1.

Explain what do you understand about “cuius est solum, eius est usue ad coelum et
ad infernos?

Cuius est solum, eius est usque ad coelum et ad inferos is defined as "He who owns the land
owns everything extending to the heavens and to the depths of the earth”. It is a principle
of property law which states that property holders have rights not only to the plot of land
itself, but also to the air above and the ground below. The principle is often referred to in its
abbreviated form as the ad coelum doctrine.
In modern law, this principle is still accepted in limited form, and the rights are divided
into air rights above and subsurface rights below. Property title includes to the space
immediately above and below the ground – preventing overhanging parts of neighboring
buildings – but do not have rights to control flights far above the ground or in space. In
dense urban areas, air rights may be transferable to allow construction of new buildings
over existing buildings.
As described, the principle explains that a person who owns a particular piece of land owns
everything above and below it as well. However, it is to be noted that there are a number of
limitations to this maxim which need to be considered.

2. Compare the concept of indefeasibility in Tan Ying Hong v Tan Sian San (2010) 2 CLJ
273 FC and Adorna Properties Sdn Bhd v Boonsom Boonyanit (2001) 2 CLJ 133 FC.

Adorna Properties Sdn Bhd v Boonsom Boonyanit
Type of
 Immediate indefeasibility
indefeasibility
and its  Immediate indefeasibility occurs when a
principle purchaser is registered, irrespective of
whether the registration was obtained
using a valid transfer document or a
transfer document that had been forged.
Tan Ying Hong v Tan Sian San
 Deferred indefeasibility
 Under the principle of deferred
indefeasibility, where a registration had
been obtained by using a forged
instrument, or by use of an insu cient
instrument, or a void instrument, the
person in whose name the transfer had
been made does not obtain an indefeasible
title.
 However, when the person in whose name
the title had been registered, then
transfers the title to another person, or
creates a charge on the property, then the
subsequent person will obtain
indefeasibility of title, or indefeasibility of
the registered charge, if the person is a
bank or nancial institution which had
disbursed a loan based on the title as
collateral.

 The respondent was the registered
Facts of the
proprietor of the lands in question. She
case
discovered that the lands had been
transferred to and registered in the name
 The owner of the land, the appellant,
became aware that his land had been
charged to the bank, but he had not
authorised or conducted any such
 of the appellant company.
 A person bearing her name, Boonsom
Boonyanit, had forged her signature on
the documents of transfer and sold the
lands to the appellant company.
 It was established that the latter had no
knowledge that the transfer documents
were forged and had no reason to suspect
that they were forged.
 It was not in dispute that the sale was an
arm’s length transaction with the parties
represented by different solicitors. The
respondent brought an action to, inter
alia, restore her name as the registered
owner on the register.
 The Federal Court, comprising then Chief
Justice Tun Eusoff Chin, Chief Judge of
Malaya Tan Sri Wan Adnan Ismail and
Justice Abu Mansor Ali, held that Adorna
had obtained an indefeasible title
notwithstanding the forgery because it
was a bona fide purchaser.
 The Federal Court in this case has
interpreted good faith, but in an
inaccurate context. The learned apex court
held that good faith mentioned in the
proviso to s 340(3) was to be used by all
purchasers who had acted in good faith in
the transaction. However, it has been
clarified, subsequent to the Adorna case
that the proviso in s 340(3) does not apply
to s 340(2). The wording is clear in that
regard. The person who is intended to
take advantage of the proviso is the
subsequent purchaser and not the
immediate purchaser.
transaction.
 The charge had been created by the 1st
respondent, who had purportedly been
acting under a power of attorney.
 The appellant denied executing any such
document and asserted that, if any such
document existed, it was a forged
document.
 The loans were granted to the 1st
respondent in favour of a company, the
second respondent.
 The issue was whether the bank, as the
third respondent, had an indefeasible
charge as it was the holder of a registered
interest. The bank was the immediate
party and not a subsequent party.
 Can such an immediate registered
proprietor or interest holder be entitled to
a good title by way of registration?
 The Federal Court ruled that the bank’s
charges against Tan Yin Hong could be set
aside as they were based on void
instruments.