UNLAWFUL OCCUPATION OF LAND IN MALAYSIA

Assoc. Prof. Dr. Sharifah Zubaidah Syed Abdul Kader (shzubaidah@yahoo.com) 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 land including transferring it to another. 3. Right to transmit upon death. Possession of Land The act of being in actual occupation of land. One who is in possession of land may not necessarily be the owner of the land. Lawful possession, e.g. tenant, lessee, licensee. Only has right of possession. No right to transfer 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 lands that 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 hold registered 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-standard housing accommodation due to insufficient public facilities and infrastructure. 2) Lack of sanitation. 3) Health problems. 4) Social problems. (crime juvenile delinquency) 5) Environmental degradation. (land and 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

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 occupation under 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 Govt of perak [1982]

Appellants came to Perak and opened up a jungle area now known as Seberang Perak in Kg. Gajah. Other settlers came to the area and the state govt. resettled some settlers to the land where the appellants were already in occupation.

Sideks Case:
When the appellants were given notices to stop work and vacate the area, they filed a case in court seeking a declaration that they were entitled in law and equity to be in possession of the land they 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 the State Director of Lands and Mines said that each pioneer settler wd be 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 law or 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, the original Malay inhabitants recognised rights to land based on opening up of waste land/virgin jungle. Concept of tanah hidup and tanah mati and the right to cultivate tanah mati in Malay customary 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 living land. (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 all forest 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 in Malaya in the 1890s laid emphasis on land ownership 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 the Torrens 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 State land. (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. - Sideks case. - Yap Chong Lans 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 under rules of court. - Lebbeys case. - Shaheens case. - Boharis case. - Selayang Rayas case

Pattern for 2nd set of cases:

Land in these cases were formerly state land and the occupiers have been there since then. State officials/politicians have, from their acts and words, encouraged the occupiers to stay on the land.

 State subsequently alienates land to a developer/agency to be developed. The registered proprietor applies for a court order for possession of the land to 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.

Courts Approach in Application uOrder 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 lived in 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 was acquired by the govt. for a road widening project. They appealed to the Collector for time to vacate and for low cost houses on state land.

Yap Chong Lans 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 them compensation 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 Lans case held:

The Collector has no authority to commit the State Authority as to alienation of land. Even if public facilities had been supplied to unlawful occupants of State land, this cannot be used to bind the State Authority to alienate land to the occupants. Squatters cannot raise the doctrine of equitable estoppel against the State Authority.

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 and occupation 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.

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 in Sabak Bernam. - Applts allege: betw. 1971-1976, they had applied to the SA for land titles and that the Sgor State Exco. had approved the alienation in Sept. 1980 and that an Exco. Member confirmed the approval with assurance of titles to the land. - Later, Applts were informed that as a result of a policy that only GENUINE and LANDLESS farmers wd be given the land, the applts wd only be granted with TOLs and after 3 yrs, they wd then acquire titles.

(Boharis case: Cont.:-)

Later, the Resp. handed over the lands to FELCRA and applied summarily under Order 89 of the Rules of High Court 1980 for possession of the land without any compensation for the Applts eviction. HC: Allowed the Resp.s application. Appealed to SC.

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 and occupiers with licence or consent. The Appellants in this case where not squatters simpliciter but on evidence, are occupiers with licence or consent of the State Authority.

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.

Selayang Raya Dvpt. S/B v 123 Orang Yg Disenaraikan Dalam Lampiran A [2002]
The defendant/occupiers had entered into the land in the 1970s 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. Selayang Bahagia since 1970s. In 1973, a senator had told them that the Selangor State Assembly had planned to open a new kampung along the road where the Dfs had occupied and encouraged the Dfs. to apply for the said land, by first establishing branches of political parties in the said kampung. 1974 this was done.

 1980s: 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 Boharis 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 Unlawful Occupiers of Land

Pure squatters

Occupiers with licence or consent

Lawful Occupier

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 local authority has been cancelled, withdrawn or expired and is situated on any land.

squatter hut

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 squatter huts and have committed an offence under the Regulations.

Yusuf Awangs 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 the necessary action without further notice. The App.s applied to court for a declaration that the notices issued by the Resp.s were null and void (as they were not dated).

Yusuf Awangs 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 an injunction by the High Court to restrain the Resp.s from evicting them. The High Court also allowed the declaration that the notices of eviction were null and void.

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 had not produced plans by the local authority approving the said buildings. Being squatters, the occupiers have no right in law or equity. (cited Sideks 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 drastic action is taken to demolish the huts.

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, Drainage and 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 to an approved plan by the local planning authority.

Cont.: (Interesting!)
2) Even if the land owner had consented to the buildings, the buildings are still squatter huts without the necessary planning approvals.

The Emergency Regulations Override Planning Laws!

The regulations have effect notwithstanding anything inconsistent in any written law. As the Regulations have never been repealed, the Regulations still have effect notwithstanding inconsistency with the SDBA or TCPA.

Is the Regulation draconian for allowing forced evictions?

It is interesting to note that the High Court judge in Yusuf Awangs 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 defines adequate housing:

access to a place in which to isolate ones self when desired, with adequate room, adequate security, adequate lighting and ventilation, an adequate basic infrastructure and an adequate location in relation to work and basic services, at a reasonable cost.

Malaysias 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 including mismatch 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 including abandoned 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 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 and social justice requires the State to provide adequate housing, especially for the poor. Example during Prophet Muhammads time when houses were erected around the Prophets mosque by the companions and many migrants from Makkah.

People of Suffah homeless. The prophet set up for them a raised shaded shelter in a corner of the mosque.

THINK:

If you are the government, how would YOU solve the squatter problem?