HISTORY OF BUILDING LAND LAW

Historical Development of Land Law

A.Customary Land Tenure

  The Malays then had  long been  leading a life of subsistence economy  largely  founded on cultivation. Padi cultivation. There are two types of cultivations.

  (a)     Primitive shifting cultivation

Also known as huma or ladang, where hill land was cleared in patches for cultivation of a variety of seasonal crops and vegetables. After one to three harvests, the patches were abandoned and new sites elsewhere were taken up, the abandoned land being left to revert to secondary forest.

Historical Development of Land Law

(b)  Sedentary agriculture

  This consists of the cultivation in low land areas of wet padi and the planting of fruit trees. Fields cultivated with wet padi are called sawah or bendang. and lands planted with fruit trees usually in the surroundings of dwelling houses are called kampongs. Stretches of sawah in combination with Kampongs make up the model of a traditional Malay settlement.

Historical Development of Land Law

From the two types of economic activities established the following rules relating to land tenure.

1.He who is by cultivating or by clearing or by building a house causes that to live acquires a proprietary right in the land, which now becomes 'tanah hidup‘.

2.When a person abandoned his land or leaving it, it become tanah mati ("dead land").

3.Once the land become dead land, any other person could then take up such "dead land" by
making use of it.

Historical Development of Land Law

4.In the case of huma or ladang, the land is deemed "dead" upon its abandonment.

5.On the other hand for sawah, there is a three years period of grace after the land had ceased to be cultivated before treating it as dead land in favour of the former cultivator. The reason being that after the lapse of such time, the uncultivated field would have become covered
with brushwood and rank vegetation, not only blotting out all signs of previous cultivation but also harbouring vermin of all sorts to the injury of the crops on adjoining land.

Historical Development of Land Law

6.Kampong that was left unoccupied; the customary rule more obviously let nature take its course. The previous occupier could always resume such land so long as the fruit trees still survived and had not been choked by the growth of jungle.

Historical Development of Land Law

•Also that has been well developed is the Malay customary dealings. There well developed dealings were:

1.Out-and-out transfer (Pulang Belanja)

  This is a transfer land by sale. It is not quite a sale as we know today but one of a take over by way of recouping the original cultivator for his labour in clearing the land as well as for any crops he had cultivated or house erected thereon. In Perak the dealing is called puiang belanja (meaning "return of expenses").

Historical Development of Land Law

•Also that has been well developed is the Malay customary dealings. There well developed dealings were:

2.  "Letting" (sewah)

Where a cultivator allowed another person to cultivate his land for the return of a share in the produce crops or for a rent in kind or in money.

3."Security transactions"

  There were two main forms:-

a)Gadai', An arrangement under which a cultivator borrower made himself a "tenant" of his creditor whereby the latter became entitled (as in the case of "letting") to a share in the produce crops as his "interest" on the loan.

Historical Development of Land Law

b)Jual janji (usually translated "conditional sale"), involved the "transfer" of the borrower's land to the lender. The latter took over the occupation of the land and whatever profits he could make out of the land would be all his as the remuneration for the loan. The borrower could at any time resume the land upon discharging the debt except that, where a period was fixed for the repayment, default would turn the original arrangement into an absolute sale, Jutus Putus

Strait Settlement

 

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

i.Penang

  Penang was the first territory in Malaysia to be occupied by the British through the East India Company in 1786. When the British occupied Penang, it was without inhabitant and there was no trace of any prevailing law prior to its occupation by the East India Company.

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

•Introduction of the three Charters of Justice into Penang

  The three Charters of Justice were introduced in Penang between 1807 and 1855. This marked the beginning of the statutory introduction of the law of England into Malaya. In relation to land tenure the charters had introduced a number of types of land tenure. Deed system was the basis of land tenure in Penang under all these charters.

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

Land until 1837

  Land until 1837 in Penang was held upon the following tenures:

i.Verbal licenses granted by Sir Francis Light

ii.Cutting paper

  This was a certificate of permission to clear ground to the extent mentioned therein but reserved the right to resume the ground upon payment to the proprietor of 'no more than the expense he may have incurred in clearing the…

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

  …….ground, namely $5 per furlong. The grounds have to be cleared within 12 months'. They are merely be temporary granting inchoate rights, to be completed by the issue of a proper grant to which their holders were entitled upon due application.

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

iii.Measurement paper

  This was a paper given by the EIC native survey or to which he affixed his 'chop' (or seal) describing the name, country and the first clearer, settlers, the rent and boundaries of the land cleared. It empowered the person mentioned in it to hold, sell, mortgage or transfer such land by will or otherwise at pleasure. Like Cutting Papers, Measurement Papers are merely be temporary granting inchoate rights, to be completed by the issue of a proper grant to which their holders were entitled upon due application.

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

iv.Official grants in writing in fee simple, and

  Captain Francis Light after obtaining permission from his government offered grants for clearing and occupying the land. These grants were always considered to be grants in fee simple. Sir Francis Light's verbal and written grants were confirmed by his government but no accurate record or register was kept.

v.Long occupancy of land, seized without any permission

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

•The Straits Land Act 1839

  The Indian Act (no. XVI of 1839) was passed and known as the Straits Land Act which provided for:

1.Establishment of a land office to issue titles and to register. Transaction for record
purposes only,

2.Collection of land revenue, and

3.Surveys, to be undertaken.

  Surveys were not conducted and neither was the collection of land revenue successful. The Straits  Land Act remained in  force  in the Strait Settlement until a series of enactments in 1886 provided for a more stable deed system

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

National Land Code (Penang and Malacca Titles) Act 1963

  The NLC (Pnangg and Malacca Titles) Act provided the framework for the changeover in Penang to the Torrens System. The Deed system ceased to have effect in Penang on 1st January 1966 when the 1963 Act (as amended in 1965) came into effect simultaneously with the National Land Code 1965.


Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

ii.Malacca

  From 1511 to 1641, the Portuguese occupied Malacca. The Dutch succeeded the Portuguese and after 130 years of occupation the Dutch surrendered Malacca to the British in 1795. From 1801 to 1807, the Dutch reoccupied Malacca but finally ceded it to the British in 1824. At the time of British occupancy in Malacca the following types of tenure exist.

1.Malay Customary Land Tenure

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

ii.Malacca

2.There were two types of land granted in Malacca which were recognized during the Dutch occupation:

•The grant to town land held under a title for which dealing had to be declared and proved to the Court of Justice.

•Grants of country land which was held by concessionaires who were entitled to collect tithe from the occupier; usually and indigenous cultivator.

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

ii.Malacca

 

  When the British took over Malacca, the Dutch grant was changed into fee simple and where land was alienated by Dutch grant it was re-alienated by the British into fee simple.

Historical Development of Land Law

B.Strait Settlement

   The Straits Settlement comprised of Penang, Malacca and Singapore.

ii.Malacca

3.Adat Laws

Adat practised is divided into two main categories:

•Adat Perpateh (including adat Naning)

•Adat Temenggong

•Historical Development of Land Law

B.Strait Settlement

 

•Adat Perpateh

  It is sometimes called 'tribal adat'. This tenure which is sometimes known as adat Naning proceeds upon the basis of matrilineal and is associated with a set of exogamous units, the suku. Under adat perpateh, the female occupier of tribal land is the owner of the land and the male who occupies and works the land does so for the benefit of the female members of the tribe.

  However, a man may own in his own name and for his own benefit certain lands, for instance, he is entitled to own and deal with harta pembawa (property which he has acquire by way of purchase or which he has inherited).

Historical Development of Land Law

B.Strait Settlement

 

•Adat Temenggong

  Customary land and incidents of ownership were regulated by tribal adat rules. If the tribal land is sold to an outsider (a non-member of the tribe concerned) upon consent from the tribe, the land is no longer tribal land.

•Some part of Malacca practiced adat perpateh customary land tenure.

Historical Development of Land Law

B.Strait Settlement

 

•1830, Regulation IX (Malacca Land Regulation) of that year was promulgated and this expressly retained the provisions of native land tenure.

•In 1837 the local land regulation was repeal with a view to the introduction of a general land law by passing an Act (no XX of 1837).

Historical Development of Land Law

B.Strait Settlement

•In 1839 The Indian Act no. XVI of 1839 was introduced which among others provided recognition for prescriptive rights in land. These rights corresponded to the adat concept of ownership by occupation and cultivation.

•The Malacca Land Ordinance 1961 provided for a survey of customary lands and formalized the status of land held under customary tenure. However, the survey was never undertaken.

Historical Development of Land Law

B.Strait Settlement

 

•The Malacca Lands Customary Rights Ordinance 1886 provided for customary tenure based on occupation and cultivation. The 1886 Ordinance remained in force until the National Land Code (Penang and Malacca Titles) Act 1963 took effect.

•The NLC (Penang and Malacca titles) Act 1963 provided for the change over in Penang and Malacca to the Torrens System that was in force earlier in other Malay States of Peninsular Malaysia. The Deed system ceased to have effect in Penang and in Malacca on January 1st 1 966.

The Federated Malay States

 

 

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

  Federated Malay States enacted Torrens rules on the entry into these Slates. Torrens enactments were based on the 1857 Real Property Act (South Australia). Provisions in pari materia with Australian systems. The main enactments and their principal features

  1877 the "Rules for the Disposal of Lands in Selangor".

•Land was alienated for a max of 999 years on the payment of a premium and annual quit rent

•Land would be alienated for:

a.  Agricultural purposes:

b.  Building: or

c.  Special purposes:

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•Agricultural land must be cultivated during a period: breach or abandonment resulted land reverting to the State.

•1878 the "Terms on which Agricultural Lands will be granted " of Perak.

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•Provided for

◙Land alienation for a term of years:

◙The land was to be held under a cultivation proviso, breach of which rendered the land liable to forfeiture to the State:

◙Prior to alienation the land could be reserved and upon the payment of a certain sum, by bona fide cultivators who then took title to it when the land was surveyed.

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•1879: Notification 176 of Perak and Notification 307 of Selangor called "Special Regulations for the Leasing of Waste Land“

qAgricultural land alienated for a term of years (the max 99 years)

qA premium on alienation and an annual quit rent be paid: &

qCultivation proviso applied, the land liable to forfeiture on breach.

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•These enactments were designed primarily to regulate occupation and ownership of that land which had been held previously under the incidents of Malay customary tenure.

•1879: The General Land Regulations Notification 23 of Perak, provided for

qLand was alienated in three classes i.e.. agricultural, town and village, and mining land.

qIt also contained a cultivation provison rendering the land liable to forfeiture on breach.

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•1882: The General Land Regulations Notification 495 of Selangor.

qLand was to be alienated for agricultural purposes by way of a State lease (maximum term again being 999 years) or by a grant in perpetuity subject to the payment of annual quit rent.

qIt also contained a cultivation proviso rendering the land liable to forfeiture on breach

•1885: The General Land Regulations, Order in Council No. XX of Perak, provided for:

qThe alienation of land by State lease for a maximum of 999 years or by a grant in perpetuity.

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•1887: The General Land Regulation, Order in Council of Negri Sembilan (Sungai Ujong) provided similarly to the regulations in the other States.

•1897: The Land Enactments Perak: No. 17: Selangor: No. XV: Negri Sembilan: No. XXII: Pahang: No. XXVIII each provided for three classes of land, viz.

a.  Town land.

b.  Country land of 100 acres in area or under:

c.  Country land exceeding 100 acres in area.

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•Town Land and country land exceeding 100 acres in area were to be held either in perpetuity or as leaseholds for a term of years.

•Country land of 100 acres in area or under was to be held under the Mukim register. This mukim land represented land formerly held under the incidents of Malays land tenure and the enactments (the terms of which were identical) provided that:

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•Section 28.

 (i)    Any land held under this part which has been abandoned for three consecutive years shall be liable to forfeiture.

(ii)    Land shall be deemed to have been abandoned when it has not been cultivated by the owner or arty person on his behalf."

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

•1897: Registration of Titles Enactment; No. 29 of Pahang: Registration of Titles Enactment: No. 18 of Perak. The Registration of Titles legislation (viz, that of Seiangor (1891) Pahang (1897) Perak (1897) and Negri Sembilan (1898), was identical in each of the four States. The main features of this legislation were:

a.  All land was vested in the Ruler.

b.  Dealings in alienated land were to be conducted in accordance with the provisions of the
Statute and any attempt to deal other-wise than so provided would be "null and void and of no effect".

c.  Introduction of the concept of Indefeasibility

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

d.Dealings, which the proprietor could effect were:
(i)     Transfers

(ii)Leases - Those in excess of three years to be effective required registration; those for less than three years require no registration.

(iii)Charges

(iv)Liens.

e.  A "private" caveat, then classified as dealing, could be entered on a title on the application of anyone who claimed an interest in the land or a right to an interest in the land – section 68.

Historical Development of Land Law

C.The Federated Malay States Until 1911

 

f.The Register could enter a Registrar's (or official) caveat to protect the interest of minors, persons of unsound mind, or of persons absent from the State or to protect State land section 77(vi).

These enactments were amended in 1903 in each State - viz, Negri Sembilan (No. 17), Pahang (No. 17), Perak (No. 13) and Selangor (No. 8) and again in 1909.

Historical Development of Land Law

C(a)  Registration of Title Enactment 1911

 

•In 1911 the first unified Federated Malay States land enactments were passed. This latter enactment for the most part re-enacted, in the same form, the provisions of the earlier registration enactments of the four individual States.

•The Registration of Titles Enactment provided for inter alia.

a.Indefeasibility in Section 8, This was in the same terms as the earlier section 7.

Historical Development of Land Law

C(a)  Registration of Title Enactment 1911

 

b.Dealings viz.

(i)      Transfers - section 29ff;

(ii)     Leases - section 36: Tenancies - section 37:

(iii)    Charges - section 43ff: and

(iv)Liens - section 80

c.Private caveats - section 70.

d.  The Registrar's caveat - section 79(f) and

Historical Development of Land Law

D.Registration of Title Enactment 1911

 e.  Attempts to deal with land otherwise than in the terms of the enactment to be considered "null and void and of no effect" - section 5. This was interpreted as restrictively as the earlier section 4.

•The 1911 legislation remained in force until amended by the Land Code 1926 which came into force on January 1, 1928 and is now cited as the Land Code 1928 (Cap. 138 of the Revised Laws).

Historical Development of Land Law

E.Land Code 1928

 

•The 1928 Land Code known as Cap 138, Revised Laws 1935 (FMS), reserved the basic Torrens principles introduced by the earlier enactments. This Code did, however, produce several changes of substance from earlier legislation.•

a)Section 42 provided for indefeasibility in the following terms:

i.The title of proprietor, chargee or lessee shall be indefeasible except as t his Section provided.

Historical Development of Land Law

E.Land Code 1928

 

ii.In the case of fraud or misrepresentation to which he is proved to he a party the title of such proprietor, chargee or lessee shall not be indefeasible.

iii.If the registration of any proprietor, chargee or lessee has been obtained by forgery or by means of an insufficient or void instrument such registration shall be void.

Historical Development of Land Law

E.Land Code 1928

 

iv.Nothing in sub-section (ii) and (iii) shall affect the title of a proprietor, charger or lease who has taken bona fide for valuable consideration as such as procured by any such means or by means of any such instrument as aforesaid or of any person claiming bonafide through or under him.

v.Nothing in this section shall be construed so as to prevent the title of any proprietor being defeated by operation of law.“

Section 43- provided that title to alienated land could not be lost by adverse possession.

Historical Development of Land Law

E.Land Code 1928

 

b)By section 2 nothing in the Code was to prevail against the Customary Tenure Enactment, Negri Sembilan of 1926. This ensured that the incidents of tenure of customary land for those Lands held by members of the tribes, which observed the principles of adat perpatih, would be preserved.

c)Dealings able to be effected were
   (i)    Transfers

   (ii)    Leases

   (ii)    Charges

   (iv)    Liens

Historical Development of Land Law

E.Land Code 1928

 

d)Dealings were required to be effected in accordance with the Code but the strictness of the provisions of the earlier section had been abandoned. By the time the 1965 Code come into force it was dear that Section 55 was taken to mean that an unregistered interest could produce "an equitable interest" which was "capable of giving rise to a kind of equitable proprietary right or interest in land which [interest] shares the same basic proprietary nature as any proprietary interest in land under English law. It is as real a 'real right' in land as the latter"

Historical Development of Land Law

E.Land Code 1928

 

e)The caveat provisions were similar to those  in  the 1911   legislation were maintained allowing for the entry of private caveats under section 166 and of the Registrar's caveat under section 230(f).

f)Leases for more than one year to be registered to be valid.

g)No adverse possession was possible against the State nor against an individual.

h)Specific types of cultivation were required for certain land, in default of which the land was forfeit.

Historical Development of Land Law

E.National Land Code 1965

 

•The National Land Code 1965 came into force on January 1, 1966 and for the first time all States of Peninsular Malaysia had a uniform code of land law. The Minister in the Second Reading speech of the National Land Code Bill had observed:

  “…………  the achievement of the National L and Code is two-fold :

•it established a uniform clear-cut system of land tenure and dealing, in place of a confusion of systems,

•it incorporated all those new provisions required to adapt that system to the social and economic changes of half a century or more.

Historical Development of Land Law

E.National Land Code 1965

 

•The basic features of the Code are:

a.Provision  for no  adverse  possession  against  the   State   (section 48)  nor an individual (section 341).

b.Land will revert to the State under variety of circumstances:

(i)  on forfeiture for non-cultivation of certain lands - section 115;

Historical Development of Land Law

E.National Land Code 1965

 

(ii)on abandonment of country land for seven years - section 352;

(iii)where the proprietor dies without successors - section 351;

(iv)on forfeiture for breach of a condition - section 46; and

(v)  on forfeiture for non-payment of quit rent - section 127.

Historical Development of Land Law

E.National Land Code 1965

 

•The basic features of the Code are: (cont’d)

c.Section 206(3) provides that nothing in the Code is to affect the contractual operation of any transaction in land. The interpretation of this provision has meant that equitable principles can be resorted to in determining the existence and enforceability of, and the amount of protection able to be given unregistered interest.

Historical Development of Land Law

E.National Land Code 1965

 

•The basic features of the Code are: (cont’d)

d.To provide protection for a tenant against third parties dealing with the leased land details of the tenancy (i.e. a lease for less than three years) must be endorsed on the lessor's title (section 213). A lease (i.e. for a period in excess of three years) is required to be registered to affect an interest in land.

Historical Development of Land Law

E.National Land Code 1965

 

•The basic features of the Code are: (cont’d)

e.Titles are now classified as qualified (i.e. to land not yet officially surveyed) and as final (i.e. to land officially surveyed). Land is to be alienated either in
perpetuity or for a term of years, the maximum now being ninety-nine years.

f.Indefeasibility is spelt out in detail in section 340 and provides for deferred indefeasibility.

g.The introduction of provision for strata titles.

Historical Development of Land Law

E.National Land Code 1965

 

•The basic features of the Code are: (cont’d)

h.Four classes of caveat namely Registrar caveat, private caveats, lien holder, caveats and trust caveats.

i.No prescriptive rights of whatever nature can be obtained in land - sections 48, 341 and 283.

Unfederated Malay States 

 

Historical Development of Land Law

F.Unfederated Malay States 

  The Unfederated Malay States consisted of Kedah, Kelantan, Johore, Perils and Terengganu

Johore accepted the status of a protectorate in 1914. In 1909, the Anglo-Siam Treaty ad been signed by England and Thailand (Siam) and had provided that England should take over all rights formerly possessed by Thailand in Kelantan, Kedah, Perlis and Trengganu. But these States finally accepted formally the status of protectorate slowly it later years i.e. Kelantan in 1914, Trengganu in 1919, Kedah in 1923 and Perlis in 1930.

Historical Development of Land Law

F.Unfederated Malay States 

  The Unfederated Malay States consisted of Kedah, Kelantan, Johore, Perils and Terengganu

Land tenure in these UFMS was that of early Malay tenure although, other than in Johore, certain incidents may have been of Thai Law. The States enacted Torrens type legislation fnr .-xarnple Johore in 1910 and Kedah in 1913, even before the formal acceptance of British authority. Some of these statutes were typically Torrens others were not. The various enactments of these five individual states remained in force, as amended from time to time, until the NEC 1965 was enacted to codify the Torrens system for all the States of Peninsular Malaysia.

Thank You

 

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