MWKA PSLT (Land Acquisition, Compensation and Disputes) 2€¦ · “Land(Acquisi3on ”-means-the ... • Tortof-trespass--• Liable-in-damages- ... MWKA PSLT (Land Acquisition,

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MWKA Public Series Lunch Talks Land Acquisi=on, Compensa=on and Disputes

Raymond Mah Managing Partner 27 August 2013

Defini=on

“Land Acquisi3on” means the acquiring of land

for some public purpose by government/

government agency, as authorised by the law,

from the individual landowner(s) aOer paying a

government fixed compensa=on in lieu of

losses incurred by land owner(s) due to

surrendering of his/their land to the concerned

government agency.

2 www.mahwengkwai.com

What is Compulsory Land Acquisi=on?

•  A form of governmental interven=on.

•  The dispossession and evic=on of private property owners from their proper=es.


Land Ownership in Malaysia 3 routes to ownership: •  dealings •  inheritance •  aliena3on The rights of property owners in Peninsular Malaysia are governed by the following legisla=ons: •  Federal Cons3tu3on •  Na3onal Land Code 1965 •  Land Acquisi3on Act 1960


Land Ownership in Malaysia

2 types of land ownership: •  Land held in perpetuity (freehold land); and •  Land held for a term of years (leasehold land – maximum 99 years).

Land ownership and du=es: •  Paying the annual quit rent •  Express and implied condi=ons

Ø  agricultural land Ø  building land Ø  industrial land


Indefeasibility of Title

•  Ownership cannot be “challenged or ques=oned” •  Sec=on 340(2) NLC •  Excep=ons:

Ø fraud Ø Misrepresenta=on Ø Void or insufficient instrument


Par==on and Amalgama=on

Par==on •  Sever joint interests and take individual share. •  Voluntary or compulsory. Amalgama=on •  Combine one or more allotments of land together. •  Reduce rates and taxes.


Squacers

•  Occupying somebody’s land without permission •  No macer how long illegal occupa=on •  Tort of trespass •  Liable in damages •  Squacers on state land

Ø Temporary occupa=on licences (TOLs) Ø Land =tles


Federal Cons=tu=on

Ar3cle 13 of the FC provides: •  13(1) – No person shall be deprived of property save in accordance with law

•  13(2) – No law shall provide for the compulsory use or acquisi=on of property without adequate compensa=on


Land Acquisi=on Act 1960

Purpose and func=on Ø rela=ng to the acquisi=on of land Ø to make an assessment of compensa=on due to such acquisi=on

Ø to govern the procedures involved


Who can Compulsorily Acquire?

LAA 1960 and the NLC 1965 empower: •  State Governments without prior consent or agreement


When is it Allowed?

Sec=on 3(1) LAA 1960 provides that the State Authority may acquire any land which is needed : •  for any public purpose; •  by any person or corpora=on for any purpose which in the

opinion of the State Authority is beneficial to the economic development of Malaysia or any part thereof, or to the public generally or any class of the public; or

•  for the purpose of mining or for residen=al, agricultural, commercial, industrial or recrea=onal purposes or any combina=on of such purposes.


Land Acquisi=on Process (1)

13

Form A -‐ Land is likely to be acquired

Form B (Sec=on 5) -‐ Entered and Surveyed

Form C (Sec=on 7) -‐ Plans & No=fica=on

Form D (Sec=on 8) -‐Acquisi=on of scheduled land

Form E (Sec=on 10) -‐ No=ce of enquiry

Form F (Sec=on 11) -‐ No=ce to Persons

Interested

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14

(Sec=on 12) -‐ Enquiry before Land Administrator

Form G (Sec=on 14) – Declara=on of

intended acquisi=on

Form H (Sec=on 16) – Service of wricen

award

Form I (Sec=on 19) – Take possession in

urgent cases

Form J (Sec=on 20) – Occupants and owners to vacate buildings

Form K (Sec=on 22) -‐ Take possession

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15

Form L (Sec=on 24) -‐ Demand delivery of =tle

document

(Sec=on 37) -‐ 6 weeks from date of award (Sec=on 14) Object to compensa=on

amount

(Sec=on 38(1) -‐ Object to the compensa=on

awarded (Form N) to the Land Administrator’s Office

Form O (Sec=on 38(5) -‐ Refer objec=on to High

Court

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What should you do?


Get a Lawyer Get a Valuer

Challenge the State Government’s decision?

•  Judicial Review •  Decision is in Form D (Declara=on of Inten=on) •  Failure to follow procedures in LAA 1960 •  Not for purpose stated in Sec=on 3 LAA 1960 •  Bad faith


Who should be Compensated?

•  Sec=on 2 LAA 1960 Ø every person claiming an interest in compensa=on to be made on account of the acquisi=on of land;

•  freeholder, leaseholder/tenant, chargee, business occupier, easement-‐holder, op=on-‐holder, trustee and beneficiary, beneficial owner and others.


Form N – Applica=on to Court

•  Objec=ons:

Ø The measurement of Land Ø The amount of the compensa=on Ø The persons to whom it is payable Ø The appor=onment of the compensa=on


Court Hearing Process

Record of Appeal (Form O)

Exchange of Valua=on & Rebucal Reports

Role of Judge

Role of the 2

assessors

Cross-‐examina=on

Submissions


How is compensa=on assessed?

•  Based on the Market Value •  Compensa=on for the Land taken •  Compensa=on for other losses suffered in consequence

Rickets v Metropolitan Rail Co – “compensa=on is the amount required to put the dispossessed landowner in the same posi=on as if his property had not been acquired”.


Market Value

•  Willing buyer and willing seller •  Comparison with recent sales •  Similar characteris=cs •  Within 2 years •  Valua=on report with reasons and calcula=ons


Compara=ve Method

•  Loca=on and surroundings •  Size and shape •  Road frontage and access •  U=li=es – electricity and water •  Date of acquisi=on •  Freehold/Leasehold •  Category of land use •  Restric=ons •  Local authority zoning


Poten=al Development

•  Requires proper evidence •  Burden on owners •  Surrounding development •  Building plans


Other Losses

•  Injuries affec=on •  Severance •  Loss of rental •  Cost of building •  Expenses


Decision Making Process

•  Compensa=on decided by 2 assessors •  If 2 assessors differ, Judge shall choose •  Benefit of doubt should be given to the land owner


Appeals

•  Against decision on ques=on of law •  Against decision of compensa=on •  S40(D)(3) LAA •  S49(1) LAA •  Estate of Tan Bok Yin v PTD (2013) •  Cons=tu=onal right of appeal


Conclusion


Work closely with your

lawyer and valuer to

achieve the best possible

outcome.


Ques=ons?


Documents

MWKA PSLT (Land Acquisition, Compensation and Disputes) 2€¦ · “Land(Acquisi3on ”-means-the ... • Tortof-trespass--• Liable-in-damages- ... MWKA PSLT (Land Acquisition,