) of the National Land Code 1965 to denote the nature of the thing that has been affixed to the earth is a catchword. And although it generates and hence ‘connotes the sense of indefinitely,’ it becomes difficult to apply it in the real world. The problem as envisaged in BBMB Kewangan Berhad v. Kueh Teck Swee® is that things that are permanently attached or affixed to land are not necessarily irremovable or that they could not be rendered useless or redundant. In any case whether an item has ‘permanently’ been affixed to land or not is something that could be determined objectively in the sense that what matters is the physical appearance of the thing and how strongly it has been fastened to the land. But this test, it should be remarked, is only a prima facie evidence that the chattel has become a fixture. It thus relates to the factual situation of the thing in relation to the land. The mode of annexation might not provide a good help since physical attachment alone, as will be explained, could not conclusively render a thing as a fixture.** The general principle of the law, as stated by Blackburn J in Holland v Hodgson, is that ‘an article which is affixed to the land even slightly is to be considered as part of the land....”85 This judicial pronouncement, is en Cheshire and Burn’s, op. cit. 137. 2 Australian Provincial Assurance Co, Ltd. v. Coroneo [1938] 38 S. R. 700 at 712, a See BBMB Kewangan Berhad v, Kueh Teck Swee [ 2000] 1LNS 115 at 18, 3 [2000] 1 LNS 115at 118, 7 See Esso Malaysia Bhd. v. Hills Agency (M) Sdn Bhd & Ors {1994} 1 MLJ740 at 750. ta Per Blackburn Jin Holland v. Hodgson (1871-2) L.R. 7 CP 328 at 335.The Legal Conseption of Land? Under Malaysian Land Law 13 not only too general but is also clearly a rebuttable presumption. The onus is on the party who claims otherwise to show that it was intended to remain as chattel. Goh Chong Hin & S.R.M.S. Lechmanan Chetty v. The Consolidated Malay Rubber Estates* is a classical case in which numerous issues were discussed regarding the legal nature of fixtures under Malaysian law and the application of the English common law principles thereof. There, one Goh Chong Hin charged his premises containing a factory comprising of a number of machinery some of which were attached after the charge had been concluded. Later, Goh Chong Hin sold and assigned part of the machinery in the factory to the respondent. The chargee went into possession of the premises. The respondent applied for an order to seize and sell the machinery. The chargee objected claiming that since the ‘machinery was annexed by bolts and nuts to concrete foundations sunk in the soil,” they become fixtures and are therefore part of the land, and similar to land his interest must prevail. The trial judge found in favour of the purchaser of the machinery and the chargee appealed. Sproule C.J.C. held that English law of fixtures applied in the circumstances,*’and the machinery have therefore become fixtures, the onus being upon the claimant to prove otherwise. However it is important to note that the judge m the case stated an important dictum that “even if the machinery was set up after the date of the charge, it nevertheless accrued to the land and become part of the chargee’s security.”°* This obiter dictum has created some interesting though unhealthy inconsistencies in the cases afterwards. Similarly, in Wiggins Teape (M) Sdn. Bhd. v. Bahagia Trading Sdn Bhd- The East Asiatic Co. Ltd & Ors as Objectors,° the question for the court was whether or not a printing machine that has been affixed by bolts to the floor and ground of the defendants’ premises on a land charged to The Malayan International Merchant Bankers (MIMB) has become a fixture and thus part of the land having regard to the existence of a hire-purchase agreement by which the owner of the machine EAC 6 [1924-25] 5 FMSLR 86, 7 Goh Chong Hin v. The Consolidated MalayRubber Estates Lid. (1924- 25) 5 FMSLR 86 at 91, 99. ind Per Sproule CJ in Goh Chong Hin v. The Consolidated Malay Rubber Estates Lid [1924] FMSLR 86 at 98. » [1980] 2MLI45,114 TIUM LAW JOURNAL VOL. 13. NO, 1, 2005 purportedly retained the title until the satisfaction of the full payment. It was held that the machine has become a fixture and thus passes to the chargee notwithstanding the retention clause and notwithstanding that, a balance of $57, 443, 19 was still unpaid. It is the law that fixtures attached by the mortgagor (chargor) even after the conclusion of the charge agreement become part of the land and are not removable. The presumption is that permanent annexation must have been intended for the ‘improvement’ of the land ‘or better enjoyment or its greater utility for the purpose for which the land is applied.’#? The court in Goh Chong Hin’ case tried to draw our attention to the duty of the lender or those who chose to enter into dealings over land to investigate the content of the Register before she/he sets out to commit themselves. The court pointed out that, in Malaysia, the “intending lenders are better off than in England, and have ready and inexpensive means of information as to the existence of incumbrances, requiring the making of “special stipulations” if a chargee is to be bound.” Accordingly a chargee is not bound by a hire purchase agreement and thus has a right to claim as fixtures those chattels annexed to the land afterwards unless the lender has expressed an intention to the contrary. The question is what is meant by: ‘expressing intention to the contrary?’ What if the hire purchase agreement was entered into and the chattel was affixed to the property before the creation of a charge, and the chargee did have knowledge of the existence of a retention clause? Whether knowledge on the part of the chargee is material? At times, no complication arises; for example, when the chargor or the transferor makes it clear at the outset that fixtures on the land should be regarded as chattels. This reservation clause may, more often than not, affect or reflect in the value of the property so transferred or charged. However, a more vexing problem arises in cases of hire-purchase agreements particularly when there is a clause that the title over the chattel should continue to remain in the lender/hirer until the full price is paid. That is so especially if the hire-purchase agreement was entered into before the conclusion of the transfer or before the creation of a charge. Under English Law such a reservation clause is said to create an equitable interest in the lender known as ‘right of entry’ that may be 0 Goh Chong Hin v. The Consolidated Malay Rubber Estates Ltd {1924- 25] SFMSLR 86 at 92. a Goh Chong, ibid at 94.The Legal Canception of Land? Under Malaysian Land Law 1s binding on third parties. Here a distinction is made between whether the land is registered, in which case the ‘right of entry’ is not binding on third parties, or unregistered in which case this equitable right will be binding on third parties unless they be purchasers with value without notice,‘ The distinction between registered and unregistered land as obtains under English law does not exist under Malaysian land law. However, as regards fixtures or chattels under hire-purchase agreements, there seems to be conflicting judgements under Malaysian land law. The general rule is that such items become fixtures and thus pass to the proprietor of the land or a chargee, as the case may be.” This seems to be the rule no matter whether the chattels obtained on a hire-purchase agreement were affixed to the land before‘ or after‘® the charge. However, a different conclusion was reached at by the High Court in MBF Finance Bhd. v. Global Pacific Textiles Sdn. Bhd. (In Liquidation) & Anor.** There the plaintiff entered into an equipment lease agreement involving two sets of dyeing machines with the first defendant (GPT) who thereby installed the said machines in the factory over his land. The equipment lease-agreement provided that the plaintiff would continue to own the dyeing machines notwithstanding their affixation to the land. The first defendant entered into charges in respect of lands in favour of debenture holders which charges were duly registered. The first defendant defaulted in rentals for the dyeing machines and the oi See generally AG Guest and J Lever, “Hire-Purchase, Equipment Leases and Fixtures” (1963) 27 Cony (NS) 30. See Hobson v. Gorringe [1897] 1 Ch 182 (engine obtained under a hire purchase agreement annexed to the soil was considered as fixture and the title may pass to a purchaser of the land without notice). See Goh Chong Hin v. The Consolidated Malay Rubber Estates Ltd [1924] FMSLR 86; Hobson v. Gorringe [1897] 1 Ch. D. 182; Reynoldsv Ashby & Sons [1904] AC 466. But cf. MBF Finance Bhd, v. Global Pacific Textiles (In Liquidaiton) [1993] 4 CLJ 379 (dyeing machines installed in a factory were held to remain as chattels despite their affixation to the land). Wiggins Teape (M) Sdn. Bhd. v. Bahagia Trading Sdn. Bhd. - The Asiatic Co. Lid & Ors. As Objector [1980] 2 MLJ45. Goh Chong Hin v, The Consolidated Malay Rubber Estates Ltd. {1924} FMSLR 86. bod [1993] 4 CLI379, a116 TIUM LAW JOURNAL VOL. 13. NO, 1, 2005 plaintiff terminated the lease agreement and sought to return the dyeing machines. The defendants refused to return the machines claiming that they were fixtures and thus are part of the land. The question was whether the debenture holders as chargees over the Jand have priority over the plaintiff as the lessor of the equipment. The court held that the ‘retention of title’ clause rendered the dyeing machine to remain as chattels since that was the intention of the lessor and the lessee and since the dyeing machines were ‘installed in the factory temporarily and their removal would not occasion material injury to the land.”*’ A similar decision was reached at by the High Court in Sungei Way Leasing Sdn Bhd v. Lian Seng Properties Sdn Bhd & Ors (Bank Bumiputra Malaysia Bhd & Anor, Interveners)** in which the defendant, owner of property KL Plaza, took a loan from the bank secured by three charges on the property. Subsequently some air conditioning unit was obtained on hire-purchase agreement and installed on the premises. By virtue of clause 11 of the lease agreement, the lessor were to remain as the owner of the unit and the lessee had no right to pass title to a third party. A dispute arose as between lessor and lessee and the lessor sought to remove the air conditioning unit and the bankers as chargees objected. The court held that with reference to the lease agreement the bankers acquired no right to the unit, The court thought that the equipment was not there when the land was charged therefore it could not form part of the bankers’ security.” Since these judgments are only those of the High Court then one still has to wait for a more authoritative ruling from the Federal Court on the matter of hire-purchase agreements, Being objective as well as factual, the test of the degree of annexation raises many questions such as how securely is the object attached to the land or to the structure on the land. Would the severing a MBf Finance Bhd. v. Global Pacific Textile Industries (In Liquidation) {1993] 4 CLJ 379 at 387. It should be pointed out that this is a High Court decision and is thus doubtful whether it states the correct law on this matter. 8 [1989] 2.MLT 123. oid Ibid., at 125. On appeal by the bankers the Supreme Court allowed the appeal on 18 April 1989. However, see Hassim bin Arippin v. Mohamed bin Ramlan [1971] 1 MLI 87; Wee Kang Whye & Anor v. Lee Woon Tong [1974] 1 MLJ 7, Mok Deng Chee v. Yap See Hoi & Ors [1981] 2 MLJ321.The Legal Conception of Land’ Under Malaysian Land Law 117 of such an object cause a serious damage to the land or alteration to the nature of the thing it is affixed to? Nevertheless, the latter requirement is not always conclusive as some items may be removed easily without causing any serious physical damage.* On the other hand, and although an item could be removed easily without any apparent damage, it would still be classified as fixture if the object unto which it was affixed would cease to perform the purpose for which it was intended for. Example may be found where doors and windows of the house may be pulled out from their hinges without damaging the building. Suffice it to say that a building without doors or windows could hardly be called a house. This apparently leads us to the discussion of the second test. THE PURPOSE AND THE OBJECT OF ANNEXATION Common law, it is conceded, seemed to accord more importance to the ‘degree of annexation’ or the physical appearance of the thing and whether it has ‘substantially’ been attached to the land so as to form part of it! Inevitably, further problems were envisaged as the ‘degree of annexation is not in itself a conclusive test of the status of an object as a fixture or chattel.’ “That being so, it is impossible to say that the only matter to be taken into consideration is the quantum of fixture.”** The tule regarding the degree of annexation gives rise only to a prima facie state of affairs that is rebuttable by adducing contrary evidence. It was because of the severity and insufficiency of this rule that the courts had progressively tended to give more consideration to the ‘purpose’ rule that seemingly has ‘now [become] of first importance.’* Accordingly, and as regards the rigid rule, “Quicquid plantatur solo, solo cedit,” id The test of the degree of annextion may cause a lot of problems especially in the advancement of modern technology. For example prefabricated houses could easily be removable despite their firm attachment to the land. See Megarry and Wade, op. cit., 732. a See Kevin Gray, op.cit., 22. 4 Per Vaughan Williams L.J. in De Falbe, In re. Ward v. Taylor (1901) 1 Ch. 523 at 536, Hamp v, Bygrave (1983) 266 Estates Gazette 720 at 724 cited in Kevin Gray, Elements of Land Law, op.cit., at 22. 3118 TIUM LAW JOURNAL VOL. 13. NO. 1, 2005 there has been a consistent progress towards relaxation of that rule.” When looking at ‘the object and purpose of annexation’ it is not necessary ‘that there must be an inquiry into the motive of the person who annexed them.’ It is enough that that should ‘be inferred from the circumstances of the case.’ What matters when considering the test of ‘object or purpose of annexation’ is not so much how firm, the object has been affixed to the land but rather why was that object affixed. That is so since “[t]he mode of annexation is only one of the circumstances of the case, and not always the most important....”°” 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. In Material Trading Pte. Ltd. (In Liquidation) v. DBS Finance Lid® the defendant was a mortgagee while the plaintiffs were the lessees of two plots of land. The plaintiff erected two warehouses for storage of hardware materials, such as steel plates pipes etc.. In the warehouse there were three overhead cranes each of which has a long steel girder the end of which rests on an end truck frame. The girders and the end truck frames are not attached to any part of the buildings but are mounted on steel runways with wheels that rest and move along the rails on the steel runways. The plaintiffs went into liquidation and the liquidators sold the plaintiffs movables. The liquidators also dismantled, removed and sold the overhead cranes, the steel girders and the end truck. The morgtagee objected and claimed that the cranes were fixtures and thus are part of the land subject to morgtage. In upholding the mortgagees contention the court said that ‘whether the cranes are fixtures or movables is a mixed question of law and fact’ depending upon the intention of the person who put them and such could be deduced from the surrounding circumstances. The court further pointed out that: ad Per Vaughan Williams L.J., inJn re De Falbe [1901] 1 Ch. 523 at 535. Tapestries affixed by a tenant to the walls of a house for the purpose of personal ornaments and for the better enjoyment of them was held to remain chattels and may be removed by the tenant’s executor. = Ibid. Re De Falbe at 535, 2. Per Lord Macnaghten in Leigh v. Taylor [1902] A.C. 157 at 162. bd [1988] 2 MLY 162. a Material Trading Pte. Ltd. (In Liquidation) v. DBS Finance Ltd. [1988] 2MLJ 162 at 163.The Legal Conception of ‘Land? Under Malaysian Land Law 9 .. in all probability the plaintiffs in building the warehouses had the specifications of the cranes in mind and in installing the cranes therein intended that they should remain there permanently to serve the warehouses: moving heavy materials and articles within the warhouses. ... once installed they operate within the confine of the runways in the warehouses. ... [T]hey are intended to serve, and they serve, only the warehouses where they were installed. They are an adjunct to the warehouses; they improve the usefulness of the warehouses and enhance their value.” Inas much as the intention of the person who affixes the chattel is important such an intention must also be coupled with external situations which could be determined only objectively. This has to take into account the nature of the chattel itself and the type of sevices it renders to the property, Clearly the chattel should be prepared in such a way, as in this case, to be almost ‘custom made’ to that kind of purpose without which the property would not function or at least would be rendered useless. In short, it is founded in order to improve and hence enhance the usefulness and the value of the property. In Gebrueder Buehler Ag v. Peter Chi Man Kwong & Ors.*! the court held that machinery equipment installed and incorporated into the processing plant in a factory for manufacturing cocoa and chocolate are fixtures despite the fact that they have not lost their identity and could be easily identifiable. The existence of the Retention of Title clause. was of no avail. Factors such as the intention of the installer, that installation was to improve the unsefulness of the factory for manufacturing cocoa and that the physical annexation was for the better enjoyment of the factory have rendered the equipment to become fixtures in law and therefore formed part of the land. The test of purpose of annexation was applied in both The Shell Company of the Federation of Malaya Ltd v. Commissioner of the Federal Capital of Kuala Per Thean J in Material Trading Pte. Ltd. (In Liquidation) v. DBS Finance Ltd. [1988] 2 MLJ 162 at 165. See also Gebrueder Buehler AG v. Peter Chi Man Kwong & Ors. [1987] IMLJ356. _ Gebrueder Buehler Ag v. Peter Chi Man Kwong & Ors. (1987] 1 ML} 356.120 TUM LAW JOURNAL VOL. 13. NO, 1, 2005 Lumpur® and Socfin Co. Ltd. v. Chairman, Klang Town Council.® In The Shell Companys case appellants are the owners of holdings under which tanks are constructed for petrol storage. The tanks are buried two feet deep below ground level, and are turfed over or covered with concrete or macadam. The manner of its removal shows how firmly the tanks are embedded in the earth. A dispute arose as to whether the tanks are fixtures to form part of the land appropriately described as a ‘building’ and thus become part of a ‘holding’ as to be rateable. The court held that the tanks are fixtures since they have been so placed with the intention that they ‘remain in situ for as long as the filling-stations continue in operation.’ The point that they could be removed for whatever purposes would ‘not alter the fact of their integration with the land upon attachment thereto.’* A similar problem concerning storage tanks for storing palm oil arose in Socfin Co. Ltd. v. Chairman, Klang Town Council.© There in determining the annual value of the appellant’s holdings for rating purposes respondent took into account the bulk storage tanks standing thereon to be considered as part of the land and thus are rateable, “The storage tanks,” according to Mr. Williams; chartered surveyor, “are used for storing palm oil and they are vertical cylinders resting on pre-cast concrete pillars which stand freely on a reinforced concrete raft foundation. The tanks themselves consist of pre-cast bottom, side and roof steel plates which are assembled and riveted on site to form the bulk storage tanks.”*’ It was held that the storage tanks were buildings annexed to the land for its better use and enjoyment. Ong J, went on to say that: “Indeed the object and purpose of having the holding at the wharfside is to have storage tanks there for easy loading of the company’s oil on ships. I am satisfied, therefore, that these storage tanks are annexed to the e [1964] MLI302, 8 [1964] MLJ 325. big See The Shell Company's case [1964] MLI 302 at 304. of The Shell Company of the Federation of Malaya Ltd. v. Commissioner of the Federal Capital of Kuala Lumpur 1964) 302, Per Ong J at 304. . Soofin Co. Lid. v. Chairman, Klang Town Council [1964] MLJ 325. Ibid. at325.The Legal Conception of Land! Under Malaysian Land Law 121 land so as to from part of the land, and fall to be rated on that ground also.”6* A further illustration may be found in Australian Provincial Assurance Co. Ltd v. Coroneo.® This case involved, inter alia, a claim in conversion of certain theatre seats. Plaintiff Coroneo purchased a piece of land and ereceted a hall and equipped it with the necessary apparatus in such a way so that it could be used for the display of moving pictures for two days a week. As for the rest of the week the hall is used for the purposes of holding meetings, concerts, boxing contests and other functions. He also brought a large number of chairs which could be fixed or be unfixed depending on the circumstances and as the occasion required. Jordan C.J. found that regard must be to “the purposes for which they [the chairs] were provided and used, and the extent and reason of their fixation on the occasions when they were fixed.... that a verdict that they did not become fixtures is incapable of being supported.””” It is clear, therefore, that the test of the purpose of annexation though subjective is sometimes produced to contradict or strengthen the earlier objective test of the degree of annexation. This may indicate that certain items may continue to retain their original character as chattels despite their apparent annexation, by the owner of the land, if the intention was merely to enjoy them as chattels and not for the purpose of improving or enhancing the value of the land. The above exception is taken one step further by allowing chattels that are fixtures proper to be removed by the owner of the chattel under special circumstances such as those fixtures put as personal property. According to Blackbur J., the ‘true rule is,”:- ... articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless circumstances are such as to shew that they ‘were iritended to be part of the land, the onus of shewing that they were so intended lying on those who assert % Ibid, at 327, - Australian Provincial Assurance Co, Ltd v. Coroneo [1938] 38 S.R. 100. Australian Provincial Assurance Co. Ltd v. Coroneo [1938] 38 S.R. 700 at 713, 7)122 TIUM LAW JOURNAL VOL. 13. NO. 1, 2005 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.” Thus if the objective of the attachment of the thing is for the better enjoyment of the land or for ‘permanent improvement of the building as a place of public entertainment’ then that would strengthen the presumption set under first test-that the thing is a fixture and has thus become part of the land. Likewise, if the circumstances show that the obvious intention was that to maximize the use or to increase the value of the land then the thing, however slightly attached, may also be regarded as a fixture.”? A wall-to-wall carpet in a hotel was held to be a fixture.” The question as it stands is not whether ‘the thing is easily removable, but whether it is essentially a part of the building itself.’ Thus, a grinding- stone of a flour-mill, statutes, sculptured marble vases and stone garden seats and lions if essentially part of the design of the house and the surrounding landscape, become fixtures even though they stand by their own weight.” The court in Holland v. Hodgson stated, by way of an example, that “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 n Holland v. Hodgson (1872) LR7 CP 328 at 335. n Vaudeville Electric Cinema Ltd., v. Muriset [1923] 2 Ch 74 at 85 - tip- up seats attached to the floor of a cinema hall was held to be a fixture. See also Australian Provincial Assurance Co, Ltd v. Coroneo (1938) 38SR (N.S.W,) 700 where Jordan CJ held that certain theatre seats fixed for moving picture purposes were intended to be permanent and were therefore part of the land considering ‘the extent and reason of their fixation.’ n Holland v. Hodgson [1872] LR7 CP 328 at 335. 7 LaSalle Recreation Lrd,, v. Canadian Camdex Investments Ltd., (1969) 4 DLR (B") 549, . D'Eyncourt v. Gregory (1866) L.R. 3 Eq. 382 at 396-7, Also cited in Material Trading Pte, Ltd (In Liquidation) v. DBS Finance Ltd. [1988] 2MLJ 162 per Thean J at 164f.The Legal Conception of Land? Under Malaysian Land Law 123 form of a wall, would remain chattels.”"° He who alleges that a thing is a fixture and is there for the better enjoyment of the land must prove that was the case. Nevertheless, ‘whether the circumstances are sufficient to satisfy the onus’ in either case depends very much on the peculiarity of each case, The rationale of the general rule underlying the concept of fixtures is that unless otherwise provided for im the contract a purchaser or a chargee of the land has a right to all things if proved to be fixtures as being part of the land. In case of a charge the presumption is always in favour of the charges, unless proved otherwise, and the fixtures pass to the chargee even if they were affixed to the land after the charge transaction. This is so unless it was made clear that they shouldn’t. EXCEPTIONS AND THE RIGHT TO REMOVE FIXTURES Trying to distinguish whether an item so annexed or attached to the land is fixture or remains chattel has practical importance. A chattel is removable by its owner any time unless there is an agreement to the contrary. Nevertheless, if a thing is deemed a fixture then, as has been indicated earlier, it is considered in law as land and thus cannot be removed or detached and the maxim quicquid plantatur solo, solo cedit (whatever is attached to the soil becomes part of the soil) would apply, It follows as a common sense that a house or any superstructure built on a land forms such a category.” On the other hand, certain situations exist where this general rule is not applicable.”* Moreover, a chattel that is undoubtedly a fixture, may still be removable by the person who affixed it under the following circumstances, which may depend squarely on the % Holland, Hodgson (1872] LR7 CP328 at 335. " See s, 47 of the National Land Code 1965 where the law vests in the State Authority, upon reversion of any alienated land or determination of any lease of reserved land, licence or permit to the State Authority, the right in the buildings without compensation. Except if such constructions are of temporary nature and thus may be removable. A proprietor of the Jand who attaches or annexes chattels to his land has a right to remove them any time he wishes before he transfers the title to a third party. That is so since he is merely exercing his right of ownership over his property.124 TIUM LAW JOURNAL VOL, 13. NO. 1, 2005 purpose of annexation.” Removal by the Tenant The rules relating to fixtures applicable to tenants in Malaysia, with certain modifications, are similar to that of England.” The traditional common law rule is that objects affixed to the land by the tenant, known as tenant’ fixtures, become part of the land and presumably are owned by the landlord. However, there is an exception to this general rule whereupon the tenant is allowed to remove fixtures attached by him on the land. “The term fixture is apt to be a source of misunderstanding owing to the existence of the category of so called “tenants’ fixture”... which are fixtures in the full sense of the word...but which may nevertheless be removed by the tenant in the course of or at the end of his tenancy.”*' The Court of Appeal in Spyer v Phillipson® was to decide whether certain panelling put into a flat by a tenant is to be treated as a tenant’s fixture, and thus removable by him or his representative, or whether it passed to the landlord by virtue of having become fixtures. In holding that since the purpose of affixing of the expensive panelling was for its complete enjoyment the proper inference would be that such panelling had been put with the intention of removing 1t. The court went on to state that: “Tt is a mere truism to say that in our law anything that is affixed to the freehold passes with the freehold and cannot, as a rule, be removed or severed from the freehold. But upon that there have been engrafted a number of exceptions, relating to fixtures which have been put in either by the craftsman who has been working i See Megarry & Wade, The Law of Real Property, op.cit., 734. 80 Goh Chong Hin v. The Consolidate Malay Rubber Estate Ltd [1924- 25] 5 FMSLR 86 at 102; Singina Sawmill Co, Sdn.Bhd. v. Asian Holdings (Industrialised Buildings) Sdn. Bhd. [1980] 1 MLJ 23; BBMB Kwangan Bhd. v. Kueh Teck Swee [2000] 1 LNS 115 (HC-Kuching). a Elitestone Ltd v. Morris and Another [1997] 1 W.L.R 687 at 691 per Lord Lloyd. This decision was followed in Chelsea Yacht and Co. Ltd v. Pope [2000] 1 WLR. 1941, a [1931] 2 Ch. 183.The Legal Conception of Land? Under Malaysian Land Law 125 in the house, the tenant who has been occupying it, or by a tenant for life. In all those cases a number of exceptions have been engrafted, enabling the tenant to remove what has been put into the premises, not for the purpose of final inclusion in their structure, but in order that the tenant might enjoy them more freely.? A tenant, therefore, has the right to remove his fixtures provided no substantial or irreparable damage was done to the premises and that the tenant makes good the damage and restores the premises to its position inaccordance with the covenant." Accordingly, “the method of annexation or the degree of annexation, or the quantum of damage that would be done to the article itself or to the demised premises by its removal, has really no any bearing on the question of the tenant’s rights to remove...”*° To this an important point must be added that the tenant is expected to exercise his right of removal during the tenancy period or within a reasonable time otherwise these fixtures may become permanently part of the land and may be owned by the landlord.®® On the other hand, ifa tenancy ends*’ or that the tenancy is terminated by the operation of law but despite that the tenant continues in occupation of the premises, as also for example when negotiations for terms for a fresh tenancy is still in process, then the tenant will still have a right to remove her/his fixtures. A question might arise as to what if a tenant surrenders his tenancy. This matter was discussed extensively in New Zealand Government Property Corporation v. HM. & S. Ltd.® A long-term tenancy of a theatre came to end in 1970. The tenant continued in occupation while negotiating the terms ofa new lease, which was concluded only after three years. Dispute arose as between the tenants and the landlord in relation to the status of the fixtures put by the tenant. It was held that a tenant has a right to remove tenant’s fixtures from demised premises so long as a tenant a Re Roberts, ex parte Brook (1878) 10 ChD.100 at 109. ® [1982] 1 QB, 1145, 8 Per Lord Hanworth MLR. in Spyer v. Phillipson [1931] 2 Ch. 183 at 204. Spyer v. Phillipson [1931] 2 Ch, 183 at 199, 201, 209-210. Per Romer L.J. in Spyer v. Phillipson [1931] 2 Ch. 183 at210. . Re Roberts, ex parte Brook (1878) 10 Ch. D. 100 at 109 per Thesiger L. J.; Smith v. City Petroleum Co. Lid[1940] 1 All. E.R. 260, per Stable J at 261-262.126 TUM LAW JOURNAL VOL. 13. NO. 1, 2005 continues to hold over, no matter while waiting for a new lease or whether he was holding the premises as a statutory tenant. “The correct rule,” According to Lord Denning MLR. is that: “Tf the term expires of effluence of time or by surrender- and the tenants remain in possession by virtue of a new tenancy express or implied - can they still remove the “tenant’s fixtures” during their extended time of possession? Or did they lose them irretrievably when their original term came to an end? .... In my opinion the tenant remains entitled to remove the “tenant’s fixtures” so long as he remains in possession”? The rule applicable to ‘tenant’s fixtures’ would, presumably, be similar in cases of a licensee whose licence has been terminated. In Public Prosecutor v. Yap Tai® the court was of the opinion that although aT.O.L holder whose licence has been determined becomes a trespasser; yet he is entitled to both reasonable notice and “... reasonable time ... to remove what she has placed on the land . ..”” It is noteworthy to point out that although the control of Rent Act 1966 has been repealed, nevertheless the rules relating to fixtures remain unchanged. Thus it is expected that the an owner of a building, subsequently erected on any vacant premises that was rented without such a building, is not entitled to compensation, if while in occupation ‘was not paying rents for such building.” Presumably, a tenant is not allowed to remove such building or structure erected by him. A landlord who whished to regain possession of a controlled premise for purposes of development, may do so provided he paid compensation for the buildings or structures of a temporary nature put up by the tenant. This means that such structures, even though of a temporary nature, are considered part of the land. The Tribunal will decide the amount of the compensation payable by the landlord. However, if a landlord fails to pay o New Zealand Government Property Corporation v. H.M. & S. Ltd [1982] 1 QB. 1145 Per Denning M.R. at 1157. °° [1947] 13 MLI50. a Public Prosecutor v. Yap Tai [1947] 13 M.L.J. 50 per Spencer-Wilkinson Jat 54. id Control ofRent Act, 1966 (Repealed) s 18 (3).The Legal Conception of Land? Under Malaysian Land Law 127 the awarded compensation the tenant is entitled to dismantle and remove the building or any structure erected by him on the said premises.™ The tenant is, therefore, entitled to remove the following types of fixtures: i) Trade fixtures Fixtures attached by the occupier of the land for the purpose of the trade or for business from which he earns his living are removable at the instance of the occupier or tenant at any time during his tenancy agreement.*> ii) Ornamental and domestic fixtures During the term of his tenancy, a tenant is entitled to remove any type of fixtures attached to the land or to the house by him for the sake of ornament or for convenience. However, trade fixtures and those attached as domestic ornaments must be removed within the tenancy period or within such a reasonable time or else they become a gift in law to the reversioner.* Thus, if a tenant surrenders his lease or tenancy without removing his fixtures then he loses his right of removal. That is so unless such surrender was due to the effluxion of time and the tenant has been given a new tenancy while he continued in possession of the premises.*” iii) Agricultural fixtures At common law, agricultural fixtures were not removable by the farmer since they were not regarded similar to trade or business fixtures. At present English law has changed where a farmer or a tenant on an agricultural holding can remove his fixtures provided that he does so 2 Control of Rent Act, 1966 (Repealed) s 18 (2) (b). a Control of Rent Act, 1966 (Repealed) s 18 (4) (0). o See BBMB Kewangan Bhd. v. Kueh Teck Swee [2000] 1 LNS 115. ied See Cheshire & Burn’s Modern Law of Real Property, E.H. Burn, 13" ed., Butterworths, London 1982, 139. New Zealand Government Property Corporation v. H.M.& S. Ltd [1982] 1 QB.1145,128 TIUM LAW JOURNAL VOL. 13. NO, 1, 2005 within two months after the determination of his tenancy. A notice of removal should be given to the landlord who will have the option either to purchase the same or allow the tenant to remove them.” b) Customary practice as an exception Traditional Malay Wooden Houses An important exception to the general rule is a Malay local custom declaring that a certain object should continue to remain chattel notwithstanding its apparent affixation to the land. An example is found in the traditional Malay wooden houses that could easily be removable from one place to another. The presumption is that by custom a house so built is not intended to be permanently affixed to the land. The case of Kiah bte Hanapiah v. Som Bte Hanapiah'” farther settles the law as regards Malay traditional wooden houses built on stilts and which could easily be dismantled and removed from one place to another. In the above case plaintiff-respondent was granddaughter of one Haji Hassan bin Musa who built a house resting on stilts and gave it as a gift to her during his lifetime. Upon the death of the grandfather, the appellant took possession of the house standing on her land and refused to hand it over to the respondent claiming that the house is a fixture and thus has become part of her land. The court relied on the local custom and held that such houses are properly regarded as movable property. Sir Charles Murray- Ansley C.J. stated the law as follows: “{T]here is a settled custom in this country that houses of this type are regarded as personality in which ownership may be separate from ownership of the soil... [TJhat effect should be given to this custom to the exclusion of the English law of fixtures.”! id Agricultural Holdings Act 1948, s. 13 (2), (3). Also see the relevant sections in Agricultural Holdings Act 1986. 100 Re Tiambi Binti Ma’amin (1904) Innes 285. at [1953] MLJ82. ca Kiah bte Hanapiah v. Som bte Hanapiah [1953] MLJ 82 at 83; see Kwek Kim Hock v. Ong Boon Siong [1954] MLJ253 per Taylor J that (custom ofa separate ownership of land and building is a ‘is common incident in the country districts of Malaya and is well established variation from the principle of English law that a building becomes the property of the of the owner of the land’).The Legal Canception of Land? Under Malaysian Land Law 129 There is not enough case law on custom as an exception to demonstrate the category of things that should remain as chattels despite their affixation to land. It is thus, doubtful as to whether customary practice as such, apart of course, from the traditional Malay wooden houses, may operate to validly contradict the operation of the maxim quicquid plantatur solo, solo cedit under the present registration system. It is said that custom carries it further and the exception may also apply to houses built upon Wakaf land to be regarded as movable even if built of brick walls and upon granite foundations.' The courts seem reluctant to allow any widening of the scope of the application of custom relating to buildings except on the production of ‘the clearest evidence’ to the existence of a custom.'™ Although Thomson J in Chua Sai Ngoh () v Beh Ai Meng'® was ready to accept a proved custom to operate as an exception to the general common law tule of fixtures; yet he refused to give cllvct to a claim based on an alleged custom and held that houses consisted of a framework of wooden uprights buried in the ground with walls of wooden planks and roofs of attap are fixtures and thus form part of the soil. This may indicate that the operation of the custom is limited only to the traditional Malay houses built on stilts and those houses built on Wakaf land. Allegation of the existence of the custom is not as it should be proved by clearest evidence.” ae See Mootiyah Chette v. Yacob (1890) 4 Kyshe 568, i Chua Sai Ngoh (f) v. Beh Ai Meng (1955) MLJ 167 at 169. See also Yeap Yok Tee v Lee Boon Bee {1973] 1 MLJ3. See Wake v. Hall (1882-1883), 8 App. Cas. 195 (the rule of quicquid plantatur solo solo credit was not applied to miners who were allowed to pull down and remove the buildings erected on mining land the freehold of which belong to another) tas (1955)MLJ 167, — See Wake v. Hall (1882-1883) 8 App. Cas. 195. ne See Chua Sai Ngoh’s cas above.130 TIUM LAW JOURNAL VOL, 13. NO. 1, 2005 CONCLUSION This article has explored among other things the juridical nature of the term ‘land’ and what it comprises of under both Malaysian and common law conceptions, The notions of the Islamic Sharia has also been pointed out in as much as it relates to considering land as a forin of property. As has been explained the crux of the matter is not so much the notional or definitional aspects that concems us but the realism and expediency of what should be considered as part of land. For that reason, and as societies develop further, there shall and would always bea limitless line of things that would be regarded as land. That depends, of course, on the social, political and legal culture of each society whereupon the ‘inaccuracy’ of the maxim ‘Cujus est solum ejus est usque ad coelum et ad inferos’ would be put to a constant test. This means that the full extent of the application of the stated maxim appears more of a fiction rather than a practical legal reality. That is so since a number of exceptions exist not only to curtail its full application but also to render it ‘virtually worthless” particularly in the light of the moder social and technological advancements. !° bd Gray, Ibid., at 17. ae See Bernstein of Leigh (Baron) v. Skyviews & General Ltd {1978] QB 479 at 485 C, where Griffiths J was of the opinion that the maxim is but ‘a colourful phrase often upon the lips of lawyers.’