Allah is the absolute owner of land
Man is trustee (khalifah)
Entrusted to utilise land to its best use
Private land ownership:
Conditional: must utilise the land
Method of acquiring land:
Ihya al Mawat
Issue: whether relevant in todays time,
whether can be implemented considering the
Write whatever you have written for your
Malay customary tenure
Influence of Islamic law
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
Teh Bee, Creelman, Gibbs v Messer
Compare and contrast:
Land ownership in Islam & under Torrens
Theory & concept
Powers of disposal
Mode of acquiring land
Nature of private land ownership: not absolute
Deeds system & Torrens system
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
Hwr, A 76(4) allows Parliament to makelaws
under State List for the purpose of
Case; East Union
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” 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
If it is a chattel, it is not part of land and will remain with the
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
Depends on whether there is a retention of title
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
Extent of ownership and
enjoyment of land
Rights of landowner : everything up to the sky
and down to the centre of the earth. –Corbett v
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
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
Trespass is actionable per se –Terra
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
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.
Rights and powers of State
Disposal by alienation
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
Section 79 (2)
Period of alienation
Form of Final Title
Rate to calculate rent
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
Whether there is a breach of express condition.
Whether there is a breach of implied condition.
Look at the category of land use: agriculture, building
Invoke the relevant provisions for the implied
conditions according to category of land use.
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
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
If occupier with license/consent eg tenant holding
over: cannot apply O. 89.
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
Therefore, the question to be asked is whether
the transfer/tenancy constitutes an assignment
of rights under TOL.
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
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
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
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
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
3) Effect of termination/expiry.
Ex-TOL holder who remains in occupation of
the land will be a squatter on state land. (PP v
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
Defeasible / Liable to be set aside
Difference between immediate and
Immediate purchaser (in good faith) gets
indefeasibility notwithstanding the defective
Registration cures the defect.
Indefeasibility is deferred to the subsequent
purchaser in good faith.
Immediate purchaser does not get protection (his
title is defeasible).
Issues in problem questions
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
Whether B‟s title is defeasible (liable to be set
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
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.
Discretion of LA: whether expedient and
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
Si Rusa Inn Sdn. Bhd & Ors v CLR, Port Dickson  1 MLJ
Che Nik bt Bakar v PTD, Kuala Krai  5 MLJ 516
Vadivallu Palanisamy v M. Radha Krishnan  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
The requirements for easement. Re