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Is Method of Annexation Test, per se, Sufficient?


  1. The general rule is that ‘whatever is attached to the soil becomes part of the soil’. This give rise, the more damage the object is likely to cause upon its removal the more likely that the object or purpose of the annexation was that it was intended to form a permanent part of the land. However, there has been no interpretation nor legal definition to what extent the phrase ‘damage’ means since damage can be divided into two types whether physical damage or conceptual damage. There is certain item although it could be remove easily without any apparent damage yet the object into which it was affixed would cease to perform the purpose it was made for. For examples, door and windows of a house may be pulled out from their hinges without damaging the building. Nevertheless, the building could hardly be called a house without doors and windows. In the case of Vaudeville Electric Cinema, Limited v. Muriset, a cinema would cease to perform the purpose it was made for, although the seats and screen, contended to be chattel by the plaintiff, can easily be removed without causing any serious physical damage.
  2. In the case of Australian Provincial Assurance Co Ltd v. Coroneo it was held that the extent of annexation is not the decisive test and the degree of annexation must be considered vis-a-vis the intention. Jordan CJ pointed out that the test of whether a chattel which has been to some extent, fixed to the land is a fixture is whether it has been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period, or whether it has been fixed with the intent that it shall remain in position only for some temporary purpose. In the case of Holland v. Hodgson, Blackburn J gave an analogy 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 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.
  3. Halsbury’s Laws of England explained the mode of annexation is only one of the circumstances to be considered and may not be the most important consideration. There is a second test so called object and purpose of annexation which regard the degree of annexation as evidence of purpose; whether the item concerned was for the permanent and substantial improvement of the premises or merely for the more complete enjoyment and use of the chattel as chattel.
  4. There are several items in some cases though kept in position by its own weight, nevertheless, were regarded as fixtures. In the case of D’Eyncourt v. Gregory it was held that, amongst other things, statues, figures, vases and stone garden seats resting by their own weight were held to be fixtures on the ground that they were part of the architectural design of the house as distinguished from mere ornament. In Monti v. Barnes, ‘dog grates’ which were of considerable weight but were not physically attached to the structure of the house, rested by their own weight, was held being fixtures due to the fact that that the dog grates were placed in the house for the improvement of the inheritance and with the intention that they should become part of the freehold.
  5. The decision in the case of Northern Press and Engineering Co v. Shepherd appears to have thrown a new dimension to the law of the chattel and fixtures where the nature of the item seems to be one of the determining factors. Though the dispute machine in the case was a composite machine, and the agreement of hire-purchase agreement comprise the fixed driving mechanism as well as the patented machine, and the driving apparatus was admittedly affixed to the freehold, the court held that was not cease in character to be chattel. The learned judge observed that the machine is complete in itself for the purpose for which it was designed and the driving mechanism is not part of the machine. Besides, not one of the direct attachments really operates to assist the machine in discharging its functions or is necessary for its stability.
  6. In the case of Goh Chong Hin & Anor v. The Consolidated Malay Rubber Estates, Sproule CJC pointed out that proved custom can displace the presumption of intention of permanent intention. Unlike ordinary house, constructed and fastened to the land, a Malay traditional house built on stilts, was held in the case of Kiah Hanapiah v. Som Hanapiah, is to be regarded as personalty in which ownership may be separated from ownership of the soil.
  7. The Common Law exempts items affixed by the tenant, or things attached to land as being essential for trading or business purposes, or that for agricultural purposes or put by the owner as domestic fixtures or as ornaments. The tenant is allowed to remove them provided that there is no substantial injury to the landlord’s premises. In the case of Spyer v. Phillipson, it was held that the panelling, the chimney pieces and the fireplaces installed by the late Mr. Philipson, the one to whom the plaintiff served as executor, were regarded as chattel. Luxmoore J pointed out that In the case of landlord and tenant from the earliest times relaxations of the strict rule have been recognized, and these relaxations have been wider with the advance of time and the change of fashion.
  8. Though a machine, in mortgagee and mortgagor relationship (or charge and chargor in Malaysian context), fastened to the freehold will remain with the freehold and the title over it will pass to the whomever becomes a proprietor, the test is in applicable if contrary was provided for in the contract such as provision clearly specified the limitations imposed on the ownership of the said fixtures. (The MBF case)

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