The concept of fixture as used in land

What is land law?

Is a branch of private law (i.e. that part of our law which is concerned with the relationships of members of the community inter se) dealing with rights conferring a direct and immediate authority over land. Land law seeks to provide a framework within which it will be possible to resolve, among members, other problems of possession, ownership (a complex bundle of rights), creation, transfer and termination of rights, interests and duties related to land.

What is land?

According to Webster’s New International Dictionary of English Language, 2nd ed,  land is ‘a solid part of the surface of the earth as distinguished from water constituting a part of such surface, especially from oceans, seas and lakes’.

In law, however, land includes more than the physical soil or substance. At common law for example, land includes buildings and any other thing attached permanently to the soil, whether above or below the surface. Thus, under common law, if a building is erected on land and objects are attached to the building, the word land prima facie includes the soil, the building and the objects affixed to it.

In this case a transfer or ownership of the particular portion of the earth includes, prima facie, not only the physical soil but also all buildings permanently attached to the soil or permanently fastened to anything which is attached to the soil. In Rogers v. Longsdon [1967] 2 WLR 861 it was held that an artificial heap of waste could become part of the land when grass and trees  grow on it.

Statutory definitions of the term land:

For position in England read the English Law of Property Act 1925 which defines land to include ‘land of any tenure, and mines and minerals whether or not held apart from the surface, buildings or parts of buildings and other corporeal hereditaments,…” The above definition however, does not necessarily imply that the owner of soil in England has absolute freedom relating to its use and exploitation. For example, the owner of land in England is not necessarily entitled to treasure, such as gold and silver, discovered on his land.

Position of law in Tanzania

In Tanzania, local legislation has vested the entire property in, and control of all, minerals and mineral oils in the state. No person can prospect, remove or mine any of these items without a lease or license from the state. See for example, the Mining Act 1998 and the Land Act 1999. Section 2 of the Land Act 1999 defines land to include the surface of the earth and earth below the surface and all substances other than minerals and petroleum forming part of or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to land.

Common terms used in land

Fixtures

What is fixture?

The name applies to anything which has become so attached to land as to form, in law, part of the land. They are chattels which have been so affixed to land as to become, in law, part of the land.

Common Law Rule on Fixture

The common law rule is quicquid plantatur solo solo cedit(that which is affixed to the soil becomes part of the soil). Therefore under this definition anything permanently attached to the soil like buildings, whether they are above the soil or below the surface form part of the land. It is always a question of law whether an article is a fixture or not.

Legal tests for a fixture

Legal tests for a fixture are the degree and purpose of annexation.

1.      Degree of annexation

It must be shown that the item has substantial connection with the land or a building on it. An item which merely rests upon the ground by its own weight is prima facie not a fixture. In Jordan v. May (1947) KB 427 it was held that a chattel is not a fixture unless it is connected to the land or to a building upon that land in some substantial way. In Hulme v. Brigham (1943) a heavy printing machine secured to the floor by its own weight was held not to be a fixture. Where an item is attached to the land in a substantial way, even though it could be removed with relative case, it may be considered a fixture.

[You may also read the case Jetha v. Chagan [1955] EACA 312 and Karana Weihenya v. Marai [1981] TLR 86 (HC) Katiti, J.]

Purposes of annexation

If the intention was to affect a permanent improvement of the land or building then the item becomes a fixture. The more securely an object is affixed and the more damage that would be caused by its removal, the more likely is that the object was intended to form a permanent part of the land (see Leigh v. Taylor (1902) A.C 157). If the intention was merely to affect a temporary improvement or to enjoy the chattel as a chattel then the item is not a fixture. Examples of permanent improvements include buildings, fences, walls, wells, fixed machineries and other attachments of permanent nature.

Land as a Property

The term property has no universally agreeable definition.  It is not a term of art but takes its meaning from its context and from its collocation in the document or parliamentary Act.  It is a concept that refers to the rights, obligations, privileges and restrictions that govern the relations of a person with respect to things of value. Property may take tangible or non-tangible form.

[NB: Property in land was defined in Henderson v. Secretary of State for Social Security [1998] (CA) as ‘a legal estate or an equitable interest in land’.]

Question: Is land property?

Land normally remains land. Only rights and interests in land (both legal and equitable) are accorded great importance. In Tanzania however, all land is public land vested in President as trustee (see the Land Act 1999). Individuals and legal persons are interested in right to occupy and use the land.

Landmark case on property in Tanzania

A landmark decision of the Court of Appeal of Tanzania which reviews the question whether land is property or not was Attorney General v. Lohay Akonay [1995] TLR 80. In this case the court was of the view that land (right of occupancy) is a property capable of being protected under Article 24 of the Constitution of the United Republic of Tanzania, 1977 (as amended from time to time).

The doctrine of Estate and Tenure

·         Tenure  reflects the quality of person’s holding and is concerned with the problem ‘upon what condition(s) is land held’? and How is the land held?

·         Estateis concerned with the problem ‘for how long the land is held’?

·         Land tenure  is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. (For convenience, “land” is used here to include other natural resources such as water and trees.) Land tenure is an institution, i.e., rules invented by societies to regulate behaviour. Rules of tenure define how property rights to land are to be allocated within societies. They define how access is granted to rights to use, control, and transfer land, as well as associated responsibilities and restraints. In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions.

Land Ownership

Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. Land ownership is restrictive in Tanzania; under the Land Act of 1999, all land in Tanzania belongs to the state.

Right of Occupancy

Occupancy means gaining or having physical possession of real property subject to, or in the absence of, legal right or title. The right of occupancy of land in Tanzania includes the right to disposition grant of right of occupancy. It includes right to disposition as provided for under Section 22 (1) (i) of land Act, RE 2002. It provided that (1) A granted right of occupancy shall be– i) capable of being the subject of dispositions.

Deemed Right of Occupancy

Deemed right of occupancy on the other hand means the title of a Tanzanian citizens of African descent using or occupying land under and in accordance with customary law. It can be acquired under customary law through inheritance, clearing a virgin land or gift.

Customary Right of Occupancy

Means” a right of occupancy created by means of the issuing of a certificate of customary right of occupancy under section 27 of Village Land Act, 1999 and include deemed right of occupancy.

Customary Land

Customary land, This is the land which is owned by indigenous community and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership.

To What Extent Can Land Be Owned?

The Roman law concept “Cuius est solum, eius est usque ad coelum et ad inferos”, a Latin maxim meaning for “whoever is the soil, it is theirs all the way to heaven and all the way to hell, the maxim also may mean for “whoever is the soil, it is theirs all the way to heaven and all the way to depth below”. This is the principle of property law stating that property holders have rights not only to plot of land itself, but also to the air above and (in broader formulation) the ground below. The principle is often referred to an abbreviation form as “Ad Coelum” doctrine

In modern law, this principle is still accepted in limited form and the rights are divided into air rights above and subsurface right below. Property holders generally have right to space immediately above and below the ground-preventing overhanging parts of neighbouring buildings-but do not have the righ In Bernstein v Skyviews [1978], whereby Lord Bernstein owned a country estate and complained about trespass when aerial photographs were taken. Griffith J. found that ownership of the airspace extends “to such heights as is necessary for the ordinary use and enjoyment of his land and the structures upon it.” The flying did not constitute trespass.

REFERENCES:
Cases
1. Rogers v. Longsdon [1967] 2 WLR 861
2.Jordan v. May (1947) KB 427
3.Bernstein v Skyviews [1978],
4 Attorney General v. Lohay Akonay [1995] TLR 80

Credits
1. https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1840&context=hlr
2. ontariorealestatesource.wordpress.com