ABSTRACT
This post is an attempt to discuss the applicability of the doctrine of“quicquid plantatur solo solo cedit” in Tanzania. The work is divided into three main parts, the first being the introductory part which talks about the origin of the doctrine, the second being the main discussion, which has tried to show the concept of land, fixtures, property(chattels) which amount to fixtures, the right to remove fixtures and the application of the doctrine in Tanzania, and the third being the conclusion.
In Land law, the concept of fixtures is founded on the maxim ‘quicquid plantatur solo solo cedit’. That is, whatever is attached to the land becomes a part thereof. Fitting which are merely Chattels that is personalty, that are so affixed to the land as to become apart of it, loses its character as chattel and passes with the ownership of the land. Chattels are therefore of a temporary nature while fixtures are permanent.
The maxim was invoked to prevent the economic waste involved in giving the land to the heir and the severed chattel to the personal representative. In other words, to avoid destruction involved in the severance from the freehold. The principle of this doctrine has been unduly stretched to govern matters between landlord and tenant and mortgagor and mortgagee, who stand to lose their investment by the application of the maxim. The application of the maxim can be seen in the main discussion as follows.
CONCEPT OF LAND
Land has been defined under section 2 of the land Act [1] [Cap 113 RE 2002] and village land Act [1971 Land Tenure and Policy in Tanzania to mean and include;
The surface of the earth below the surface and all substance other than minerals and petroleum forming part of or below the surface things naturally growing on the land, building and other structure permanently affixed to land. It can be thus noted that although land includes surface and subsurface it does not include minerals such as gold, diamond, tanzanite and copper which are vested to the state as public property. R.W James[3], define land as follows,
To the layman land means any piece of ground or soil whatever that physical substances building and permanent trees remain in the ownership of the developer even through the land belongs to another. In Tanzania, land as a property was discussed in the case of Attorney General V Lohay Akonaay and Joseph Lohay (1995) TLR 80 , it was held that,
“Customary or deemed rights in land, though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of Article 24 of the Constitution of the United Republic of Tanzania of 1977 [Cap 2 R.E 2002] and their deprivation of a customary or deemed right of occupancy without fair compensation is prohibited by the Constitution;”
CONCEPT OF FIXTURE AND ITS APLLICATION
In explaining the concept of fixture, the common law cases will be useful in explaining the concept which are considered to be persuasive authority in courts of law in Tanzania.
The maxim “Quicquid plantatur solo solo cedit”provide the rationale for the principle that item of personal property known as chattels become land if they are attached to it so as to become part of it. Chattels which have been attached so as to become part of the land are known as fixtures.Whether an item has become a fixture will be especially important in two contexts Jackson, et al (2008) Land Law.
- · Where a land is transferred, a conveyance of the land will transfer with it all the fixtures which are not expressly excluded, when an owner of the land enters into contract of sell, he is no longer entitled to remove the fixtures since they belong to the purchaser.
- Where land is subject to lease, any chattel which the tenants attaches to the land so as to become fixtures will belong to the landlord and prima facie the tenants will not be entitled to remove them when the lease come to an end. Fixtures are also treated as forming parts of the land when it has been mortgaged.
When does a chattel become a fixture?
The criteria to determine as to whether a chattel has become a fixture is easily stated but it is much difficult to apply. In the case of Elitestone Ltd v, Moris (1997) 2 All ER 513 Lord Lloydreviews the authorities and state that whether the chattel had become afixture, “Depends on the circumstances of each case, but mainly on two factors, the degree of annexation and object of annexation”.
Degree of annexation: concerns the extent to which the chattel has become attached to the land. The firmly it is attached the more likely it has become fixture; however the fact of attachment is not determinative on whether the chattel has become the fixture. The court must also consider the object of annexation in other way it must take into account the reason why a chattel is attached to the land. The operation of these tests will be examined in the context of the three most common situations in which therewill be a need to determine whether a chattel has become a fixture.
· Chattels attached to land
A chattel becomes a fixture when it is physically attached or annexed to the land, this suggests that the mere fact that an item has been attached to the land will tend towards the conclusion that it had become a fixture, but with qualification that such attachment is not always in itself to make them fixtures, the two relevant factors have to be considered; the manner of affixation and the object of affixation. In practice this means that the chattels which are attached to the land merely to enable them to be better enjoyed as chattels will not be regarded as fixtures and will retain their status as personal propert. In the case of Leigh v Taylor (1902) AC 157, The tenant for life of mansion house had hung valuable tapestries in a drawing room. Although they were affixed to the land the House of Lords held that they remained chattels because they were never intended to form part of the structure of the house and were only attached to enable them to be better enjoyed as ornamental decoration.
Also in Barkley v Poulett (1976) 241 E.G 911 the Court of Appeal indicated that the purpose of annexation test was pre-eminent over the fact of physical attachment. Scarman L.J noted that there was a close relationship between the two. If the purpose of annexation be for the enjoyment of the object itself it may remain a chattel, not withstanding 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 can’t be removed without serious damage to or destruction of some part of the realty, the case for its having become a fixture is strong one.
· Chattels resting on land
The presumption that a chattel attached to the land become a fixture means that chattels not attached to land retains it is status as such Blackburn J stated in Holland v. Hodgson (1872) LR 7 C.P 328 “An article not otherwise attach to the land than by their own weight are not to be considered as part of the land, unless the circumstances as such as to show that there were intended to be part to the land, the onus of showing that they were so intended lying on those who assert that they are ceased to be chattels”
The general rule is that a chattel which rests on its own weight on the land cannot be regarded as a fixture. This was applied in a case of Jordan v. May (1947) KB 427 where the issue was whether electricity motor and batteries were fixtures, it was held that the motor was sunk in concrete it was attached to the land hence become a fixture, but the batteries remains chattels because they were resting by their own weight. The exception to this general rule has been recognized in different cases including the case of Hamp v. Bygrave 1982 266 E.G 720, The vender of the land removed a number of items from their garden, include stone statue and other stone ornament, after entering into contract with purchaser. It was held that these items were fixtures despite the fact that they merely rested by their own weight because they formed part and parcel of the garden and has been installed primarily to improve the land.
· Buildings
Buildings such as houses are regarded as fixtures this is due to the fact that a house cannot be removed from one place to another without destroying it. The central factor in determining whether building has become part of the land is whether it capable of being removed without demolishes. As it was establish in the case of Elitestone ltd v. Morris[1997 2 All ER 513]
where house of lord was require to determine whether a bungalow which rested on concrete foundation blocks by its own weight was a fixture or chattel, it was held that although it rested by its own weight it had become part of the land. In order for a house to be determine as the fixture or chattel two tests must be considered which are the manner and purpose of annexation. As provided in the case of Holland v. Hudson where Blackburn J. stated that,
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.
RIGHTS TO REMOVE FIXTURE
As the general rule when a property become fixture cannot be removed for instance owner of the land selling his land to purchaser cannot remove a fixtureunless he excluded in the contract of sell. Also for a tenant when his lease come to an end he will not be entitled to remove the fixture therefore will belong to the landlord, however there are situationin which fixtures can be removed as hereafter.
ü Severance of fixture by seller of the land and purchaser:
Once the owner of the land entered into a contract of sale with purchaser it has noted that the title of ownership pass immediately to purchaser. From that time the seller is only entitled to remove such fixture as the contract entitle him to do so. It now common practice for the seller and purchaser to draw up schedule prior to the exchange of contracts of which will and will not be included in the sale.
ü As between land lord and tenant.
It is usually noted that fixture which are attached to land by tenant are land lord fixture and must be left for the land lord, however there circumstance in which tenant fixture can be removed.
ü Tenants Right to remove Trade fixtures
This is fixtures which attached to the land by the tenant for the purpose of trade or business. It has been recognized that a tenant is entitled to remove fixture installed during the term of the lease for the purpose of carrying on his business.In Smith v City Petroleum (1940) 1 ALL E.R 260 it was held that a tenant could remove petrol pumps from the land because they were trade fixture andcould 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 easily be detached. In Young v Dalgety Pls (1987) 1 E.G.L.R. 116 a tenant in this case had installed fittings and a carpet which had become fixtures by virtue of their attachment to the land , it was held that they were trade fixtures and removable because was made purposely for tenant business use.
ü Tenants Right to Remove ornamental and Domestic fixtures
A tenant is entitled to remove fixtures which he added to the land purely for decoration or ornament. This fixtures will only be removed if will not cause any substantial damage to the premises. Example of these ornamental and domestic fixtures is chimney pieces, stoves, grates, ovens, and fixed water tubes. In Spyer v Phillipson [18] (1931) 2 ch. 183 a tenant who had installed antique paneling in the room of a house to give it a good appearance was held entitled to remove it, because it was only attached by screws and was readily removable.
ü Tenants Right to remove Agriculture fixture
Historically, fixtures installed by tenants for agriculture purpose could not be removed because they were not regarded as trade fixtures. However later on the law was changed, so the agriculture tenants is entitled to remove fixtures such as engine, machinery, fencing, and any building erected by him thereon. Example at common law a tenants is allowed to remove fixtures during his tenancy or within two months of its termination, or within at least one month before the termination of the tenancy notes of removal must be given to the land lord who thereupon acquires an option to purchase the fixtures.
ü As between Mortgagor and Mortgagee
When there is relationship of Mortgagor and Mortgagee fixtures pass with the land to the Mortgagee even though not mentioned in the deed, as also do those which have been added later by the Mortgagor while in possession. Fixtures which have been annexed to the land by the third party under an agreement between him and the Mortgagor which permit him to remove them in certain circumstances can be removed by the third party Megarry, R (1977), A Manual of the Law of Real Property.
APPLICATION OF THE DOCTRINE OF “QUICQUID PLANTATUR SOLO SOLO CEDIT” IN TANZANIA MAIN LAND AND ZANZIBAR.
Land has been defined under section 2 of the land Act[Cap 113 RE 2002] and village land Act[Cap 114 RE 2002] to mean and include;
The surface of the earth below the surface and all substance other than minerals and petroleum forming part of or below the surface things naturally growing on the land, building and other structure permanently affixed to land. It can be thus noted that although land includes surface and subsurface it does not include minerals such as gold, diamond, tanzanite and copper which are vested to the state as public property
In our view the definition given by the land Act, shows that the doctrine of quicquid plantatur solo solo cedit is applicable in Tanzania, as it provide that landinclude permanent structure affixed to the land. Although the land Act[cap 113 op. cit] provide that things permanent attached to the land form part of it, but still two condition should be regarded which are degree of annexation and object of annexation.
Also in Tanzania minerals do not form part of the land even though they are found within the land. Land includes surface and subsurface substances it does not include minerals such as Gold, Tanzanite, etc. The reason for this is historical. In Tanganyika the colonial masters vested all mines and minerals in the state, and that has been the case until now.
The application of Doctrine in Tanzania can also be seen in the case of Karanja Waihenya v. S. Marai[(1981) TLR no 86]The facts are that the former tenant (Paul Kamau) brought a beer store business from the appellant(Land lord), he converted a house into a lodge for which he obtained a licence, later he added a bar business thereon and got a licence for the same. Then he effected improvements in a house at his own cost as aids of his business as he was instructed by a health officer. These improvements were: two wash basins, water tapes, ceiling boards, a fixed bar shelf, flash toilet plus cesspit. Later he sold the business to an incoming tenant (cross appellant) who was afterwards ordered to vacate the premises because he defaulted in rent payments, this second tenant claimed compensation from the owner of the premises for the value of the aids of business or trade effectedover or in the house which he said he bought them from the former tenant. The trial court allowed tenants claim in part. The land lord appealed and the tenant cross appealed claiming the disallowed part of his claim. The court of appeal allowed the appeal and dismissed cross appeal.The Court was of the views that,
The list stands almost all the item are either built in, or fixed to the land and they constitute fixtures. To constitute a fixture the article questioned should be let into or united to the land or be substantial connected with the land or building that is built on it. Therefore wash basin, water tapes thereon ceiling boards fixed to the house, flash toilet and cesspit qualify quite easily to be termed fixture.
The doctrine of Quicquid plantatur solo solo cedit”does not apply in Zanzibar. For instance when a person buys a piece of Land, it does not include any thing found on that Land. Buildings and permanent trees remain the ownership of the developer even though the Land belongs to another. This position was explained in the case of Wakf v. Alimohamed Ali Nandi[ (1950) 18 E. A. C. A 86]. However legally land include everything attached to it.
CONCLUSION
Generally, the application of the Doctrine Quicquid plantatur solo solo cedit in Tanzania does not very much vary from the application of the doctrine at common law. Except that in Zanzibar the application is quite different as to them, buildings, trees or any items attached to the land do not form part of the land. The land can be transferred to another person while the items still belonging to the land lord. Otherwise, in Tanzania mainland the application of the doctrine implies the concept of fixtures, to determine whether an item forms part of the land or not, in which there are several factors to determine whether a chattel has become a fixture, and that for a property to be regarded as so depends on the degree of annexation and object of annexation as it was observed by the court in the case of Karanja Waihenya v. S. Marai.
REFERENCES
1.land Act [1] [Cap 113 RE 2002]
2.village land Act [1973.Wakf v. Alimohamed Ali Nandi[ (1950) 18 E. A. C. A 86]
4. Elitestone Ltd v, Moris (1997) 2 All ER 513
5.Smith v City Petroleum (1940) 1 ALL E.R 260
CREDIT
1. http://enock2005.blogspot.com/2012/03/quicquid-plantatur-solo-solo-cedit.html
2. https://papers.ssrn.com/abstract=3215672
3.https://www.academia.edu/35934096/THE_MAXIM_QUID_QUID_PLANTANTUR_SOLO_SOLO_CEDIT
