Right to Support

 Right to support is where landowners owe duty of care towards their neighbours not
to disturb or withdraw natural right to support or in another word soil to soil support.
Breaching this duty will give rise to a cause of action in negligence and/or nuisance.

 This is provided under section Section 44 (1) (b) of the National Land Code which
states that the owner of the land is entitled to the natural support structure of his land,
and any other natural rights that accompany it. The owner of the land adjacent to his
land has a duty not to interfere with that support structure.

 Right to support is adopted from the common law principle that a remedy is available
to someone whose rights have been violated. It is a negative right that something
should not be done on your own land or property that might endanger other’s land or
property.

 It is a conditional right, where there are some conditions need to be fulfilled by you
before commencing the action, there are:

 The land at the lower must support the land above it.
 Lot 124 of ABC is the land at the lower. Thus, ABC is entitled to support your
land since your land is above their land.
 It must be adjoining to each other
 Your land which is Lot 23 is adjoining to Lot 124 of ABC.
 The land must be in its natural state
 The Common Law principle is that every piece of land has an absolute right of
support from adjoining land and the land must be in its natural state i.e. land
unburdened with building and unweakened by excavations,
 In the case of Madam Chah Siam v Chop Choy Kong Kongsi (1939) MLJ
Rep 187, it is stated that the right to support applies to the land in its natural
state and the right does not become a greater right when buildings are situated
or excavations are made on the land.
 The case of Guan Soon Tin Mining Co v Ampang Estate Ltd [1973] 1 MLJ
25, provides that if the subsidence of the land was caused by the additional
 weight imposed by such building or structure on the land, then there’s no
withdrawal of support by the adjacent land.
 Your land is in natural state and unburdened with building and unweakened by
excavations before it has been excavated by ABC.

 In the case of Goh Chat Ngee & 3 Ors v Toh Yan & Anor [1991] 2 CLJ 1163, the
Plaintiff was successful in using Section 44 (1) (b) of the National Land Code 1965.

 The physical damage caused by ABC's trespass had resulted in the withdrawal of soil
to soil support and the loss of lawful use of the land by you.

 Since, all the conditions are fulfilled, ABC owes you this duty because it owns the
land adjacent to your land. ABC breached this duty by removing part of the hill on
your land, thereby making the slope unstable. This amounts to an interference with
your right to the support structure of your land. Hence, you can bring an action
against ABC for breaching right to support structure of your land.

Trespass to Land
 Trespass to land is an unjustifiable interference with the possession of land.
 In order to prove that ABC has committed trespass to land, you will need to prove that
all the elements of trespass to land have been fulfilled. They are:-

i) Interference
 Interference occurs when a person enters the land which is in
possession of another.
 In trespass, courts need not look into the amount of force used for
interference. The interference must be physical and must be used in a
tangible manner. A trespasser is liable even when no damage is done.

 In Yip Shou Shan v. Sin Heap Lee-Marubeni Sdn Bhd [2002] 5

MLJ 113, the defendant’s development works on its land cut into the
 plaintiff’s land causing the hill to be excavated. The Court of Appeal
held that this amounted to trespass.
 We would like to highlight to you that the first element has been
fulfilled since ABC had indeed interfered with your land by excavating
part of your land and by causing a large piece of the hill slope to be
removed.

ii) Possession
 Only a person who has possession over a land at the time of the
trespass may bring an action for trespass.
 The ownership or possessory interest in land by the plaintiff must be
proved. Defendant’s invasion affects plaintiff’s exclusive possessory
interest. Moreover, it is the right of the owner in possession to
exclusive possession that is protected by an action for trespass.
 However, trespass does not require ownership, the right to possess is
sufficient.
 The entry by the defendant to plaintiff’s land must be unauthorized.
The defendant should not have any right to enter into plaintiff’s land.

 In Yip Shou Shan v. Sin Heap Lee-Marubeni Sdn Bhd [2002] 5

MLJ 113, there were two incidents of trespass: (1) before the plaintiff
was in possession of the land, and (2) before he paid the full purchase
price. However, the Court of Appeal held that he could still sue for
trespass because the trespass committed by the defendant
continued from the time before possession, to the time of
possession, and even after possession of the said land.

 In your situation, the second element has been fulfilled as you were in
possession of Lot 123 as you already became the registered owner of
your land upon your registration as the owner of the land.

iii) Intention of the Defendant

  Intention refers to the defendant’s intention in committing the act of
trespass. This means that we would need to prove that ABC’s entry
onto your land was voluntary and not upon being forced.
 In order to be liable for trespass, it must be proven that one must
intentionally enter upon another’s land. Whether you are aware that
you are trespassing or not is not an issue.
 When the trespasser knowingly and without authority enters the land of
another, there is clear intention on part of the trespasser to a trespass.

 In Conway v. George Wimpey & Co Ltd [1951] 2 QB 266, the Court

said that it is sufficient that the defendant deliberately entered onto the
plaintiff’s land. The plaintiff only needs to show that the defendant
intended to enter the land.

 In your situation, ABC excavated part of your land and a large piece of
the hill slope which formed part of your land had been removed
voluntarily and deliberately.

 This is sufficient to constitute trespass to the land as the above

elements have been fulfilled.

 Hence, you can bring action against ABC for trespassing your land since all the
elements are fulfilled.