LAW & HOUSING (RHS505)

SEMESTER 2, ACADEMIC SESSION 2019/2020

Laws Relating to Housing (Part 1)

Dr.Norazmawati Md.Sani @ Abd.Rahim (Dr.Nora)
Building E08
Room 102
Block B
04-6533161
norazmawati@usm.my
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 Content
1. National Land Codes (NLC) 1965 (Act 56)
2. Land Acquisition Act 1960 (Act 486)
3. Acquisition of land
4. Rights over land
5. Types of Land Titles
6. Conclusions
7. Test 1 (15%)

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 Land Law
There are 3 types of Land Law at Malaysia which is different
based on theirs history background such as;
 National Land Code 1965 - Peninsula Malaysia
 Sarawak Land Code (Cap 81) - Sarawak
 Sabah Land Ordinance (Cap 68) – Sabah

To harmonize the implementation of National Land Code

with Land Law which is based on English Deed System at
Penang & Malacca, Parliament have approved one consistent
of law called as National Land Code Act (Penang & Malacca
Ownership) 1963. These acts are enforced only at this
involved state.

All state used Torrens System except Sabah.

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 AS TODAY, MALAYSIA APPLIED…
 Torrens System In Land Matters, Embodied In…

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 Torrens System in Malaysia
Def; A system of registration of titles to land (as
distinct from registration of deeds) introduced
into South Australia by the Real Property (or
Torrens) Act (act 15 of 1857-58), drafted by Sir
Robert Torrens (1814-84).

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Its essential feature is the guaranty by the
government of properly registered titles to improve
efficiency & effectiveness of land administration.

Torrens's System made registration as important

element to prove a fact related to authority & interest
on land.

The fact including owner's name, details on land,

location, lot number, category of land use & land
plan. 6
7
Name of New Owner
IC Number of New Owner
Address of New Owner

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9
 Principle of
Torrens System
The Mirror
Principle
*The register reflects all the facts & interests
of the land such as the name of proprietor,
land descriptions, area of the land &
particulars of the persons that have
registered interests on the land.
*Section 340 NLC -be indefeasible of title.
The Curtain
Principle
*A potential land buyer may only need to look
at the register to get the information on the
land that he is interested in without
counter checking with other documents.
*Section 89 NLC -be conclusive evidence.
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 1. Sec.48 No adverse
possession
against the State

2. Sec.46
6. System are not exclusive
Reversion to the
& not open
State Authority

Basic Characteristic of
NLC 1965

5. Sec.284(1) Necessity 3. Indefeasibility

for express grant of title

4. Caveat 11
1. Sec.48NLC No adverse possession against the State
No title to state land shall be acquired by possession,
unlawful occupation / occupation under any licence
for any period whatsoever.

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 2. Sec.46NLC Reversion To
The State Authority

1(a) expiry 1(b) non- 1(c)death of a 1(d) surrender

of the term payment of proprietor without
rent/breach of successors, & the
condition abandonment of
title by proprietors

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3. Indefeasibility of Title
Is guarantee but not definitive.

Example;
Fraud case.
Wrong delegation.
Void instrument.
Void ownership in law.

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4. Caveat
Def; a warning/caution; admonition.

A legal notice to a court/public officer to suspend a certain

proceeding until the notifier is given a hearing.

Example; a caveat filed against the probate of a will.

Type of Caveats Registrar’s

Private

Lien-Holder’s

Trust

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5. Sec.284(1)NLC Necessity for express grant
No right in the nature of an easement shall be capable
of being acquired by prescription (that is to say, by any
assumption of a grant from long & uninterrupted user).

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6. System are not exclusive & not open
Kiah Binte Hanapiah v Som Binte Hanapiah
Recognize Malay Wooden house.
Stilts House as a moveable property.

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 Land Acquisition Act 1960
Objective: Empowers Government to acquire an alienated
land for a particular purpose.

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 Article 13 Federal Constitutions
No person shall deprived of property saved in accordance
with the law.

No law shall provide for the compulsory acquisition of use of

property without adequate compensation.

Since the land was a State Matters, Land Office/Registry

Office under authority of the Act to gazette any land within the
jurisdiction area.

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 Power to Acquire Land
Section 3(1) Land Acquisition Act 1960
By any person, any
corporation for any
purpose which in the
The State Authority may opinion of the State
1 acquire any land, which is 3 Authority is beneficial to
the economic development
needed.
of Malaysia/any part
(declaration in Form A)
thereof/to the public
generally/any class of the
public.

For the purpose of

2 For any public purpose.
mining/for residential,
4 agricultural, commercial,
industrial/recreational
purposes/any combination
of such purpose.
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 Application of Acquisition
Section 3A(1) Land Acquisition Act 1960
Must be approved by State
Economic Planning Unit (SEPU) &
must fulfill;
1. Public interest.
2. Capacity/capability to
carry out purpose of
acquisition.
3. The feasibility of the
project.
4. The development approval
granted to the registered
proprietor.

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 Payment of Damages
Section 5 Land Acquisition Act 1960
Postulates payment of compensation for damage done to land
during the course of surveying it & doing all other acts under
the Act.

Decision of the Collector is final in the matter of sufficiency of

compensation for damages.

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 Hearing Objections
Section 5A Land Acquisition Act 1960
Any person interested object to the acquisition of the land
within 30 days from the date of publication of Section 4(1)
Notification.

It shall be made to the Collector in writing. The Collector shall

give an opportunity to such person/any person authorized by
him/pleader.

After making further, if any, necessary enquiry, make a report

to Government with recommendations together with Record of
Proceedings. Decision of the Government is final.

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 Declaration of Intended Acquisition
Section 6 Land Acquisition Act 1960
Declaration that the land is required for a public purpose.

After considering the report under Section 5(A) within one

year from the date of publication of the Notification.

Draft shall be published in;

1. The Official Gazette.
2. Two daily newspapers circulating in the locality, in
which the land is situated & at least one of them shall be
in regional language.
3. Shall cause Public Notice of the substance of the
Declaration at convenient places in the said locality.
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 Basic Principal of Compensation

The sum awarded

should enable the
claimant to be in the
The principle of
same financial
equivalence – no
positions as he would
worst & no better.
have been if his
interest had not been
compulsorily required.

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26
 Rights Over Land
 C
† ommon Law: “The owner of a land is the owner of
everything up to the sky & down to the centre of the
earth”-Corbett v Hill.

 Latin Maxim: ‘Cujus est solum ejus est usque ad

coelom et ad inferos’.
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Natural rights of land owner under
common law
Rights to use airspace
Section 44(1)(a)NLC

Other rights
Right below
1. Subsidiary rights
the surface
2. Acquired rights
Section 44(1)(a)NLC
3. Imposed rights

Right of support
Section
44(1)(b)NLC
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 What happens when someone interferes
with these rights?
Land owner may sue for trespass.

What is trespass?
“…an unlawful entry by one person on, or an unlawful
interference by one person with, land in the possession
of another”.

Kelsen v. Imperial Tobacco

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 To what extent can the land owner
enjoy the rights?
Rights are EXCLUSIVE but NOT ABSOLUTE.

Why?
Because the extent of the rights & enjoyment are
determined by the law.

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1. Rights to use airspace (Section 44(1)(a)NLC)
 The exclusive use & enjoyment of the column of
airspace above the surface of the land & the land below
that surface as is reasonably necessary to the lawful use
& enjoyment of the land.

Swetland v Curtis Airport

Court: Flying of aircraft above land was not trespass as
long as it is of REASONABLE HEIGHT 31
 Berstein of Leigh v. Skyview & General (1978)
D flew over P’s land to take aerial photograph of P’s house.

P said, by entering the airspace above his property in order to

take the photograph, the D’s were guilty of trespass.

Court:
No trespass - referred to UK Civil Aviation Act 1949.
No interference caused to property. 32
 2. Right Below The Surface (Section 44(1)(a)NLC)
 The right to the support of the land in its natural state by any adjacent land.

Terra Damansara Sdn. Bhd. v Nandex Development (2006)

D was undertaking a construction project on its land & had inserted ground
anchors that encroached beneath the surface of the P’s land without P’s consent.

Court; Trespass to land is actionable per se without any proof of damage & liability
is strict. It is not the law that a man cannot be a trespasser unless he knows he is one.
If the entry is intentional, it is actionable even though that entry was made under a
mistake or D honestly believed that the land was unoccupied & unalienated or that D
believed that he had a right of entry on the land.

D had caused to be inserted ground anchors into the P’s land & that constituted
trespass. The trespass will last so long as the ground anchors are inserted into the P’s
land. Any entry beneath the surface of the P’s land, at whatever depth, constitutes an
ACTIONABLE TRESPASS. 33
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Subject to the provisions of this Act
Section 45 (2) (a): A landowner may not use &
extract metals & minerals from his land.

Section 45 (2) (b): A landowner may not remove

beyond the boundaries of the land any rock material
or forest produce.

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 3.Right of Support (Section 44(1)(b)NLC)
A landowner is entitled to have his land physically supported by the
adjacent land. Provided that his land is still in its natural state.

Thus, the right is a negative right requiring the owner of the adjacent
land to refrain from withdrawing that support.

The owner of the adjacent land cannot withdraw the natural support
that his land gives to his neighbor’s land.

Dalton v Angus
Lord Selbourne: In the natural state of land, one part of it receives
support from another, upper from lower strata & soil from adjacent
soil. This support is natural & is necessary as long as the status quo
of the land is maintained.

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Types of Land Titles
1. Freehold Title
2. Leasehold Title
3. Bumiputera Reserve Title
4. Master Title
5. Individual Title
6. Strata Title
7. Registry Title
8. Land Office Title
9. Qualified Title
10.Final Title
11.Joint Title
12.New Areas Title
13.Land Title 36
 Qualified
Land Office Title
H.S.(M)
(Hakmilik
Title Sementara)
(Hakmilik Mukim Lease
Pejabat Final Title (Pajakan Mukim)
Tanah) (Hakmilik
Tetap)
Ownership Mukim Grant
System (Geran Mukim)
(Sistem Qualified
Hakmilik) Title
H.S.(D)
(Hakmilik
State Registrar Sementara) Hakmilik
Office Title Stratum
(Hakmilik State Grant
Pejabat (Geran Negeri) Hakmilik
Pendaftar) Strata
Final Title
(Hakmilik
Tetap) Hakmilik
Stratum
State Lease
(Pajakan Negeri)
Hakmilik
Strata
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1. Freehold Titles 2. Leasehold Titles
Refers to last forever.
No restriction on the
number of owners who
can be registered as
proprietors.
Can be transferred to
other individuals.
Need for state/land
office consent before
the transfer is done.
Government have the
right to obtain the
freehold property, to be
used for public projects.
Leasing/renting from the
government (60 or 99 years).
Once the period expires, the
property will be returned to
the government. The lessee
will not get compensation.
Only one lessee per property.
Do not own the building
erected thereon.
The lessee is liable to forfeiture
in the case the lessee breaches
any provisions, goes
bankrupt/goes into liquidation.
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3. Bumiputera 4. Master Titles
Reserve Titles
Developer is the rightful
owner.
The property is reserved for the
Malays & the Bumiputera.

Uses do a lodged at high court to

transfer the property to the
Can only be transferred to
purchaser.
other Bumiputera.

Most bank will not finance the

The capital appreciation is slightly lower property if it still on this title after
than the freehold & leasehold property. 10 years of completion.

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5. Individual Titles
The title for landed property.

Purchaser is the rightful owner.

Uses MoT to change the owners’

name on the property’s title deed at
the Land Office.

The title is usually issued in a short

time.

The title deed is important to prove

latest ownership.

No issue with financing.

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6. Strata Titles
The title for sub-divided property.

Purchaser is the rightful owner.

Uses MoT to change the owners’

name on the property’s title deed at
the Land Office.

The title is usually issued after 7

years.

The title deed is important to prove

latest ownership.

The property can be transferred to

others.

No issue with financing.

Strata Title Act 1985.
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7. Registry Titles
Registered Document of
Title (DoT) is kept at the
Register Titles Office.
One lot of land is
registered under one
title.
Either freehold/
leasehold.
Other titles (PHG, PER, SEL & N9)
Grants of Lands, Lease of State Land &
Certificates of Title.
Land under the Registry Title includes:
Town/village land.
Land exceeding 4 hectares.
Urban/rural land exceeding 10 acres.
Any part of foreshore/sea-bed.
8. Land Office
Titles
Registered Document of
Title (DoT) is kept at the
Land Office.
Either freehold/
leasehold.
One lot of land is registered
under one title, but under
GSA* more than one lot can
be registered under one title.
Land under the Land Office Title includes:
Urban land not exceeding 4 hectares.
Housing area.
Land endorsed under the Land Group
Settlement Areas Act (GSA)1960*.
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9. Qualified Titles
Issued before the final title is issued.

Land area is not final/is provisional.

The land/building is not entitled for

conversion, sub-division, amalgamation &
partition.

Strata title cannot be issued for the

building.

Proprietor has the power to lease, charge

of transfer the land.

Examples of Qualified Title:

HS (D) is the title issued by the State
Registrar Office.

HS (M) is the title issued by the Land

Office.
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10. Final Titles
Issued after detail survey has
been made in accordance to
Section 396.

Proprietor has the power to

lease, charge/transfer the land.

Examples of Final Title:

State Lease/State Grant is
the title issued by the State
Registrar Office.

Mukim Lease/Mukim
Grant is the title issued by
the Land Office.
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11. Joint Titles 12. New Areas 13. Land Titles
Titles
Application for Joint Title has been made.
Geran = Borang 5B
Is in need when re- – Freehold = (FT)
QT and FT are combined due to: measuring of towns,
1. Insufficient space in the DoT to include
small towns, cities & Mukim Grant =
all entries.
mukim has been made Borang 5C - Freehold
2. DoT is lost/damaged, & is not provided
by the land owner when required to do so. Section 11(ca). = Final Title (FT)
3. A need to re-measure the natural
boundary. State Lease = Borang
4. DoT consists of more than one lot of
land. The DoT will be kept at 5D - Leasehold =
5. A part of the land is lost to the sea/river. the new Land Office. Final Title (FT)
6. A part of land has been surrendered.
7. The remaining part of land acquisition of Mukim Lease =
land which has been re-measured. Borang 5E -
8. A part of the land will be under new
areas. Leasehold = Final
Title (FT)
From FT to QT:
When the land has been sub-divided, Qualified Title =
partitioned & amalgamated. Borang 11B -
Under Section 190. Leasehold or Freehold
= Qualified Title (QT)
From QT to FT:
When detail survey has been made to
the land.
Under Section 186. 45
 Conclusions

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 References
1. Ismail Omar (2020). Edisi Ke-3 Pengambilan Tanah (Akta Pengambilan Tanah 1960 Akta 486 Pindaan).
Pertubuhan Professional Tanah Malaysia (PERTAMA).
2. Md.Sani, Norazmawati (2019). Isu-Isu Semasa Dalam Pentadbiran Tanah Di Malaysia Dan
Penyelesaiannya. Jurnal Dunia Pengurusan. 1(2), P. 1-7, Sep. 2019. ISSN 2682-8251. (Online)
http://103.8.145.246/Index.Php/Jdpg/Article/View/6837
3. Noor Azliza Shaharuddin (2018). Land. Jilid 2 (1). ISSN 2600-7703. Jabatan Ketua Pengarah Tanah dan
Galian Persekutuan.
4. Salleh Buang (2007). Malaysian Torrens System. Kuala Lumpur: Dewan Bahasa dan Pustaka.
5. Sihombing, J.E. (1999). National Land Code: A Commentary. Singapore/Kuala Lumpur: Malayan Law
Journal.
6. Abdul Aziz Hussin, (1996). Lesen Pendudukan Sementara dan Permit. Dewan Bahasa & Pustaka, Kuala
Lumpur.
7. Teo and Khaw (1995). Land Law in Malaysia; Cases and Commentary. 2nd Edition. Malaysia: Butterworth.

List of Statutes
1. Kanun Tanah Negara 1965 (Akta 56/1965) & Peraturan-Peraturan. International Law Book Services.
Pindaan 5th November 2019.
2. Federal Constitution. International Law Book Services. As at 1st October 2019.
3. National Land Code (Act 56 of 1965) and Regulations. International Law Book Services. As at 1st April 2019.
4. Akta Hakmilik Strata 1985 (Akta 318), Kaedah-Kaedah dan Perintah-Perintah. International Law Book
Services. As at 5th Februari 2019.
5. Perlembagaan Persekutuan. Pindaan 5 Jun 2018. International Law Book Services.
6. Strate Titles Act 1985 (Act 318), Rules & Orders. International Law Book Services. As at 5th April 2018.
7. Land Acquisition Act 1960 (Act 486) Rules and Order. As at 1st November 2016. International Law Book
Services.

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http://elearning.usm.my

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