LAW 445

LAND LAW
PREPARED BY:
MUHAMMAD FIKRI BIN OTHMAN
UITM SAMARAHAN II
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 Land Law
1. Governing statutes
2. Historical background
3. Definition of Land
4. Fixture and chattel
5. Torrens system in Malaysia
6. Classification of land use
7. Types of title
8. Registration and indefeasibility of Title
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 Learning outcomes
• At the end of this lesson, students shall be
able to:
a) Define the meaning and essential features of
land
b) Explain types and use of land
c) Differentiate between fixture and chattels

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 Governing statutes
• The land laws in Malaysia are governed by:
a. National Land Code 1965 – Peninsular
Malaysia
b. National Land Code (Penang and Malacca
Titles) Act 1963 – Penang and Malacca
c. Sarawak Land Code – Sarawak
d. Sabah Land Code – Sabah

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 Historical background
The Straits Settlement
• Penang – Ong Cheng Neo :uninhabited therefore applied common
law & equity.
• Malacca – Self-rule under Malacca Muslims Sultans later on by
Portuguese & Dutch. English took over consisting of Islamic law &
Muslim custom (Malay Customary Tenure & Dutch Grants in the
urban areas).
• Sahrip v Mitchell & Anor
– “It is well-known that by the old Malay law/custom of Malacca, while the
Sovereign was the owner of the soil, every man had nevertheless the
right to clear & occupy all forest & waste land subject to the payment to
the Sovereign of 1/10 of the produce of the land so taken”.

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• Characteristics of the Malay Customary Tenure
a) Not of absolute ownership but of a lesser extent “proprietary rights”  right of
ownership not to the soil but to the usufruct/right to utilise soil  
b) Method of acquisition is by opening up & cultivating virgin jungle land or waste
land (tanah mati into tanah hidup)
c) Maintaining the land under continuous cultivation & obliged to pay 1/10 to the
Rulers as tax.
d) Land neglected without any reasonable cause, forfeited by the Ruler
e) If wishes to sell land, price base on “pulang belanja”.
f) Wishes to borrow money on the security of land, “jual janji” & if fail to settle the
loan on stipulated date become “jual putus”.

• All the above characteristic reflects the Islamic principle of ownership of property.
• However in Malacca the Malay Customary Tenure abolished end 19th century.
• 1861 law was passed where land shall be deemed to be “vested in the Crown”

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 The Federated Malay States
• Independent states under sovereign Muslim
rulers practising  Mohammedan Law & in certain parts
such as Negeri Sembilan special local custom law h/e
replace by Torrens system by the British.
• 1st Jan 1928 – The Federated Malay States Land Code 1926

The Unfederated Malay States
• British influence came later since Kedah, Perlis, Kelantan
and Terengganu under the influence of Siamese King. 1909
Anglo Siamese Treaty - British Adviser appointed to look
after British interest. Johor was the last state to receive
the adviser.

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 Definition of land
• Latin maxim: Quic quid plantatur solo solo
cedit (Whatever is affixed to the soil, belongs
to the soil)
• The legal principle means that something that
is or becomes affixed to the land becomes
part of the land, therefore title to fixture is a
part of and passes with title to the land and
consequently whosoever owns that piece of
land will also own the things attached.
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• Section 5 of National Land Code , land includes
a) the surface of the earth and all substances forming
part of that surface;
b) the earth below the surface and all substances therein;
c) all vegetation and other natural products, whether or
not requiring the periodical application of labour to
their production, and whether on or below the surface;
d) all things attached to the earth or permanently
fastened to any thing attached to the earth, whether
on or below the surface; and
e) land covered by water

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 Fixture v chattel
• Fixture – what is attached to land becomes part of the land
and immovable
• Chattel – removable
• Holland v Hodgson (1872) LR 7 CP 328 – whatever attaches
to the land is fixtures and immovable. It form part of the
land. Chattel on the other hand is movable.
• National Land Code does not define fixture and chattel, thus
we applying English law of fixtures.
• The English law on fixture laid down two tests in determining
whether an item is a fixture or a chattel, namely:
a) Degree of annexation
b) Purpose of annexation
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 a. Degree of annexation
• Must look at:
i. To what extent is an item affixed or attached to the land. It
may be strongly or slightly attached or it may be resting by its
own weight to the land.
• Example: Machinery which is affixed with nuts and bolts to the
floor is fixture. In contrast with picture which is ailed to the wall
is chattel.
ii. To what extent an injury will be caused to the item upon its
removal.
• Example: to remove a built-in-cabinet will cause damage to the
item upon its removal and thus we can consider it to be fixture.

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 b. Purpose of annexation
• Look at the purpose or intention of a person who
annexed or attached the item to the land.
• Whether it is for the enhancement of the value of the
land or for better use of the item as a chattel itself.
• If the purpose of annexation of the item is for the
enhancement of the value of the land, then that item
ceased(no longer) to be a chattel.
• It will be a fixture and thus form part of the land such
as statutes or rock garden arranged in a garden.

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• However, if the items are tacked and nailed to
the wall for the purpose of the better
enjoyment of the chattels themselves and not
for a better improvement in the value of the
land, the items remain a chattel.
• In other words, the item may remain a chattel
when the annexation is necessary for the
proper use of the item and implies nothing
about its relation to the land.

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• Goh Chong Hin v The Consolidated Malay
Rubber Estates Ltd [1923] 5 FMSLR 86
– Whether machinery attached to the factory is
included in the charge when the chargee gained
possession of the land. Held that prima facie
machinery affixed to the earth by bolts and nuts
became fixture and formed part of the land
• Shell Company of the Fed. Malaya Ltd v
Commr. Of Federal Capital KL [1964] MLJ 302
- underground tanks are land within the
definition of land and therefore rateable.

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• Socfin Ltd. V. Chairman Klang Town Council [1964] 1 MLJ 325
– The Town Council in determining the annual value of Socfin’s
Holding for rating, took into account the bulk storage tanks standing
thereon. It was held the that the storage tanks were annexed to the
land has enhanced the value of the holdings on which they stood.
They formed part of it and accordingly rateable.
• Material Trading Pte Ltd. V. DBS Finance Ltd [1988] 2 MLJ
162
– M, were the lessees of 2 plots of land. D was holding the land as
mortgagee. There were 2 ware houses used for the storage of
hardware materials. Three overhead cranes were installed in the
warehouses. The issue in the present case were whether these
cranes were fixture or chattel. It was held that the cranes were
intended to remain there permanently to serve the warehouse, i.e
to remove heavy material and articles within the warehouse. The
overhead cranes were fixtures

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 Exceptions to the law of fixtures
• The general rule is that all items or things attached to
the land are fixtures and therefore form part of the land.
• However, the are certain circumstances that even
though the items are attached and affixed to the land,
they can be considered as chattels and therefore
removable.
• This circumstances are considered as EXCEPTIONS to the
law of fixtures, namely:
a) Tenant’s fixtures
b) Chargee relationship
c) Proved custom
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 a) TENANT’S FIXTURES
i. Tenant’s Trade Fixture.
• Where the tenant who for purpose of carrying out his business,
brings in his items and attaches them to the rented place.
• Example, Ali rents a restaurant and he installed ovens in the
restaurant. Thus, ovens are chattel.

ii. Tenant’s ornamental or domestic fixture.

• A tenant brought in antique door to his rented place and upon
expiry of the tenancy, he can remove the antique door.

iii. Tenant’s agricultural fixture

• Tenant brought agricultural fixture onto the rented land for the
agricultural purpose. The agricultural fixture become chattel
whereby may be removed at the end of tenancy period.
•10/31/2020
For example, chicken coop.
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• But, the above fixtures which are brought in to the
rented place of the tenant are subject to the following
conditions:
1. There is a landlord and tenant relationship.
2. The fixtures must be removed prior to the expiry of
the tenancy period failing which those fixtures will be
property of the landlord.
3. Only the tenant’s trade, ornamental and domestic
fixtures can be removed from the rented place and not
others; and
4. There is no substantial damage or injury caused to the
landlord’s premise during the removal of the tenant’s
fixtures.
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 b) CHARGEE RELATIONSHIP
• Where the owner of the land charged his land to bank as a
security for a loan and at the meantime, the owner
entered into hire-purchase with another bank for the item
attached to his land.
• Here, owner is called as chargor and
• Banks are called chargees.
• In the event the owner defaulted in his monthly payment,
the banks may enforce its right over the land together all
things attached to the land.
• Since there are two banks involved, both bank must
provide disclaimer letter in order to protect its interest as a
chargee.
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• For example, Ali charged his land to Maybank as security for a
housing land. There is a bungalow house erected on the land.
• Ali later decided to purchase air conditioner units to be installed
and attached to the house. The air-conditioner units were
purchased on a hire purchase with CIMB Bank. When Ali fails to
pay the monthly instalment to Maybank, Maybank may enforce its
right i.e. order for sale Ali’s land included all things attached to the
land.
• Therefore, it is important for CIMB Bank gets consent or
disclaimer letter from Maybank over the air conditioner units
before installing it to the land in order to protect its interest over
the units.
• In such a case, all fixtures whether attached before or after the
date of the charge (Maybank), once disclaimed by Maybank will
not form part of the land and therefore falls under the exception
to the general rule.
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 c) PROVED CUSTOM
• If the item is fall under proved custom as being removable
even though attached to the land, then the item is a chattel.
• Before any item is considered as falls under proved custom
which entitles it to be removed, the following factors has to be
fulfilled:
a) The custom is well accepted and practiced by the people of
that particular place that such an item is commonly remove
from one place to another;
b) There is an intention of the proprietor of the house that upon
its removal, the same will be rebuilt at some other place.
• Kiah Bte Hanapiah v Som Bte Hanapiah [1953] 1 MLJ 82
– Whether the house was a fixture and formed part of the realty?
Court held that as part of the custom, the house is not part of the
land and custom prevailed over English land law
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 Basic Concept under law of land
• Ownership – signifies a title to a subject matter,
movable or immovable
• In respect of land, ownership denotes the right to
the exclusive but not absolute enjoyment thereof
• Possession – denotes something lesser than
ownership, example: a lesse of a lease of the land
may enjoy possession but not the ownership
• Title to land- as evidenced by a document such
as the IDT or RDT
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• Interest to land – something less than
proprietorship or ownership in land, example:
a person taking a lease or a charge upon the
land assume interest on the land but the title
still remains with the lessor/owner or chargor
• The owner of the land can still sell or dispose
the land although still leased or charged out.

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 Torrens system in malaysia
• Originated Australia however modified according to
local needs. Differ from the system in England whereby
interest in land is only recognise through registration
by the authority.
• Torrens System- registration is everything
• Indefeasibility of titles
• Twin principles; mirror – the register book mirrors the
particulars in the owner’s title; curtain – as the register
book is everything, no need to look beyond it for
information of the title
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 CLASSIFICATION OF LAND USE
• S.51 NLC, land classified as
(1)Land above the shore-line, and
(2)Foreshore and seabed
• Land above shore-line comprised of
a) Town land
b) Village land and
c) Country land.
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 CATEGORIES OF LAND USE
• Alienated land may be use for
1. agriculture,
2. building and
3. industry
• Upon alienation, the State Authority will
underlines the usage/purpose of the alienated
land in the terms of alienation

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 TYPES OF TITLE

1. Qualified Title – QT issued upon approved

alienation.
– s.77 NLC – provisional title in advance of survey
2. Final Title – FT issued after the land is surveyed
and the boundary marks are conducted.
3. Registry Title – for Town land, country land
exceeding 4ha or any part of the foreshore or
seabed
4. Land Office Title- country land alienated not
exceeding 4ha
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5. Register Document of Title (RDT)- land titles
prepared and place at the Registry office

6. Issue Document of Title (IDT) – the issue

document given to the owner for safe
keeping and for the purpose of any land
dealing

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 Restriction of dealing
• Certain imposition of terms on the titles to
land upon alienation that prohibits any form
of dealing.
• Restriction commences from date of
alienation as in Section 105 and not from the
date that the land is approved for alienation to
the proprietor/owners

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 Land Dealings
• 4 types of dealings in NLC;
• 1. transfers – under S.214, the whole piece; the whole
piece of undivided share; any lease; any charge and
any tenancy exempt from registration; may be
transferred
• 2. lease – lease or sublease shall exceed 3 years, if not
shall be regarded as tenancy
Margaret Chua v Ho Swee Kiew [1961] 27 MLJ 173
– although lease not registered i.e void as a lease, there
was a binding contract.
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• 3. Tenancy – simply, letting of the land for
period not exceeding 3 years and not
registrable

• 4. Charges – a security transaction to secure

the repayment of debt or any other sum
Chargor entitle to create subsequent charges
on the land and such charges shall be
registered, failure to do so, it will result in the
creation of an equitable charge

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 5. Easements
• Right granted by owner of a servient land to the owner
of a dominant land for the latter’s enjoyment
• Consent of the owner of the servient land required,
S.284 – by an express grant
• Tam Kam Chong v Stephen Leong Kon Sang [1980] 1
MLJ 36 – certain characteristics must be present;
• (a) there must be a dominant and a servient land (b) the
owners of the dominant/servient land is different person
(c) the right granted benefit the dominant land; and (d)
the right capable of forming the subject matter of a grant

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 6. Liens
• A security that acts as an equitable charge by
way of depositing the IDT or lease of the land
to the lender for loan and lodgment of caveat
by lender as lien-holder
• May be created upon land, lease or sub-lease
• However, lien is not registrable
• Lien-holder’s caveat may be dislodged upon
satisfaction of the caveat purpose

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 REGISTRATION AND INDEFEASIBILITY OF TITLE

• Upon an instrument and upon the making of a

memorial of the dealing on the RDT under the hand
and seal of the land authority
• Upon registration, S.340(1) sets in and confers the
indefeasibility of title i.e, that the owner’s title or
interest in the land shall not be challenged,
questioned or impeached by adverse claim
• Ong Chat Pang v Valiappa Chettiar [1971] 1 MLJ 224
– in the absence of any vitiating factors, a title, once
registered, is indefeasible
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 EXCEPTIONS to Indefeasibility of title
• Section 340 (2) of the National Land Code sets out
the circumstances where a title or interest will be
rendered defeasible wherein a registered title or
interest in the land may be set aside or defeated by
anybody who claims to fall under Section 340(2),
namely:
a) Fraud or misrepresentation – has been committed
by a person or body or the agent of the person or
body which caused the registration to take effect.

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 Teknik Cekap Sdn Bhd v Villa Genting
Development Sdn Bhd [2000] 6 MLJ 513
• The court held that a fraud may be established
if the object of the transaction is to cheat one
who knows his existing right or where by a
deliberate and dishonest act, a person loses
his existing right.

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 b) Where registration was obtained by forgery
or by means of an insufficient or void
instrument.

c) The title and interest to the land was

unlawfully acquired.

• In the registration of an acquisition may be obtained

unlawfully being ultra vires the statutory power or due to
non-compliance of the statutory requirements under any
written law, the registration can be questioned and set aside.

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 Wong Kim Poh v Saamah Hj Kasim [1987] 1
MLJ 400
• The Supreme Court decided that an
instrument of transfer which was registered
by the Registrar while a caveat was still in
force was in contravention of a prohibition
imposed by a caveat and the registration was
held to be defeasible.

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 EFFECT OF PURCHASED HAVING DEFEASIBLE
TITLE
• Section 340(3) – any person or body holding
defeasible title or interest specified in Section
340(2) is liable to be set aside

a) In the hand of immediate registered

proprietor; and

b) In the hand of any subsequent purchaser

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 EXCEPTION TO THE EXCEPTION:

• However, the proviso to Section 340(2) states

that defeasible of title shall not affect any
title or interest acquired by any purchaser in
good faith and for valuable consideration, or
by any person or body claiming through such a
purchaser.

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 Boonson Boonyanit v Adorna Properties Sdn
Bhd [2000] 2 CLJ 133
• The court decided that the transferee was a
bona fide purchaser for value who had no
notice of the forgery done by the transferor.
Therefore the title was held to be
INDEFEASIBLE.

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 Owe Then Kooi v Au Thiam Seng [1990] 1 MLJ
234.
• A piece of land was transferred to the
transferee by way of fraud and subsequently
the title was charged to a bank as security for
a loan. It was held that the interest obtained
by the bank was INDEFEASIBLE.

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