REVISIONLAND LAW 1

Areej Torla areej@iium.edu.my

Topic 1

General concepts of land ownership

Topic 2

Land ownership in Islam

Concept: Allah is the absolute owner of land Man is trustee (khalifah) Entrusted to utilise land to its best use

Private land ownership: Recognised Not absolute Conditional: must utilise the land

Method of acquiring land: Iqta’ Ihya al Mawat Issue: whether relevant in todays time,

whether can be implemented considering the

Write whatever you have written for your assignment!

Topic 3

The Malaysian Torrens System

Historical background

Malay customary tenure Influence of Islamic law Characteristics

Cases: Shakh Latif, Sahrip v Mitchell, Tengku Jaafr

The coming of the British Deeds system in the Straits Settlement Characteristics of Deeds system Torrens system in the Malay States Characteristics of Torrens System

Other: Dutch system, Portuguese system

The National Land Code 1965

Applies to ALL states. Uniformed code.

Characteristics of Torrens System in the NLC. Title by registration confers indefeasible title Mirror principle Curtain Principle Cases: Teh Bee, Creelman, Gibbs v Messer

Compare and contrast: Land ownership in Islam & under Torrens

System Theory & concept Powers of disposal Mode of acquiring land Nature of private land ownership: not absolute

Deeds system & Torrens system

Constitutional issues

Whether provisions of NLC is ultra vires FC Land is State Matter, Article, Item 2, 9th

Schedule – state list Only State legislature may make laws under

State list Hwr, A 76(4) allows Parliament to makelaws

under State List for the purpose of UNIFORMITY.

Case; East Union

Topic 3

Definition of ‘land’

2 main issues;

Whether the machine is part of land Whether can apply to remove the machine

based on hire purchase agreement

1) Whether the machine is part of land “Land” under S 5 NLC. Para (d). Quic quid plantatur… English law of fixtures is based on this maxim So refer to English law…

English law of fixtures: Laid down in Holland v Hodgson 2 test: Degree test & Purpose test (state the two tests) to

determine whether fixture or chattel. Degree test is a rebuttable presumption May be rebutted or strengthened by Purpose test

If the machine is a fixture, it is part of land and will go to the new purchaser/chargee.

If it is a chattel, it is not part of land and will remain with the chargor.

English law of fixtures is applied in Malaysia by virtue of Goh Chong Hin.

2) Whether X can apply to remove the machine based on the hire purchase agreement. Depends on whether there is a retention of title

clause. Explain your understanding of this clause. If there is such a clause X may apply to

remove the machine from the land. Cases: Wiggins, Sungei Way, MBF Finance

Topic

Extent of ownership and enjoyment of land

Your intro

Rights of landowner : everything up to the sky and down to the centre of the earth. –Corbett v Hill

However, it comes with restrictions Rights are exclusive (can sue for trespass) but

not absolute (subject to restrictions) Restrictions are found in S 44.

Subject to NLC Other written law Reasonably necessary

On right to airspace: whether X may sue airplane for trespass S 19(1) of the Civil Aviation Act 1969: may

not sue for trespass or nuisance only by reason of the flight of an aircraft above her land flying within a reasonable height.

Hwr, if causes material damage to the land, may sue without having to prove negligence.

On right to underground land: whtr can sue for trespass Landowner has the right to sue for any

interference. Trespass is actionable per se –Terra Damansara: No need to prove damage Liability is strict Actionable even if made under mistake, or if he

believed the land was unoccupied or unalienated, or believed that the land was his own.

On right to support: whether can sue for withdrawal of support Landowner has the right to support of his land

in its natural state. “natural state”: unburdened with buildings and

unweakened by excavations.

Topic

Rights and powers of State Authority

Disposal by alienation Adverse possession

Who is the SA S 5 lebbey

Power of SA. S 40 41 42 Power of disposal: 5 methods of disposal What can be disposed?

Alienation: only State land TOL: State land and reserved land and mining land

7 matters to be considered for alienation

Section 79 (2) Area approved Period of alienation Form of Final Title Rate to calculate rent Premium

If not paid, approval will lapse. (However, look at Teh Bee case)

Category of land use Express conditions and restrictions in interest

Effect of breach of condition: land is liable to be forfeited. Effect of breach of restriction in interest: not fit for registration.

Even if registered will not get indefeasible title

Whether there is a breach of condition Whether there is a breach of express condition. S120 Whether there is a breach of implied condition.

Look at the category of land use: agriculture, building or industry.

Invoke the relevant provisions for the implied conditions according to category of land use.

Finding: Yes, there is a breach of condition (express or implied) Effect: The land is liable to be forfeited.

Advise to vary the express condition and apply for conversion for category of land use. S 124

Adverse possession

Whether the act of opening up the land grants him the status of owner of the land? SS 48, 425, 341 SS 40, 41, 42 Sidek, Yap Chong Lan

Whether State Authority is bound by the promise made by DO/Land Office etc. Only SA can dispose of land SS 40, 41, 42 Definition of SA: S 5, Lebby Finding: Cannot bind SA Yap Chong Lan, Sidek

Whether they are squatters simpliciter or occupiers with title/ consent? Order 89 Rules of High Court If squatter simpliciter: can get summary order of

possession If occupier with license/consent eg tenant holding

over: cannot apply O. 89. Case: Bohari

TOL

1) Whether X has any interest in the land/house. (In a transfer or tenancy)

Depends on whether there is an assignment of his rights under the TOL.

S 68 prohibits the assignment of rights under TOL.

Therefore, the question to be asked is whether the transfer/tenancy constitutes an assignment of rights under TOL.

Findings:A transfer is an assignment of rights under TOL, therefore contravenes S 68. X has no legal interest in the land or anything built on the land.

A tenancy does not constitute an assignment of rights under TOL. Case.

However, if the transfer was made by someone who is not the TOL holder, it may not contravene S 68. Case.

Whether X has any interest in the land. (in the case where he might have inherited the land)

S 68 no transmission upon death. “A TOL is personal to the holder. It dies with

the holder”. – case. Therefore, X does not have any interest in the

TOL land since he cannot inherit the land.

2) Whether the State Authority can terminate the TOL.

Look at Form 4A. Para 5 of Form 4A and case Teh Bee: SA can terminate TOL

At any time with compensation, or upon breach any of condition without

compensation

Whether there is a breach of condition. The conditions can be found in Form 4A.

On the purpose of the TOL, and Para 4 – cannot plant permanent crops and permanent

structures.

Findings: If X has built a permanent structure on TOL land.

There is a breach of condition, therefore SA may terminate the TOL without paying compensation.

If there was no breach of condition. However, SA may still terminate the TOL but by paying compensation.

3) Effect of termination/expiry. Ex-TOL holder who remains in occupation of

the land will be a squatter on state land. (PP v Yap Tai)

All buildings existing on the land upon termination or expiry of the TOL will revert to the State Authority without compensation, see s.47 Papoo Veeriah

Topic

Indefeasibility

Terminology

Immediate indefeasibility Deferred indefeasibility Immediate purchaser/transferee Subsequent purchaser/transferee Defeasible / Liable to be set aside

Difference between immediate and deferred indefeasibility Immediate: Immediate purchaser (in good faith) gets

indefeasibility notwithstanding the defective instrument.

Registration cures the defect. Deferred: Indefeasibility is deferred to the subsequent

purchaser in good faith. Immediate purchaser does not get protection (his

title is defeasible).

Issues in problem questions

A B C

Whether B’s title is defeasible Whether B can invoke protection under the

proviso to S 340(3) Whether C’s title is defeasible Whether C can invoke protection under the

proviso to S 340(3)

Intro: S 340(1) title if registered will confer indefeasible title. However there are exceptions as laid down under S 340(2) and (3)

Whether B’s title is defeasible (liable to be set aside)

Obtained by forgery. Is one of the exceptions to indefeasibility under S 340(2). Therefore, B’s title is liable to be set aside.

Whether B can invoke the protection under the proviso to S 340(3)

S 340(3) gives protection to a BFPV. Therefore a BFPV will get an indefeasible title notwithstanding the forgery. However, the proviso applies only to subsequent purchasers. Since B is an immediate purchaser, he is not entitled to the protection. Thus, B’s title is defeasible.

Whether C’s title is defeasible C is a subsequent purchaser who obtained a defeasible

title from B. According to S 340(3), he gets a defeasible title.

Whether C can invoke the protection under the proviso to S 340(3)

As stated before, the proviso only applies to subsequent purchasers. Since C is a subsequent purchaser, he may get protection under the proviso. Thus, as C is a BFPV he shall get an indefeasible title.

Topic

LAROW & Easement

Public terminal Discretion of LA: whether expedient and

necessary Alternative: easement?

Discretion of the Land Administrator is to be exercised in deciding to create a LAROW.

Whether it is expedient and necessary, balance of convenient test, - s 390 (3) Thankam De Silva’s case

Liew Peck Lian & Ors. v The Conservator of Forests (1961) MLJ 117

Si Rusa Inn Sdn. Bhd & Ors v CLR, Port Dickson [1978] 1 MLJ 147

Che Nik bt Bakar v PTD, Kuala Krai [1997] 5 MLJ 516 Vadivallu Palanisamy v M. Radha Krishnan [1996] 1 CLJ 224

Conclusion: There must be gravity and urgent necessity to create the LAROW and it cannot be based on mere convenience.

Issue of compensation The advantage of easement – registration (s

282- 288 The requirements for easement. Re

Ellenborough