Unlawful Occupation of Land in Malaysia

8/3/2019 Unlawful Occupation of Land in Malaysia

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UNLAWFUL OCCUPATION OF LAND IN

MALAYSIA

Assoc. Prof. Dr. Sharifah Zubaidah

Syed Abdul Kader

([email protected])

Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia



Concepts

Ownership of Land

• Ownership = proprietary

rights:• 1. Right to possess and

enjoy land.

• 2. Right to deal with landincluding transferring it

to another.

• 3. Right to transmit upondeath.

Possession of Land

• The act of being in actual

occupation of land.• One who is in possession of

land may not necessarily bethe owner of the land.

• Lawful possession, e.g.

tenant, lessee, licensee.

• Only has right of possession. No right totransfer or transmit the

land.



Unlawful Possession/Occupation:

• The act of being in physical possession of land

‘as of wrong’ – meaning one who occupies

land without consent of the formal and legally

recognized land owner.

• SQUATTING?



Type of Lands Occupied:

• ‘State land’:

• all lands in the state

that has not been

alienated, and landsthat are not mining

land, reserved land and

reserved forests.

• (s.5 National Land Code

1965)

• ‘Alienated land’ :

• Lands that have been

alienated to persons

and bodies who holdregistered titles to the

land.

• Private land.



Other types of lands:

• ‘Reserved lands’:

• Lands that have been

reserved for public

purposes e.g. roads,TNB sub-stations,

electricity high cables,

reservoirs, etc.



‘Reserved land’ for TNB



‘Mining land’ restored in Cyberjaya



The ‘squatter’ phenomenon raises

many disputes and issues:

• 1) Sub-standardhousing

accommodationdue toinsufficient publicfacilities and

infrastructure.• 2) Lack of sanitation.

• 3) Health problems.

• 4) Social problems.(crime – juvenile

delinquency)• 5) Environmental

degradation. (landand water

pollution, etc.)• 6) Legal problem?



Kg. Pandan Indian Settlement, KL



Squatters in Pulau Gaya, Sabah



Kg. Berembang, Ampang



Squatters seeking rights



Squatters seek help from MP



Squatters pollute rivers

http://tonypua.blogspot.com/2008/05/sg-kayu-ara.html



How does the NLC deal with the

squatter problem?

• Word ‘squatter’ not

used in the NLC.

• NLC uses the terms‘unlawful occupation’

and ‘adverse

possession’ when

dealing with ‘squatters’.

• s. 48 : No adverse

possession against the

State.• s.425: Unlawful

occupation of state land is

an offence.

• s.341: Adverse possession

not to extinguish any title

to alienated land.



Meaning of ‘Adverse Possession’:

• Adverse possession is “possession as of

wrong” but long possession matures the

wrong into a right.

• The law of adverse possession gives right of

ownership to land to persons who have no

formal ownership.



NLC does not recognise Adverse Possession

“No title to State land shall be acquired by

possession, unlawful occupation or occupationunder any license for any period whatsoever.”

• (Section 48 NLC)



Effect?

Unlawful occupation of State land,

even after a long duration,will not enable the occupier to obtain title

to the land.



Unlawful Occupation of State Land An Offence

under s.425 NLC

• Penalty: Maximum fine

of RM10,000•

Max. 1 year prison.



Sidek bn Hj. Muhamad & 461 Others v Govtof perak [1982]

• Appellants came toPerak and opened up a

jungle area now knownas Seberang Perak in Kg.

Gajah.• Other settlers came to

the area and the stategovt. resettled somesettlers to the landwhere the appellantswere already inoccupation.



Sidek’s Case:

• When the appellantswere given notices tostop work and vacatethe area, they filed a

case in court seeking adeclaration that theywere entitled in law andequity to be in

possession of the landthey had pioneered &occupied.



Grounds in Support:

• 1) The D.O. had

promised each

settler 3 acres of padi land subject

to successful

interviews.

• 2) Utusan Malaysia

published an article

stating that theState Director of

Lands and Mines

said that each

pioneer settler wdbe given 5 acres

of padi land.



Federal Court held:

(Raja Azlan Shah, CJ)

• 1) The appellants had no cause of action as they

were squatters who had no right either in lawor equity.

• 2) Section 48 of the Code is against them.

• 3) The only way to obtain State land is by way of the NLC.



It was not always like this.

• Before British occupation of Malaya, theoriginal Malay inhabitants recognised rights toland based on opening up of waste land/virgin

jungle.• Concept of ‘tanah hidup’ and ‘tanah mati ’ and

the right to cultivate ‘tanah mati ’ in Malaycustomary tenure.

• Similar to Islamic principle of ‘Ihya-al-Mawat ’(‘Rehabilitating Dead Land’).



Abdul Latif v Mohamed Meera Lebe

(1824) 4 Kyshe 249

• “There are 2 kinds of land, first ‘living land’ and

second, ‘dead land’. With regard to dead land,

nobody has property rights to it, (when) there is no

sign of it being under cultivation by someone (then)certainly nobody can lay a claim to that land. If

someone cultivates it into a rice field, be it huma or

ladang or sawah or bendang, no one can proceed

against him. That is what is understood as ‘livingland.”

• (per Claridge, J.)



Sahrip v Mitchell & Anor.

(1979) Leic. 466

• “It is well known that by the old Malay law or

custom of Malacca, while the sovereign was

the owner of the soil, every man had

nevertheless the right to clear and occupy allforest and wasted land, subject to the

payment, to the sovereign, of one tenths of

the produce of the land so taken.” • (per Sir Benson Maxwell, CJ)



Torrens System

• The introduction of the Torrens system inMalaya in the 1890’s laid emphasis on landownership based on registration of titles and

interests.• “Under the Torrens system, the register is

everything”. (per Ali Ag. CJ in Teh Bee v K.Marithamutu (1977)).

• Our National Land Code 1965 codifies theTorrens system.



Does NLC recognise concept of

‘rehabilitating dead land’?

• The entire property in State land and all minerals

and rock materials in or upon any land in the State

is vested in the State Authority. (s.40 NLC).

• NLC does not address abandoned or idle land.

Thus no concept of ‘dead land’.

• There is however the concept of Temporary

Occupation Licence’ (TOL) – a mechanism that has

been used by the State to ‘legalise’ squatters.



What is a Temporary Occupation

Licence?

• A licence issued by the State Authority under

the NLC to persons or bodies, allowing them

to occupy State land for a temporary duration,

and for a specific purpose/s.

• Without such TOL, such person or body would

be considered to be in unlawful occupation of

State land.



Duration of TOL?

• A TOL expires at the end of the calendar year it is

issued. (s.67 NLC)

• The TOL holder may apply for renewal of the licence

before its expiry but this may be done only 3 times.(s.67 NLC).

• Renewal depends upon discretion of State Authority.

• After the 3rd renewal, any further renewal must get

the express written consent of the State Authority.



Ex-TOL Holder

• An ex-TOL Holder who remains on the land

after the date of expiry of the TOL or where

the TOL has been terminated by the State

Authority is in unlawful occupation of Stateland.

• (See PP v Yap Tai (1947))



Circumstances when a person can be in

unlawful occupation of State land?

• 1) Pure squatters.

• 2) Those in long possession of state land without

lawful authority.

• 3) Ex-TOL holders still remaining on the land.

• 4) Those whose lands have been compulsorily

acquired under the Land Acquisition Act 1960

but refuse to leave.

• 5) Those whose leasehold titles have expired.



What the Courts Have Said on

unlawful occupation of STATE land



There are 2 sets of cases:

• Cases where occupiers

seek a court declaration

that they have a right to

remain on the land.• - Sidek’s case.

• - Yap Chong Lan’s case.

• Law clear, squatters

have no right to seek

such declaration.

• Cases where the

registered proprietor of

the land applies for an

Order of Possession underrules of court.

• - Lebbey’s case.

•- Shaheen’s case.

• - Bohari’s case.

• - Selayang Raya’s case



Pattern for 2nd set of cases:

• Land in these caseswere formerly stateland and the occupiershave been there since

then.

• Stateofficials/politicianshave, from their acts

and words, encouragedthe occupiers to stay onthe land.



• State subsequently

alienates land to a

developer/agency to be

developed.• The registered

proprietor applies for a

court order for

possession of the landto evict the occupiers.



Order of Possession

• The law forbids forcible evictions without

getting a court order.

(s.7(1), Specific Relief Act 1950)

• One may apply for an Order of Possession

through Order 89 Rules of the High Court

1980.



Summary Order of Possession under Order 89

Rules of the High Court 1980

• Where the occupiers are clearly squatters, the

land owner may proceed speedily to get an

order of possession by applying summarily

(before trial of the action) for an order of possession.

• This application is based on affidavit evidence.



Court’s Approach in Application u-

Order 89 RHC 1980

• If the occupiers are squatters simpliciter , then

the order will be granted.

• If the occupiers are ‘occupiers with licence or

consent’ and have raised ‘triable issues’

(through affidavit and documentary evidence),

the court will not grant the summary order of

possession.



Govt. of Negri Sembilan v Yap Chong Lan & 12

Ors. [1984] 2 MLJ 123

• YCL and others (the aggrieved persons) had livedin houses which they had built in Rahang Kecil,

Seremban.• They paid ground rent to Seremban Enterprise

Ltd., the land owner.

•

April 1972 – a portion of the said land wasacquired by the govt. for a road widening project.

• They appealed to the Collector for time to vacateand for low cost houses on state land.



Yap Chong Lan’s Case:

• They were given compensation and allotted lots of

land in Ulu Temiang for resettlement.

• Water and electricity were supplied to them.

• They also applied for state land in that area.

• Later however, the land was alienated to Lesco

Devpt. S/B to be developed into a housing estate.• Lesco asked them to leave, offering compensation

and a right to purchase low cost houses at a

reduced price.



• YCL and others refused to accept the offer and

brought this case against the state

government and Lesco, seeking the right to

stay on the land.

• High Court found that due to the assurances

by the Collector, an equity was raised for YCL

and others and thus Lesco should pay themcompensation and give them two months to

vacate the land.



Appeal:

Lesco and the state government

appealed to

the Federal Court.



Federal Court in Yap Chong Lan’s case

held:

• The Collector has no authority to commit theState Authority as to alienation of land.

• Even if public facilities had been supplied to

unlawful occupants of State land, this cannotbe used to bind the State Authority to alienateland to the occupants.

• Squatters cannot raise the doctrine of equitable estoppel against the State Authority.

L bb S/B Ch W i L



Lebbey S/B v Chong Wooi Leong

[1998] 5 MLJ 368

• Pf = registered proprietor of land previously

owned by the Selangor state authority.

• Pf planned to develop the land and issued a

notice to quit the land on the occupiers. (Df.s)

• Df.s refused and argued that although they

had entered the state land without consent or

licence, they had peaceful enjoyment andoccupation without interference by the state

authorities.



High Court held:

• Summary order of possession granted.

• ‘State authority’ under the NLC means the

Ruler acting upon the recommendation of the

State Executive Council.

• The state government, Minister, Exco.

Member, District Officer or politician are not

to be considered as ‘state authorities’ for

purposes of consenting to occupation of state

land.

K b H ldi S/B Ah d b S hl



Kabra Holdings S/B v Ahmad b. Sahlan

[1992] 2 CLJ 609

• Verbal promise by the Mentri Besar of

Selangor given in 1969 will not give the

defendants a right to occupy the land.

• The only way to occupy State land is by way of

the NLC.

• Order of possession granted.



Bohari bn Taib & Ors. v PTG Selangor

[1991] 1 MLJ 343

• Forefathers of Applts-pioneer settlers of agri. land inSabak Bernam.

- Applts allege: betw. 1971-1976, they had applied tothe SA for land titles and that the S’gor State Exco.had approved the alienation in Sept. 1980 and thatan Exco. Member confirmed the approval withassurance of titles to the land.

- Later, Applts were informed that as a result of a policythat only GENUINE and LANDLESS farmers wd begiven the land, the applts wd only be granted withTOLs and after 3 yrs, they wd then acquire titles.



(Bohari’s case: Cont .:-)

• Later, the Resp. handed over the lands toFELCRA and applied summarily under Order89 of the Rules of High Court 1980 for

possession of the land without anycompensation for the Applt’s eviction.

• HC: Allowed the Resp.’s application. Appealedto SC.

S C t h ld



Supreme Court held:

• For the purpose of the summary procedure

under Order 89 Rules of the High Court, a

distinction should be made between squatters

simpliciter who have no rights whatsoever andoccupiers with licence or consent.

• The Appellants in this case where not

squatters simpliciter but on evidence, areoccupiers with licence or consent of the State

Authority.

Sh h bt Ab B k PKNS



Shaheen bt Abu Bakar v PKNS

[1998]

• Federal Court:

• Settlers in Kg. Sg. Rumput were not squatters

simpliciter.

• There was a strong arguable case that they

occupied the land with the implicit consent of

the State Authority.

• Appeal allowed.

l /



Selayang Raya Dvpt. S/B v 123 Orang Yg

Disenaraikan Dalam Lampiran A [2002]

• The defendant/occupiers had entered into the

land in the 1970’s when it was still state land.

• They continued occupying it without any

licence, consent or permission from the land

office or the current registered proprietor.

• The plaintiff=registered proprietor applied

under O.89 for summary order of possession.



Argument of the occupiers:

• That they have been staying in Kg. SelayangBahagia since 1970’s.

• In 1973, a senator had told them that the Selangor

State Assembly had planned to open a newkampung along the road where the Dfs had

occupied and encouraged the Dfs. to apply for the

said land, by first establishing branches of politicalparties in the said kampung.

• 1974 – this was done.



• 1980’s: the Deputy Minister of Transport

visited the kampung 3 or 4 times and

promised to provide better houses for them.

• Later the speaker of the State Assembly

promised to provide them with land in 6

months when the land was involved in a

highway project.• Dfs. were resettled in longhouses where water

and electricity was supplied.



Held: (High Court)

• The defendants had failed to show triable

issues (distinguished Bohari’s case) and thus

order for possession granted.

• A licence or consent from other persons,

including alleged promises by politicians,

would not suffice.

Analysis on Judicial Approach to



Analysis on Judicial Approach to

Unlawful Occupiers of Land

Puresquatters

Occupierswithlicence orconsent

LawfulOccupier

What law do enforcement officers



What law do enforcement officers

use to clear squatters?

• Essential (Clearance of Squatters) Regulations

1969• Regulation 4 - local authority may demolish

squatter huts on State land by day or by night

without giving any notice to the squatters.• Regulation 7 - land owner may request the local

authority to demolish squatter huts on his land.



What is a ‘squatter hut’?

• ‘any house, hut, shed, stall, lean-to, shelter, roofed

enclosure or any extension or structure attached to

any building or other erection, of whatever materials

made and whether used for the purpose of human

habitation or otherwise which has been erected or is

in the course of being erected otherwise than in

accordance with a plan approved by a local authority

or in respect of which a licence issued by a localauthority has been cancelled, withdrawn or expired

and is situated on any land.”



‘squatter hut’

Yusuf Awang & Ors v Datuk Bandar



Yusuf Awang & Ors. v Datuk Bandar

MBSA & Anor. [2008] 1 MLJ 732

• App.s were occupiers of 2 pieces of alienated

land in Kapar, Klang.

• Resp.s had served a notice under Regulation

10 of the Essential (Clearance of Squatters)

Regulations 1969 informing App.s that they

have constructed and are occupying squatterhuts and have committed an offence under

the Regulations.



Yusuf Awang’s case:

• The notice also required the App.s to remove

any person or movable property and demolish

their respective squatter huts within 7 days,

failing which the Resp.s would take thenecessary action without further notice.

• The App.s applied to court for a declaration

that the notices issued by the Resp.s were nulland void (as they were not dated).



Yusuf Awang’s case: (HC)

• The App.s also applied that the Resp.s be

restrained from evicting the App.s including

harassing and threatening them.

• The App.s applied for and were granted aninjunction by the High Court to restrain the

Resp.s from evicting them.

• The High Court also allowed the declarationthat the notices of eviction were null and void.

MBSA appealed to COA (Held



MBSA appealed to COA (Held –

2007): Appeal Allowed

• The occupiers had failed to show that they

were in lawful occupation of the property.

• The occupiers had failed to show that their

buildings were not squatter huts as they hadnot produced plans by the local authority

approving the said buildings.

• Being squatters, the occupiers have no right inlaw or equity. (cited Sidek’s case with

approval.)



James Foong, JCA dissented:

• He was of the view that the undated notices

were null and void as it was important for the

Resp.s. to know when they were expected to

pack up and leave.• The 7 days period was inserted by the drafters

of the Regulations on humanitarian grounds

to allow the occupier to leave before drasticaction is taken to demolish the huts.

Occupiers appealed to



Occupiers appealed to

Federal Court

• Issue:

• Whether Reg. 10 of the Essential (Clearance of

Squatters) Regulations 1969 is subject to or

inconsistent with s.72 of the Street, Drainageand Building Act 1974 and s.30 of the Town

and Country Planning Act 1976 (Requisition

Notice requiring 30 days notice)and therefore VOID?



Appeal dismissed:

• 1) The buildings erected by the occupiers

were ‘squatter huts’ within the meaning in

Reg.2 as the App.s could not show that

the said building was erected according toan approved plan by the local planning

authority.



Cont.: (Interesting!)

• 2) Even if the land

owner had

consented to thebuildings, the

buildings are still

‘squatter huts’

without thenecessary

planning approvals.

The Emergency Regulations



The Emergency Regulations

Override Planning Laws!

• The regulations have

effect notwithstanding

anything inconsistent inany written law. As the

Regulations have never

been repealed, the

Regulations still haveeffect notwithstanding

inconsistency with the

SDBA or TCPA.

Is the Regulation draconian for



Is the Regulation draconian for

allowing forced evictions?

• It is interesting to note that the High Court

judge in Yusuf Awang’s case (Suriyadi, J.) had

described Regulation 10 of the Essential (Clearance of Squatters) Regulations 1969 as a

‘draconian provision’.(at p.272 of the case).

• Bar Council has voiced concern over use of these regulations to clear squatters.



Human Right to Shelter

• 1948 Universal Declaration of Human Rights in

Art. 25(1) recognised the right to adequate

housing as a basic human right.

• Also in Habitat Agenda: paras. 8, 26, 39, 60 and 61

• Agenda 21: Chapter 7.6, 7.9(b)(c) and 7.30(f)

•

UN Resolution on Forced Evictions 1993/77 :forced eviction is a gross violation of human rights

in particular the right to adequate housing.

Global Housing Strategy 1998



Global Housing Strategy, 1998

defines ‘adequate housing’:

• “access to a place in which to isolate one’s self

when desired, with adequate room, adequate

security, adequate lighting and ventilation, anadequate basic infrastructure and an

adequate location in relation to work and

basic services, at a reasonable cost.”



Malaysia’s Low Cost Housing Policy

• Since 1982, the government has fixed a ceiling

price for low cost housing at RM25,000 per

unit for those with household income less

than RM750 per month.• The government in the 6th and 7th Malaysia

Plan has actively roped in the private sector to

implement the low cost housing policy.• Imposed 30% quota for low cost housing.



• Developers are now encouraged to construct

low medium cost (below RM60,000) and

medium cost houses (below RM100,000).

• Many issues and challenges includingmismatch between supply and demand, and

low level of profitability of low cost and low

medium cost housing.



National Housing Policy?

• Malaysia has yet to come out with one.

• The Ministry of Housing and Local

Government is already grappling with many

issues relating to housing includingabandoned housing projects, late delivery of

vacant possession, etc.



How to Solve Squatter Problem?

• 1) PERSUASION - by community leaders and

developers.

• 2) THREATS – demolition without

compensation.

• 3) PAYMENT - to leave.

• 4) FORCED EVICTION.

• (From Syed Hussin Ali, “Forced Eviction of

Squatters in Malaysia” –www. hrsolidarity)

What the Quran says about



What the Quran says about

housing:

• “It is Allah Who made your habitations homes

of rest and quiet for you.”

• ( An-Nahl : 80)

• The house is one of the fundamental rights

that must be enjoyed by all Muslims.



Solution in Islam?

• Islam – economic andsocial justice requires

the State to provide

adequate housing,

especially for the poor.

• Example during Prophet

Muhammad’s time

when houses wereerected around the

Prophet’s…

• …mosque by the

companions and many

migrants from Makkah.

• ‘People of Suffah’ –

‘homeless’. The prophet

set up for them a raised

shaded shelter in acorner of the mosque.



THINK:

• If you are the government,

how would YOU solve the squatter

problem?

Unlawful Occupation of Land in Malaysia

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