The definition of land under Common law Include not only the surface of the
earth but also things attached to it for example buildings, trees and natural
resources also further include the airspace above the land and things
underground the earth such as soil and minerals. In Tanzania, land as a
property was discussed in the case of Attorney General v Lohay Akonaay and
Joseph Lohay.
Fixture is a Personal property that is so closely associated with real property
that it cannot be separated without damaging real property. A fixture, as a
legal concept, means any physical property that is permanently attached
(fixed) to real property (usually land) Property not affixed to real property is
considered chattel property. Fixtures are treated as a part of real property,
particularly in the case of a security interest. A classic example of a fixture is
a building. Fixtures are also treated as forming parts of the land when it has
been mortgaged to determine as to whether a chattel has become a fixture
is easily stated but it is much difficult to apply for example In the case of
Elitestone Ltd v, Moris 7 Lord Lloyd reviews the authorities and state that
whether the chattel had become a fixture, “Depends on the circumstances of
each case, but mainly on two factors, the degree of annexation and object of
annexation”.
Degree of annexation:
This 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 there will be a need to determine
whether a chattel has become a fixture. 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 the case of Leigh v Taylor, 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.
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 in Holland v. Hodgson “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 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 12 where the issue was whether
electricity motor and batteries were fixtures.
The exception to this general rule has been recognized in different cases
including the case of Hamp v. Bygrave. 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 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. As it was establish in the
case of Elitestone ltd v. Morris As provided in the case of Holland v. Hudson.
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.
APPLICATION OF THE DOCTRINE OF ““WHATEVER ATTACHED TO LAND
BECOMES PART OF LAND IN TANZANIA MAIN LAND .
Whatever attached to land it becomes part of a land and this depends on
the degree of attachment as well as its purpose of attaching. Example;- If
someone decides to put carpet on the floor may not be part of a land but
when he puts tiles this may be part of a [Link] has been defined under
section 2 of the land Act20 and village land Act21 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 land include permanent structure
affixed to the land. Although the land Act22 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. 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. 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.
Factors for determination of whether the item attached form a part
of land depend on two factors;- Degree of
annexation(attachment)According to the degree of annexation test, an
article is a fixture if it is attached to land or a building in a substantial
manner, such as by nails or screws. The more firmly or irreversibly the object
is affixed to the earth or a building, the more likely it is to be classified as a
fixture. There must be a physical connection with the land or with something
that is part of the land and object. The purpose of annexation means the
determination of the status of an item is not conclusively determined by the
degree of annexation. If the circumstances show that the object was
intended to form part of the landscaping or architectural design of the
premises and is resting by their own weight, then they can be regarded as
fixtures. Items attached to the land for the purpose of enjoyment are
regarded as chattels. Case of Elwis v. Maw24(1802) 3 EAST 38. Facts In this
case the farmer had build at his own cost of shade for animals, carpenters
shade and fuel house and the tenant removed before the end of the lease.
Held; It was held that the farmer could not remove chattels even if they were
fixed to his hold for his sole purpose of improving improving his agricultural
operation
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.