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TUTORIAL QUESTIONS

1. With reference to relevant provisions of the National Land Code 1965, discuss the main
features of the Torrens system as found in West Malaysia.

2. Our courts often refer to the English land law in deciding land disputes despite the
express prohibition in section 6 of the Civil Law Act 1956. Discuss.

3. ‘Section 206(3) of the National Land Code 1965 is the basis of liberal application of
equity on land matters in Peninsular Malaysia.’

Discuss to what extent you agree/disagree with the above statement.

4. Comment on the judicial approaches to the scope and effect of ss 3 and 6 of the Civil
Law Act 1956 in respect of the applicability of English law on land matters in
Peninsular Malaysia.

5. Write a short note on the case of UMBC v Pemungut Hasil Tanah Kota Tinggi [1984]
2 MLJ 87 (PC) and explain whether, assuming sub-section (3) of section 206 of the
National Land Code 1965 is the basis for the application of English rules of equity on
land matters in Peninsular Malaysia, there will be any difference on the decision of the
said case.

6. Babu is a manufacturer of sewing machines and equipments and he also provides

services for their erection and installation. By a leasing agreement, Babu supplied and
installed 10 sewing machines to Tai Huat Sdn Bhd. The agreement, inter alia, provides
for a retention of title clause. The machines were affixed to the floor to a factory
belonging to Tai Huat Sdn Bhd by bolts. The factory is built on a piece of land which
was earlier charged to Kaya Bank.

Derek, the managing director of Tai Huat Sdn Bhd, bought 2 original paintings worth
RM1 million and RM888, 888 respectively and hung both paintings on the wall of his
office.

Tai Huat Sdn Bhd faced severe financial difficulties and defaulted on the loan
repayments to Kaya Bank. Kaya Bank has obtained an order for sale and wants to know
what items on the land form part of the land for the purposes of the auction sale.

Advise Kaya Bank.

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7. ‘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 show that they were intended to be part of the land, the onus of showing 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 show that it was
intended all along to continue a chattel, the onus lying on those who contend that it is
a chattel.’ - per Blackburn J in Holland v Hodgson L.R. 7 C.P. 328, 335.

Discuss the above quotation in the context of the Malaysian land law with reference to
the provisions in the National Land Code 1965 and decided cases.

8. ‘A registered proprietor of an alienated land has exclusive but not absolute rights over
his land under the National Land Code 1965.’ Discuss.

9. Discuss the extent of a landowner’s rights under the National Land Code 1965, with
regard to the following rights-

(i) right of air space

(ii) right of support of land

10. Beatrice is the owner of a piece of land located in Labu Manik, on which a double-
storey house stands. In 2012, Beatrice rented the house to Azman who is a farmer.

During his occupation on the said land, Azman had on his own expense built a garage
attached to the rear wall of the house to keep his agricultural tools and fertilizer etc.
The garage was made of aluminium walls and attap roofs supported by wooden posts
or pillars. The wooden posts or pillars were embedded into a cement surface. Besides,
Azman had also on his own expense built some wooden cages to keep the poultry he
reared. The cages were laid on the ground in the compound.

In July 2015, Azman informed Beatrice of his intention to terminate the tenancy
agreement between them. Beatrice would like to know her rights, if any, over each of
the following-

(i) the garage and its contents

(ii) the wooden cages

Advise Beatrice.

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11. Muthu is the registered proprietor of land known as Lot 88 in Kampung Aman, Sepang.
In May 2007, Along built a double-storey shop house on the land. At the time of
construction the adjacent land, i.e. Lot 89, was a vacant land. To maximize the space,
Along had the shop house built with its windows and the edge of the roof protruding
into Lot 89.

In September 2008, Hou Choy Kongsi bought Lot 89 and planned to construct a ten-
storey hotel thereon. However, the proposed construction work could not be carried out
due to the protruding windows and roof of Along’s shop house. It was also discovered
later that Along had caused to be inserted ground anchors into Lot 89 in carrying out
the construction work earlier. The ground anchors were 10 metres below the ground of
Lot 89. It was on this area where the ground anchors were the proposed hotel will be
built.

Hou Choy Kongsi requested Along to remove the protruding windows and roof of his
shop house as well as the ground anchors below Lot 89 so as to enable the proposed
construction work to be carried out. Along refused as his son Abeng, a law student, told
him about the Latin maxim cujus est solum ejus est usque ad coelum et ad inferos (to
whom belongs the soil, his it is, even to heaven, and to the middle of the earth).

Upon his refusal, Hou Choy Kongsi has brought an action against Along. Advise Along
on the above matters.

12. Cahaya Sdn Bhd is the registered proprietor of a factory. Some air filters were installed
at the factory. These air filters were the subject of a lease agreement between Cahaya
Sdn Bhd and Klean Air Sdn Bhd made in 1999. The air filters were custom-made for
Cahaya Sdn Bhd and they were built into the building structure of the factory.

Advise the parties in each of the separate and independent situations below-

a) To finance the purchase of the land on which the factory is built, Cahaya Sdn Bhd
took a loan from Money Bank in 1998. The loan was secured by a charge over the
land in favour of Money Bank. Cahaya Sdn Bhd defaulted in its monthly repayment
of the loan obtained from Money Bank and Money Bank took possession of the
factory. Klean Air Sdn Bhd intends to remove the air filters from the factory. Would
your advice differ if the charge was created in 2001, instead of 1998?

b) Cahaya Sdn Bhd defaulted in its monthly payment under the lease agreement with
Klean Air Sdn Bhd. Klean Air Sdn Bhd intends to remove the air filters from the
factory while Cahaya Sdn Bhd claims that the air filters have been permanently
fastened to the factory which is attached to the earth.

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13.
a) Explain the differences between ‘sub-division’ and ‘partition’ of land.

b) Bujang is the registered proprietor of a piece of land, the area of which is 50

hectares. He intends to develop the land into a huge housing estate. However, the
category of land use imposed on the said land is ‘Agriculture’.

(i) Advise Bujang on the necessary procedure so that he could legally do

so and highlight the important conditions to be fulfilled by him.

(ii) How would your advice in (i) differ if Bujang would like to have the
said land sub-divided and only to develop a portion of the sub-divided
land into housing estate?

14.
a) Discuss the anomaly that arose between the Federal Court and the High Court decisions
in the case of Teh Bee v K Maruthamuthu [1977] 2 MLJ 17.

b) What is the significance of the case of Dr Ti Teow Siew & Ors v Pendafter Geran-
Geran Tanah Negeri Selangor [1982] 1 MLJ 38?

15.

Kanun Tanah Negara

Borang 5EK

(Jadual Keempat Belas)

PAJAKAN MUKIM

No. Hakmilik: 111 Cukai Tahunan: RM40.00

Pajakan selama 99 tahun, tempoh berakhir pada 29 Disember 2092.

Negeri : PERAK

Daerah : MANJUNG

Bandar/Pekan/Mukim : MUKIM LUMUT

No. Lot : Lot 12345

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Luas Lot : 1.294 HEKTAR

Kategori Penggunaan Tanah : Pertanian

No. Lembaran Piawai : 1045

No. Pelan Diperakui : 76406

No. Fail : PT.MJG.A2/92/76-1(225)

Tanah yang diperihalkan di atas adalah dipegang untuk selama tempoh tahun di atas oleh
tuan punya pada masa namanya disebut dalam rekod ketuanpunyaan di bawah, tertakluk
kepada peruntukan-peruntukan Kanun Tanah Negara, kepada kategori yag dinyatakan
di atas dan kepada syarat-syarat nyata dan sekatan-sekatan kepentingan yang dinyatakan
di bawah, sebagai balasan bagi pembayaran cukai tahunan yang sewajarnya.

Dengan perintah Pihak Berkuasa Negeri

Didaftarkan pada 14 Ogos 1997

T.M …..…………t.t.…………….

Pendaftar

Pelan tanah, bagi maksud pengenalan, adalah dikepilkan pada Borang B1.

SYARAT-SYARAT NYATA

Tanah ini hendaklah digunakan untuk tanaman dusun sahaja.

SEKATAN-SEKATAN KEPENTINGAN

Tanah ini tidak boleh dipindahmilik atau dipajak melainkan dengan

kebenaran Menteri Besar.

Tarikh Mula-Mula Pemberimilikan 14 September 1993

No. Hakmilik asal (Tetap atau sementara) HSM 1459 Mukim Lumut

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No. Hakmilik yang terdahulu daripada ini -

(jika berlainan daripada di atas)

REKOD KETUANPUNYAAN

Chin Choy, ½ bahagian

No. KP: A1234567, Warganegara Malaysia

No. 1, Jalan 2, Taman Tiga, Batu Gajah, 31000 Perak.

Chin Chai, ½ bahagian

No. KP: A7654321, Warganegara Malaysia

No. 1, Jalan 2, Taman Tiga, Batu Gajah, 31000 Perak.

REKOD URUSAN

No Pers 1111/2000 Gadaian menjamin wang pokok

Oleh Chin Choy, No. KP: A1234567, ½ bahagian

Chin Chai, No. KP: A7654321, ½ bahagian

kepada Prosperity Bank Berhad, No. Sykt: 1234-M

No. 122 & 123, Jalan Wang, Batu Gajah, 3100 Perak.

Didaftarkan pada 19 November 2000 jam 10:37:45 pagi

Suratkuasa Wakil: Jil 13 Fol 34

PERKARA LAIN YANG MELIBATKAN HAKMILIK

With reference to the issue document of title above, answer the following questions-
a) Explain the legal position if the land, i.e. Lot 12345, is planted with only rubber
trees.

b) Assuming the Land Administrator has served a notice in Form 7B on Chin Choy
and Chin Chai, who else should be served with a copy of the said notice and why?

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c) Chin Choy and Chin Chai would like to build a factory for light industry on Lot
12345. Is it possible for them to do so lawfully and how this may be done?

d) Assuming Chin Choy and Chin Chai had executed and presented for registration an
instrument to transfer Lot 12345 to Muniandy without applying for the approval
from the Chief Minister. What is the legal position of the purported transfer?

16. With reference to relevant statutory provisions, list down every disposal of land that
the State Authority is empowered to make under the National Land Code 1965
according to the types of land as follows:

a) State land
b) Alienated land
c) Mining land
d) Reserved land

17. Explain ‘alienation’. Discuss in what circumstances a piece of land which has been
alienated may revert to the State Authority.

18. Briefly explain the procedure to challenge the validity of forfeiture and the possible
grounds of the said challenge.

19. Explain in what circumstances a piece of alienated land may be liable to be forfeited.

20. Amy would like to apply for a piece of land located in the foreshore to be alienated to
her so that she could build a house thereon. With reference to relevant statutory
provisions, advise her on each of the following questions.

a) Is it legally possible for the said land to be alienated to Amy? Why or why not?

b) How would your answer in (a) be affected by the fact that Amy is a citizen of
Australia?

c) Assuming the answer to the question in (a) is positive, will Amy be able to hold
the land in perpetuity? Why or why not?

d) Assuming the answer to the question in (a) is positive, which title (either Registry
Title or Land Office title) will be issued?

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21. Paru is the holder of a Temporary Occupation Licence in respect of a piece of land, i.e.
Lot 123. He comes to you seeking your advice on the validity of each of the following
transactions-

(i) An agreement whereby Paru lets a house on Lot 123 to one Kee.
(ii) An agreement whereby Paru sells a house on Lot 123 to one Saiful.

22. Discuss the legal position in each of the independent and separate situations below-

a) Ali holds a Temporary Occupation Licence in respect of a piece of land. During his
occupation he built a house on the land. Before the expiry of the said licence, Ali
intends to sell the house to Bibi.

b) Caya applied for the alienation of a piece of land, Lot 123. Her application was
approved. However, it was discovered later that Lot 123 was previously reserved
for vegetable farms and there was no record of any revocation. How would your
discussion differ if Lot 123 constituted merely a tiny portion of the reserved land?

c) Daya had been staying on a piece of vacant land for the past twenty years. The land
was never alienated to anyone. Daya fell the trees on the land and built a house
thereon. Recently, Daya received a letter from the Land Office requesting him to
vacate the land.

23. Zaid is the registered proprietor of land held under Lot 123. The category of land use
imposed on the title is ‘agricultural’. Zaid intends to develop the land for industrial use.
The authority has approved his application subject to a few conditions, including
payment of premium and tax on the change of the category of land use. Zaid did not
make the payment. He was later served with a notice under section 128. Advise Zaid.

24. Ben, Kalai and Sara are co-proprietors of a piece of land (Lot 447) with Ben holding
3/5 undivided share while Kalai and Sara holding 1/5 undivided shares each. A
misunderstanding arose among them and thus Ben would like to end the co-
proprietorship.

Advise Ben on the process by which he may do so. How would you advise Ben if Kalai
refuses to give consent to the process to be adopted by Ben?

25. Amir Khan agreed to buy a piece of land, Lot 111, from Tom Hang. Amir’s solicitors
conducted a private search at the land registry of Kuala Lumpur which confirmed
Tom as the registered proprietor of Lot 111 and Lot 111 is free from encumbrances.
A sale and purchase agreement was signed and Amir then proceeded to obtain a loan
from a bank to finance the purchase. Eventually, the loan amount was disbursed to

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Tom’s solicitors while the transfer and charge instruments were presented for
registration.
When Amir visited Lot 111, he met one Donny Yen, who claimed that he is the true
land owner. Amir’s solicitors immediately conducted an official search and found
that Donny Yen was the registered proprietor of Lot 111. Meanwhile, Tom Hang has
disappeared and was nowhere to be found.

Advise Amir Khan.

26. Explain the characteristics of an easement. Also, discuss how an easement may be
created over alienated land under the National Land Code 1965.

27. With reference to the relevant statutory provisions and case law, compare and contrast
am easement created over alienated land and a land administrator’s right of way over
an individual’s land.

28. There used to be a road from Cincin Mahal to Lembu Merayau known as Jalan Besar
across a piece of land (Lot 2424) located in Mukim Asam. The road was built by Great
Malaysia Estate (GME) in 1990 to transport oil palm fruits from its estate in Cincin
Mahal to Lembu Merayau. Since then it was also used by the public to travel between
Cincin Mahal and Lembu Merayau.

In 2007, Azmin was granted Lot 2424, free of any right of way. Azmin built a wall of
concretes to block Jalan Besar. GME approached Azmin and made an agreement with
him whereby GME was to pay him a monthly toll of RM900 for the use of the road.

The payment of toll to Azmin in long term would be costly to GME. Advise GME on
the above matter. Explain how your advice may be affected if there is an alternate
route and -

(i) it is a road reserve which is still a hilly jungle.

(ii) it is a properly constructed public road but it is not as convenient as Jalan Besar to
GME.

29. With reference to statutory provisions and case law, explain the concept of
‘indefeasibility’ and exceptions to it.

30. Write a case note on each of the following cases and explain the significance of each
decision:
a) Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 2 CLJ 133
b) Tan Ying Hong v Tan Sian San & Ors [2010] 2 CLJ 269

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31. Aya was the registered proprietor of a piece of land located in Setapak. She has the
original issue document of title for the land with her at all time. Unknown to Aya, her
sister Caya falsified a power of attorney purportedly granted by Aya and obtained a
new computerized title for the said land registered in Aya’s name. By the forged power
of attorney and the new computerized title, Caya entered into a sale and purchase
agreement with Ben. The transfer in favour of Ben was registered. Ben later sold and
transferred the land to Din who eventually sold the same to Emily. To finance her
purchase of the said land, Emily obtained a loan from Big Bank and charged the land
to the latter. Aya discovered recently that the land is registered in the name of Emily.
Advise Aya.

32. Brandon was the registered proprietor of a piece of land in Kuala Lumpur. Without his
knowledge, his worker Derek impersonated as him and transferred the land to Raya by
forging Brandon’s signature. Raya eventually sold the land to Kaya. To finance his
purchase of the land, Kaya obtained a loan from Big Bank and charged the land to the
bank. Both memorandum of transfer and charge in favour of the bank were registered
on the same day. When Kaya defaulted in payment Big Bank obtained an order for
sale of the land. Brandon found out that the land was registered in the name of Kaya
when he saw the notice of auction. Advise Brandon.

33. Taib obtained the title document of a piece of land belonging to Susil through
fraudulent means. He did so by procuring a woman to impersonate Susil and to execute
a transfer of the land to himself. Taib immediately executed a charge in favour of Big
Bank to secure an overdraft facility granted to him. Big Bank honestly believed that
Taib was the true land owner. The transfer and charge were eventually registered.
When Taib failed to pay for the overdraft facility, Big Bank applied for, and the court
granted, an order for sale of the land. At this time, Susil discovered that her land had
been transferred to Taib and lodged a police report straightaway. Taib absconded and
has not since been heard of. Susil applied to the Registrar who then entered a registrar’s
caveat against the land to prevent the sale by Big Bank.

Advise Big Bank whether its interest under the charge is indefeasible.

34. Compulsory acquisition of land may be done only with adequate compensation. Discuss
and comment on the approach in determining an adequate compensation under the
Land Acquisition Act 1960.

35. It is said that compulsory acquisition may be done only if the land is required for public
purpose. With reference to the relevant statutory provisions and case law, discuss the
legal position of the public purpose rule for compulsory acquisition in Malaysia.

36. Section 3 of the Land Acquisition Act 1960 provides as follows:

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‘The State Authority may acquire any land which is needed-
(a) for any public purpose;
(b) by any person or corporation for any purpose which in the opinion of
the State Authority is beneficial to the economic development of
Malaysia or any part thereof or to the public generally or any class of
the public; or
(c) for the purpose of mining or for residential, agricultural, commercial,
industrial or recreational purposes or any combination of such
purposes.’
Section 8(1) of the Land Acquisition Act 1960 states that when the State Authority
decides that any land is needed for any of the purposes stated in section 3, a declaration
in Form D shall be published in the Gazette while section 8(3) provides that a
declaration in Form D shall be the conclusive evidence that the land concerned is
needed for the specified purposes.

Comment on the purpose requirement for compulsory acquisition of land in Malaysia.

Also discuss whether you agree with the claim that it is impossible to challenge
compulsory acquisition of land on the ground that it is not done for public purpose in
view of the above provisions in the Land Acquisition Act 1960.

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