LAND LAWS & REGULATIONS

DCG30092
 SYNOPSIS

LAND LAWS AND REGULATIONS provides exposure and knowledge related to the
legislative system which are used in land administration in Peninsular Malaysia
before and after the introduction of the National Land Code and also the land
administration system for Sabah and Sarawak. This course also explains about land
disposals, land dealing and transactions, Malay Reserve, Sabah and Sarawak Land
Reserve and land acquisition by the state Authorities. This knowledge is important
in order to solve problems related to land administration and management.
 COURSE LEARNING OUTCOMES (CLO):

Upon completion of this course, students should be able to :

CLO1 : Interpret the National Land Code in Peninsular Malaysia

and land administration in Sabah and Sarawak.

CLO2 : Apply the concept of Malay reserve in Peninsular

Malaysia, land reserve in Sabah and Sarawak and land
acquisition under Land Acquisition Act 1960 (Act486).

CLO3 : Propose a good communication skills in presentation as

individually or in group on assigned topic.
 History & Background of land
Administrative in Peninsular Malaysia
 Sistem Tradisional Tanah Melayu

Sultan/Raja adalah ketua sesebuah negeri dan berada di kedudukan

teratas dalam sistem feudal. Dalam sistem tanah tradisional, semua
tanah dalam sesebuah negeri adalah dipunyai oleh Sultan. Sultan
mempunyai hak untuk mengutip hasil tanah dan mengenakan cukai sewa
serta menjual “tanah mati”. Baginda boleh mengurniakan tanah kepada
pemilik tanah bergantung kepada konsep usaha: siapa yang
mengusahakan tanah itu, dialah yang layak memilikinya.”
 Characteristics of Traditional Land System
1. The traditional land system ownership is a very loose one. The land is based on Malay customs and
Islamic law.
- A person can own a land as long as he is a Muslim and willing to clear the land
and does not trepass other people’s land.

2. Nature of ownership –not one of absolute ownership but “proprietory rights”.

- The right of ownership is the right to utilise the soil
. – Method of acquiring land –by opening up and cultivating virgin jungle land or waste
land.
- No documentation existed.

3. The Sultan , as the head of the state and at the top of the feudal system had some influence on the
land.
- The Sultan had the discretion to grant the right of possession (not ownership) of the
land to his subjects (can grant the land to anybody he pleases).
- Sultan has the right to collect land revenue and tax as well as sell obsolete land
(tanah mati) .
- To receive one tenth of the proceeds of the land as tax
Land was divided into two main categories.
a. Tanah Hidup
b. Tanah Mati

‘Tanah hidup’ refers to land that belongs to someone who either occupies the
land or plants something on it.
‘Tanah hidup’ is divided into three categories;
i. Tanah Kampung
ii. Tanah Sawah/ Bendang
iii. Tanah Ladang/ Huma

- ‘Tanah Mati” refers to land that has been abandoned and no trees
or permanent crop can be found on the land.
- Proprietory rights do not exist on ‘Tanah Mati’.
 TANAH
HIDUP

Tanah Tanah
Tanah
Bendang/ Huma/
Kampung
Sawah Ladang
• Tanah yang • Tanah yang • Tanah bukit
ditanam berair dan yang biasanya
dengan pokok ditanami digunakan
buah2an dengan padi untuk
• Hak pemilikan • Hak bercucuk
berlaku selama pemilikan tanam bagi
tanah itu berlaku tanaman yang
diduduki selama mana tidak kekal
sebagai bukti tanah itu • Pemilikan
bahawa tanah diduduki@se biasanya
itu tanah hidup panjang 3 hanya 1
tahun musim
4. Whilst maintaining the land under continuous cultivation, the owner was obliged to
pay one-tenth of the proceeds to the Rulers as tax.
We can see through statement of Maxwell HB in case Sharip vs
Mitchell (1870);
‘Based on Old Malay Law @ Malacca Custom Law, King is an owner of
all land states. Everybody have rights of working & stay at forest land
& dead land subject to condition hand over 1/10 of the land revenue to
the king’.

5. If the land was neglected for any substantial period of time without
any reasonable cause, it would be forfeited by the Ruler and the owner
would lose all his rights therein.
5. Examples;
Pulang Belanja (Return of expenses) – if the owner wishes to sell his
land, the price which he could expect from the purchaser would be the
sum total of his labour and expenses incurred in cultivating and
developing the land.
Jual Janji (land is held as security for a loan) – Involves the sale of a land
with the condition that the buyer shall retransfer the land to the borrower
upon the latter paying back an identical price before a stipulated date. If
the buyer fails to do so, the sale agreement becomes absolute (jual
putus).

6. Malay states also practice Custom Law;

a. Temenggung custom: others states
b. Pepatih custom: Negeri Sembilan & districts at Malacca
 As a conclusion, we can
say that under this system,
the native people
practiced a system that is
based on traditional Malay
customs as well as the
Islamic Law.
Registration of Deeds

In 1880, the British introduced a land

administration system that was based on
the English Land Law. This system is
known as the Registration of Deeds. Land
ownership was based on written or oral
grant from the government. The system
necessitated the presence of a chain of
documents to prove title.
 Sistem Deeds (Registartion of Deeds)
• ‘Land as a commodity’

• Pemilikan tanah berdasarkan surat ikatan yang

disempurnakan secara persendirian.

• Dikenali sebagai ‘Registration of Deeds’ dan

diperkenalkan oleh Inggeris sebelum 1870
berdasarkan ‘English Land Law’.

• Jika berlaku pindahmilik, tuan tanah baru hanya

mendapat surat ikatan (bukti pemilikan beliau ke
atas tanah tersebut).
 Disadvantages of Registration of Deeds
1. Ownership of land was not secured by the government.

2. Registration of land dealings was not made compulsory.

3. Purchasers did not get the guarantee of ownership.

4. Land transactions were based on a chain of title.

5. Title search that was carried out with the presence of a

lawyer was costly and slow.
 The Torrens System
• A land registration system
• Introduced by Sir Robert Torrens
• Originally from South Australia in 1858 (19th century and early 20th century).
• It was based on a state controlled system of registration of title, evidenced by
certificates issued and guaranteed by the state.
• The 1st Torren legislation in the Malay states was the Selangor Registration of Titles
Regulations of 1891.
 The Torrens System
• The Torrens System works on two principles:[1]
a. Mirror principle – the register (Certificate of Title) reflects (mirrors)
accurately and completely the current facts about a person's title.
e.g. name of proprietor, land descriptions, area of the land and
particulars of the persons that have registered interests on the
land.
This means that, if a person sells an estate, the new title has to be
identical to the old one in terms of description of lands, except for
the owner's name.
 S340 NLC :
The title or interest of any person or body for the time being
registered as proprietor of any land, or in whose name any lease,
charge or easement is for the time being registered, shall, subject to
the following provisions of this section, be indefeasible.
b. Curtain Principle – one does not need to go behind the Certificate of Title as it contains all the
information about the title.

This means that ownership need not be proved by long complicated

documents that are kept by the owner.
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.

S 89 NLC :
Every register document of title duly registered under this Chapter shall,
subject to the provisions of this Act, be conclusive evidence.
 Prinsip Sistem Torrens
1. Prinsip Cermin (Mirror Principle)
• Sijil hakmilik (Certificate of Title) menggambarkan dan memaparkan
fakta-fakta/keadaan terkini secara tepat dan sempurna mengenai
hakmilik seseorang.

• Ini bermakna jika seorang itu menjual tanah, hakmilik baru tersebut
perlulah mempunyai butiran yang sama seperti hakmilik lama dalam
konteks perihal tanah kecuali nama pemilik.

2. Prinsip Tabir (Curtain Principle)

• Seseorang individu tidak perlu merujuk kepada maklumat-maklumat
lain selain Sijil Hakmilik (Certificate of Title) atau mana-mana
maklumat terdahulu.
 Characteristics of Torrens System
• All land belongs to the State Authority who has the authority to dispose or alienate land
to anybody either indefinitely or for a certain period of time not exceeding 99 years.

• A “chain documents” such as sale purchase agreement could be used as a mean for
securing registration.

• Land title should not be conveyed by an instrument in writing executed by the

landholder but by the registration of that instrument.
(hakmilik tidak boleh disangkal – sek 340
sek 304(4) – “memorial pendaftaran mana-mana instrumen merupakan
keterangan konklusif”

• Registered proprietors are given indefeasible title that can only be disputed under
certain circumstances.
• All dealings of land must be using statutory forms and must be duly registered with
the State Authority (relevant authorities).
- failure to do so so would render the dealings null and void –
case Hj Abdul Rahman & anor. V. Mohamed Hassan

• Qualified titles may be issued to enable a person or a body to enter any approved but
unsurveyed land.

• A set of procedures must be followed when applications for sub-division, partiton or

amalgamation of land are made.

• A system of caveats protects any registrable interests and also registrable

transactions before registration.

• Alienated land shall revert to and vest with the State Authority when the proprietor
fails continuosly to pay the quit rent
• Easement are created expressly and must be registered.
• A registered proprietor of land may lease his land for a period of up to 99 years in case
of whole land or up to 30 years if it involves only part of the land. He can also gives
rent on the land for a period not exceeding 3 years.
• Strata titles may be issued to a purchaser of a unit in a multi storey building that allows
him to hold a separate title unit from the developer of the building.
• Equity had no place in this system.
• Surveying of land was an important matter.

Continued in force until repealed by the Federated Malay States Land Code 1926 –
amended in 1928.
 Towards a National Land Code

 The Reid Constitutional Commission in its report suggested

that the 1928 FMS Land Code to be the model used by the legal
draftsmen to work on a new National land Code in order to
achieve uniformity for all the nine Malay states and the
two Strait Settlements.

 The new 1965 National Land Code came into force on 1st
January 1966.