DEFINITION OF LAND

BSR456
LECTURE 2

Zulkifly Sapeciay
 CONTENTS

1) Overview
2) Introduction
3) Torrens System
4) Definition of ‘Land’
5) Registration of Land
 OVERVIEW

 Construction cannot be separated from “land”.

 Construction is synonymous with land development.
 Any land development project is subject to various
land related laws and regulations.
 The land development in Malaysia is highly regulated
by legislations administered by the relevant authorities.
 Anyone that involves in land development projects must
have some amount of knowledge of the relevant
legislations and the authorities .
 INTRODUCTION

The land law of Malaysia are contained in four main pieces

of legislation:
The National Land Code 1965 (Act 56 of 1965).

The National Land Code (Penang and Malacca Titles) Act

1963.
The Sarawak Land Code

Sabah Land Ordinance.

Other statute:
Strata Title Act 1985

Town & Country Planning Act 1974

Malay Reservation Enactments

 TORRENS SYSTEM

 Invented by an Australian, Sir Robert Torrens.

 The basic principle underlying the Torrens system is that
all dealings in land must be registered in order to be
effective [section 206].
 Torrens title is a system of land title where a register of
land holdings maintained by the state guarantees
indefeasible title to those included in the register.
 TORRENS SYSTEM

 The system was formulated to combat the problems of

uncertainty, complexity and cost associated with old
system title, which depends on proof of an unbroken
chain of title back to a good root of title.
 TORRENS SYSTEM

• The person whose name is registered in the

document of title acquires an ‘indefeasibility of title.’
• It means that the person’s title as the registered
owner of the land cannot be disputed.
• The onus is on the person who disputes the title of
the registered owner by showing that the registration
is obtained by some unlawful or illegal means.
 LAND

The general rule is that the possessor of land also

possesses the soil beneath and the column of air above the
land [section 5 and 44(1) of the NLC, 1965].

Quicquid plantatur solo, solo cedit : whatever is affixed to

the soil, belongs to the soil.
 WHAT IS LAND?

Definition of land
Under section 5 of the National Land Code, “land”
includes:-
a) the surface of the earth and all substances forming
that surface;
b) the earth below the surface land all substances
therein;
c) all vegetation and other natural products, whether for
not requiring the periodical application of labour to
their production, and whether on or below the
surface;
 WHAT IS LAND?

Definition of land
Under section 5 of the National Land Code, “land”
includes:-
d) all things attached to the earth or permanently
fastened to any things attached to the earth, whether
on or below the surface; and
e) all land covered by water.
 WHAT IS LAND?

Thus, under NLC 1965, the term land is given a wider

meaning beyond what is understood in common parlance.

It does not only refers to land surface itself and all

substances forming that surface, but also subsoil and all
substances therein, all vegetation and other natural
products or below surface, all things attached to or
permanently fastened to anything attached to the earth,
whether below surface and land covered by water.
 FIXTURE

 Real property
 Form part of land
 Law of fixtures in Malaysia generally adopts the maxim
quic quid plantatur solo solo cedit (whatever is fixed to
the land belongs to the land)
 FIXTURE
The following have been deemed as fixtures thus deemed as
‘land’ by Malaysian court:
 Petrol tank buried underground

 Palm oil storage tank erected above ground

 Machineries installed on factory floor

 Offset printing machine affixed to the factory floor by bolts

and nuts
 Dwelling house of plank walls and cement floor

 Seat in cinema halls, statues arranged in a garden as part

of landscape design, stone seats & ornamental vases, dog

gates, tapestry and portraits affixed to wall as part of wall
design
 CHATTELS

Contradiction to fixture : not deemed to be ‘land’

Examples:
Tapestry tacked to walls for purposes of display and

visual pleasure
Stones and bricks stacked up in builder’s yard

Stuffed birds in glass cases

Picture, in wall panelling

Drainpipes laid on an adjoining neighbour’s land

Malay wooden house constructed on stilts

 The basic rule

 Fixture pass with land but chattels do not.

 On the sale of land, chattels may be removed but
fixtures must be left for the new owner.
 A chattel which has been affixed to land has become
fixture or put on the land it can no longer be removed
by the person who brought it to the land.
 Malaysian case laws

Goh Chong Hin & Anor v The Consolidated Malay Rubber

Estates Ltd (Pheng, 2005 p.246).

In April 1921, the appellant executed a charge in favour of

a money lender (chargee) secured by a few pieces of
rubber estate land. On October 1023, the money lender
took possession of the rubber estate and applied for an
order to seize and sell the machinery in the factory. Goh
Chong Hin opposed.
 Malaysian case laws

Goh Chong Hin & Anor v The Consolidated Malay Rubber

Estates Ltd (Pheng, 2005 p.246).

Held: the ordinary English Law for fixture applied in this

country. It is well settled that prima facie machinery affixed
to the land becomes a fixture and part of the land. Even if
the machinery was set up after the charge, it nevertheless
accrued to the land and became part of the chargee’s
security.
 Malaysian case laws

The Shell Company of the Federation of Malaya Ltd v

Commissioner of the Federal Capital of Kuala Lumpur
(1964)

The appellants are the owner of holdings under which are

constructed tanks for the storage of petrol. The tanks are
buried two feet below ground level and covered with
concrete. To remove them would be difficult. In determining
value of the holdings, the respondents included the value
attributable to the underground storage tank. The
appellants contended that the tanks did not fall under the
definition of building, thus not rateable.
 Malaysian case laws

The Shell Company of the Federation of Malaya Ltd v

Commissioner of the Federal Capital of Kuala Lumpur
(1964)

Held: underground tanks are land within the definition of

land in the NLC. Thus, they are rateable.
 Malaysian case laws

Socfin Co Ltd v Chairman, Klang Town Council (1964)

The respondents took amount of the bulk storage tanks

standing on precast storage pillars in determining annual
value of the appellant's holdings. The appellant contended
that the tanks are not rateable for they are not buildings.

Held: storage tanks were annexed to the land for its better use
and enjoyment of land and formed part of land and were
accordingly rateable. The storage tank enhanced the value
of the holdings on which they stood and thus, rateable.
 Registration of land

Charged land which was not registered cannot be

foreclosed;

Sime Bank Bhd v Mohd Hassan Sulaiman (2000).

 Effects of registration

Indefeasibility
Section 340(1) states that:-

“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.”
 Exceptions to indefeasibility

Indefeasibility is not absolute. There are specific

circumstances wherein a registered title or interest may be
set aside or defeated.
 Exceptions to indefeasibility

See Teh Bee v K. Maruthamuthu [1977] 2 MLJ 727

(Federal Court)

The fact that the register document of title was in the name
of the appellant was conclusive evidence that the title of the
land was vested in the appellant. Under the torrens system,
the registration is everything and it would be wrong to allow
an investigation as to the right of the person to appear
upon the register when he holds the certificate of title.
 Exceptions to indefeasibility

Under section 340 below are the exceptions to

indefeasibility:-
Fraud

Misrepresentation

Forgery

Insufficient or void instruments

 Fraud

Section 340(2)(a) National Land Code 1965.

In Tai Lee Finance Co Sdn. Bhd. V. Official Assignee (1983)
the court held that the fraud under S340 ‘must be actual
fraud and mere knowledge of the existence on an
unregistered interest shall be not of itself be imputed as
fraud within the meaning envisaged by S340”

In Assets Co v. Mere Roihi (1905) it was held that “fraud”

means actual and not constructive or equitable fraud on the
part of the person whose title of interest is being
impeached. It must involve dishonesty of some sort which
was committed prior to or at the time registration.
 Misrepresentation

Section 340(2)(a) NLC 1965.

Means fraudulent misrepresentation and is a species of

fraud (Loke Yew v. Port Swettenham Rubber Co Ltd
(1983); Datuk Jaginder Singh & Ors v. Tara
Rajarathnam (1881).
 Misrepresentation

Instances of misrepresentation:
a) The suggestion of a fact, of that which is not true by one

who does not believe it to be true

b) The active concealment of fact by one having

knowledge or belief of the fact

c) A promise made without any intention performing it

d) Any other act befitted to deceive

e) Any such act or omission as the law specially declares

to be fraudulent.
 Forgery

Section 340(2)(b) NLC 1965.

In Chew Lip Seng v. Perwira Habib Bank (M) Bhd,

The plaintiff granted a declaration that the charge of the

property to the bank was not executed by him and the
signature on the charge document was forgery. The high
court ordered for the charge to be cancelled and the title of
deed returned to the plaintiff.
 Insufficient or void instruments

Section 340(2)(b) NLC 1965.

Examples of instruments which are void due to prohibition
imposed by law:

a) Dealings effected in favour of or minors. The law

prohibiting such dealings are S43(1)(a) and S11 of
Contracts Act 1950. the case of Tan Hee Juan v. The
Boon Keat (1934) is authority for the principle that an
instrument of dealing effected in favour of minor is void.
 Insufficient or void instruments

b) Transactions made in contravention of the

Moneylenders Ordinance 1950

c) Transactions made in contravention of the Malay

Reservation Enactments
CLASSIFICATION OF LAND
AND
CATEGORY OF LANDUSE
 CONTENTS

1) Learning Outcomes

2) Introduction
3) Classification of Land
4) Category of Landuse
 Learning Outcomes

1) Explain the classification of land and the category of

landuse.

2) Discuss the relationship between classification of land

and category of landuse.

3) Discuss the legal issues relating to classification

and category of landuse.
 Introduction

1) Classification of land and category of landuse are two

different terminologies.
2) Classification of land essentially indicates the location of
the land.
3) Category of landuse refers to the type of usage the land
is subject to.
4) The NLC gives power to SA to determines classification of
land and type of landuse.
5) However, where the landuse is not expressly categorised
in the document of title, the location of the land may be
used to indicate landuse.
 Introduction

1) Other statutes determining landuse:

a) Town & Country Planning Act 1976

b) Local Government Act 1976
b) Mining Act
 Introduction

1) Classification of land and category of landuse are two

different terminologies.
2) Classification of land essentially indicates the location of
the land.
3) Category of landuse refers to the type of usage the land
is subject to.
4) The NLC gives power to SA to determines classification of
land and type of landuse.
5) However, where the landuse is not expressly categorised
in the document of title, the location of the land may be
used to indicate landuse.
 CLASSIFICATION OF LAND

Statutory Provisions

Section 51 Classification of land

Section 5 Definition of Town, Village & Country Land
Section 11(d) Power of SA to classify land
Section 53(b) Classification of land & landuse
Section 77(3) Classification of land and title
 CLASSIFICATION OF LAND

Section 51
NLC 1965
S.51(1)(a) S.51(1)(b)

LAND ABOVE Disposable SHORE LINE &

SHORE LINE SEA-BED
Alienation
Leasehold
only
Registry Title
S.77(3)(a)(iii)
Registry Title
COUNTRY VILLAGE TOWN
S.77(3)(a)(i)
LAND LAND LAND
S.77(3)(a)(i)
S.51(2)(a) S.51(2)(b) S.51(2)(c)
Land Office Title
S.77(3)(b)
 CATEGORY OF LANDUSE

1) Statutory Provisions

2) Category of Landuse
3) Determination of landuse

4) Express and implied conditions

5) Breach of condition of landuse
 Category of Land Use

Statutory Provisions

Section 52 Category of land use

Section 53 Land use before 1965

Section 54 Land use before 1965 Methods of

Determining
Section 55 Land use before 1965 Land use

Section 56 Land use before 1965

Chapter 2 Summary of conditions …

20 July 2006 Jamaludin Yaakob 41

 Category of Land Use

Category of Land Use

Section 52 Category of land use

Section 52(1) a) Agriculture

b) Building

b) Industry
 Category of Land Use

Determination of Land Use

 The NLC 1965 contains provisions for methods of fixing of

the condition of land use.
 The methods can be divided into two main methods:
o for land alienated after 1965
o for land alienated before 1965
 Category of Land Use

Determination of Land Use After 1965

Section 52(1) o Category of land use

Section 52(2) o Power of State Authority to prescribe category of

land use for a particular area (State land) that has
not previously been alienated
o Notification in the Gazette

Section 77(2) o Power of State Authority to prescribe condition of

land use at the time of approving an alienation
 Category of Land Use

Determination of Land Use Before 1965

Section 53: No category of land use until imposed

Section 54: Imposition of category of land use with

respect to land alienated before 1965
Section 55: Alienation approved before commencement
Registration after commencement
Section 56: Application of implied conditions
 Category of Land Use

Determination of Land Use Before 1965

 Garden City Development v. CLR, FT [1982] 2 MLJ 98 (PC)

 PTG, WP v. Sri Lempah Enterprise [1979] 1 MLJ 135 (FC)
 Ipoh Garden v. PTG Perak [1979] 1 MLJ 271

 Dr. Ti Tew SEow & Ors. v. Pendaftar Geran-Geran Tanah Negeri

Selangor [1982] 1MLJ 38
 Express Conditions

Section 121 Agriculture

Section 122 Building & Industry
 Implied Conditions

Section 115 Agriculture

Section 116 Building

Section 117 Industry

 Breach of Condition of Land use

Chapter 5 Enforcement of Conditions

Section 125 When a breach arises

Section 126 Breach of complex conditions
Section 127 Liability to forfeiture for breach
 Breach of Condition of Land use

 Pow Hing & Anor v. Registrar of Malacca [1981] 1 MLJ 155

 CLR, Johor Bahru v. South Malaysia Industries [1978] 1 MLJ 130