SBQ 3522 LEGAL STUDIES 111

BY: PUAN HAJJAH NOLIZA BINTI ISA

OVERVIEW OF THE LAW ON THE LAND DEVELOPMENT IN MALAYSIA

1) The Federal Constitution 2) The National Land Code 1965 3) Town & Country Planning Act 4) Housing Developers (Control & Licensing) Act 1966 5) Land Acquisition Act 1960 6) Malay Reservation Enactments 7) Strata title Act 1985 8) Local Government Act 1976 9) Land (Group Settlement Areas) Act 1960 10) Street, Drainage & Building Act 1979 11) Enviorenmental Quality Act 1974 12) Uniform Building By-laws 13) Antiquities Act 1976 14) Rent Control Act 1956 ( has since been abolished) 15) Electricity supply Act 1990 16) Forest Enactment 17) Landlord & Tenant

Land:
b) is important in the economic development of a country c) plays a significant role in our everyday lives

a) being an essential factor of production

d) : deals with possession & ownership : deals with the rights & obligations of the occupier & owner

e) requires an understanding pertaining to the concept of land, its definition & other laws relating to land

HISTORICAL BACKGROUND

A) The Straits Settlements

B) The Federated Malay States

C) The Unfederated Malay States

The Torrens System

Introduction
Characteristic of the Torrens System when first introduced into the Malay States Towards a National Land Code

MALAYSIAN TORRENS SYSTEM Twin principles of the TS

I) MIRROR PRINCIPLES

2) CURTAIN PRINCIPLES

: under the TS, the register reflects all facts, material to the registered owners title in the land

Material facts includes:

a) name of proprietor
b) land alienated c) its area d) location

: betwn registered owner & potential purchaser :potential purchaser is only concerned with the REGISTER & nothing else : potential purchaser can safely rely on the REGISTER :potential purchaser need not look behind it

e) survey plan
f) boundary limits

Hence Torrens System confers:

An INDEFEASIBILITY OF TITLE TO THE REGISTERED OWNER TEH BEE v. K. MARITHAMUTHU (1977) 2 MLJ 7 Federal Court under the Torrens System, the register is everything

BASIC FEATURES OF THE NLC 1965

1) Adverse Possession no longer possible
: S.48 NLC 1965 No Adverse Possession against the State :S.341 NLC 1965 Adverse Possession not to extinguish titles or interest

5) Indefeasibility is guaranteed BUT NOT ABSOLUTE : S.89 & S.340 NLC 1965 guaranteed but not absolute :Exceptions under S.340 (2) NLC 1965; fraud, misrepresentation, forgery, void instrument, unlawful occupation 3) The rules of equity still applies 4) Reversion to State under circumstances : s.46 NLC Reversion to State Authority : WILKINS v. KANNAMAL (1951) 17MLJ 99 : MAHADEVAN a/l MAHALINGAN v. MANILAL & SONS (M) SB (1984) 1 CLJ286

2) No possessory rights however long

TEH BEE v. K. MARITHAMUTHU

BASIC FEATURES OF THE NLC 1965

6) Strata Title recognised

7) 4 types of caveats

10) The procedural dilemma

i) registrars caveat ii) Private caveat iii) Lien holders caveat

iv) Trust caveat

9) A non-exclusion system

8) Easement by express grant only : S. 284 Necessity for express grant

PROPERTY IN THE LAND

1) The State Authority 2) Land as a legal concept 3) Alienation of land 4) Rights of the Owner

The State Authority

1) Land is state matter 2) For purposes of the Federal Constitution,the NLC 1965, was enacted pursuant to Article 76(4) Fed. Constn. & which gave legislative effect in respective states by means of state legislative 3) Article 13 Fed. Constn the right of individual to own property 4) S.40 NLC 1965 property in all State land : minerals & rock materials situated within the territories of a State vests in State Authority

The State Authority

5) State Land defined under s.5 NLC 1965 as:-

all land in the State including the riverbed, foreshore, seabed situated within the boundaries of the State or the limits of its territorial waters OTHER THAN alienated land, reserved land, mining land & reserved forests. 6) State Authority defined under S.5 NLC 1965
Ruler or the YDN of the State 7) S.42 NLC 1965 on powers of disposal

State Authority shall have power under the Act.. HENCE: power of the State Authority is paramount & is subservient to non.

The State Authority

8) State Authority : unlimited powers to impose any express conditions upon initial alienation : however such powers imposed has been CURBED by the courts PTG, W.P. v. SRI LEMPAH ENTERPRISE SDN. BHD. (1979) I MLJ 135 : State, as an absolute owner of the state land + S.48 NLC 1965 against adverse possession of State land = Socio economic problems in the country SIDEK & 461 OTHERS v. GOVERNMENT OF PERAK (1982) 1 MLJ 313

Land As A Legal Concept

1) Land under the NLC 1965 has wide meaning : S.5 NLC 1965 land includes: (a) that surface of the earth & all substance forming that surface; (b) earth below that surface & all substances therein; (c) all vegetations & natural product (d) all things fastened to the earth OR permanently fastened to anything attached to the earth whether on or below the surface; (e) land covered by water. 2) Landunder Msian Torren System = concept of land under the English law of property.

Land As A Legal Concept

3) Law of Fixture adopts the meaning:quic quid plantatur solo, solo credit. (whatever is attached to the soil, belongs to the soil=FIXTURE) GOH CHONG HIN v. CONSOLIDATED MALAY RUBBERS (1924) 5FMSLR 86 Judge: I have no doubt that we are to apply in this country the ordinary English Law of Fixture.

4)Malaysian courts have decided the following instances as LAND for the purposes of S.5 NLC 1965 = FIXTURES (i) petrol tank buried under ground SHELL CO. LTD. v. COMMISSIONER OF FEDERAL CAPITAL (1964) 30 MLJ 303 (ii) palm oil storage erected above ground SOCFIN LTD. v. CHAIRMAN KLANG TOWN COUNCIL (1964) 30 MLJ 325 (iii) machinery installed on factory floor GOH CHONG HIN v. CONSOLIDATED MALAY RUBBERS ((1924) 5 FMSLR 86

Land As A Legal Concept

4) (iv) printing machines affixed to the factory floor by bolts & nuts WIGGINS TEAPE v. BAHAGIA TRADING (1980) 2 MLJ 45
v)dwelling house of plank walls & cement floor KARTAR SINGH v. PAPPA (1954) MLJ193 vi) seat in cinema halls vii) statues arrange in a garden as part of a landscape design viii) stone seats & ornamental vases arranged ix) potraits affixed to walls as part of wall design MATERIAL TRADING PTE. LTD. v. DBS FIANCE LTD. (1988) 2 MLJ 163 (overhead cranes held as Fixtures)

Land As A Legal Concept

5) Courts held as chattel:

(i) tapestry nailed to walls for purposes of display & visual pleasure (ii) picture in wall paneling (iii) Stones & bricks stacked-up in a builders yard (iv) Malay wooden houses constructed on stilts KIAH HANAFIAH V. SOM HANAFIAH (1953) MLJ 52
RE: TIAMBI

Land As A Legal Concept

6) Two tests to apply in determining whether FIXTURE or CHATTEL:(i) degree of annexation; and (ii) purpose of annexation GOH CHONG HIN v. CONSOLIDATED MALAY RUBBER (1924) 5 FMSLR 86

: Sproule Judge (a) the general rule is that, whatever is annexed to the realty becomes part of it; (b) BUT the rule is based on the presumption that the annexation was intended to be permanent; (c) IF the nature, the degree, the object of the annexation be such as to show that the intention was to annex the chattels to land only temporarily THEN the general rule will not apply.

Land As A Legal Concept

7) FIRST TEST: DEGREE OF ANNEXATION (a) if it is attached & fastened to the wall or floor or building or to the ground prima facie FIXTURE, even if it is easily removable

(b) merely resting on its weight

CHATTEL

(C) degree of annexation not a conclusive test

TEH BEE v. K.MARITHAMUTHU (1977) 2 MLJ 7

Plaintiff

defendant

1) 1952 P was given a TOL & for 20 yrs P had been paying the yearly dues to SA, cultivating the land & constructed building on it.

2) 1966, SA decided to alienate the land to D 3) Form 5A was served to D on 17/11/1966 instructing her to pay RM4327.50 within 3 months 4)D didnt pay immediately. Spent a considerable time appealing to SA to exempt her fr paying the premium but her request was turned down 5)1967 she paid the premium to SA some 10months beyond the stipulated time 6) 1968 D become registered proprietor.

Form 5A stipulates if premium not paid within time specified = by virtue of S.81 of NLC then the approval will lapsed & the application will be deemed to have been withdrawn. Effect of S.81 NLC if a sum os not paid within the stipulated time, the approval of SA to alienate shall be lapsed.

TEH BEE v. K.MARITHAMUTHU (1977) 2 MLJ 7

Plaintiff

defendant

A) TRIAL JUDGE, AJAIB SINGH:: held that the alienation was illegal & nullify : SA had acted ultra-virus : when the SA purports to act in pursuant of a power for which no provision is made anywhere in the NLC, then I think that the register of title which follows the unauthorized act of the SA is ILLEGAL & a nullity. The approval of the SA to alienation of land had lapsed. B) ON APPEAL TO FEDERAL COURT:: 3 judges held that the alienation of land could not be questioned. : the fact that the applicant (Defendant) was the registered proprietor, raised the inference that the SA had given fresh approval once the amount stipulated had been paid to them. : S.81(2) is not intended to restrict SAs power of disposal. : why the appeal should be allowed was merely because, under the Torrens System, registration is everything.