ALIENATION LAW 504 Prepared by: Pn Hamsiah Omar
INTRODUCTION Sec. 40 – all state land vest in the SA Sec. 41 – SA has the right to dispose of and take back the land Sec. 42 – one of the right to dispose of state land is by way of alienation.
IllustrationAhmad would like to apply for a piece of land inKlang under alienation. He seeks your adviceon what is alienation and how is the process.Advise Ahmad
STEPS TO BE TAKEN Application for the land under alienation approval stage and conditions to be imposed by SA; Payment of land revenue; Survey ( for issuance of title); Preparation of title; and Registration.
Sec. 76 – what is alienation? Another mode of disposal of state land – sec 42(1) (a) The best mode of disposal; Means to convey or give away a right and title of a piece of state land.
Why alienation is the best mode ofdisposal? Proprietor will get title to the land; Period is longer than other mode of disposal; Proprietor feels secured to develop and invest in the land; If land is acquired by SA for public purpose, proprietor will get compensation; Proprietor can deal with the land.
…continueSec 76- alienation consists of: (a) term not exceeding 99 years; or (aa) perpetuity (forever); Payment of rent; Payment of premium; Subject to category of land use; Subject to condition and restriction in interest
Who can apply (applicant)? Any person/body described in sec 43Term of alienationSec 76(a)- maximum term 99 years;Sec76(aa) – in perpetuity if-i. It is made to the Federal Govt or to a public authority;ii. The land is to be used for public purpose;iii. SA feels there is special circumstances.
Who can alienate land? Sec. 40 – all land vest in the SA Sec. 41 – SA can dispose and take back the land Sec. 42 –(a) right is given to SA to dispose of state land and no one else; State Executive Council (EXCO) will meet and discuss the application of the land for alienation. Cases – Sidek Mohammed Kabra Holdings
EXCO meets and discuss thefollowing:- To approve or not to approve application.If approves, to determine the following matteers;- Sec 76(a)- terms of alienation; Sec 76(b)- application must pay the annual rent; sec 76(c)- applicant may have to pay premium(at the SA’s discreation) Sec 76(d)- land alienated will be subject to the category of land use; Sec 76(e)- SA may impose condition or restriction in interest on the title;
Payment of land revenueAlienation is subject to payment to landrevenue.What is Land Revenue?Sec 5 – every sum due to the SA can be either premium or rent payable in respect of alienated land; or Can be fees under any license of permit relating to land”Payment of land revenue to be made before alienation takes effect.
Items of land revenue to be paid uponapproval- sec 81(1)After the SA has approved the applicationmade, the following items of land revenue to bepaid to the SA:- 1st year’s annual rent; Premium if any; Amount of any survey fees; Fees for preparation and registration of document of qualified title and final title;
Sec 81(2)- time frame to make paymentThe collector by notice in F5A shall requireproprietor to pay them (sums due) within aspecified time.What if payment is not made within the timelimit?The approval shall lapseCase : Teh Bee
Teh Bee’s case A, an applicant of land under alienation made payment of land revenue beyond specified time Payment was accpted and registration of title in her name was perfected. A TOL holder, B, who occupied the land in question challenged the alienation to A and claimed that approval had already lapsed when payment was made, t/fore SA has acted Ultra Vires the NLC.
…Teh Bee’s caseHeld- SA did not ultra vires NLC. At the time payment was made, there was no other applicant and when SA accepted the payment means that it has given a fresh approval.Decision shows that: Payment of land revenue to be made within time is not mandatory, only directory; SA has the discretion to accept payment even if made beyond time limit.
Sec 82 - deposit Sa may also ask for deposit be paid apart from the land revenue . Notice in F5A will be served on the applicant for payment of deposit within specified time If fail to do so, application deem withdrawn.
Survey for alienation under final title –sec 83When alienation is approved and payment ofland revenue is made, title will issued to theapplicant. Before title can be issued, survey tothe land must first be done. SA will conduct a survey to determine boundaries according to Sec 396 Survey is carried out by Survey Officer appointed under NLC or by licensed surveyor registered under Licensed Land Surveyors Act 1958
…continue The actual area of land for alienation at the time of approval is provisional ie not definite and temporary only; After survey, it may became smaller of bigger; Area should as near may be with what is stated in the plan and description to which been approved.
What if there aredifferences/discrepancies in areaapproved and after survey is done Sec. 83(3) If Director of Survey satisfied that boundaries are substantially different from the provisional area, he will refer matter to SA; and To re-determine the area.
Right of proprietor ondifferences/discrepancies in area Can proprietor take action against SA? Sec 83(4) No person shall have the right to claim against SA if the area alienated is smaller then provisionally approved.Case – Khoo Kay Boon
Yap Lai Yoke v. Chin Fook Wah R, proprietor of QT claimed the B had unlawfully encroaching on R’s land. B’s defense was that a road had been sited in correctly thus reducing the size of their lots Means that the area stated in the title differ from what they actually had. Held – B has no right to extend his building on another’s land to make up his lost land. It was the problem between the authorities and proprietors, no excuse for encroachment.
Re-computation of land revenue- sec84Land revenue previously paid was computed:- Based on area temporarily approved; Before the surveyAfter survey , actual land area is determined,it may differ. If land becomes smaller, means land revenue may be overpaid, SA will refund accordingly; or If land becomes bigger, land revenue is underpaid, SA will add to rental next due.
Preparation of Title – sec 77(1) After payment of land revenue has been made, the SA will determine what form of title to be issued:1. Qualified Title; or2. Final Title
Qualified Title(QT) – “Hak MilikSementara” Land under QT has not been survey – sec 77(2)(a). SA may first issue QT before Final Title. Land area is not final/is provisional; The land is not capable of being subdivided, partitioned or amalgamated. No building on the land can be subdivided/strata title cannot be issued. However, NLC confers the same rights as applicant under final title – proprietor has the power to lease,charge or transfer the land.
Final TitleAfter is done, final title will be issued.SA will determine what forms of final title to beissued (look at the type of land);_ Registry Title -sec 77(3)(a) Land Office Title – sec 77(3)(b)
Registry Title Appropriate is the case of town/village land, and country land exceeding 4 hectares in area and any part of foreshore or seabed Can be in the form of QT or FT
Land Office Title – sec 77(3)(b) Relevant for country land not exceeding 4 hectares in area. Proviso in sec 77(3)(6) – SA may direct to be issued under registry title even it does not exceed 4 hectares.
Sec. 84 – RDT and IDT After SA has determine whether land falls under Registry Title or Land Office Title, SA proceed to prepare 2 forms of document title.1. RDT- Register Document Title2. IDT – Issue Document Title
Register Document Title Sec 5 Mirror to IDT Kept at the Land Office
Issue Document Title Sec 5 Extract of RDT Issued to proprietor
Who prepares title? Whether land is alienated under Registry Title or Land Office Title, both RDT and IDT to be prepared: Registry Title – by the Registrar – sec 86 Land Office Title – by the Land Administrator sec 87
Forms of document for Registry Title –sec 86 RDT – a plan of land certified by Director of survey – Grant (Form 5B) (in perpetuity) _ State lease (Form 5C) a term of years) IDT – a plan of land certified by Director of survey.
Form of Document for Land Office Title- sec 87 RDT – a plan of land certified by Director of survey. Mukim Grant – (Form 5D) – in perpetuity Mukim Lease – (Form 5E) – a term of years
Sec. 78(3) - Registration Land title will only be issued by the SA through the process of alienation Alienation will only takes effect upon registration of RDT Even though alienation has been approved, it remains state land until registration is completed Case ; Dr. Ti Teow Siew Sidek Hj Mohammed
How alienation perfected – sec 78 Alienation of state land under final title shall be effected in accordance with sec 83 – 92; Alienation of state land under qualified title shall be effected in accordance with sec 176 – 182;
What is registration?After payment of land revenue, survey done(for final title) and preparation of titlecompleted, registration to be perfectedRegistration consists of :- Authentication (signed), and SealOf the Registrar/Land Administrator on the RDT
Who register Registry Title? – Sec88(1) Registration of grant (F5B) and State Lease (F5C) shall consists of authentication and seal of the Registrar on the RDT
Who registers Land Office Title? – sec88(2) Registration of MUkim grant (F5D) and Mukim Lease (F5E) shall consists of authentication and seal of the Land Administrator on the RDT
Effects of registration of RDT? Sec 89 RDT shall be conclusive evidence of all matters appearing in it; Sec 340 Proprietor will get the indefeasibility of title to the land ( no body can challenge except for cases under sec 340(2) )
….continue Sec 92 FT once issued, it confers on the proprietor an indefeasibility title; FT gives proprietor right to deal with the land Proprietor may subdivide, partition and amalgamate the land. Proprietor may transfer, lease, charge and dispose land by will Proprietor will also be subjected to the paramount and subsidiary rights.