Land in Malaysia is vested in the Ruler or governor of the state. List II in the 9th Schedule to the Federal Constitution states that land is state matter Sec. 40 of NLCc. All state land within its territories vested in the SAd. Including all minerals and rock material within or upon the land.
“State Authority”(SA) means the Ruler or Governor of the State as the case maybe. State means any state to which the Act applies (Pen. Malaysia) Sec. 5 – ruler or governor of the state. Penang & Malacca – Governor Other States – Sultan Federal Territory – Federal Government
All land within its territories It does not include:- Alinated land Reserved land Mining land Forest land
Sec. 5 NLC defines “State Land “ to mean all land within the boundary of the State excluding: (a) alienated land – land already alienated by the SA to private person or body for agriculture, building or industry (but not mining) (b) reserved land – land reserved for future use and for public purpose e.g schools, parks, highways etc.
(a) mining land – alienated under the Mining Law (not the NLC)(d) Any land which under the provision of any law relating to forest is for the time being reserved forest – Forestry Act 1984
Sec. 41 NLC provides that SA have:(c) All the powers to dispose of all property vested in it, reserved land and mining land as stated in sec. 42; and(d) All rights in Sec. 46 ( rights in reversion)
Sidek bin Hj Mohammed (1982) it was held that the acts of the State Director of land mines and the Collector of land rrevenue in giving permission to the settlers to occupy the state land did not bind the SA
Kabra Holdings (1992) it was held that the promise made by the Menteri Besar in allowing the occupiers occupying the state land did not bind the SA.
As the absolute owner of State land, the SA haswide powers of disposal under Sec. 42(1) ofNLC, there are:(a) to alienate State land;(by giving away aright) of state land for a term not exceeding 99years or in perpetuity(forever). However sinceMarch 1985, alienation of land in perpetuity isno more granted except for cases referred inSec 76(aa)
(b) to reserve State land and to grant leases of reserved land; ( for a period not exceeding 21 years;(c) to issue license to occupy State land, reserved land and mining land under temporary occupation licenses (TOL)
(d) To permit the extraction and removal of rock material from any land other than reserved forest;(e) To permit the use of air space on or above State land and reserved land.
(a) Dispose of any land for mining except by obtaining mining lease granted by mining law;(b) Permit the extraction/removal of rock material from any land for obtaining metal or mineral;(c) Dispose of any land for removing forest product from the land except by obtaining forest license granted under Forestry Act;(d) Dispose agricultural land to more than one person where area is less than two-fifth of a hectare (co-proprietorship for agricultural land of that size is prohibited)
Sec. 43 NLC – The SA can alienate land in favour of any of the following persons and bodies:-(b) Natural persons other than minors;(c) Corporations having power under their constitutions to hold land;(d) Sovereigns, government, organizations and other persons authorized to hold land under the Diplomatic and Consular Privileges Ordinance 1957; and(e) Bodies expressly empowered to hold land any other written law.
A natural person – not a bankcrupt, of sound mind A minor- ? Tan Hee Juan The registration of 2 documents of transfer executed by a minor was held to be void.
Sec 46(1) – alienated landb. When the term specified in the title expiredc. Upon publication in the gazette…d. When the proprietor is dead without successor – sec. 351 , when title is abandon – sec 352e. When proprietor surrender the title to the SA
For lease, license and permit Upon expire of such lease, permit or license Upon death of the holder Dissolution of co.
Sec. 47 Vest in the SA No compensation available.
A person cannot acquire title to State land unless by way of alienation. Unlawful occupation on State land or under any license for any period what soever is not a guarantee for a title. Case: Sidek Hj. Mohd v. govt of Perak
If sea or river encroaches to alienated land, the area affected shall revert to SA If retreat of the shoreline or bed of any river, the boundaries of the land remain the same (not affected).
In any lease of reserved land, license or permit if the provision causes hardship to the holder; To extend the time specified in the lease, license or permit.
Right to use and possess To get benefit To get advantages Natural rights To get the best out of it
To exercise the right that was given to us as land owner , licensee or lessee To get benefit out of the land e.g cultivation, develop it, deal with it, convey it, rent it, make capital out of it etc.
Not absolute (it is qualified) There are 4 limitations (Sec. 44 NLC)3. Conditions or restrictions imposed by the NLC4. Limitations imposed by other laws5. Enjoyment must be reasonable6. It is necessary for you to enjoy it
TYPES OF RIGHTSPARAMOUNT RIGHTS (SECTION 44) SUBSIDIARY RIGHTS (SECTIONS 45)
1. Proprietor of alienated land2. Lessee of reserved land3. Licensee of State land, reserved land and mining land
Right to enjoy the column of the air space Right to support from the adjoining land Right to access
To extract, move or use rock material To fell, clear, destroy, remove forest produce To extract any metal or mineral
Explains the paramount rights provided by the Torrens System which includes:(a) Exclusive use and enjoyment of column of air space above the surface of land as reasonably necessary to the lawful use and enjoyment of the land;(c) The right to support of the land in its natural state by adjoining land;(d) Right of access to foreshore, river or public place
The right comes together with the land example: Right to air/air space/light Right to support Right to access (based on the Common Law priciples)
The right derives from agreement between parties example: right to access easement
NATURAL RIGHTS – SECTION 44(1)(a) Exclusive use and enjoyment of column of air space above the surface of land as reasonably necessary to the lawful use and enjoyment of the land;
Common law principle“Whose is the soil, his is also that which is above below it “(cujus est solum ejus set usque ad coelum et ad infros)Case: CORBERT v. HILL“At common law, the owner of the land is the owner of everything up to the sky and down to the centre of the earth”
Reasonably necessary Lawful use and enjoyment Practical limits imposed to utilize the right Exclusive but not absolute Limited by Sec 19 Civil Aviation Act 1969
The right to support of the land in its natural state by adjoining land; RIGHT TO SUPPORT adopt from the common law principle that a remedy is available to someone whose rights have been violated negative right – something should not be done on your own land or property that might endanger the land or property of others
a. The land at the lower must support the land above it.b. It must be adjoining to each otherc. The land must be in its natural stated. No additional strength is to be given beyond what is on the land
1. To safeguard the right of owners from being interfered with, that someone is not allowed to do what he pleases.2. The concept of law itself is working towards justice. It would be unjust if rich land owner does something on his land that will affect his neighbours, that leaves him without remedy3. Neighbour principle – that man should live in peace and harmony with one another, that something should not be done if it is going to hurt someone.
What is “NATURAL STATE”? Common Law Principle Every piece of land has an absolute right of support from adjoining land and the land must be in its natural state i.e. land unburdened with building and unweakened by excavations,
MADAM CHAH SIAM V. CHOP CHOY KONG KONGSI …the right to support applies to the land in its natural state and the right does not become a greater right when buildings are situated or excavations are made on the land…
GUAN SOON TIN MINING CO. V. AMPANG ESTATE LTD …if the subsidence of the land was caused by the Additional weight imposed by such building or Structure on the land, then there’s n o withdrawal Of support by the adjacent land…
Right of access to foreshore , river or public place RIGHT TO ACCESS a right acquired through contract between parties to pass and re-pass over someone’s land or as a natural right.
1. Without the right, the owner of a piece of land has no access cannot go to his land the land creates the right out of necessity for him to enjoy his land and him to utilize his land.2. It is only a privileged over somebody else’s land. No right to extract anything.3. Without access there is bound to trespass
a. As a natural right – sec. 44(1)(c) if the alienated land abuts the foreshore or any river or public place the owner has a right of accessb. As an acquired right (easement- sec. 282) e.g A agreed to allow B to have the right of foot-way and without vehicles on A’s land.c. As an imposed right – by the State authority (LAROW – sec. 388)