Topic 2: General Concept of Land Ownership

1. S.5 NLC defines land, which includes:

(a) The surface of the earth and all substances forming that surface;
(b) The earth below the surface and all substances therein;
(c) All vegetation and other natural products, whether or not requiring the
periodical application of labor to their application of labor to their production and
whether on or below the surface
(d) All things attached to the earth or permanently fastened to anything attached to
the earth, whether on or below the surface
(e) Land covered by water

2. Paragraph (d) of the definition has given rise to the most difficulty in
determining whether a particular item forms part of land or remains a chattel. It
only looks at the physical aspect of the annexation (to attach, append, or add). It
does not by itself determine whether an article is a fixture or a chattel.

3. Reference needs to be made to English law to determine whether the article is a

fixture or chattel (Goh Chong Hin & Anor v The Consolidated Malay Rubber
Estates Ltd 5 FMSLR 86, The Shell Co of the Federation of Malaya v President,
Town Council Bandar Penggaram, Batu Pahat
[1962] 1 MLJ 277)

4. To avoid this ambiguity section 5(d) may be contracted out by the parties to the
contract.

English Law of Fixtures

Fixtures are movable property which are so affixed to the land or to a building and
often explained asquic quid plantatur solo, solo cedit which in Latin means
whatever affixed to the soil belongs to the soil” In simple terms, a fixture is an item
that is attached to the land and immovable; and it shall form part of the land.

In the case of Minshall v Llyold, a leased colliery to B with right to put steam
engine. Pursuance to the rights vested, B erected several steam engines which was
affixed to the solid. Engines were seized as results of default payment. It was held
that the engines were considered as fixtures as it was attached to the soil.

The English law of fixtures is laid down in Holland v Hodgson: The owner of a
mill purchased some looms for use in his mill. They were attached to the stone
floor by nail driven into wooden beams. They could quite easily be removed. The
owner then mortgaged the mill and failed to keep up the payments and the mill was
repossessed. The question for the court was whether the looms were fixtures
forming part of the land or whether they remained chattels. It was held that the
looms had become fixtures and thus formed part of the land mortgaged.

Chattel
Chattels are usually goods that are not fixed to the land or property by anything
other than their own weight. These are usually furniture and small appliances in a
property and are the belongings of the owner. However, this does not include built-
in furniture. A chattel can become a fixture if it has been affixed to the home and it
cannot be removed without causing damage to the property
E.g.: Computers, telephones, copy machines located within a building.
The English law of fixtures provides two tests for establishing whether an item is
fixture or a chattel:
- Degree of annexation
- Purpose or object of annexation
[BOTH TESTS MUST BE APPLIED!!!]

First Test: Degree of Annexation

An objective test on the physical attachment of the article raises prima facie
finding of fact by looking at the degree to which an article is affixed to the land
and raises a presumption which can be rebutted by the purpose test:
(i) If an article is affixed to the land even slightly, the presumption is that it is a
fixture
(ii) If an article is attached to the land by its own weight, it remains a chattel
(iii)If the removal of the article would result in damage to the article, the
presumption is that it is a fixture
(iv)If the removal of the article does not result in damage to the article, cannot
presume that it is a chattel but to look at the purpose

Second Test: Purpose of Annexation

- Prima facie the degree test may be strengthened or rebutted by the purpose
test
- If there is no physical attachment to the land. Presumption is a chattel
- But, Blackburn J in Holland v Hodgson, “but even in such a case, if the
intention is apparent to make the articles part of the land, they do become
part of the land.”
- Intention in this context is to be assessed objectively and not subjectively
It is the purpose which the object is serving which has to be regarded, not
the purpose of the person who put it there.
If the purpose of the annexation of the item is for the better enjoyment of the land
or building as a whole so as to improve its usefulness and value, this would
strengthen the presumption that the item is a fixture. Burden of proof is on the
person who contends that it is a fixture. If the purpose of the annexation is merely
for the complete enjoyment and use of the item as a chattel itself then the
presumption will be rebutted and the item will remain a chattel and therefore, not
form part of the land. Burden of proof will be on the person contending it is a
chattel

APPLICATION OF ENGLISH LAW OF FIXTURES

1. The Malaysian judges had to seek help from the decisions of English cases on
this subject matter as the statute is unclear
2. Based on the definition of land under statutes, fixture is anything attached to the
earth, immovable and being part of the land itself. However, in the Malaysian
context, since the National Land Code merely looks at the physical aspect of
annexation and doesn’t determine whether an article is a fixture or a chattel.
Sproule J: “I have no doubt that we are to apply in this country the ordinary
English law of fixtures.”
Thus, English law of fixtures applies.
The case of Goh Chong Hin & Anor v The Consolidated Malay Rubber Estates Ltd
was regarded as authority as to the application of the English Law on fixtures to
the Malaysian situation on the basis that an article which is affixed to the land even
slightly is to be considered as part of the land. Goh Chong Hin charged his land
including his buildings and factory to SRMS Lechman Chetty (chargee). Goh
executed a Bill of Sale over the machinery in the factory to the Consolidated
Malay Rubber Estates Ltd(grantee). The chargee by the consent of Goh took
possession of the land and the factory. The grantee applied for order to seize and
sell the machinery by virtue of the Bill of Sale. At first, the trial judge decided in
favor of the grantee, however the judgement was reversed and appeal was allowed
It was held that the English law of fixtures applied. As the machinery was fixed to
the foundations of the building & was securely attached into soil with bolts, it
became fixture and this may be classified as land because based on the degree test,
the presumption is that the machinery were fixtures and applying the purpose test,
the machinery were attached to enhance the value and the utility of the land for a
rubber estate. This strengthen the presumption that the machinery were fixtures.

People’s Park Chinatown Development Pte Ltd (In Liquidation) v Schindler Lifts
(S) Pte Ltd
The escalators, although hoisted into place rested on their own weight, were
nevertheless, fixtures as the circumstances were such as to show that they had been
fixed to the building in such a way as to become an integral and permanent feature
of the building.

Socfin Co Ltd v Chairman, Klang Town Council, A dispute arose as to the nature
of the above ground storage tanks consisting of cylinders that were resting on pre-
cast concrete pillars standing on a reinforced concrete raft foundation, for the
purpose of storing palm oil. It was said that these tanks might be considered as
‘structures’ attached to the land and could therefore be held to be fixtures. Ong J
held the tanks are sited on the holding to improve the land and for its better use and
enjoyment. The object and purpose of having the holding at the wharf side is to
have storage tanks there for easy loading of the company’s oil on ships. Thus,
these storage tanks are annexed to the land and form part of the land. A bulks
storage tanks connected to pipelines by bolts and nuts was used to allow railway
wagons to empty their palm oil into the tanks. The court held that it can be no
doubt that the tanks sited on the holding to improve the land for its better use and
enjoyment, thus becomes part of the land.

The Shell Co of the Federation of Malaya v President, Town Council Bandar

Penggaram, Batu Pahat involves underground tanks at petrol station buried two
feet below ground level, turfed over and covered with concrete. The manner of
their removal, if it has to be done, shows how firmly the tanks are embedded in the
earth. To remove the tanks, the turf, concrete or tarmacadam is taken up, the earth
excavated, the concrete manhole boxes removed, all pipe connections unbolted and
the tank, with its concrete sinker weights can then be raised with blocks and tackle.
The tanks, when placed underground, were intended to remain there. It was held
that the underground tanks are fixtures and therefore are land within the definition
of land under NLC.

Esso Malaysia Bhd V Hills Agency (M) Sdn Bhd, the plaintiff applied for an order
to recover possession of certain land belonging to them on the ground that the
defendants were occupying the land without consent of P. The issue was whether
plant was a fixture, therefore formed part of the land. It was held that the mere fact
of physical attachment is not conclusive to deem an article a fixture, what is of
greater importance is the object of annexation. It clearly showed that the plant was
a permanent attachment to the land, thereby forming part of the land.

Material Trading Pte Ltd (In Liquidation) v DBS Finance Ltd Overhead cranes
were installed and intended should remain there permanently and the purpose was
to improve the usefulness of warehouse. High Court stated whether an equipment
is considered chattel or fixture is a mixed question of fact and law that depends on
the intention of the parties. The onus of proof is on the owner of the equipment to
prove that particular piece of equipment still remains chattel even after its
annexation to land. The court in this case also illustrated the situation where an
article if it stands by its own weight, it still can be a fixtures; where it is a part of
the architectural design for the buildings and are placed in order to complete the
architectural design. Anything that has been attached to the earth, such as
buildings, houses, bridges, etc. that is constructed on the soil becomes part of the
soil and anything that is permanently affixed to anything that is attached to the land
also becomes part of that land. For example, built in cupboards in houses or
offices, air conditioning fitted into the walls, lights, ceiling fans and heavy
machinery. These things are known as fixtures.

GENERAL PRINCIPLES OF FIXTURES

1. All the fixtures attached on the land form part of the land
(Sri Kajang Rock Products Sdn. Bhd. vMayban Finance Bhd. & Ors- it was held
that the engine became a fixture, that is part of the soil, when it annexed to the soil
by screws and bolts. It shows that the court categorized the fixtures attached to the
soil as part of the land even if it is only merely attached.

2. Application in relationships of Landlord and Tenant

ss 213, 221-240 NLC

- The general principle that all fixtures attached to the land form part of the
land does not apply in the case of tenant’s fixtures.
- Tenant’s fixtures that are removable by a tenant: trade fixtures (attached by
tenant for his trade); agricultural fixtures; and domestic fixtures.
- A tenant has the right to remove tenant’s fixtures affixed to the land as long
as he is in possession as tenant; but he must do so within a reasonable time
- If a tenant does not remove the fixtures within reasonable time after tenancy
hasexpired, landlord’s title to the fixtures become absolute.
- In the case of ornamental or domestic fixtures, the tenant is allowed to
remove them provided there is no substantial injury to the landlord’s
premises.
In the case of Chua Sai Ngoh v Beh Ai Meng, the plaintiff sought to declare that
she was the owner of the said houses because they were built on her land.
Defendant however contended that plaintiff was only owner of the land and not
owner of the houses because defendant was the one who had built the houses. The
house was by the defendant before the purchase of land by the Plaintiff. The house
was plank-walled house and was built on concrete platform. The defendant had
been paying rent to the Plaintiff yearly for the occupation of the land until 1953
The issue was whether certain houses built by the defendant on the plaintiff’s
land belonged to the plaintiff or the defendant? It was held that the house was built
on the land and therefore became part of the land on which they stood. Since the
houses were part of the land they therefore belonged to the plaintiff who was the
proprietor of the land.

3. Application in relationships of Vendor and Vendee

All fixtures which have been brought on to the land or premises by the vendor
before the sale will go along with the sale of land, unless the parties have expressly
stipulated otherwise. Unless otherwise agreed/ indicated in the agreement, all
fixtures attached to the land at the time belong to the purchaser.

In the case of D’ Eyncourt v Gregory, the court was required to determine if some
tapestries, some ornamental statues of lions in the hall, staircase and gardens, some
vases resting in nitches and stone garden seats were fixtures or chattels. Held; The
tapestries were fixtures as they were integral to the decoration of the room where
they attached as wallpaper or frescos. The statue of lions, the garden seats and
vases were also fixtures as they formed part of the overall architectural design.
The principle by Lord Romilly MR: "I think it does not depend on whether any
cement is used for fixing these articles, or whether they rest on their own weight,
but upon this--whether they are strictly and properly part of the architectural design
For the hall and staircase itself and put in there as such, as distinguished from mere
ornaments to be afterwards added.

In the case of Leigh v Taylor, Madame de Falbe was the tenant for life of a
mansion. She had placed some valuable tapestries in the mansion which were
stretched on to hard match board and affixed to the walls by nails. They could be
removed with slight disturbance to the walls. On Madame de Falbe’s death, the
court were required to determine whether the tapestries had become fixtures
belonging to the mansion or whether they remained chattels. The House of Lords
found in favor of the estate of Madame de Falbe. The tapestries were chattels and
so remained the rightful property of Madame de Falbe’s estate. The House
considered closely the degree of annexation, which was as slight as the nature of
the tapestries would permit, and the intent of the life tenant in hanging the
tapestries, which were “put up for ornamentation and for the enjoyment of the
person while occupying the house”. Therefore, the chattels remained the personal
property of Madame de Falbe.

3. Application in relationships of Chargor and Chargee

Where machinery or plants are installed in a factory building after the land has
been charged to financial institution, these fixtures will go along with the land if
subsequently there is a foreclosure proceeding instituted by the charge due to the
default of the chargor even if the machinery or plants are not owned by the
charger. All fixtures, whether attached before/ after the date of charge, passed to
the charge unless otherwise provided for in the charge agreement.
S.241-280 NLC

In the case of Gebrueder Teape (M) Sdn Bhd v Peter Chi Man Kwong, If the
mortagee can be presumed to have authorized the removal of the trade fixture by
the mortgagor, the owner will be entitled to server and remove them while the
mortgagor is still in possession but not after the mortgagee has taken possession.

In the case of Goh Chong Hin & Anor v The Consolidated Malay Rubber Estates
Ltd. The plaintiff charged his land including building and a factory. After some
time, he gave a Bill of Sale over the machinery in the factory to another person.
Dispute arose between the chargee and the purchaser of the machinery. It was held
that the English law on fixtures applied citing the rule in Holland v Hodgson. As
the machinery was fixed to the foundations of the building and was securely
attached into the soil with bolts it became a fixture and this may be classified as
land. Note: the items so attached to the land has been determined as fixtures and
they will pass to the charge even if they have been affixed to the land after the
transaction to create a charge was complete.
In the case of Reynolds v Ashb, the machines were affixed to concrete beds in the
floor of the factory by bolts and nuts and could have been removed without injury
to the building or the beds. The lessee made default in payment and the owner
brought action to recover the machines or their value from a morgagee of the
premises who had taken possession. It was held that the machines had been so
affixed, as to pass by the mortgage to the morgagee.

In the case of Wiggins Teape (M) Sdn. Bhd. v Bahagia Trading Sdn. Bhd. & Ors,
A property was charged to the bank in which an offset printing machine which was
under hire purchase scheme was affixed in that property to the floor by bolts. The
charger failed in the loan repayment and the bank took proceedings to enforce the
charge. Dispute as to whether the machine formed part of the property is also a
subject matter of the charge. It was held that the machine is a fixture and thus
passes to the charge even if it were attached to the land after concluding the charge
agreement unless of course contrary was provided for in the contract.

[Things that were attached to the land after concluding the charge agreement can
be considered as affixtures and will regarded as part of the land when pass to the
chargee]

In the case of MBF Finance Bhd v Global Pacific Textiles Industries Sdn Bhd (In
Receivership) & Anor, the lease agreement itself expressly provided that dyeing
machine must continue to be under the ownership of the lessor even though affixed
to the ground, so chargee has no right over it. The court held that the machines
were chattels and not fixtures.

In the case of Sungei Way Leasing Sdn. Bhd. v Lian Seng Properties Sdn. Bhd. &
Ors (Bank BumiputraMalaysia Bhd. & Anor, Interveners, the defendant, owner of
KL Plaza had taken up a loan and charged the building. Later, a ‘custom-made’
air-conditioning unit bought under a hire-purchase agreement, was affixed to the
building. Clause 11 of hire-purchase Agreement provided that the lessor was to
remain as the owner of the unit and the lessee had no right to pass the title of the
air-cond to any third party. Lessor sought to remove the air cond unit from the
building and the charge bank objected. It was held that although the air-cond. unit
was in the nature of a fixture as it was ‘custom-made’ for the building, the court
must give effect to the intention of the parties arising from the hire purchase
agreement. Thus, the lessor had a better right to the air-cond. unit.

EXCEPTIONS TO THE GENERAL PRINCIPLES OF FIXTURES

1. Tenant’s Fixtures

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. These items will be chattel.
Things which are annexed to the land for the purpose of trade or of domestic
convenience or ornament in so permanent a manner as to become part of the land
and yet the tenant who has erected them is entitled to remove them during his term
or within a reasonable time after its expiration.
In the case of Spyer v Philipson, a lessee of a flat for 21 years installed antique
panelling, ornamental, chimney pieces, and fireplaces. No structural changes were
made for the panelling but slight alterations were necessary for the chimney pieces
and fireplaces. When the lessee died, his executors claimed the right to remove the
panelling, chimney pieces and fireplaces as tenant's fixtures. The lessor claimed
that they were part of the structure and that their removal would cause damage. It
was held that a tenant has the right to remove his fixtures provided no substantial
damage was done to the premises.

In the case of Smith v City Petroleum, it was held that tenant could remove petrol
pumps from the land because they were trade fixtures and could 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 detached.

In the case of New Zealand Governement property Corp v HM & S, a tenant

occupied premises under a lease. Although this case involved a dispute about a
market rent where rent was determined on the basis that the lease had ended, the
tenant had vacated and removed any tenant's fixtures. It was held on appeal that at
common law a tenant had a right to remove tenant's fixtures from demised
premises so long as he was in possession as a tenant.

In the case of Sri Kajang Rock Products Sdn. Bhd. v Mayban Finance Bhd. & 2
Ors, the landowner had entered into an equipment leasing agreement with the
defendant and being bound by the terms of the agreement, could not rely on the
argument that the machinery was so affixed to the land as to become a fixture. In
the face of the agreements they entered into, the plaintiffs are estopped from
effectively raising the “fixtures” argument. Such a contention could properly be
made only by parties not privy to the equipment lease agreement. Although plant
and machinery can become fixtures, the owner of land can contractually provide
for the plant and machinery to be regarded not as fixtures. The terms of such a
contract are of course binding only on those who are privy to the contract and
perhaps in equity also on those who have notice of the contract.

2. Custom
This is where a custom exists in relation to a particular item that should be
considered chattel in all the circumstances and can therefore be removed by the
claimant.

In the case of Re Tiambi bt Ma’amin, the existence of a custom may act as a

waiver to the presumption that the thing was intended to be permanently affixed.
In Kiah bte Hanapiah v Som bte Hanapiah, a malay traditional house built on stilts
which could be easily dismantled and removed from one place to another is a
chattel.

CONCEPT OF JOINT OWNERSHIP

1. Co-Proprietorship

Co-proprietorship is also known as co-ownership. It is used to describe the form of

ownership in which two or more persons are simultaneously entitled in possession
to
an interest or interests in the same asset.
S.342(1) – Co-proprietorship means the holding of alienated land by two
or more persons or bodies in undivided shares.
S.342(2) – All alienated land vested in two or more persons or bodies shall be held
by
them as co-proprietors unless pursuant to section 344 or 346 or the corresponding
provisions of any previous land law they are registered as trustees or
representatives.

2. Joint Tenants

- Each co-owner is treated as being entitled to the whole of the land.

- There are no distinct ‘shares’ and no single co-owner can claim any greater
right over any part of the land than other.
- Only trustees and personal representatives must hold as joint tenants
- Concept of Survivorship (jus accrescendi)
o If one joint tenant dies, his interest drops out of the joint tenancy and the
remainder continue to enjoy their rights over the whole land.
o However, that when a joint tenant dies, no formal conveyance or written
document is needed to reflect the new status quo.
 It means that a joint tenancy can either be very useful i.e. where it
avoids the need for formal documentation when a co-owner dies, or
 very unfair i.e. where a co-owner dies and is unable to leave an
interest in the property to his family.

Hammershmith & Fulham LBC v Monk, any transfer of land to two or more
persons as joint tenants ‘operates so as to make them, vis-à-vis the outside world,
one single owner

In the case of Hickman v Peacey, It was held that the elder presumed to have
predeceased younge. Under S.35 of Conveyancing Act, where two or more person
have died under circumstances rendering it uncertain which of them survived the
other (eg- a car crash) the deaths affecting the title to the property shall be
presumed to have taken place in order of seniority. The younger is deemed to have
survived the older.

Fundamental characters of a joint tenant are the jus accrecendi (the right of
survivorship) principle, when a joint tenant dies, his interest ceases to exist and
cannot devolve unto his estate. Instead the other joint tenants become absolutely
entitled, ultimately to fall into the sole ownership of the last surviving joint tenant.

3. Tenancy in Common

When 2 or more people own land under a tenancy in common, it is often said that
they have ‘undivided shares in land’. In other words, a tenant in common can point
to a precise share of ownership of land even though the land at present is undivided
and treated as a single unit.
The distinguishing feature of a tenancy in common is that each co-owner has a
distinct and quantifiable share in the land. That does not mean, however, that a
particular tenant can physically demarcate a portion of the land and claim it as his
own. The land is still ‘undivided’ and the tenant in common owns a quantifiable
share in it, which can be realized if and when the property is sold. There is no unity
in the ownership as they have separate shares in the land and are separate owners
of separate interests.
Upon the death of a tenant in common, his undivided shares will pass under his
will or on intestacy. The principle of jus accrecendi is not applicable: this
represents certainty and fairness of the property relations of co-owners (Kinch v
Bullard [1999]).
Co-owners in a tenancy in common therefore, have shares in the land in respect of
which they can make dispositions such as a sale or a mortgage.
To summarize, with a tenancy in common :
- Requires only unity of possession
 - Rights of survivorship does not apply
- Tenants in common hold ‘undivided shares’ of the property (ie, they each
hold an identifiable fraction of the interest which has not yet been formally
divided up between them).
- The tenant in common owns a quantifiable share in it, which can be
realized if and when the property is sold. The size of each tenant’s share is
fixed from the time of creation of the interest or by subsequent dealings.
- Persons or bodies who are co-owners but who are not trustees or personal
representative may hold land as tenants in common
- No one tenant has right to exclusive possession
DIFFERENCE BETWEEN JOINT TENANCY AND TENANCY IN
COMMON

a. Joint Tenancy - It is regarded as a perfect form of co-ownership where the

concept
of ownership is holistic and the parties to that co-ownership are not to be regarded
as
separate but as one.
b. Tenancy In Common - A tenancy in common would exhibit these
characteristics but
would exhibit the characteristics of the unity of possession

In the case of (Bull v Bull), A mother and son were equitable tenants in common
of a house (the legal title was in the son’s name). The mother fell out with her
son’s wife and the son wanted to evict his mother. He could not do so. Each tenant
in common is entitled to the possession and use of theland. Neither tenant in
common could turn the other out.

In the case of Hembury v Peachey, once the parties have decided and expressly
stipulated the nature of their share, this would stand. If a deed (such as a
conveyance) contains an express declaration as to whether a co-ownership is a
joint tenancy or a tenancy in common than this declaration is conclusive. The
severance of a joint tenancy leads to each joint tenant having an equal share as
tenant in common.

In Goodman v Gallant, Goodman and Gallant were co-habitees. Their home had
been conveyed into their joint names and the conveyance expressly provided that
they were to hold as beneficial joint tenants. It was held that the express
declaration was conclusive and that (in the absence of express words to the
contrary in the conveyance) when a joint tenancy is severed the result is that the
joint tenants hold as tenants in common in equal shares. This test will be redundant
where the parties have stipulated the form of coownership that they intend to
possess.
THERE ARE 3 QUESTIONS THAT NEEDS TO BE CONSIDERED FOR
THE CREATION OF A COPROPRIETORSHIP:
1. Are the 4 unities present
2. Are there words of severance used?
3. Is this a situation where equity presumes a tenancy in common

1. 4 UNITIES
A joint tenancy is regarded as a perfect relationship where there is such a great
unity
between the co-owners that they are regarded as one owner. For this relationship to
exist,
the 4 unities must exist:
(i) Unity of Possession
- Each co-owner is entitled to enjoy possession of the whole of the property,
not exclusively to himself or herself but to be enjoyed together with the
other joint tenants
- If one co-owner occupies the entire property, the other cannot sue in trespass
in the absence of ouster.
- No co-owner can exclude the other from occupation of the entire property.
(ii) Unity of Interest - All the co-owners must hold the same interest in the land
(iii) Unity of Title - All the co-owner must acquire the title to the land under the
same
document or disposition
(iv) Unity of Time
- All the co-owners must acquire their interests to the land at the same time
- If the time vesting is different, a tenancy in common will arise
- e.g. if a woman purchases a house in 1997 and, in 1999, on marriage, grants
an equal share in the house to her husband, this cannot be a joint tenancy.
- It would be otherwise if the entire house was reconveyed into the joint
names
- Kenworthy v Ward- the interest of the co-owners must be created at the
same time

2. WORD OF SEVERANCE
Words of severance are words used in the disposition or grant suggesting that the
co-owners
are to be regarded as owners of shares. Where there are words of severance used,
the co-owners are to be regarded as separate and there will be no joint tenancy. If
NO, then
the co-ownership is capable of being a joint tenant.

Examples:
- ‘In equal shares’- Payne v Webb
- equally’- Lewen v Dodd
- ‘to be divided between’- Lashbrook v CockIs this a situation where equity
presumes a
tenancy in common . Three traditional categories where, although the parties may
be joint
tenants in law, equity will nonetheless presume a tenancy in common: - Where the
purchase money for land is provided by more than one person in unequal shares
- Partnership property- Where 2 or more persons advance money on mortgage
whether in
equal or unequal shares

DETERMINATION OF RIGHTS OF JOINT OWNERSS 141A NLC-

A co-proprietor or coproprietors holding the majority share in the land may apply
for approval to partition the said land.
S141A provide that the co-proprietor where other co-proprietor neither join in
nor consent to the making of the application may apply for the approval to
partition
s145 provided that the court had power to terminate the co-proprietorship with
any provisions for the time being in force relating to civil procedure or may on
the application of the co=proprietors makes such order as he thinks just for the
purpose of enabling proprietorship to be terminated.

Ku Yan bte Ku Abdullah v Ku Idris bin Ku Ahmad & Ors. It was held that Section
141A of the Code does not compel a co-proprietor holding the majority share in a
piece of land to apply to the land administrator for approval to partition the land; it
is merely a permissive section. Second, A co-proprietor having the majority share
in a piece of land thus is not barred from applying to the High Court under sub-s
(1) of s 145 of the Code to have the co proprietorship terminated and the land
partitioned under s 145 on the general ground that a co-proprietor will not join in
nor consent to the making of an application for partitioning.
Creation of co-proprietorship
(a) common law
1. Joint tenancy
 Applying the common law approach, if 4 unities are present, it is presumed that
an interest given to two or more person is a joint tenancy
 If there are words of severance, then it is tenancy in common
 Words of severance or an intention to create a tenancy in common has a broad
application - anything which gives the slightest indication of such an intention
would create a tenancy in common.
 Examples of such words include ‘in equal shares’, 'share and share alike’, ‘to be
divided between, ‘equally’, ‘amongst or respectively’.
 In the case of Robinson v Fraser, anything which gives the slightest indication of
such an intention would create a tenancy in common

2. Tenancy in common
 Applying the equitable approach
 May be severed by partition (s140-s145)
 In the case of Delehunt v Carmody, the property was legally owned by the
husband, but the wife had contributed to the purchase price. The result was that a
resulting trust arose, and accordingly, the wife was equitable joint tenant for the
proportion of the share of her contribution to the purchase price.
 Bull v Bull

(b) Meaning
- S342(1) provide the meaning of ‘co-proprietorship’ as the holding of
alienated land by two or more persons or bodies in undivided shares
- S225(2) provided that no lease or tenancy may be granted to two or more
persons or bodies unless it is trustees or representatives.
- S241(2)- this section includes the power to create 2nd and subsequent
charge.
In the case of McMahon v The Public Curator of Queenslan, No remedy exists for
money expended in repairs by one tenant in common, so long as the property is
enjoyed in common; but in a suit for a partition it is usual to have an inquiry as to
those expenses of which nothing could be recovered so long as the parties enjoyed
their property in common; when it is desired to put an end to that state of things, it
is then necessary to consider what has been expended in improvements or repairs:
the property held in common has been increased in value by the improvements and
repairs; and whether the property is divided or sold by the decree of the court, one
party cannot take the increase in value, without making an allowance for what has
been expended in order to obtain that increased value; in fact, the execution of the
repairs and improvements is adopted and sanctioned by accepting the increased
value.”

Macrossan C.J. then referred to a later English case that referred to

Leigh v Dickeson and said “It is clear, I think from this, that the amount to which a
co-owner making improvements may be entitle against another co-owner in taking
the accounts in a partition action, is limited to the actual cost of the improvements,
and if the present value of the increment to the property is less than the actual cost
of the improvements, he is further limited to that present value.” In this case the
Judge refused to award the remaining co-owner an occupation rent against the
deceased co-owner’s estate as the house had been totally constructed at the cost of
the deceased co-owner and the area occupied by the house was very small when
compared to the total area of the lands occupied as a dairy farm.

In the case of Frieze v Unger, the Australian position appears to be that a lease by
one joint tenant does not sever the joint tenancy, except for the term of the lease
Incidents of co-proprietorship. S.343 provided that when the land is vested in two
or more person or bodies as co-proprietors, their shares shall be deemed to be equal
unless it is specified in memorial of registration, they may apply for partition of the
land but so long as their co-proprietorship continues they shall be entitled to
possession and enjoyment as a whole and the death of any of them , the title shall
not pass to any of the survivors but shall devolve upon the deceased’s
representative,