C3347/UNIT1/1

UNIT 1
LAND ADMINISTRATION IN PENINSULAR MALAYSIA BEFORE AND AFTER THE NATIONAL LAND CODE

OBJECTIVES

General Objective To understand various land administration systems in Peninsular Malaysia before and after the introduction of the National Land Code 1965.

Specific Objectives At the end of the unit you will be able to:  describe the traditional land administration system.  describe the Registration of Deeds system.  describe the Torrens System.  define land, state land, alienated land, reserved land, forest reserve and mining land.  classify the different types of land.  explain the state land administration with respect to the powers of State Authority, State Directors and other state officers.

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INPUT

1.1

TRADITIONAL LAND ADMINISTRATION SYSTEM

In the olden days, when no documentation existed, land ownership was based solely on the occupation of the land.

During that time, land was divided into two main categories namely tanah mati and tanah hidup. Tanah mati refers to land that has been abandoned and no trees or permanent crop can be found on the land. Tanah hidup refers to land that belongs to somebody who either occupies the land or plants something on it. Tanah hidup land may further be divided into three categories namely tanah kampong, tanah sawah or bendang and tanah ladang or huma.

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Tanah kampung refers to land that is planted with fruit trees. Proprietory right in kampong land endures during occupation and afterwards as long as it is planted with fruit trees as a proof of occupancy.

Tanah sawah or bendang refers to wet land that is planted with padi. Proprietory right in tanah sawah or bendang lasts as long as the land is occupied and for up to three years after its abandonment. Tanah ladang or huma refers to hilly areas that are used for planting seasonal crops. Proprietory right of the land lasts as long as it is occupied which normally coincides with a single season. There can be no proprietory right in tanah mati.

In general, this traditional reference of ownership system is a very loose one. A person can own a land as long as he is a Muslim, willing to clear the land and does not trespass other peoples land. The Sultan, as the head of the state and at the top of the feudal system had some influence on the traditional land system. Since all the land in the state belongs to him, he has the right to collect land revenue and quit rent and sell tanah mati. He may also grant land to anybody he pleases.

As a conclusion, we can say that under this system, the native people practiced a system that is based on traditional Malay customs as well as the Islamic Law.

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1.2

REGISTRATION OF DEEDS

In 1880, the British introduced a land administration system that was based on the English Land Law. This system is known as the Registration of Deeds. Land ownership was based on written or oral grant from the government. The system necessitated the presence of a chain of documents to prove title.

The disadvantages of this system were: 1. Ownership of land was not secured by the government, 2. Registration of land dealings was not made compulsory, 3. Purchasers did not get the guarantee of ownership, 4. Land transactions were based on chain of title. 5. Title search that was carried out with the presence of a lawyer was costly and slow.

1.3

THE TORRENS SYSTEM

The Torrens System was named after Sir Robert Torrens. He introduced the system in South Australia in 1858 with the legislation of the Real Property Act (South Australia) 1858. This system was adopted by the Federated Malay States in 1879 with the passing of the Perak General Land Regulations.

It was based a State controlled system of registration of title, evidenced by certificates issued and guaranteed by the State. Under this system, chain documents such as sale purchase agreement could be used as a mean for securing

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registration but was not effective to the land until its registration. Other characteristics that differentiate this system from the earlier systems were: y Caveats may be lodged in the register to protect unregistered interests in the land, y Equity had no place in this system y Surveying of land was an important matter, y The Assurance Fund, established and maintained from contributions made by proprietors was to reimburse persons who suffer loss by or through the operation of the Act. There were two main principles under this system namely the Mirror Principle and The Curtain Principle.

The Mirror Principle According to this principle the register reflects all the facts and interests of the land such as the name of proprietor, land descriptions, area of the land and particulars of the persons that have registered interests on the land. This principle is included in the National Land Code under Sec. 340(1) that states: 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. The Curtain Principle According to this principle, a potential land buyer may only need to look at the register to get the information on the land that he is interested in without counter checking with other documents.

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The Torrens System has a few major characteristics that are now borne in the National Land Code.

The characteristics are

1. All land belongs to the Sultan(State Authority) who has the authority to dispose or alienate land to anybody that is deemed fit, either indefinitely or for a certain period of time not exceeding 99 years. 2. All dealings with land must be using statutory forms and be registered with the State Authority. 3. Registered proprietors are given indefeasible title that can only be disputed under certain circumstances. 4. Qualified titles may be issued to enable a person or a body to enter any approved but unsurveyed land. This title may also be issued for any partitioned land that has been approved before it is surveyed. 5. Strata titles may be issued to a purchaser of a unit in a multi storey building that allows him to hold a separate title to the unit from the developer of the building. 6. A registered proprietor of land may give a lease for a period of up to 99 years in case of whole land or up to 30 years if it involves only part of the land. He can also by written agreement or orally gives rent on the land for a period not exceeding 3 years. 7. A set of procedures must be followed when applications for sub-division, partition or amalgamation of land are made. 8. Alienated land shall revert to and vest with the State Authority when the proprietor fails continuously to pay the quit rent. 9. Easements are created expressly and must be registered. Creation of easement by prescription is no longer allowed. 10. A system of caveats protects any registrable interests and also registrable transactions before registration. 11. Adverse possession of land such as through illegal occupation will not nullify the registered proprietorship on the land.

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Activity 1 a

TEST YOUR UNDERSTANDING BEFORE YOU CONTINUE WITH THE NEXT INPUT! 1.1 Fill in the blanks with the correct answer. a) In the traditional land administration system, ownership of land is based on _____________________ of the land. b) Under this system, land can be divided into two main categories namely _____________________ and ______________________. c) ______________________________ refers to swampy land that is planted with padi. d) A person can easily own a land as long as he is willing to clear the land, is a Muslim and _______________________________________. e) Theoretically, it is the _____________________ who owns all the land in a state. f) The traditional land administration system is based on the Islamic Laws and ___________________________.

1.2 Write T for true or F for false at the end of each of the sentence below:a) Under the Registration of Deeds system, land was granted by the sultan to whom that he pleases. ________ b) A chain of documents may be involved in determining the legal owner of a property. ________ c) Registration of title was not compulsory. ________ d) Title search was expensive and slow. ________ e) There was no governments guarantee on land proprietorship. ________

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1.3 a) A. B. C. D. b) A. B. C. D. c) A. B. C. D. d) A. B. C. D.

Circle the correct answer. The Torrens System originated from South Africa South America South Australia Southern England The Mirror Principle is represented by The National Land Code under section 34 340 344 430 Registration of land dealings are made to the High Court State Authority Survey Department Land Administrator ____________________ will not nullify the registered proprietorship on a land. Fraud Caveat Easements Adverse Possession

Have you tried to answer the questions????? If YES, check your answers now on the next page..

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Feedback To Activity 1a

1.1 a) b) c) d) e) f) 1.2 a) b) c) d) e) 1.3 a) b) c) d) C B B D F T T T T occupancy tanah mati and tanah hidup Tanah sawah or bendang does not trespass other peoples land Sultan traditional Malay customs

The questions were pretty easy, did you manage to get all the answers right? Lets go to the next input.

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INPUT

1.4

INTRODUCTION TO THE NATIONAL LAND CODE 1965 (NLC 1965) Before the legislation of the National Land Code 1965, each state in Peninsular Malaysia has its own land law. This is demonstrated in the following table: Table 1 : Land Laws that were used in different states of Peninsular Malaysia before NLC 1965 STATE LAW Pahang, Negeri Sembilan, Selangor Land Code (Cap. 138) and Perak 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

Land is a state matter; therefore laws that are related to land should be made by the State Judicial Body. However, the National Land Code was constituted by the Parliament as Parliament Act No. 56, 1965. This was so done by the Parliament by virtue of powers given to her under Para 76(4) of Federal Constitution, where it was mentioned that for the purpose of standardizing the laws and policy, the Parliament is allowed to make laws on certain matters relating to land.

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The National Land Code came into enforcement in all states in Peninsular Malaysia on January 1st,1965. Sabah and Sarawak have their own land law respectively. With the enforcement of the NLC 1965, all the seven land laws that were shown in Table 1 above were repealed. Also repealed were 36 other land laws and regulations that were in force before January 1st 1966.

Most of the principles in NLC 1965 were based on the Torrens System and not Islamic laws. Therefore there are still rooms for improvement in many aspects of the laws. For example, under the NLC 1965, failure to pay the quit rent will result in the land being reverted to the State Authority whereas in Islamic Law, the Sultan will investigate the reasons for failing to pay the quit rent before taking further action on the land owner. If for example, the problem was due to unavoidable causes such as the crops on the land were destroyed, then the land owner would be exempted from paying the quit rent. It is then the duty of the Sultan to help the affected land owner. Apart from the powers that are given to certain bodies and officers, NLC 1965 also covers all aspects of land administration such as alienation of land, dealings, revenue, conditions for land development and others.

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Although the NLC 1965 is the dominant land law in this country, it does not override the following land laws: 1. the Terengganu Land Settlement Enactment 1356, 2. the Padi Cultivators Act (Control of Rent and Security of Tenure) Ordinance, 1955, 3. the Kelantan Land Settlement Ordinance, 1955, 4. the Land (Group Settlement Areas) Act, 1960, 5. the Perlis Land Settlement Enactment 1966, 6. any law for the time being in force relating to exemptions from the payment of land revenue. 7.

Consequently, provisions in the NLC 1965 cannot be applied if they contradict any laws that are related to: 1. Customary tenure, 2. Malay Reservation Land or Malay holdings, 3. Mining Land 4. Sultanate Land 5. Wakaf of Baitulmal Land

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Activity 1b

1.4

Based on the notes on The National Land Code 1965 complete the following diagram with the most suitable answers:

The laws that can be repealed: 1. 2. 3. 4. 5.

The laws that cannot be overidden: 1. 2. 3. 4. 5.

Hope you dont find the questions so hardGood Luck!!!

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Feedback To Activity 1b

The laws that can be repealed: 1. Land Code (Cap. 138) 2. Land Ordinance (Cap. 113) 3. Johor Land Enactment (No. 1) 4. Kedah Land Enactment (No. 56) 5. Kelantan Land Enactment 1938 6. Perlis Land Enactment 1356 7. Terengganu Land Enactment 1357 8. 36 other land laws and regulations that were in force before 1.1.1966. (Choose any five)

The laws that cannot be overridden: 1. the Terengganu Land Settlement Enactment 1356, 2. the Padi Cultivators Act (Control of Rent and Security of Tenure, 1955) 3. the Kelantan Land Settlement Ordinance 1955 4. the Land (Group Settlement Areas) Act, 1960. 5. Any other laws that are related to land revenue exemptions. 6. the Perlis Land Settlement Enactment 1966.

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INPUT

1.5

DEFINITIONS OF LAND AND ITS TYPES The National Land Code gives a very extensive definition of land. The relevant section, that is section 5, defines land as follows: Land includes:a) the surface of the earth and all substance forming that surface, b) the earth below the surface and all substance 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.

Contrary to popular belief, the owners rights to substances in the land are severely curtailed. The State Authority retains control over minerals and rock materials over all land (not only over state land) and has the power to dispose of land and minerals within its territory.

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1.5.1 Types of land

All the land in a particular state may be categorized as the followings.

Alienated land - means any land in respect of which is a registered title for the time being subsists, whether final or qualified, whether in perpetuity or for a term of years, and whether granted by the State Authority under the National Land Code or in the exercise of powers conferred by any previous land law, but not include mining land. Reserved land - means any land for the time being reserved for public purpose in accordance with the provisions of S.62 of NLC or of any previous land law. Mining land - means any land in which mining lease or certificate is granted or issued under any written law relating to mining is for the time being in force. Reserved Forest - means any land under the control of each state forest authority. Each state has its own forest enactment dealing with forest reserves and matters incidental to it. State land - means all lands within the territory of the state not belonging to any other category.

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1.6

CLASSIFICATIONS OF LAND Under Chapter 2 NCL, provisions are made for the classifications of land and the categories of land use. These provisions are given below:-

s.51.(1)

For the purpose of this Act land shall be classified as follows:a) Land above the shore line and b) Foreshore and sea-bed Land above the shore-line shall be classified as follows:i) Town land - Land in any area of the State declared in accordance with the provisions of Section 11 to be a town or by virtue of section 442, deemed to be a town. ii) Village land - Land in any area of the state declared in accordance with the provisions of Section 11 to be a village or by virtue of section 442, deemed to be a village. iii) Country land - All land above the shore-line other than town land or village land.

(2)

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Activity 1 c

1.5

Decide whether the following statements are true (T) or false (F). 1. According to the NLC, all things permanently attached to the earth such as buildings and fences are considered as land. _______ 2. Natural vegetations such as grass and lalang are not part of a land. _______ 3. Land below the water surface is considered as land. _______ 4. The proprietor has the right to any minerals or rock materials found on the land. _______ 5. Under Chap. 2, NLC, land above the shore-line may be classified as town land, village land and country land. _______

1.6

Match with the correct definition. Alienated land Any land which mining lease or certificate is granted or issued. Any other land within the state not belonging to any other classes Any land which has a registered title not including mining land Any land under the control of state forest authority Any land for the time being reserved for public purposes.

Reserved land

Mining land

Reserved forest State land

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Feedback To Activity 1c

1.5 a) b) c) d) e) 1.6

T F T F T Match with the correct definition. Alienated land Any land which mining lease or certificate is granted or issued. Any other land within the state not belonging to any other classes Any land which has registered title not including mining land Any land under the control of state forest authority Any land for the time being reserved for public purposes

Reserved land

Mining land

Reserved forest State land

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INPUT

1.7

ADMINISTRATION OF LAND All land is vested with the State Authority. State Authority refers to the Ruler or Governor of the state. For administrative purposes each state is divided into districts with defined boundaries. These districts may be further divided into mukims.

1.7.1 The Powers of State Authority The States power of disposal is described in section 42 of the NLC, which is basically five-fold as follows: a) b) c) d) e) to alienate state land for a term of years not exceeding 99 years or in perpetuity pursuant to the provisions of section 76 of the NLC; to reserve state land and grant leases of reserve land; to issue temporary occupation licenses in respect to state land, reserve land and mining land. to permit the extraction and removal of rock material from any land other than reserved forest; to permit the use of air space on or above state land or reserved land.

The States power of administrative areas is described in section 11 NLC, which the State Authority may by notification in the Gazette: a) b) c) d) e) to divide the territory of the State into districts (daerah); to divide any district into sub-districts; to divide any district or sub-districts into mukim; vary or alter the boundary of any district, sub-districts, mukim, town or village; After the survey or definition thereof by or on behalf of the Director of Survey, declare any area of the state to be a town or village.

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1.7.2 State Director And Other State Officers Under Section 12 of the NLC, the State Authority may appoint for the State: a) b) a State Director of Lands and Mines, a Register of Titles and a Director of Survey, so many Deputy Directors or Land and Mines, Deputy Registrars of Titles, Deputy Directors of Survey, District Land Administrators, Survey Officers, Settlement Officers and other officers as the State Authority may consider necessary for the purposes of this act.

The State Director shall: a) b) c) d) be responsible to the State Authority; act in accordance with any direction given to him by the State Authority, have all the powers conferred upon the Registrar and a Land Administrator, subject to the direction of the State Authority, exercise general control and supervision over the Registrar, and over all officers(other than Deputy Directors of Survey and other Survey Officers).

See section 12(3), NLC for more information on the responsibilities of State Directors

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The State Authority also may by notification in the Gazzette delegate the State Director, or to the Registrar, or to any Land Administrator or other officer appointed under sec.12(1) NCL the exercise or performance of any powers or duties conferred or impose on the State Authority, except for making rules and disposing of any land within fifty metres of the bank of any such river , lake, dam or shoreline as may be declared in the Gazzette. see sec.13 NLC

1.7.3 General Powers Of State Director And Other State Officers The State Director, the Registrar, and any Land Administrator, may for the purposes of this Act (and without prejudice to the exercise of any powers conferred upon him by any other written law) :a) b) c) at all reasonable times have free access to, and enter upon, any land in the State; conduct enquiries in accordance with the provisions of Chapter 4 (Provisions relating to Enquiries) administer oaths and affirmations, examine any witness on oaths and affirmation, summon any person before him, take and record the evidence of any such person and award costs to any person appearing and giving evidence before him, with the approval of the State Secretary, inspect and take copies of any documents in any public office in the State, require any person or body to: (i) produce for inspection any document of title, or other related document, in his possession or control, or (ii) give him such information on the whereabouts of any such document, and take copies or extracts from any such document. require any application made to him to be supported by such affidavit or statutory declaration as he may consider necessary or proper, exercise all other powers conferred on him by the NLC, and all such powers ancillary or incidental thereto as may be reasonably necessary to carry out the purpose of the Act.

d) e)

f) g)

The Director Of Survey, the Deputy Director of Survey and any other Survey Officer may exercise any power referred to in paragraphs (a), (e) and (g) above. Any other officer appointed under sec. 12(1), NLC, may exercise any powers referred to paragraph (a) to (f) above.

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Activity 1 d

TEST YOUR UNDERSTANDING BEFORE YOU CONTINUE WITH THE SELFASSESSMENT! 1.7 Find the name of some of the state officers appointed under sec 12(1), NLC in the boxes below and circle them: i) ________________________and Mines, ii) Director Of Survey, iii) Registrar Of Titles, iv) ____________ Officer, v) Land Administrator, vi) Survey Officer, and vii) __________________ Land Administrator.

S T Z A Q A Z X C D Q G L B K M W Q T G

W T X S D D A F B V W M C K C Q C P Z D

E Y A L A N D A D M I N I S T R A T O R

R U C T S D F W H F V Q C E B M B Z P P

T I C R E S V D Q B T U R R K Q P W B C

T O V T T D D S D H O F Q E G D K L M D

C P B Y T Q I U W S U V H G Q P Z C S M

I A N U L B R R Q H T R C I D G R K R K

R S M I E V E V E G S O B S K W P G P C

T D K K M W C D W C E R G T S Q K R G M

S F F K E H T D G M T H C R Q W Z S C G

I G E M P L O H S K T O H A P R P R K R

D F R N T S R Q U D L F R R D M G Q G M

T G T B Q U O T G L E K B O S R F H S H

N H Y C B E F S M R M T S F F M X W C D

A J U E U V S F K T E J U T D L Z Q K X

T K I R F U U T L O N D H I W R A H F W

S L O T H T R G B D T J B T S K G N Q H

I Q P F B G V M L V U H J L P M H P D F

S A A G W M E T F O T M Q E W H B Z K S

S Z C V H U Y M O K H W R S M K R G B H

A Z V U L L E R E C I F F O Y E V R U S

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Feedback To Activity 1d

1.7 i) ii) iii) iv) v) vi) vii)

State Director of Lands and Mines, Director Of Survey, Registrar Of Titles, Settlement Officer, Land Administrator, Survey Officer, and Assistant District Land Administrator.

S T Z A Q A Z X C D Q G L B K M W Q T G

W T X S D D A F B V W M C K C Q C P Z D

E Y A L A N D A D M I N I S T R A T O R

R U C T S D F W H F V Q C E B M B Z P P

T I C R E S V D Q B T U R R K Q P W B C

T O V T T D D S D H O F Q E G D K L M D

C P B Y L Q I U W S U V H G Q P Z C S M

I A N U L B R R Q H T R C I D G R K R K

R S M I E V E V E G S O B S K W P G P C

T D K K M W C D W C E R G T S Q K R G M

S F F K E H T D G M T H C R Q W Z S C G

I G E M P L O H S K T O H A P R P R K R

D F R N T S R Q U D L F R R D M G Q G M

T G T B Q U O T G L E K B O S R F H S H

N H Y C B E F S M R M T S F F M X W C D

A J U E U V S F K T E J U T D L Z Q K X

T K I R F U U T L O N D H I W R A H F W

S L O T H T R G B D T J B T S K G N Q H

I Q P F B G V M L V U H J L P M H P D F

S A A G W M E T F O T M Q E W H B Z K S

S Z C V H U Y M O K H W R S M K R G B H

A Z V U L L E R E C I F F O Y E V R U S

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KEY FACTS 1. There were predominantly three land administration systems in the Peninsular Of Malaysia before the National Land Code, 1965. The systems were The Traditional Land Administration System, The Registration Of Deeds and The Torrens System. With the enforcement of the National Land Code 1965, about forty laws relating to land were repealed. The National Land Code is the dominant land law in this country and it governs extensive aspects of land administration. However, it still has limitations on some areas of application and there are a number of laws that it cannot overrule. Land is a state matter; therefore the administration of land is the sole responsibility of the State Authority.

2. 3.

4.

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Self-Assessment 1

You are approaching success. Try all the questions in this self-assessment section and check your answers with those given in the Feedback on Self-Assessment given on the next page. If you face any problems, discuss it with your lecturer. Good luck. 1. 2. 3. Briefly describe the Traditional Land Administration System. List the power of administrative areas of the State Authority. List the powers that are commonly shared by the State Officers that are appointed by the State Authority under section 12 of the NLC.

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Feedback To Self-Assessment 1

Have you tried the questions????? If YES, check your answers now. 1. In the Traditional Land Administration System, land ownership was based solely on the occupation of the land. During that time, land was divided into two main categories namely tanah mati and tanah hidup. Tanah mati refers to land that has been abandoned and no trees or permanent crop can be found on the land. Tanah hidup refers to land that belongs to somebody who either occupies the land or plants something on it. Tanah hidup land may further be divided into three categories namely tanah kampong, tanah sawah or bendang and tanah ladang or huma.
Tanah kampung refers to land that is planted with fruit trees. Proprietory right in kampong land endures during occupation and afterwards as long as it is planted with fruit trees as a proof of occupancy.

Tanah sawah or bendang refers to wet land that is planted with padi. Proprietory right in tanah sawah or bendang lasts as long as the land is occupied and for up to three years after its abandonment. Tanah ladang or huma refers to hilly areas that are used for planting seasonal crops. Proprietory right of the land lasts as long as it is occupied which normally coincides with a single season. There can be no proprietory right in tanah mati. In general, this traditional reference of ownership system is a very loose one. A person can own a land as long as he is a Muslim, willing to clear the land and does not trespass other peoples land. The Sultan, as the head of the state has the right to collect land revenue and quit rent and sell tanah mati. He may also grant land to anybody he pleases.

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2.

The States powers of administrative areas are described in section 11 NLC, which the State Authority may by notification in the Gazette: a) b) c) d) e) to divide the territory of the State into districts (daerah); to divide any district into sub-districts; to divide any district or sub-district into mukim; vary or alter the boundary of any district, sub-districts, mukim, town or village; After the survey or definition thereof by or on behalf of the Director of Survey, declare any area of the state to be a town or village.

3.

The powers that are commonly shared by all the state officers are: a) at all reasonable times have free access to, and enter upon, any land in the State; b) require any person or body to: (i) produce for inspection any document of title, or other related document, in his possession or control, or (ii) give him such information on the whereabouts of any such document, and take copies or extracts from any such document. c) exercise all other powers conferred on him by the NLC, and all such powers ancillary or incidental thereto as may be reasonably necessary to carry out the purpose of the Act.