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Ll1 slides revision Ll1 slides revision Presentation Transcript

  • Areej Torla REVISION LAND LAW 1 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  S5  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