UNLAWFUL OCCUPATION OF LAND IN

MALAYSIA

Assoc. Prof. Dr. Sharifah Zubaidah

Syed Abdul Kader
(shzubaidah@yahoo.com)
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
 Concepts
Ownership of Land Possession of Land

• Ownership = proprietary • The act of being in actual

rights:
• 1. Right to possess and
enjoy land.
• 2. Right to deal with land
including transferring it
to another.
• 3. Right to transmit upon
death.
occupation of land.
• One who is in possession of
land may not necessarily be
the owner of the land.
• Lawful possession, e.g.
tenant, lessee, licensee.
• Only has right of
possession. No right to
transfer or transmit the
land.
Unlawful Possession/Occupation:
• The act of being in physical possession of land
‘as of wrong’ – meaning one who occupies
land without consent of the formal and legally
recognized land owner.

• SQUATTING?
 Type of Lands Occupied:
• ‘State land’: • ‘Alienated land’ :
• all lands in the state • Lands that have been
that has not been alienated to persons
alienated, and lands and bodies who hold
that are not mining registered titles to the
land, reserved land and land.
reserved forests. • Private land.
• (s.5 National Land Code
1965)
 Other types of lands:
• ‘Reserved lands’:
• Lands that have been
reserved for public
purposes e.g. roads,
TNB sub-stations,
electricity high cables,
reservoirs, etc.
‘Reserved land’ for TNB
‘Mining land’ restored in Cyberjaya
 The ‘squatter’ phenomenon raises
many disputes and issues:

• 1) Sub-standard • 4) Social problems.

housing (crime – juvenile
accommodation delinquency)
due to • 5) Environmental
insufficient public degradation. (land
facilities and and water
infrastructure. pollution, etc.)
• 2) Lack of sanitation. • 6) Legal problem?
• 3) Health problems.
Kg. Pandan Indian Settlement, KL
Squatters in Pulau Gaya, Sabah
Kg. Berembang, Ampang
Squatters seeking rights
Squatters seek help from MP
Squatters pollute rivers
 How does the NLC deal with the
squatter problem?

• Word ‘squatter’ not • s. 48 : No adverse

used in the NLC. possession against the
• NLC uses the terms State.
‘unlawful occupation’ • s.425: Unlawful
and ‘adverse occupation of state land is
possession’ when an offence.
dealing with ‘squatters’. • s.341: Adverse possession
not to extinguish any title
to alienated land.
 Meaning of ‘Adverse Possession’:

• Adverse possession is “possession as of

wrong” but long possession matures the
wrong into a right.
• The law of adverse possession gives right of
ownership to land to persons who have no
formal ownership.
 NLC does not recognise Adverse Possession

“No title to State land shall be acquired by

possession, unlawful occupation or occupation
under any license for any period whatsoever.”

• (Section 48 NLC)
 Effect?

Unlawful occupation of State land,

even after a long duration,
will not enable the occupier to obtain title
to the land.
Unlawful Occupation of State Land An Offence
under s.425 NLC

• Penalty: Maximum fine

of RM10,000
• Max. 1 year prison.
 Sidek bn Hj. Muhamad & 461
Others v Govt of perak [1982]
• Appellants came to
Perak and opened up a
jungle area now known
as Seberang Perak in Kg.
Gajah.
• Other settlers came to
the area and the state
govt. resettled some
settlers to the land
where the appellants
were already in
occupation.
 Sidek’s Case:
• When the appellants
were given notices to
stop work and vacate
the area, they filed a
case in court seeking a
declaration that they
were entitled in law and
equity to be in
possession of the land
they had pioneered &
occupied.
 Grounds in Support:

• 1) The D.O. had • 2) Utusan Malaysia

promised each published an article
settler 3 acres of stating that the
padi land subject State Director of
to successful Lands and Mines
interviews. said that each
pioneer settler wd
be given 5 acres
of padi land.
 Federal Court held:
(Raja Azlan Shah, CJ)

• 1) The appellants had no cause of action as they

were squatters who had no right either in law
or equity.
• 2) Section 48 of the Code is against them.
• 3) The only way to obtain State land is by way of
the NLC.
 It was not always like this.
• Before British occupation of Malaya, the
original Malay inhabitants recognised rights to
land based on opening up of waste land/virgin
jungle.
• Concept of ‘tanah hidup’ and ‘tanah mati’ and
the right to cultivate ‘tanah mati’ in Malay
customary tenure.
• Similar to Islamic principle of ‘Ihya-al-Mawat’
(‘Rehabilitating Dead Land’).
Abdul Latif v Mohamed Meera Lebe
(1824) 4 Kyshe 249
• “There are 2 kinds of land, first ‘living land’ and
second, ‘dead land’. With regard to dead land,
nobody has property rights to it, (when) there is no
sign of it being under cultivation by someone (then)
certainly nobody can lay a claim to that land. If
someone cultivates it into a rice field, be it huma or
ladang or sawah or bendang, no one can proceed
against him. That is what is understood as ‘living
land.”
• (per Claridge, J.)
 Sahrip v Mitchell & Anor.
(1979) Leic. 466
• “It is well known that by the old Malay law or
custom of Malacca, while the sovereign was
the owner of the soil, every man had
nevertheless the right to clear and occupy all
forest and wasted land, subject to the
payment, to the sovereign, of one tenths of
the produce of the land so taken.”
• (per Sir Benson Maxwell, CJ)
 Torrens System
• The introduction of the Torrens system in
Malaya in the 1890’s laid emphasis on land
ownership based on registration of titles and
interests.
• “Under the Torrens system, the register is
everything”. (per Ali Ag. CJ in Teh Bee v K.
Marithamutu (1977)).
• Our National Land Code 1965 codifies the
Torrens system.
 Does NLC recognise concept of
‘rehabilitating dead land’?

• The entire property in State land and all minerals

and rock materials in or upon any land in the State
is vested in the State Authority. (s.40 NLC).
• NLC does not address abandoned or idle land.
Thus no concept of ‘dead land’.
• There is however the concept of Temporary
Occupation Licence’ (TOL) – a mechanism that has
been used by the State to ‘legalise’ squatters.
 What is a Temporary Occupation
Licence?

• A licence issued by the State Authority under

the NLC to persons or bodies, allowing them
to occupy State land for a temporary duration,
and for a specific purpose/s.
• Without such TOL, such person or body would
be considered to be in unlawful occupation of
State land.
 Duration of TOL?
• A TOL expires at the end of the calendar year it is
issued. (s.67 NLC)
• The TOL holder may apply for renewal of the licence
before its expiry but this may be done only 3 times.
(s.67 NLC).
• Renewal depends upon discretion of State Authority.
• After the 3rd renewal, any further renewal must get
the express written consent of the State Authority.
 Ex-TOL Holder
• An ex-TOL Holder who remains on the land
after the date of expiry of the TOL or where
the TOL has been terminated by the State
Authority is in unlawful occupation of State
land.
• (See PP v Yap Tai (1947))
 Circumstances when a person can be in
unlawful occupation of State land?

• 1) Pure squatters.
• 2) Those in long possession of state land without
lawful authority.
• 3) Ex-TOL holders still remaining on the land.
• 4) Those whose lands have been compulsorily
acquired under the Land Acquisition Act 1960
but refuse to leave.
• 5) Those whose leasehold titles have expired.
 What the Courts Have Said on
unlawful occupation of STATE land
 There are 2 sets of cases:
• Cases where occupiers
• Cases where the
seek a court declaration
registered proprietor of
that they have a right to
the land applies for an
remain on the land.
Order of Possession under
• - Sidek’s case. rules of court.
• - Yap Chong Lan’s case. • - Lebbey’s case.
• Law clear, squatters • - Shaheen’s case.
have no right to seek
• - Bohari’s case.
such declaration.
• - Selayang Raya’s case
 Pattern for 2nd set of cases:
• Land in these cases
were formerly state
land and the occupiers
have been there since
then.
• State
officials/politicians
have, from their acts
and words, encouraged
the occupiers to stay on
the land.
• State subsequently
alienates land to a
developer/agency to be
developed.
• The registered
proprietor applies for a
court order for
possession of the land
to evict the occupiers.
 Order of Possession
• The law forbids forcible evictions without
getting a court order.
(s.7(1), Specific Relief Act 1950)
• One may apply for an Order of Possession
through Order 89 Rules of the High Court
1980.
 Summary Order of Possession under Order 89
Rules of the High Court 1980
• Where the occupiers are clearly squatters, the
land owner may proceed speedily to get an
order of possession by applying summarily
(before trial of the action) for an order of
possession.
• This application is based on affidavit evidence.
 Court’s Approach in Application u-
Order 89 RHC 1980
• If the occupiers are squatters simpliciter, then
the order will be granted.
• If the occupiers are ‘occupiers with licence or
consent’ and have raised ‘triable issues’
(through affidavit and documentary evidence),
the court will not grant the summary order of
possession.
 Govt. of Negri Sembilan v Yap Chong Lan & 12
Ors. [1984] 2 MLJ 123

• YCL and others (the aggrieved persons) had lived

in houses which they had built in Rahang Kecil,
Seremban.
• They paid ground rent to Seremban Enterprise
Ltd., the land owner.
• April 1972 – a portion of the said land was
acquired by the govt. for a road widening project.
• They appealed to the Collector for time to vacate
and for low cost houses on state land.
 Yap Chong Lan’s Case:
• They were given compensation and allotted lots of
land in Ulu Temiang for resettlement.
• Water and electricity were supplied to them.
• They also applied for state land in that area.
• Later however, the land was alienated to Lesco
Devpt. S/B to be developed into a housing estate.
• Lesco asked them to leave, offering compensation
and a right to purchase low cost houses at a
reduced price.
• YCL and others refused to accept the offer and
brought this case against the state
government and Lesco, seeking the right to
stay on the land.
• High Court found that due to the assurances
by the Collector, an equity was raised for YCL
and others and thus Lesco should pay them
compensation and give them two months to
vacate the land.
 Appeal:

Lesco and the state government

appealed to
the Federal Court.
Federal Court in Yap Chong Lan’s case
held:
• The Collector has no authority to commit the
State Authority as to alienation of land.
• Even if public facilities had been supplied to
unlawful occupants of State land, this cannot
be used to bind the State Authority to alienate
land to the occupants.
• Squatters cannot raise the doctrine of
equitable estoppel against the State Authority.
 Lebbey S/B v Chong Wooi Leong
[1998] 5 MLJ 368
• Pf = registered proprietor of land previously
owned by the Selangor state authority.
• Pf planned to develop the land and issued a
notice to quit the land on the occupiers. (Df.s)
• Df.s refused and argued that although they
had entered the state land without consent or
licence, they had peaceful enjoyment and
occupation without interference by the state
authorities.
 High Court held:
• Summary order of possession granted.
• ‘State authority’ under the NLC means the
Ruler acting upon the recommendation of the
State Executive Council.
• The state government, Minister, Exco.
Member, District Officer or politician are not
to be considered as ‘state authorities’ for
purposes of consenting to occupation of state
land.
Kabra Holdings S/B v Ahmad b. Sahlan
[1992] 2 CLJ 609
• Verbal promise by the Mentri Besar of
Selangor given in 1969 will not give the
defendants a right to occupy the land.
• The only way to occupy State land is by way of
the NLC.
• Order of possession granted.
 Bohari bn Taib & Ors. v PTG Selangor
[1991] 1 MLJ 343
• Forefathers of Applts-pioneer settlers of agri. land in
Sabak Bernam.
- Applts allege: betw. 1971-1976, they had applied to
the SA for land titles and that the S’gor State Exco.
had approved the alienation in Sept. 1980 and that
an Exco. Member confirmed the approval with
assurance of titles to the land.
- Later, Applts were informed that as a result of a policy
that only GENUINE and LANDLESS farmers wd be
given the land, the applts wd only be granted with
TOLs and after 3 yrs, they wd then acquire titles.
 (Bohari’s case: Cont.:-)
• Later, the Resp. handed over the lands to
FELCRA and applied summarily under Order
89 of the Rules of High Court 1980 for
possession of the land without any
compensation for the Applt’s eviction.

• HC: Allowed the Resp.’s application. Appealed

to SC.
 Supreme Court held:

• For the purpose of the summary procedure

under Order 89 Rules of the High Court, a
distinction should be made between squatters
simpliciter who have no rights whatsoever and
occupiers with licence or consent.
• The Appellants in this case where not
squatters simpliciter but on evidence, are
occupiers with licence or consent of the State
Authority.
 Shaheen bt Abu Bakar v PKNS
[1998]
• Federal Court:
• Settlers in Kg. Sg. Rumput were not squatters
simpliciter.
• There was a strong arguable case that they
occupied the land with the implicit consent of
the State Authority.
• Appeal allowed.
 Selayang Raya Dvpt. S/B v 123 Orang Yg
Disenaraikan Dalam Lampiran A [2002]
• The defendant/occupiers had entered into the
land in the 1970’s when it was still state land.
• They continued occupying it without any
licence, consent or permission from the land
office or the current registered proprietor.
• The plaintiff=registered proprietor applied
under O.89 for summary order of possession.
 Argument of the occupiers:
• That they have been staying in Kg. Selayang
Bahagia since 1970’s.
• In 1973, a senator had told them that the Selangor
State Assembly had planned to open a new
kampung along the road where the Dfs had
occupied and encouraged the Dfs. to apply for the
said land, by first establishing branches of political
parties in the said kampung.
• 1974 – this was done.
• 1980’s: the Deputy Minister of Transport
visited the kampung 3 or 4 times and
promised to provide better houses for them.
• Later the speaker of the State Assembly
promised to provide them with land in 6
months when the land was involved in a
highway project.
• Dfs. were resettled in longhouses where water
and electricity was supplied.
 Held: (High Court)
• The defendants had failed to show triable
issues (distinguished Bohari’s case) and thus
order for possession granted.
• A licence or consent from other persons,
including alleged promises by politicians,
would not suffice.
Analysis on Judicial Approach to
Unlawful Occupiers of Land

Lawful
Occupier
Occupiers
with
licence or
Pure consent
squatters
 What law do enforcement officers
use to clear squatters?

• Essential (Clearance of Squatters) Regulations

1969
• Regulation 4 - local authority may demolish
squatter huts on State land by day or by night
without giving any notice to the squatters.
• Regulation 7 - land owner may request the local
authority to demolish squatter huts on his land.
 What is a ‘squatter hut’?
• ‘any house, hut, shed, stall, lean-to, shelter, roofed
enclosure or any extension or structure attached to
any building or other erection, of whatever materials
made and whether used for the purpose of human
habitation or otherwise which has been erected or is
in the course of being erected otherwise than in
accordance with a plan approved by a local authority
or in respect of which a licence issued by a local
authority has been cancelled, withdrawn or expired
and is situated on any land.”
‘squatter hut’
 Yusuf Awang & Ors. v Datuk Bandar
MBSA & Anor. [2008] 1 MLJ 732

• App.s were occupiers of 2 pieces of alienated

land in Kapar, Klang.
• Resp.s had served a notice under Regulation
10 of the Essential (Clearance of Squatters)
Regulations 1969 informing App.s that they
have constructed and are occupying squatter
huts and have committed an offence under
the Regulations.
 Yusuf Awang’s case:
• The notice also required the App.s to remove
any person or movable property and demolish
their respective squatter huts within 7 days,
failing which the Resp.s would take the
necessary action without further notice.
• The App.s applied to court for a declaration
that the notices issued by the Resp.s were null
and void (as they were not dated).
 Yusuf Awang’s case: (HC)
• The App.s also applied that the Resp.s be
restrained from evicting the App.s including
harassing and threatening them.
• The App.s applied for and were granted an
injunction by the High Court to restrain the
Resp.s from evicting them.
• The High Court also allowed the declaration
that the notices of eviction were null and void.
 MBSA appealed to COA (Held –
2007): Appeal Allowed
• The occupiers had failed to show that they
were in lawful occupation of the property.
• The occupiers had failed to show that their
buildings were not squatter huts as they had
not produced plans by the local authority
approving the said buildings.
• Being squatters, the occupiers have no right in
law or equity. (cited Sidek’s case with
approval.)
 James Foong, JCA dissented:
• He was of the view that the undated notices
were null and void as it was important for the
Resp.s. to know when they were expected to
pack up and leave.
• The 7 days period was inserted by the drafters
of the Regulations on humanitarian grounds
to allow the occupier to leave before drastic
action is taken to demolish the huts.
 Occupiers appealed to
Federal Court
• Issue:
• Whether Reg. 10 of the Essential (Clearance of
Squatters) Regulations 1969 is subject to or
inconsistent with s.72 of the Street, Drainage
and Building Act 1974 and s.30 of the Town
and Country Planning Act 1976 (Requisition
Notice requiring 30 days notice)
and therefore VOID?
 Appeal dismissed:
• 1) The buildings erected by the occupiers
were ‘squatter huts’ within the meaning in
Reg.2 as the App.s could not show that
the said building was erected according to
an approved plan by the local planning
authority.
 Cont.: (Interesting!)

• 2) Even if the land

owner had
consented to the
buildings, the
buildings are still
‘squatter huts’
without the
necessary
planning approvals.
The Emergency Regulations
Override Planning Laws!

• The regulations have

effect notwithstanding
anything inconsistent in
any written law. As the
Regulations have never
been repealed, the
Regulations still have
effect notwithstanding
inconsistency with the
SDBA or TCPA.
 Is the Regulation draconian for
allowing forced evictions?

• It is interesting to note that the High Court

judge in Yusuf Awang’s case (Suriyadi, J.) had
described Regulation 10 of the Essential
(Clearance of Squatters) Regulations 1969 as a
‘draconian provision’.(at p.272 of the case).
• Bar Council has voiced concern over use of
these regulations to clear squatters.
 Human Right to Shelter

• 1948 Universal Declaration of Human Rights in

Art. 25(1) recognised the right to adequate
housing as a basic human right.
• Also in Habitat Agenda: paras. 8, 26, 39, 60 and 61
• Agenda 21: Chapter 7.6, 7.9(b)(c) and 7.30(f)
• UN Resolution on Forced Evictions 1993/77 :
forced eviction is a gross violation of human rights
in particular the right to adequate housing.
 Global Housing Strategy, 1998
defines ‘adequate housing’:

• “access to a place in which to isolate one’s self

when desired, with adequate room, adequate
security, adequate lighting and ventilation, an
adequate basic infrastructure and an
adequate location in relation to work and
basic services, at a reasonable cost.”
Malaysia’s Low Cost Housing Policy
• Since 1982, the government has fixed a ceiling
price for low cost housing at RM25,000 per
unit for those with household income less
than RM750 per month.
• The government in the 6th and 7th Malaysia
Plan has actively roped in the private sector to
implement the low cost housing policy.
• Imposed 30% quota for low cost housing.
• Developers are now encouraged to construct
low medium cost (below RM60,000) and
medium cost houses (below RM100,000).
• Many issues and challenges including
mismatch between supply and demand, and
low level of profitability of low cost and low
medium cost housing.
 National Housing Policy?
• Malaysia has yet to come out with one.
• The Ministry of Housing and Local
Government is already grappling with many
issues relating to housing including
abandoned housing projects, late delivery of
vacant possession, etc.
 How to Solve Squatter Problem?

• 1) PERSUASION - by community leaders and

developers.
• 2) THREATS – demolition without
compensation.
• 3) PAYMENT - to leave.
• 4) FORCED EVICTION.
• (From Syed Hussin Ali, “Forced Eviction of
Squatters in Malaysia” –www. hrsolidarity)
 What the Quran says about
housing:
• “It is Allah Who made your habitations homes
of rest and quiet for you.”

• (An-Nahl: 80)

• The house is one of the fundamental rights

that must be enjoyed by all Muslims.
 Solution in Islam?
• Islam – economic and • …mosque by the
social justice requires companions and many
the State to provide migrants from Makkah.
adequate housing,
especially for the poor. • ‘People of Suffah’ –
• Example during Prophet ‘homeless’. The prophet
Muhammad’s time set up for them a raised
when houses were shaded shelter in a
erected around the corner of the mosque.
Prophet’s…
 THINK:

• If you are the government,

how would YOU solve the squatter
problem?