Pemakaian Prinsip Ekuiti dalam Sistem Torrens di MalaysiaIrfan Shafie
UNDANG-UNDANG TANAH DI MALAYSIA MENGGUNAPAKAI SISTEM TORRENS BAGI MENGIKTIRAF HAK MILIK TANAH. NAMUN BEGITU, PRINSIP EKUITI AKAN DIGUNAKAN JIKA TERDAPAT LAKUNA DALAM SISTEM PERUNDANGAN NEGARA.
Pemakaian Prinsip Ekuiti dalam Sistem Torrens di MalaysiaIrfan Shafie
UNDANG-UNDANG TANAH DI MALAYSIA MENGGUNAPAKAI SISTEM TORRENS BAGI MENGIKTIRAF HAK MILIK TANAH. NAMUN BEGITU, PRINSIP EKUITI AKAN DIGUNAKAN JIKA TERDAPAT LAKUNA DALAM SISTEM PERUNDANGAN NEGARA.
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
This article explores the legislative proposals of the UK Government to help promote expansion of a UK shale gas and deep heat geothermal project pipeline in the United Kingdom, and includes discussion on the “rights”-pack that an energy developer operating in the UK might compile and then sell to exits.
March 2015 presentation to ASBC on slab heave and damagesAndrew Downie
This presentation looks at the history of awards of damages for demolition and reinstatement of property, including Bellgrove v Eldrige (1954) 90 CLR 613, Ruxley Electronics and Constructions Limited v Forsyth [1996] AC 344 and Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272.
The presentation then discusses the two recent cases of Softley v Metricon Homes Pty Ltd [2014] VCAT 1502 and Hooper v Metricon Homes Pty Ltd [2014] VCAT 277 in which the Tribunal made an award of damages for demolition and reinstatement, rather than rectification, where the slab was found to be unstable.
Throughout Pennsylvania it is not uncommon to encounter gas wells that were drilled over 100 years ago. These ancient wells were drilled pursuant to oil/gas leases that often pre-date the turn of the century. In many cases, the original lessee only drilled a single well and never developed the remaining acreage under the lease. Can that single well drilled in the 1920’s now hold an entire 200 tract of land? This is a common and troubling issue for landowners throughout the Commonwealth. In a recent decision of the federal district court in Pittsburgh, the trial court recognized this hardship and allowed a lease cancellation suit filed by the landowner to move forward.
On the Rocks Presentation - Lease Maintenance (February 2015)Burleson LLP
Download slides on Oil & Gas Lease Maintenance presented by Kene Chinweze in February 2015.
For questions, please contact Kene Chinweze at kchinweze@burlesonllp.com
Latent condition clauses in construction contracts reallocate the risk for latent conditions from the contractor to the principal by a test which assesses conditions actually encountered against a standard of what could reasonably have been foreseen by an experienced contractor at the time of tender. Gordon discusses this test by reference to case examples, and suggests a number of general principles derived from the cases
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
Introducing New Government Regulation on Toll Road.pdfAHRP Law Firm
For nearly two decades, Government Regulation Number 15 of 2005 on Toll Roads ("GR No. 15/2005") has served as the cornerstone of toll road legislation. However, with the emergence of various new developments and legal requirements, the Government has enacted Government Regulation Number 23 of 2024 on Toll Roads to replace GR No. 15/2005. This new regulation introduces several provisions impacting toll business entities and toll road users. Find out more out insights about this topic in our Legal Brief publication.
PRECEDENT AS A SOURCE OF LAW (SAIF JAVED).pptxOmGod1
Precedent, or stare decisis, is a cornerstone of common law systems where past judicial decisions guide future cases, ensuring consistency and predictability in the legal system. Binding precedents from higher courts must be followed by lower courts, while persuasive precedents may influence but are not obligatory. This principle promotes fairness and efficiency, allowing for the evolution of the law as higher courts can overrule outdated decisions. Despite criticisms of rigidity and complexity, precedent ensures similar cases are treated alike, balancing stability with flexibility in judicial decision-making.
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
1. INSYIRAH MOHAMAD NOH LAND LAW I
TOPIC 2: DEFINITION OF LAND & LAW OF FIXTURES
CHECKLIST
DEFINISI TANAH
SEKSYEN 5 KANUN TANAH NEGARA 1965
LEKAPAN & CATEL
KONSEP LEKAPAN & CATEL
PRINSIP UNDANG-UNDANG INGGERIS
KES MALAYSIA
UJIAN UNTUK MENENTUKAN LEKAPAN DAN CATEL
A. DARJAH/TAHAP PELEKAPAN (DEGREE OF ANNEXATION)
B. TUJUAN PELEKAPAN (PURPOSE/OBJECT OF ANNEXATION)
KECUALIAN KEPADA UNDANG-UNDANG LEKAPAN
A. ADAT
B. COMMON LAW – PENYEWA & PENERIMA PAJAKAN
2. INSYIRAH MOHAMAD NOH LAND LAW I
1
DEFINISI TANAH
SEKSYEN 5 KANUN TANAH NEGARA 19651
“Tanah” termasuklah:-
5(a) - Muka bumi
- Semua benda yang menjadikan muka bumi
5(b) - Tanah bumi di bawah muka bumi
- Semua benda yang terkandung di dalamnya
5(c) - Semua tumbuh-tumbuhan dan lain-lain keluaran semula jadi
- Sama ada perlukan penggunaan tenaga berkala terhadap pengeluarannya atau
tidak
- Sama ada di atas atau di bawah bumi
5(d) - Semua benda yang terlekat pada tanah bumi
- Atau dilekatkan selama-lamanya pada apa-apa benda yang terlekat pada tanah
bumi
- Sama ada di atas atau bawah muka bumi
5(e) - Tanah yang diliputi air
KAMUS
“The solid part of the earth’s surface, as distinguished from the sea or water or from the air”2
1
Akta 56
2
Kamus Inggeris Oxford
3. INSYIRAH MOHAMAD NOH LAND LAW I
2
LEKAPAN & CATEL
KONSEP LEKAPAN & CATEL
Perlu kenal pasti apa itu lekapan untuk menentukan pemilikan tanah
Tanah semua yang terlekat kepadanya
Jika sesuatu itu telah dikenal pasti sebagai lekapan akan termasuk dalam pemilikan
(ownership) tuan punya tanah akan turut menikmati lekapan itu
LEKAPAN & CATEL
LEKAPAN CATEL
KEKAL TAK KEKALKEKAL & JADI
SEBAHAGIAN
DARIPADA
TANAH TERSEBUTSEBABKAN
KEROSAKAN YANG
TERUK JIKA
DIALIHKAN
BOLEH DICABUT
TANPA SEBABKAN
KESAN YANG
TERUKBARANG
PERIBADI, BUKAN
SEBAHAGIAN
DARIPADA
TANAH, TIDAK
KEKAL LEKAT
KEPADA TANAH &
BANGUNAN
4. INSYIRAH MOHAMAD NOH LAND LAW I
3
PRINSIP UNDANG-UNDANG INGGERIS
Quic quid plantatur solo, solo cedit
Whatever attached to land becomes part of the land
(apa yang terlekat pada tanah menjadi sebahagian daripada tanah)
Kes: Minshall v Lloyd (1837)3
- A leased a colliery to B with the right of putting a steam engine
- B erected several steam engines affixed to the soil in the ordinary way
- Default in payment happened the engines were seized
Held - per Parke B:
The engines have been affixed in a substantial manner to the land Everything that is
substantially & permanently affixed to the soil is in law a fixture
KES MALAYSIA
S.5(d) KTN hanya menyebut tentang aspek fizikal sesuatu lekapan tiada huraian sama
ada sesuatu objek itu adalah lekapan atau tidak
Terdapat lacunae S.3 Akta Undang-undang Sivil membenarkan pemakaian prinsip
perundangan Inggeris berkenaan lekapan
Para hakim telah merujuk kepada keputusan kes-kes Inggeris tentang isu lekapan
Kes Goh Chong Hin & Anor v The Consolidated Malay Rubber Estates Ltd. telah menjadi
autoriti kepada pemakaian prinsip perundangan Inggeris berkenaan lekapan di Malaysia
3
15 ER 834
5. INSYIRAH MOHAMAD NOH LAND LAW I
4
UJIAN UNTUK MENENTUKAN LEKAPAN DAN CATEL
Penting untuk tentukan sama ada sesuatu objek itu adalah lekapan atau catel untuk
mengetahui sama ada objek tersebut kekal sebagai catel atau telah menjadi lekapan
Jordan CJ dalam kes Australian Provincial Assurance Co Ltd. v Coroneo4 telah membuat
perbezaan antara lekapan dan catel melalui satu ujian:-
- Sesuatu objek itu adalah lekapan jika
a. Is fixed to the land by any means other than its own weight
b. It has been fixed with the intention that it shall remain in position permanently
whether for an indefinite/subtantial period OR for temporary purpose
- Ujian sama ada sesuatu objek itu adalah lekapan atau catel dengan melihat kepada darjah
pelekapan (degree of annexation) dan tujuan pelekapan (object of annexation) telah
digunakan dalam kes Holland v Hodgson
Kes: Holland v Hodgson (1872)5
- The owner in fee of a worsted mill, at which he carried on the business of a worsted
spinner and stuff manufacturer, mortgaged it to the plaintiffs.
- By a deed of arrangement under the Bankruptcy Act, 1861, subsequently executed, the
mortgagor assigned all his property to the defendants as trustees for the benefit of his
creditors.
- Under this latter deed the defendants seized certain looms which were in the mill that
was mortgaged.
- These looms were attached to the stone floors of the rooms of the mill by means of nails
driven through holes in the feet of the looms, in some cases into beams which had been
built into the stone, and in other cases into plugs of wood driven into holes drilled in the
stone for the purpose.
- It was necessary that the looms should be so attached for the purpose of steadying them
and keeping them in a true direction, perpendicular to the line of the shafting, by means
of which the steam power was applied to them.
4
(1938) 38 SR (NSW) 700
5
LR 7 CP 328
6. INSYIRAH MOHAMAD NOH LAND LAW I
5
- It was impossible to remove the looms without drawing the nails; but this could be done
easily and without any serious damage to the flooring.
Held: The looms passed by the mortgage of the mill as part of the realty
Blackburn J: Perhaps the true rule is, that articles not otherwise attached to the land than
by their own weight are not to be considered as part of the land, unless the circumstances
are such as to shew that they were intended to be part of the land, the onus of shewing
that they were so intended lying on those who assert that they have ceased to be chattels,
and that, on the contrary, an article which is affixed to the land even slightly is to be
considered as part of the land, unless the circumstances are such as to shew that it was
intended all along to continue a chattel, the onus lying on those who contend that it is a
chattel.
A. DARJAH PELEKAPAN (DEGREE OF ANNEXATION)
Turut dikenali sebagai Adaptation Test atau Damage Test
Ujian darjah perlekapan adalah ujian objektif hasil ujian ini adalah rebuttable
presumption
Seseorang yang menyatakan bahawa lekapan tersebut adalah catel mestilah
membuktikannya
Prinsip am: Lekapan – catel yang dilekatkan pada tanah atau bangunan secara prima facie
menjadi sebahagian daripada tanah atau bangunan itu
Persoalan fakta dalam pemakaian ujian ini:
Sama ada catel boleh dikeluarkan dengan mudah tanpa menyebabkan kerosakan
kepada tanah atau premis
Kerosakan: boleh jadi conceptual damage/physical damage
Jika objek tidak boleh dikeluarkan atau menyebabkan kerosakan kepada tanah jika
dikeluarkan objek tersebut ialah sebahagian daripada tanah lekapan
Jika objek melekap kepada tanah disebabkan oleh beratnya objek tersebut bukan
sebahagian daripada tanah catel
In certain case, although an item could be removed easily without affecting the
soil/causing any apparent damage the object into which it was affixed would cease to
perform the purpose it was made for
7. INSYIRAH MOHAMAD NOH LAND LAW I
6
B. TUJUAN PELEKAPAN (OBJECT/PURPOSE OF ANNEXATION)
Untuk tentukan sama ada catel yang dilekatkan di sesuatu tempat itu:-
- Memudahkan seseorang untuk menggunakan catel tersebut
atau
- Untuk kemudahan menggunakan tanah/bangunan
Apa yang penting ialah bukan sedalam mana objek itu telah dilekapkan kepada tanah
tetapi kenapa ia dilekatkan jika tujuan objek itu dilekatkan adalah untuk kemudahan
menggunakan tanah/bangunan (better enjoyment of the land) Lekapan
Kes: Reid v Smith (1906)6
- Smith was lessee of a residential property under a long-term lease.
- A condition of the lease required the original tenant (who later assigned the lease to
Smith) to construct a house on the land.
- Smith later extended the original house and added another. On the expiry of the lease
term Smith proposed to remove the houses, on the grounds that, because they were old
style “Queenslanders”, they were not fixed to the land and so were chattels that he was
entitled to remove.
Held: The High Court had no difficulty in deciding that the houses were fixtures, even though
they were not “attached” to the land at all but rather remained in position solely as a result
of gravity.
Kes: Socfin Co Ltd v Chairman Klang Town Council (1964)7
- The respondent in determining the annual value of the appellant's holdings for rating took
into account the bulk storage tanks standing thereon.
- The storage tanks were used for storing palm oil and they were vertical cylinders resting
on pre-cast concrete pillars which stood freely on a reinforced concrete platform
foundation.
6
3 CLR 656
7
1 MLJ 325
8. INSYIRAH MOHAMAD NOH LAND LAW I
7
- The tanks themselves consisted of pre-cast bottom, side and roof steel plates which were
assembled and riveted on site to form the bulk storage tanks.
- The platform foundation rested on prepared ground.
- The appellant's contended that the tanks were not rateable since they were neither "land"
nor "building'.
Held:
1. The storage tanks were buildings, being structures connected with platforms and pillars
and were accordingly rateable;
2. The storage tanks were annexed to the land for its better use and enjoyment and formed
part of it and accordingly rateable;
3. The storage tanks enhanced the value of the holdings on which they stood and as they
were not machinery used for industrial purposes
Kes: Shell Co. Ltd v Commissioner of the Federal Capital of Kuala Lumpur [1964]8
- The appellants are the owners of holdings under which are constructed tanks for the
storage of petrol.
- The tanks are buried two feet below ground level and are turfed over or covered with
concrete or macadam.
- To remove them, the turf, concrete or tarmacadam has to be taken up, the earth
excavated, the concrete manhole boxes removed, all pipe connections unbolted and the
tank with its concrete sinker weights then raised with blocks and tackle.
- The respondent, in determining the annual value of the holdings, included the value
attributable to the underground storage tanks.
- On appeal, the appellants contended that the tanks did not fall within the definition of
'building' and as such could not be or form part of 'a holding' and therefore not rateable.
- The respondent contended that the tanks had become part of the land as fixtures and as
such was within the definition of 'holding' and therefore rateable.
8
1 MLJ 302
9. INSYIRAH MOHAMAD NOH LAND LAW I
8
Held: The underground tanks are land within the definition of 'land' in the Land Code and as
land they are rateable
KECUALIAN KEPADA UNDANG-UNDANG LEKAPAN
A. ADAT
B. COMMON LAW – PENYEWA & PENERIMA PAJAKAN
A. ADAT
Rumah kampung Melayu yang dibina di atas tiang-tiang dan tidak ditanam di dalam tanah
harta boleh alih bukan lekapan
Kes:
Re Thambi Ma’amin (1904)9
Kiah bt Hanapiah v Som bt Hanapiah (1953)10
B. COMMON LAW – PENYEWA DAN PENERIMA PAJAKAN
Objek yang dilekatkan untuk tujuan dagangan pada tanah walaupun seakan-akan kekal
tetapi masih dibenarkan untuk dikeluarkan daripada premis jika dilekatkan oleh penyewa
dengan syarat ianya dikeluarkan setelah tempoh sewa tamat & dalam tempoh yang
munasabah
In case of a charge, fixtures will be passed to the chargee even if they were affixed to the
land after the charge transaction the objects are not part of the land
Kes:
Wiggins Teape (Malaysia) Sdn Bhd v Bahagia Trading Sdn Bhd & Ors [1980]11
9
Innes 285
10
MLJ 82
11
2 MLJ 45
10. INSYIRAH MOHAMAD NOH LAND LAW I
9
MBf Finance Bhd v Global Pacific Textiles Industries Sdn Bhd (In receivership) & Anor
[1993]12
Sungei Way Leasing Sdn Bhd v Lian Seng Properties Sdn Bhd & Ors (Bank Bumiputra
Malaysia Bhd & Anor, Interveners) [1989]13
*CONCLUSION
Fixtures
A. Degree of annexation
- Two presumptions:
§ if a chattel is attached to the land other than by its own weight then prima facie it’s
a fixture
§ if a chattel is only attached by its own weight, then it is not a fixture, even if it has
become embedded in the soil
B. Purpose of annexation
- Two aspects:
§ if the intention of annexation is the better use and enjoyment of the land, the item
is more likely to be a fixture
§ if the intention was the better use and enjoyment of the item itself, the item is more
likely to be a chattel
12
4 CLJ 379
13
2 MLJ 123