Past Year 2020

1.(a) (i) 2 rights enjoyed by the land owner as provided under section 44. (10m)

1. Exclusive use and enjoyment

The land owner has the right to use the registered land, not only the land surface itself,
but also under the land and also the air space above the land. According to the maxim
principle which is under the Malaysia land law, stated that “cujus est solum eius
usque ad caelum ad inferos”. It means that the owner of the land has the right to own
the land surface, all the air space above the land surface and all the land below the
land. However, according to the Section 44 of National Land Code Act 1965, there is
a limitation for the use of the land by the land owner. The land owner can only have
the right to own the area which is reasonably necessary to the legal land use. Other
than the specific area, it is vest to the State Authority. For example, the agriculture
land owner can only have the right to own the land beneath its surface 6 meters.

2. Right to support of land in its natural state by neighbouring land

The land owner can have the right to has the natural support from the neighbouring
land. This is because without the natural support, the use of the land may be
interfered. Hence, the land owner has the right to claim the neighbouring land owner
if he or she carry out activities and gives bad effect to the land owner’s land. There
are 2 types of the right, which are cross right of support of adjacent land and
support for adjacent slope land. However, to claim with this right, the land must be
in natural state and no extra support added on the land. For example, case Madam
Chiah Siam c Chop Choy Kong Kongsi. In this case, the defendant owned a mine
adjoining the plaintiff land and the plaintiff owned a fish pond. Because of the flow of
water from the fish pond, the mine from the defendant land outflowed to the
plaintiff’s fish pond. The plaintiff claimed that the mine of the defendant causes losses
of the fish in the fish pond. The court made judgement in the favour of the plaintiff as
the defendant had changed the natural land use.
 3. Right to access foreshore, river and public space
According to the Section 44(1)(c), the land owner has the right pay a visit or pass
through the foreshore, river and public space such as the roads, bus station, LRT
station. These places are opened to all people, aim to give them the to go to another
location. However, they have no ownership on these places as these places are vest to
the State Authority. Besides, there is also limitation in accessing the foreshore and
river. The land owner can only access the land which is between the shoreline and the
low water mark of the ordinary spring tide. If the land is seized by the sea or river, it
will be reverted to the State Authority as stated in Section 49 National Land Code Act
1965.

1. (a) (ii) The limitation on the land use and dealings on land as provided under
Section 120. (10m)

PAST YEAR 2019

1. Based on the case, advise Samad on the following:

(a) Qualified of the title and limitation on the titles (10m)
The qualified title is a title which is issued to the proprietor of the land before the land
is being surveyed. As the land has not been surveyed yet, the land area and the boundary
marks are temporary. It may increase or decrease in the area and the boundaries after the
survey is completed on the land. Besides, there are two types of qualified title. First, the
Hakmilik Sementara Daftar (H.S.(D)) which is a qualified title registered under Registry
Title at Land and Mines Office. To apply H.S.(D), the applier needs to submit the Form
11AK. Next, the Hakmilik Sementara Mukim (H.S.(M)), a qualified title which is
registered under Land Office Titles at land office. To apply H.S.(M), the applier needs to
submit the Form 11BK. In the case, Musa’s agriculture land is under H.S.(M). Hence, it is
a qualified title land. If the particular land has been surveyed by survey officer or
registered licensed surveyor, they will issue the final title to the proprietor, as stated in the
Section 189 and Section 192 of National Land Code 1965. The process of registration
from the qualified title to the final title may take some times, which is about half of the
year.
 As the land or property has not been surveyed yet, there are some limitations on the
land. First, the land is not allowed to subdivided, partitioned or amalgamated. This is
because the area of the land is temporary and has not been determined yet. It is not the
actual area of the land and may change. Hence, in this case, Samad are advised to not to
subdivide the agriculture land into 2 parts unless he had obtained the final title of the
land. Next, the proprietors are not allowed to issue Strata Title on the property which is
on the particular land. A strata property means a building or a land is divided to multi-lots
and lease or transfer to different tenant or purchaser. The strata title cannot be issued on
the building which is under the qualified title because the building is not allowed to
subdivided to other individuals or bodies. However, the proprietor who hold the qualified
title can make transaction on the qualified title land. He or she are allowed to sell, lease,
rent or conduct the charge on the land. In the case, Musa can sell his agriculture land to
Samad.

Qualified title vs Final title

The qualified title is a title which is issued to the proprietor of the land before the land is
being surveyed. As the land has not been surveyed yet, the land area and the boundary marks
are temporary. It may increase or decrease in the area and the boundaries after the survey is
completed on the land. Besides, there are two types of qualified title. First, the Hakmilik
Sementara Daftar (H.S.(D)) which is a qualified title registered under Registry Title at Land
and Mines Office. To apply H.S.(D), the applier needs to submit the Form 11AK. Next, the
Hakmilik Sementara Mukim (H.S.(M)), a qualified title which is registered under Land
Office Titles at land office. To apply H.S.(M), the applier needs to submit the Form 11BK. If
the particular land has been surveyed by survey officer or registered licensed surveyor, they
will issue the final title to the proprietor, as stated in the Section 189 and Section 192 of
National Land Code 1965. The process of registration from the qualified title to the final title
may take some times, which is about half of the year.

As the land or property has not been surveyed yet, there are some limitations on the land.
First, the land is not allowed to subdivided, partitioned or amalgamated. This is because the
area of the land is temporary and has not been determined yet. It is not the actual area of the
land and may change. Next, as the building cannot be subdivided, the proprietors are not
allowed to issue Strata Title on the property which is on the particular land. However, the
proprietor who hold the qualified title can make transaction on the qualified title land. He or
she are allowed to sell, lease, rent or conduct the charge on the land.

Final title

The final title would only be released after a survey on the land has been conducted by
the State Authority. All decisions to determine what the Final Title will be issued under, will
be solely under the discretion of the State Authority.There are 4 types of Final Title name that
might be issued — geran, geran mukim, pajakan negeri, pajakan mukim.The Geran and
Geran Mukim titles are specially designated for freehold land types whereas the Pajakan
Negeri and Pajakan Mukim titles are for leasehold lands. The Final Title of Geran and
Pajakan Negeri are registered under the State Land Office while the Geran Mukim and
Pajakan Mukim titles are register under the District Land Office.

The land and building under the final title can be subdivided, partitioned, amalgamated to
the others because the survey had been conducted. The land area and the boundaries of the
particular property have been determined. Hence, the proprietor can also issue the strata title
and subdivide the building to multi-lots.

PAST YEAR 2018

2. (a) 1 similarity and 1 difference between the qualified titles and final titles (10m)
Similarities:
The qualified titles and the final titles can proof the ownership of the proprietors on the
particular land or property. The proprietor has the right to own and occupy the particular land
or property. They can also carry out transaction on the land or building, such as sell, transfer,
lease, rent or charge. As according to the Torren System, the register is everything. Hence,
the registration of the title are indefeasible and cannot be questioned, impeached, challenged
unless it involves in particular circumstances such as fraud, forgery, misrepresentation.
Differences:
The land and building under the qualified title cannot be subdivided, partitioned,
amalgamated to the other individuals or bodies. This is because it has not been surveyed yet
and the land area and boundaries are temporary. The actual land area and boundaries may
increase or decrease after the survey is done on the particular of the land. As the building
cannot be subdivided, the strata title is not allowed to issue on the building. On the other
hand, the land and building under the final title can be subdivided, partitioned, amalgamated
to the others because the survey had been conducted. The land area and the boundaries of the
particular property have been determined. Hence, the proprietor can also issue the strata title
and subdivide the building to multi-lots.

(b) 1 similarity and 1 difference between the land title and Temporary Occupants
License (TOL) (10m)
Similarity: The rights
The land owner and the TOL holder has the right in using and enjoy the particular land or
property, not only the land surface itself, but also air space above the land and the land
below its surface. However, there is a limitation on the use and enjoyment. According to
Section 44 of the National Land Code 1965, They can only have the right to own the area
which is reasonably necessary to the legal land use. Next, they have the rights to support
of land in its natural state by neighbouring land. This is because, without the natural
support, the use of the land may be influenced. Hence, the land owner and the TOL
holder have the right to claim the neighbouring land if it affects the land owner or the
TOL holder’s land. Besides, the land owner and the TOL holder has the right to access
the foreshore, river and public space such as roads, bus station.

The proprietor who holds the land title has the ownership on the particular land. If he
holds freehold land title, he has the right to own the land in perpetuity. If he holds the
leasehold land title, he has the right to own the land in a specific term, which the
maximum term is 99 years. Besides, the land owner has the right to transfer, sell, lease or
rent the property to the others. On the other hand, the TOL holder does not have
ownership on the particular land. He only has the right to occupy the land or property,
which is granted by the State Authority. During the 31st of December in every year, the
TOL will be expired and the TOL holder needs to renew the application. Otherwise, the
TOL holder has no right to occupy the property or land and consider as a trespasser. Next,
the TOL holder has no right to assign the property such as sell, transfer, inherit to the
other individuals or bodies.
(c) 2 rights of a holder of Temporary Occupation License
1. Exclusive use and enjoyment
The TOL holder has the right to use the land, not only the land surface itself, but also under
the land and also the air space above the land. According to the maxim principle which is
under the Malaysia land law, stated that “cujus est solum eius usque ad caelum ad inferos”. It
means that the land owner has the right to own the land surface, all the air space above the
land surface and all the land below the land. However, according to the Section 44 of
National Land Code Act 1965, there is a limitation for the use of the land by the TOL holder
and land owner. The TOL holder can only have the right to own the area which is reasonably
necessary to the legal land use. Other than the specific area, it is vest to the State Authority.
For example, the agriculture TOL holder can only have the right to own the land beneath its
surface 6 meters.

2. Right to access foreshore, river and public space

According to the Section 44(1)(c), the TOL holder has the right pay a visit or pass through
the foreshore, river and public space such as the roads, bus station, LRT station. These places
are opened to all people, aim to give them the to go to another location. However, they have
no ownership on these places as these places are vest to the State Authority. Besides, there is
also limitation in accessing the foreshore and river. The TOL holder can only access the land
which is between the shoreline and the low water mark of the ordinary spring tide. If the land
is seized by the sea or river, it will be reverted to the State Authority as stated in Section 49
National Land Code Act 1965.

3. (a) 2 factors that have promoted underground land development * (10m)

1. More space to be used
When the underground land can be developed, the land owner has more space to use and
enjoy. In this way, the land owner
2. Provide job opportunities

(b) 2 considerations by the State Authority in the disposal of underground land *

(10m)
(c) The provision for the uses of the underground land as provided under Section 92B
and 92C of the National Land Code* (10m)

PAST YEAR 2017

2.(a) The definition of the land under Section 5 of the National Land Code 1965 and its
implication to the real estate development. * (10m)

According to the Section 5 of the National Land Code 1965, land is the land surfaces
itself and also all of the substances which are forming on it. Besides, it includes all of the
subsoils and other substances which is formed in it. Next, any vegetation or natural plantation
such as oil palm tree, durian tree and grass belong to the land, whether it is planted in or on
the land. In addition, anything which is temporary attached or permanent attached to the land,
no matter below the land or on the land are considered as land. For example, building and
fixtures. Furthermore, the land which is covered by water is referred as a land.

As the substances and things mentioned above are considered and belongs to the land,
the developers are not allowed to simply carry out activities for development on the particular
substances and things. Unless, they are the owner of the particular land or already obtain the
consent from the owner of the land. If the land did not be disposed to any individuals or
bodies, or it is a reserved land, the land vests to the State Authority. Hence, the developers
need to apply the registration of title to the State Authority to obtain the title or interest of the
land. For example, the developers cannot move the oil palm trees which are belongs to
Owner A to free up the space and use to develop the residential building. In addition, all of
the real estate development must subject to the guidelines, policy and laws such as National
Land Code 1965. In this way, the land can be developed in the most appropriate and suitable
way, and does not bring bad influences to the environment, society and economic.

2.(b) The test that could determine if an object is legally considered part of the land
(10m)

 Degree of annexation
The degree of annexation test is used to determine whether the object is attached to
the land or not. It needs to define that how strong the object is attached to the land. If
 the object is only resting on its own weight, it is a prima facie chattel. This means that
the object is a chattel at the first glance. A chattel is a personal property which is not
considered as a part of the land. If the object is attached in or on the floor or wall of
the building, or the land, it is prima facie fixtures. This means that the object is a
fixture at the first glance. A fixture is a real property which is considered as a part of
the land. This is because according to the Section 5 of NLC 1965, anything which is
attached or permanent attached to the land are considered as a part of the land, no
matter it is attached in or on the land. However, this test is not authentic and it needs
to be combined with another test to make sure whether the object is considered as a
part of the land or not.
 Purpose of annexation
The purpose of annexation is used to determine the aims of the object to the use of the
land or the building. If the object serves its function to the building or land, and helps
to improve the uses of the land or building, it is fixtures. It is considered as a part of
the land. If the object only boosts the enjoyment of the building or land, such as to
provide good and elegant appearances, it is chattel. It is not considered as a part of the
land. By using this test, there are some prima facie chattels may become fixtures. For
example, a machinery which is installed on the floor of the industry serve its function
to the industry, helps to increase the efficiency of the production in the industry.
Hence, it is considered as a fixture and belongs to the land.

PAST YEAR 2016

3.The action may be taken by the State Authority as provided in National Land Code
when breach of condition is proven (10m) *

The State Authority has the right to reverted the Miss Alisha’s land. According to the
Section 41 in the National Land Code 1965, the State Authority has the power to dispose and
revert over the land. Reversion means the land which is disposed by the State Authority to the
individuals or bodies is back to the State Authority. This is because all state lands belong to
the State Authority, as stated in the Section 40 of the National Land Code 1965. The
reversion will be made on the land if there is any particular condition such as the term of the
land title is due, the owner did not pay for the rent and the surrender of the title.
 In this case, Miss Alisha breaches the conditions of the land title. She changes the
terrace house to the guest house but the land use stated in the land title is residential building.
Although they are houses, but guest house is considered as retail property, not residential
property. According to the Section 192(4) of the National Land Code, the State Authority has
the right to revert the land if the owner breach the conditions of the land title. The owner,
Miss Alisha is not allowed to claim the compensation on this land matters. This is because
she does not follow the conditions which is stated in the land title, consent by Miss Alisha
and the State Authority.

What is the meaning of “indefeasibility of title”?

Indefeasibility of title means that the registered title of property determines who has the
priority interest or ownership of such property. This means that once an interest such as
ownership is registered in the title deed, it is good against the whole world. The State
guarantees interest. The combination of the Mirror and the Curtain Principle under Torrens
System gives an indefeasible title to the registered owner. This situation is confirmed by
s.340(1) NLC which contains the provision for indefeasibility of title.

However, indefeasibility is not absolute. absolute. Under certain circumstances, a registered

title or interest may be challenge. s.340(2) provides statutory exceptions where the title or
interest of such persons or body shall not be indefeasible:
- In any case of proprietor’s fraud / misinterpretation
- Where registration was obtained by forgery, insufficient or void instrument
- Where the title unlawfully acquired

Explain the two main principles of the Torrens System.

a) Mirror principle
Under this principle, the land registration is a reflection of the material
facts of the proprietor’s title in the land. This is because it represents the necessary
and accurate information related to the land by having good title. Since the good title
is a reflection of the land, it also reflects on both the Register Document of Title and
 Issue Document of Title. By virtue of this good title, they will obtain all the relevant
particulars of the land as well as any encumbrances created over the land.
b) Curtain principle
This principle simply means that one should not look behind or beyond the register, as
the certificate of title contains all information about the title. This means that
ownership need not be proved by long complicated documents that the owner has. All
the necessary information regarding ownership is stated on the certificate of title.
Simply put, in curtain principle, the register owner can fully rely on the facts
contained in the register without having to see what happens behind it