LAND LAW AND SURVEY REGULATION (SGHU 3313) · 2018-09-26 · LAND LAW AND SURVEY REGULATION (SGHU...

LAND LAW AND SURVEY REGULATION (SGHU 3313)

WEEK 1-INTRODUCTION

SR DR. TAN LIAT CHOON07-5530844

016-4975551

1

OUTLINE

• History Of Land Law

• Land Matters In Malaysia Constitution

• Registration Of Titles

• Sample Of Titles

• National Land Code 1965

• States Land Rules

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Sample Of Titles

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NATIONAL LAND CODE 1965

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Rationale And Scope Of The National Land Code

The National Land Code (NLC) was enacted under Article (74)of the Fedeal Constitution on 18th September 1965. It came intoforce on 1st January 1966 (vide L.N. 474/1965) in all States ofPeninsular Malaysia. The purpose of the NLC is to establish auniform system of land tenure and dealings throughout theeleven States of Peninsular Malaysia.

Before 1st January 1966, these eleven States had twodifferent systems of land tenure. The States of Penang andMalacca had a system peculiar to the pre-war Straits Settlement(modelled on the English laws of property and conveyancing)whereby privately-executed deeds were the basis of title to land.

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The other nine States of Peninsular Malaysia, by contrast,employed a system based on the principle that privaterights in land could derive only from express grant by theState or secondarily from State registration of subsequentstatutory dealings.

The NLC was drafted based on the Land Code (FMS Cap138) - the law applicable to Negeri Sembilan, Pahang, Perakand Selangor before 1st January 1966.

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To abolish the system in Penang and Malacca and to replace itwith that of other States of Peninsular Malaysia, the NationalLand Code (Penang and Malacca Titles) Act was enacted in 1963and brought into force on 1st January 1966 (vide L.N. 475/1965).

Thus with the NLC and the National Land Code (Penang andMalacca) Act 1963 (now Act 518), all the eleven States inPeninsular Malaysia have a uniform system of land tenure anddealings from 1st January 1966.

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Features In Land Matters

The Torrens system established and certified that under thepower of the government, indefeasibility of land title andfacilitate , expediting and lowering the expenses of all landdealing. The purpose of the Torrens System is to provideassurance and convenience to all land dealing. The title is theproof that the person mentioned in the title is the owner of theproperty.

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Land titles require a proper description of the boundaries. Thismeans that efficient land survey must be carried out. A title maybe issuance with any reasonable boundary, but if the boundariesare inaccurate when the title is still indefeasibility. It may beprone to disputes over boundaries. With the final survey, thepossibility of any boundary dispute is overwhelming and thus thetitle actually becomes infeasibility in all respects.

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From those mentioned above, it can be concluded thatmain features of Torrens System are as below:

Document of title that clearly determines the land isfiled at the Land Office or the Registrar Office.

In the title, it is registered of all sale and purchase ofthe land.

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Able to examine at any time at the Land Office or the RegistryOffice the details of the original title conditions also the namesof the current proprietors and all others who have an interest insuch land as a lease or charge.

It should be noted that the Torrens System originally fromSouth Australia. The system is named after the name of SirRobert Torrens who introduced it to South Australia in 1858.Then it expanded throughout Australia and other parts of theworld.

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Among the advantages of the Torrens System are as follows:

Person who owns the land will hold a title document, securedby the government, shows all the conditions and other interestsrelating the land.

Can finance the land by with a simple registration withoutrequiring complicated and expensive searches through previousdocuments.

The title to the land and the rights of all persons holdingleases or charges will be indefeasible.

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Land System In Penang And Malacca Before 1st January 1966

The basis of land title is alienation by the Government.But the title document has never been used as registrationof dealing and the information available from it is only theoriginal proprietor's name. Dealing in land is verycomplicated.

For example, in sale of land, the buyer receives from theseller a transfer of deeds which is a single record that thesale has been made and the sole evidence that the buyer isthe proprietor.

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For the next dealing, the same process is repeated so thatafter some dealing, there will be a whole network oftransfer (or deed of title) with which the owners havereceived ownership from the proprietor just before them.

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To ensure that the proprietor of the land at the time has alegitimate title, every connection in dealing must beexamined. An earlier inspection of a seller to another seller(which, according to the law must be brought back 30 yearsor more) requires a qualified lawyer service to do transferbut only after verification has been made there issatisfactory evidence that any of its proprietors have alegitimate title .

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To summary, Penang and Malacca before 1st January, 1966,all dealing between the current proprietor and the originalproprietor have been completely closed and the proof oftitle is located, not in a document issued by the governmentand not in the official register of documents but lies solelyon the evidence from a series of private documents.

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Its should be noted that the system described above is alsoknown as the Deeds Registration System. It is so known thatunder the provisions of the Ordinances applicable toPenang and Malacca that time, no deeds involving landshall be admissible as lawful by a public officer or courtunless the deeds is registered at the Register of Deed on thePinang and Melaka.

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Factors That Affect The Success Of Current Land System

The success of the current land system depends largely onthe speed of registering land titles. This will depend on theefficiency of the Survey Department and the Land Office. Ifthe land survey is not done accurately and immediately andif the Land Office takes a long time to register the titles, thissystem will not succeed.

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Factors That Affect The Success Of Current Land System

With regard to land matters, to ensure the success of thissystem, there should be no mistake and delay in theregistration. All of this shows the need for strict supervisionby senior officials in the Land Office over theirsubordinates. It is impossible for them to do so without thenecessary knowledge and skills, sufficient time and properencouragement.

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Land Laws Before National Land Code 1965

Before the existence of the National Land Code1965, AllStates in Peninsular Malaysia used their respective State landlaws.

Pahang, Negeri Sembilan, Selangor dan Perak – Land Code(Cap 138) Penang and Malacca – Land Ordinance (Cap 113) Johor – Land Enactment (No.1) Kedah – Land Enactment (No.56) Kelantan – Land Enactment 1938 Perlis – Land Enactment 1356 Terengganu – Land Enactment 1357

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Power To Make Laws

Under Article 74 of the Federal Constitution, jurisdictions ofthe Federal Government and the State Government havebeen clearly defined, which is in accordance with thematters listed in the Ninth Schedule.

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Power To Make Laws

Federal Government Foreign Affairs Defense Education Transportation Health

State Government Islamic Religious Affairs Forestry Land Agriculture

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Power To Make Laws

The power to make laws shall be in accordance with theirrespective jurisdiction, i.e. for matters under thejurisdiction of the Federal Government, only Parliamentmay make laws on it and for matters under the jurisdictionof the State Government, only the Legislature of the State(State Legislative Assembly) may make laws about it (exceptunder certain circumstances).

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Power To Make Laws

Land is a matter under the jurisdiction of the StateGovernment. So the land law should be made by the StateLegislature. However, the National Land Code is a land lawmade by Parliament, which is the Act of Parliament No. 56of 1965. This can be done by Parliament under the powerconferred by Article 76 (4), where it is stated that for thepurpose of solving the equality of law and policy,Parliament may make laws on certain matters relating toland.

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Limitation On The National Land Code 1965

Although the National Land Code is the main land law, but itcannot overrule several land laws, such as:

i) Terengganu Settlement Enactment 1356;ii) Padi Cultivators (Control Of Rent And Security Of Tenure) Act

1967;iii) Kelantan Land Settlement Ordinance 1955,iv) Land (Group Settlement Areas) Area 1960; andv) Any laws that regarding exemption from payment of land

revenue.

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Power Limitation By National Land Code 1965

In addition, the provisions of the National Land Code1965 shall not apply if it contravenes the provisions of anylaw on:

i) Customary Land;ii) Malay Reservation Land / Malay Holding;iii) Mining Land;iv) Sultanate Land; andv) Wakaf Land or Baitulmal Land

40

Subsidiary Legislation Under National Land Code 1965

The National Land Code 1965 authorizes several parties,Yang di-Pertua Agong, the Minister and the State Authorityto make subsidiary legislation such as orders and rules. Forits application in Penang and Malacca, the National LandCode 1965 has been modified as contained in the NationalLand Code (Penang and Malacca) Act 1965, the NationalLand Code (Malacca) Order 1967 and the National LandCode (Penang and Malacca) Order 1968.

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Subsidiary Legislation Under National Land Code 1965

These orders were made by the Yang di-Pertuan Agongpursuant to Section 439 of the National Land Code 1965. Anexample of a subsidiary legislation under the National LandCode 1965 made by the Minister is the National Land Code(Survey Fees) Order 1965. The State Authority for eachState in Peninsular Malaysia has established Land Rulesapplicable to each State.

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Application Of The NLC 1965 To The Federal Territory Of Kuala Lumpur

For its application to the Federal Territory of KualaLumpur, the NLC has been modified by the Federal Territory(Modification of the National Land Code) Order 1974(P.U.(A) 56/1974). This order was made under section 5(3)of the Federal Constitution (Amendment) Act 1973 (ActA206).

Under the Order, the powers of the State Authority inthe NLC are either given to the Federal Government or theMinister in charge of land in the Federal Territory of KualaLumpur.

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Application Of The NLC 1965 To The Federal Territory Of Kuala Lumpur

By virtue of the above Order, the post of the Director of Lands andMines is replaced by the Land Executive Committee. This Committeehas the powers of the Director of Lands and Mines. In addition, theCommittee also gets derives through delegation by the FederalGovernment under section 13 of the NLC (vide P.U.(B) 597/1974).However, the posts of Registrar of Titles and Land Administrators exist.These two posts are held by the same person.

Any action or matter undertaken by this Committee which is notcovered in this gazette has been verified by the National Land Code(Validation) Act 2003 (Act 625). The new Representative of Power hasbeen gazetted through P.U.(B) 108/2003. However, the title of Title andLand Administration Registration still exists and is held by the sameperson. However, the posts of Registrar of Titles and LandAdministrators exist. These two posts are held by the same person. 44

Power Of Land Administration

As mentioned in the Federal Constitution, all mattersrelating to the administration of land in a State are underthe jurisdiction of the State Government. In the NationalLand Code 1965, this power is referred as the StateAuthority (PBN), which is defined as the Raja/Sultan or theState Governor

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Administrative Areas

Under section 11 National Land Code 1965, the StateAuthority may by notification in the Gazette:

i) divide the territory of the State into districts;ii) divide any district into sub-districts;iii) divide any district or sub-district into mukims;iv) vary or alter the boundary of any district, sub-district,

mukim, town or village;v) after the survey or definition thereof by or on behalf of

the Director of Survey and Mapping, declare any area ofthe State to be a town or village.

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Administrative Areas

The marine boundary of a State under section 5 of theNational Land Code 1965, which refer to sub section 2 to section4 of Emergency (Essential Powers) Ordinance, No.7/1969, P.U.(A)307A/69.

This border is defined as an area having maritime boundarywith shore line and not more than 12 nautical miles from the lowtide (territorial waters). The State's territories boundary is 3nautical miles.

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Appointment Of Officer

In addition to the powers conferred upon the StateAuthority, the National Land Code 1965 also provides forcertain powers to officers such as State Director of Landsand Mines, Registrars of Titles, Land Administrators andothers.

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Appointment Of OfficerIn order to implement the provisions of the National Land Code1965, section 12 empowers the State Authority may appoint forthe State-

i) a State Director of Lands and Mines;ii) a Registrar of Titles;iii) a State Director of Survey and Mapping; andiv) so many Deputy Directors of Lands and Mines, Assistant

Directors of Lands and Mines, Deputy Registrars of Titles,Deputy Directors of Survey and Mapping, District LandAdministrators, Assistant District Land Administrators,Survey Officers, Settlement Officers and other officers as theState Authority may consider necessary for the purpose ofthe National Land Code 1965.

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Delegation Of Powers Under section 13, the State Authority may by notification in theGazette delegate to the State Director, or to the Registrar, or to anyLand Administrator or other officer appointed under section 12 of theNational Land Code 1965.

State authority shall not delegate any power to:i) To make rules related to land; andii) To dispose of any land within fifty metres of any river bank, lake or

spring as Gazette or shoreline

Although the State Authority delegate the powers to the officials, itshall not prevent the State Authority from itself exercising that poweror performing that duty in any case where it appears to the StateAuthority expedient to do so.

50

Property In State Land, Minerals And Rock Material

Section 40 of the National Land Code 1965 declares that:

i) all State land within the territories of the State;

ii) all minerals and rock material within or upon any landin the State the rights to which have not beenspecifically disposed of by the State Authority.

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Power Of Disposal

Under section 41 of the National Land Code 1965, StateAuthority shall have all the powers of disposal conferred bysection 42 with respect to section 42:

i) property vested in it under section 40,

ii) reserved land, andiii) Mining land

which powers shall be exercised in such manner and tosuch extent as is authorised by the provisions of this Act,and not otherwise.

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Power Of Disposal

The State Authority shall have power under the National LandCode 1965 :

i) to alienate State land;ii) to reserve State land, and grant leases of reserved land;iii) to permit the occupation of State land, reserved land and

mining land under temporary occupation licences;iv) to permit the extraction and removal of rock material from

any land, other than reserved forest; andv) to permit the use of air space on or above State land or

reserved land.

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Power Of Disposal Nothing in the National Land Code 1965 shall enable the StateAuthority (not allow):i) to dispose of any land for the purposes of mining (within the

meaning of the Mining Enactment);ii) to permit the extraction or removal of rock material from any land

for the purpose of obtaining metal or mineral therefrom;iii) to dispose of any land for the purpose of the removal of forest

produce therefrom; oriv) to alienate any land so as to have the effect of less than two-fifths

of a hectare of land subject to the category "agriculture" or to anycondition requiring its use for any agricultural purpose being heldby more than one person or body, provided that the StateAuthority may, under exceptional circumstances, alienate suchland to more than one person or body notwithstanding that it isless than two-fifths of a hectare.

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Information To Be Kept Secret

To be kept secret (Section 19 National Land Code 1965). Everyofficer appointed and every person employed in any SurveyOffice, Land Office or Registry:

i) shall maintain, and aid in maintaining, the secrecy of allmatters which come to his knowledge in the performance ofhis duties; and

ii) except for the purpose of carrying into effect the provisionsof the National Land Code 1965, shall not communicate ordivulge, or aid in divulging, any such matter to any otherperson

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Purchase Of Land By Officers Purchase of land (Section 20 National Land Code 1965). Whereany land or interest is offered for sale in pursuance of anyprovision of National Land Code 1965, none of the followingpersons shall acquire, or attempt to acquire, it for himself,directly or indirectly:

a) Director of Lands and Mines Office, Registrar and Director ofSurvey and Mapping of the State in which the land orinterest is situated,

b) any Land Administrator, District Officer, Settlement Officer orSurvey Officer having jurisdiction in the district or sub-district in which the land or interest is situated.

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Purchase Of Land By Officers

c) any person employed under any of the officers referred to (a)or (b) above,

d) any person having any duty to perform in connection with the sale.

Safe keeping of registers (Section 375 National Land Code1965). No register, instrument, book or other recordincluding digital data and information on any mattersvirtually stored in the land database of land Registry andthe Disaster Recovery Centre for the safe keeping of whichthe Registrar is responsible shall be removed from theRegistry or Land Office except pursuant to an order of theCourt or a Judge, or under the direction in writing of theState Authority or State Director. 57

Penalties

Any person contravening the provisions of section, section20, sub-section (2) of section 375 and sub-section (1) ofsection 379 shall be guilty of an offence, and liable onconviction to a fine not exceeding one thousand ringgit(RM1,000), or imprisonment for a term not exceeding sixmonths.

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Protection Of officers (Section 22)

No officer appointed under section 6 or section 12 shallbe liable to be sued in any civil court for any act ormatter done, or ordered to be done or omitted to bedone, by him in good faith and in the intended exerciseof any power, or performance of any duty, conferred orimposed on him by or under the National Land Code1965.

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Enforcement

It is one of the tasks and responsibilities that must be carried out bythe land administrator as stated in the National Land Code 1965.

Section 425(1) National Land Code 1965 stated any person who,without lawful authority:

i) Occupies, or erects any building on, any State land, reserved landor mining land, or

ii) Clears, ploughs, digs, encloses or cultivates any such land or partthereof; or

iii) Cuts or removes any timber or produce on or from such land

shall be guilty of an offence, and liable on conviction to a fine notexceeding ten thousand ringgit (RM10,000), or imprisonment for aterm not exceeding one year. 60

Enforcement

Under section 425(1A), any person who abets thecommission of an offence shall be guilty of an offenceas 425(1).

Section 425A stated any person who without lawfulauthority uses or occupies the air space above State land orreserved land by erecting, maintaining or occupying a roof,canopy, bridge or any other structure shall be guilty of anoffence and shall be liable on conviction to a fine notexceeding two thousand ringgit, or to imprisonment for aterm not exceeding six months, or to both.

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Enforcement

Section 426(1A) stated any person who has in hispossession or custody, or under his control, any rockmaterial otherwise than in the form in which itconstitutes a natural part of the land on which it isfound, shall be presumed to have extracted, removed,or transported or permitted the extraction, removal, ortransportation of rock material without lawfulauthority.

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Power Of Arrest And Seizure Section 426A stated Any police officer not below the rank ofInspector, Registrar, Land Administrator, Settlement Officer or otherofficer duly authorised by the State Authority may without warrant:

i) Arrest any person found committing or attempting to commitor abetting the commission of an offence under section 425 or426;

ii) Seize any vehicle, tractor, agricultural implement or other thingwhatsoever which he has reason to believe was used or isbeing used in the commission of an offence under section426A, and

iii) Demolish, destroy or remove any building, or take possessionin the name of the State Authority of any crop, erected orcultivated on any land in contravention.

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Power Of Arrest And Seizure

A Registrar, Land Administrator, Settlement Officer orauthorised officer:

i) May call upon any police officer for assistance in the exerciseof the powers conferred; and

ii) Without necessary delay make over the person so arrestedto a police officer or take such person to the nearest policestation

The seizing officer shall forthwith give notice in writing of suchseizure to the owner, either by delivering to him personally or bypost or at his place of abode.

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Forfeiture Of Things Seized (S426C)

All things seized in exercise of the powers conferredunder section 426A shall be liable to forfeiture.

Where anything has been seized under section 426A,temporarily return such thing to the owner of the same onsecurity being furnished to the satisfaction of the policeofficer, Registrar or Land Administrator that such thing shallbe surrendered to him on demand or to produce it before acourt of competent jurisdiction.

An order for the forfeiture or for the release of anythingseized in exercise of the powers conferred under section426A shall be made by the court

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If there be no prosecution with regard to anything seized in exercise ofthe powers, such thing shall be taken and deemed to be forfeited atthe expiration of one month from the date of seizure unless beforethat date a claim is made in the following manner:

i) Any person asserting that he is the owner of such thing maypersonally or by his agent authorised in writing give written noticeto claims seized items.

ii) The police officer, Registrar of Land Administrator shall refer theclaim to the President of a Sessions Court for decision

iii) The President shall issue a summons requiring the personasserting that he is the owner of the thing and the person fromwhom it was seized to appear before him and proceed to theexamination of the matter and on proof that an offence has beencommitted or may in the absence of such proof order its release. 66


All things forfeited or deemed to be forfeited shall bedelivered to the Land Administrator and shall be disposedof in accordance with the direction of:

i) State Director of Lands and Mines;ii) The Director General of Lands and Mines Office, where

the offence is committed on land held by or on behalfof the Federal Government; and

iii) The authority concerned, where the offence iscommitted on land held by or on behalf of, a localauthority, or a statutory authority exercising powersvested in it by Federal or State law.

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Where anything seized in exercise of the powers conferredunder section 426A is of a perishable nature or where thecustody of such thing involves unreasonable expense andinconvenience, the State Director, the Director General ofLands and Mines or the authority concerned may directthat such thing be sold at any time and the proceeds of thesale be held to abide by the result of any prosecution orclaim under this section.

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No Costs Or Damages Arising From Seizure To Be Recoverable (S426D)No person shall in any proceeding before any court inrespect of the seizure of anything seized in exercise orthe purported exercise of the powers conferred undersection 426A be entitled to the costs of suchproceedings or subject to section 426C to any damagesor other relief unless such seizure was made withoutreasonable or probable cause.

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Unlawful Grazing Of Animals (S427)

No person shall graze any animal on any State land orreserved land except with the provisions of a permitissued by the Land Administrator or, in the case ofreserved land, the officer for the time being having thecontrol.

Any person who contravenes the provisions or of anypermit issued thereunder, shall be guilty of an offence,and liable on conviction to a fine not exceeding onehundred ringgit.

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Obstruction Of Land Administrator's Rights Of Way, Roads And Other Public

Places (S428) Where the Land Administrator is satisfied that there has been any wrongfulobstruction of, or encroachment upon, any Land Administrator's right of way,or any public road or waterway or other place to which the public are entitledto access, he may make an order requiring the person or persons responsibleto remove the obstruction or encroachment.

Any person who wrongfully obstructs or encroaches upon any such right ofway, road, waterway or place shall be guilty of an offence, and liable onconviction to a fine exceeding two thousand ringgit, or imprisonment for aterm not exceeding six months, or to both.

Any person convicted of an offence under this section may, in addition toany fine imposed on the conviction, be ordered to pay to the State Authoritythe costs or any steps reasonably taken for the removal of the obstruction orencroachment. 71

Wrongful receipt Of information (S428A)

If any person receives any information relating to anymatter knowing or having reasonable grounds tobelieve at the time he receives it that the information iscommunicated or divulged to him in contravention ofsection 19, he shall, useless he proves that theinformation was communicated or divulged to himcontrary to his desire, be guilty of an offence, and liableon conviction to a fine not exceeding one thousandringgit, or imprisonment for a term not exceeding sixmonths, or to both.

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Institution Of Prosecution (S429A)

No prosecution for or in relation to any offence shall beinstituted except by or with the consent in writing of the PublicProsecutor.

For prosecution under section 400 (notice to showboundary) and section 403 (obstruction of boundary mark)can be instituted by State Director of Survey and Mapping.

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Compounding Of Offences (S429B)

The State Director or Land Administrator may, with thewritten consent of the Public Prosecutor, make a written offer tothe person reasonably suspected of having committed anoffence to compound the offence upon payment to the StateDirector or Land Administrator such amount not exceeding fiftyper centum of the amount of maximum fine for that offence.

No prosecution shall thereafter be instituted in respect ofsuch offence against the person whom the offer to compoundwas made

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STATES LAND RULES

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States Land Rules

Federal Territory of Kuala Lumpur Land Rules 1995. Federal Territory of Putrajaya Land Rules 2002. Johore Land Rules 1966.Kedah Land Rules 1966.Kelantan Land Rules 1966.Kelantan Quarry Rules 1977.Malacca Land Rules 1966. Land Titles Rules (Malacca) 1965.

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States Land Rules

Negeri Sembilan Land Rules 1966.Pahang Land Rules 1992.Penang Land Rules 1965.Perak Land Rules 1966.Perak Quarry Rules 1992.Perlis Land Rules 1987. Sabah Land Rules 1930. Sarawak Land Rules (Sarawak Cap. 81). Selangor Land Rules 1966.Terengganu Land Rules 1966.

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T H A N K YO U

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LAND LAW AND SURVEY REGULATION (SGHU 3313) · 2018-09-26 · LAND LAW AND SURVEY REGULATION (SGHU...

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