Disposal other than by alienationAreej Torla

areej@iium.edu.my

By alienation Other than by alienation

Powers of disposalSection 42

Alienation confers proprietary rights.

RP has right of dealings with the land etc.

1. Reservation

2. TOL

3. Permit

These types of disposals confer ‘non-proprietary rights’ relating to land.

1. Reservation s.62Section 62SA may reserve State land for any public purpose

2. Temporary occupation license (TOL) Section 65SA may permit TOL under:

State landMining land (not being used for mining)Reserved land (not being used for the purposed reserved)

General purpose TOL Special purpose TOL

Types of TOL

Section 67Form 4AMay be renewed up to

3 times, or more with consent of SA

Section 69 (TOL combined with permit to extract and remove rock material)

Form 4B Maximum term of 5 years

or more than 5 years with approval of SA

Duration of TOLSection 67 (1)“Every TOL …shall be issued for a term expiring not later than the end of the calendar year in which it commences…”

However, it may be renewed on application of licensee

Teh Bee v K Maruthamuthu Trial judge: “the holder under a TOL obtains no legal or equitable rights

over the land he occupies by virtue of the license other than to occupy the land temporarily from year if he can have his licence renewed annually…but there is no obligation on the part of the authorities to grant a renewal of a TOL license for any subsequent year…”

Renewal of TOLSection 67 (3)On application of the licenseeRenew for a term not more than 1 calendar year

“Provided that there shall not be more than 3 renewals…” except with the approval of SA.

Rights and restrictions of a TOL holder

TOL confers non-proprietory rights No right to sell/transfer/transmit upon death/anything that amounts

to an assignment of the TOL holder’s rights and interest under the TOL –S 68

The TOL is personal to the holder

TOL holder may enjoy other rights which do not amount to a transfer Has the right to possession of the land, therefore the right to sue for

trespass Has the right to grant tenancy

Right to possession of land TOL holder can sue for trespass Julaika Bibi v Mydin [1961] Mohamed v Kunji Mohidin [1967] – TOL merely confers

exclusive possessory right but not ownership.

Right to grant tenancy

Govindaraju v Krishnan The TOL holder rented out two rooms. He later terminated the tenancy. The tenants refused to leave

the premises. The tenants argued that the tenancy was void because he

was a mere licensee. Issue: Whether the letting of the rooms on a tenancy

amounted to a transfer Court: The tenancy did NOT amount to a transfer.

Not capable of assignment Section 68 Every TOL shall not be capable of assignment Confers personal right on the holder Any transaction amounting to a transfer or assignment of any rights under

the TOL is null and void Hee Cheng v Krishnan [1955] –contract to purchase house built on TOL land Paruvathy v Krishnan [1983] – gave “equal shares in the la nd” to two other

persons. Courtt: contravenes S 68, null and void Use of the word ‘assignment’ and ‘transfer’ Note: Compare with Cheo Lean How v Fock Fong Looi [1985] 2 MLJ 440

the TOL holder was not the person who sold the house,Supreme Court held that the sale agreement was not in breach of the law.

Not capable of being inheritedSection 68“Every TOL…shall terminate on the death of the person…”

Therefore, not capable of being inherited

Papoo v Veeriah [1965]Fatimah v Mohideen Kutty [1969]

Papoo v Veeriah [1965] Application to transfer house built on TOL land to the

widow of the TOL holder. Good J: “ A TOL is exactly what the name implies. It is a license

to occupy and nothing more…The license is personal to the holder; it dies with the holder.”

Neither the TOL land nor anything erected on it can be transferred during the lifetime of the TOL holder nor can it be passed by inheritance after his death.

Conditions S 67(3): Every TOL is subject to the conditions stated in the

license See Form 4A, Schedule The land may not be used for any purpose other than those

permitted and stipulated in the license

Termination/Expiration of TOL Teh Bee v K Maruthamuthu Ajaib Singh: “…the licence may be cancelled immediately, and without payment of

compensation, upon the breach of any provision to which the licence is subject but otherwise a subsisting licence may be cancelled at any time before the date of expiry only upon payment of compensation…”

“But in no circumstances, however, can a person who has occupied land on a TOL acquire a right to be compensated by a subsequent holder of a TOL of the land or a subsequent registered proprietor thereof…for any expense that he might have incurred over the land…”

See also: Schedule to Form 4A, paragraph 5.

Effect of termination of TOL The ex-licensee who remains on the land is a squatter /

trespasser

Public Prosecutor v Yap Tai [1947] No further renewal of TOL was granted. Prosecuted for unlawful occupation of State land. Court: The true position of the ex-licensee was that of a

trespasser.

All buildings existing on the land shall revert to the State Authority without compensation upon termination or expiry of the TOL

Section 47 (1) & (2) Teh Bee v K. Maruthamuthu Papoo v Veeriah

3. Permit s.70 Permits for extraction, removal and transportation of rock

material. Rocks can only be utilised within the boundary. Need permit

in order to remove it from the boundary. From any State land, alienated land, reserved land and

mining land. Consent from the relevant people are required. Section 71

Example of question on TOL Nabil possess a piece of agriculture land in Nilai, upon which

he has built a concrete house. In February 2011, Nabil agreed to sell the land and house to Johan for RM50,000 under a sale and purchase agreement. Unknown to Johan, the land was actually held under a temporary occupation licence that will expire on 31st December 2011. Johan later found out that the land office has sent a notice to Nabil to terminate the temporary occupation licence for breach of conditions.

Advise Johan on the following:

Whether he has any legal interest in the land and house based on the sale and purchase agreement that he signed with Nabil?

  Whether the temporary occupation license can be terminated by the

land office due to breach of conditions and the effect of termination thereof?

  Whether he can claim compensation from the land office for the

house built on the land?