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BIE1012 LAND LAW
Land disposal and related matters
Lecturer: Dr. Hasniyati Hamzah
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Lecture Outline
Definition of land
Power of State Authority in land
disposal: Alienation and Non-
alienation
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Definition of land
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Legal Concept of Land – Section 5 NLC
a) The land surface itself and all b) Subsoil and all substances
substances forming the surface therein e.g. Oil, mineral, etc.
e.g. clay deposits
c) All things attached or d) All vegetation and other natural
permanently attached to the earth, products on or below surface
whether on or below surface e.g. trees and crops
e.g. building and fixtures
e)Land covered
by water
e.g. seaside
land
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Quick test
• The government is taking your land for a
public purpose. Under Malaysian law, you
are entitled for adequate compensation.
Your land is planted with 100 oil palm trees.
Can you ask for a separate compensation
for the palm trees? Why/why not?
• You sold your house to Mr. A. In your living
room are two paintings by Latiff Mohidin.
Mr A assumed that the price he paid
includes the two paintings. Is he right?
Why/why not?
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Fixtures vs chattels
Quicquid plantatur solo, solo cedit - whatever is fixed to the soil
belongs to the soil
An article on the land may be part of land (fixtures) or not part of
land (chattels)
Fixtures: real property, chattels: personal property
• Importance of distinguishing:
• Valuation: Fixtures must be valued as part of land
• Sale: Fixtures included with land- unless otherwise stated in sale
agreement.
• Charge: Fixtures will pass together with land & building whether
attached before or after date of charge unless otherwise stated in
charge document (Goh Chong Hin case)
• Any other instances? Tenant’s fixtures?
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Tests to determine fixture of chattel
There are 2 tests to determine if an object is fixture or
chattel. Both tests are equally important.
TEST 1 Degree of annexation
• If object merely resting on own weight,
prima facie chattel.
• If attached/fastened to wall/floor of
building/ground, prima facie fixture.
• However, this test is not conclusive and
must be followed by Test 2
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Tests to determine fixture of chattel
TEST 2 Purpose of annexation
• Main factor
• If the object is important for the land’s
function and may cause damage upon
removal, then it may be a fixture.
• Annexation to improve land/building?
Fixture
• Annexation to facilitate enjoyment of
object? Chattel
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A chattel can turn into a fixture
Chattel – An object is a
chattel if it is unattached to
the land.
E.g. pvc pipes
Fixture – Once the object is
attached to the land and
serves to enhance the land,
then it is a fixture.
E.g. water reticulation system
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Examples of fixtures by court decision
Petrol tank buried underground- Shell Co Ltd v
Commissioner of Federal Capital
Palm oil storage tank erected above ground- Socfin Ltd.
V Chairman Klang Town Council
Machinery installed on factory floor – Goh Chong Hin v
Consolidated Malay Rubber
Offset printing machine affixed to factory floor by bolts
and nuts- Wiggins Teape v Bahagia Trading
Dwelling house of plank walls and cement floor- Kartar
Singh v Pappa
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Example of chattel by court decision
Malay wooden house constructed on stilts-
Re Tiambi bt Ma’min
Kiah bt Hanapiah v Som bt Hanapiah
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Can you name 5 chattels and 5 fixtures in this photo?
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Power of State Authority
in land disposal:
Alienation and non-
alienation
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Rights and Powers of State Authority
(Sec.40)
• Ninth Schedule of Federal Constitution puts land under State List,
meaning land is under the purview of State Authority.
• The rights and powers of State Authority regarding land are
contained in Chapter 1, Part Three NLC (Sec 40-50).
• Sec. 40 - Property in all State land, minerals and rock material within
the territories of a state vests in the State Authority.
• “State Land” – all land in the State, incl. riverbed, foreshore and
forebed within its territories/limits of territorial waters other than:
• Alienated land
• Reserved land
• Mining land
• Reserved forest
• State authority therefore has vast powers over land.
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Powers of Disposal
• Sec. 41: SA’s powers over land can be divided into two:
– Powers of disposal (pelupusan).
– Rights in reversion (explained in Section 46).
• SA has the power to dispose
– State land (property vested under Section 40)
– Reserved land
– Mining land
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SA’s powers of disposal under Sec. 42(1)
• By alienation – s.42(1)(a)
• Otherwise than by alienation – s.42(1)(b)-(e)
a) To reserve state land & to grant leases of reserved
land - s.42(1)(b)
b) To permit the occupation of State land, reserved
land and mining land under TOL s.42(1)(c)
c) To permit extraction & removal of rock material
from any land other from reserved forest s.42(1)(d)
d) To permit use of air space on or above State land
or reserved land s.42(1)(e)
(+ s92: power to dispose underground land below alienated land,
state land and reserved land) (Week 4)
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Who can apply for State land? Sec. 43
Natural persons above/at age of majority
Corporations empowered under their constitutions to
hold land:
Corporation registered under Companies Act 1965
empowered under memorandum of association.
Statutory body empowered under Act/Enactment
establishing it.
Sovereigns, governments, organisations and other
persons authorised to hold land under law of
diplomatic/consular relations and international
organisation
Societies registered under Societies Act 1966 and trade
unions registered under Trade Unions Act 1959.
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SA is not allowed to:
Dispose land for the purpose of mining or removing of forest
produce.
Issue permit for extraction and removal of rock material from
land for purpose of obtaining metal/mineral.
Dispose land for the purpose of removing any forest produce.
Alienate any land held under the category of agriculture to
one person or body that will result in the said land being less
than 2/5 hectare (1 acre).
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Rights of proprietors (Sec. 44)
• Person or body who has been granted land disposal
have these rights over the land:
– Exclusive use and enjoyment of column of air space
above & below land surface, as is necessary for
lawful use and enjoyment of land (Lacroix v The
Queen).
– Right to the support of land in its natural state by
adjacent land (Madam Chah Siam v Chop Choy
Kong Kongsi- fish pond).
– Rights of access to foreshore, river or public place
• However, subject to other NLC provisions and
other laws.
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Extent of Disposal: Minerals, rock material
and forest produce (Sec. 45)
• Person or body receiving the disposal can
– Extract, move or use any rock material within the
boundaries of the land.
– Fell, clear, destroy or use any forest produce within the
boundaries of the land.
• However, the person or body cannot
– Extract any metal or mineral from the rock mineral.
– Remove beyond the land boundaries the rock material
or forest produce that has been obtained from the
land.
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Rights in Reversion (Sec. 46)
• ‘Reversion’ means to become the property of the SA again.
• Alienated land shall revert and vest in SA upon these situations:
1. Expiry of the term e.g. a 60-year leasehold title registered on 1.1.1960 will
revert to SA on 31.12.2020.
2. Forfeiture due to non-payment of quit rent under Sec. 100 or breach of
conditions under Sec. 129(4) e.g. quit rent not paid for 10 years or land under
agriculture use being built with a soy sauce factory.
3. Death of proprietor without successors or title abandonment.
4. Surrender by proprietor e.g. proprietor applying for extension of leasehold
title can surrender his title in anticipation of re-alienation.
• Reserved land will revert to the State when the reserve is revoked.
• Leases of reserved land, licences and permits will terminate upon
expiry of their terms and will revert to the State.
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Buildings vesting in State upon Reversion
(Sec. 47)
• Upon reversion, all permanent buildings on disposed land
will become vested in the State.
• No compensation will be paid on the buildings.
• Temporary buildings capable of being removed will still
belong to the person/body who was granted the disposal.
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No adverse possession
• The concept of adverse possession means that anyone who
has occupied on government or private land uninterrupted for
a certain number of years will obtain title on the land.
– This has benefitted squatters in some countries.
• NLC specifically states that the concept of adverse possession
is not applicable in Malaysia.
– Section 48 for state land.
– Section 341 for private land.
– Therefore, squatters will not obtain any title or interest in
Malaysia.
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Effect of advance or retreat of sea, etc. (Sec.
49)
• Any part of the alienated land that has been encroached
by the sea or river will cease from being part of the land
and will become State land.
• The boundaries of any alienated land will not be affected
if the sea or river retreats.
• Sea boundary = shoreline
• River boundary = riverbed
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References
Ainul Jaria & Others (2008) Principles of Malaysian Land
Law, Lexis Nexis: Malaysia, Chapter 3
Buang, S. (2007) Malaysian Torrens System, Second
Edition. DBP. Chapters 3 & 4
Teo, K.S. and Khaw (1995) L.T. Land Law in Malaysia,
Second Edition. pp.23-36, Chapter 3.
Zaini, F. Hussin, K., Suratman, R. and Abd Rasid, K.
(2013) UNDERGROUND LAND OWNERSHIP IN
MALAYSIA: A REVIEW, Jurnal Pentadbiran Tanah
