Talking in code
19/07/2003
NST-PROP
By Salleh Buang
Ask people what they think of the National Land Code and invariably the
reply will be: “I can’t understand it. Not much, anyway.” Land law experts
and seasoned land administrators might give a different response, but
they’re the exception rather than the rule.
For the last four decades, since the Code came into force (on Jan 1, 1966),
it has remained relatively unchanged in scope and content, except for some
potions which I’ll highlight. One of them is the portion dealing with
sub-divided buildings (Part 25, covering sections 355 to 374) which was
deleted when the Strata Titles Act 1985 was passed by Parliament.
What many people don’t realise is that the Code does not represent West
Malaysia’s land law in totality. It only makes up one part. The law has
three other components of equal importance -
customary law (such as jual janji), Islamic Law (which applies to Muslims
only, such as the law on wakaf and hibah), and English law (such as
equitable leases).
Unchanged territory
The TOL (temporary occupation licence) system is one aspect of the law that
remains unchanged and which continues to be misunderstood and abused.
Suggestions by so many quarters that the system be overhauled have fallen on
deaf ears.
Then there is the perennial problem of delay, sometimes for as long as
several decades, in matters regarding the processing and approving of
applications for State land.
Among the most vocal critics on this point is my good friend, Datuk Nik Zain,
who has since retired from the Land Ministry and is now teaching at a local
university.
Admittedly, there has been improvement in some States with regard to
registration of land dealings, but in others, the situation has become
worse.
Under current practice, dealings involving Registry Titles can only be
registered at the Registry Office (each state only has one such office),
unlike dealings involving Land Office Titles which are carried out in Land
Offices established in every district. While the number of Registry titles
have increased more than ten-fold, the number of Registry Offices per state
is still only one.
The law relating to squatters has also remain unchanged, with the Courts
still stuck to that principle of law laid down by Raja Azlan Shah J. in
Sidek & 461 Ors v Government of Perak [1982] 1 MLJ 313 (wherein he said
“Squatters have no right in law or equity”).
To be fair to the local judiciary, there have been occasional signs of
sympathy towards squatter families. For example, there is the decision of
the Court of Appeal in Sentul Murni Sdn Bhd v Ahmad Amirudin bin Kamarudin 3
Ors [2000] 4 AMR 4092, where it was said that in certain circumstances,
squatters should be compensated.
The bright, and dark side of change
In keeping with advances made in computerisation, a new part was included in
our laws, giving provision for a “computerised land registration system”.
After a successful trial-run in the Federal Territory Land Office, the
system has been implemented in other states including Kedah, Terengganu,
Pahang and Perlis. According to reliable sources, nationwide implementation
is expected to be by the end of 2003.
To clear the way for the system, the Code’s Fourteenth Schedule was
revamped; it now has its updated set of Forms.
Also, the acute demand for building land in major urban areas was among the
many reasons why the Code was amended years ago to facilitate the disposal
of “underground land”, for which the relevant provisions can be found in
sections 92A to 92I. That is looking at the law on its bright side.
One the dark side, however, one aspect that is not greeted with warmth by
people living in rural areas deals with an owner’s inability to fragment
agricultural land. To discourage this, it is now no longer possible to
acquire (by purchase and transfer) an undivided share in agricultural land
of less than one acre.
This was introduced by way of an amendment in late March 1985. Effective
from the same date, the State authority is also prohibited from alienating
agricultural land of less than an acre to “more than one person or body”.
When the Code first came into force, the Syariah Courts had no place in its
scheme of things. An order of a Syariah Court didn’t have to be observed by
the Land Administrator. This changed in the late 90s, when a new section
(421A) was added. Now, if the Syariah Courts were to issue any order
regarding land (such as in cases affecting harta sepencarian), the Land
Administrator must comply.
In May 2001, there was a news report that said the Federal government had
allocated RM509 million towards upgrading the operations of all 105 Land
Offices in the Peninsular. Now, two years later, the question uppermost in
the minds of conveyancing lawyers is whether the situation has really
changed.
Clarity needed
Under the amended section 14 of the Code, a State authority can make rules
(in accordance with directions given by the National Land Council) exempting
certain disposals, dealings and acts from the requirements of sections 433B
and 433E as well as exempting non-citizens and foreign companies from Part
33 (A) of the Code.
In simple language, the intention behind the amendment was to open the doors
to non-citizens and foreign companies buying residential properties costing
over RM250,000. But while the intention is both clear and perhaps even
laudable, the way the amendment was carried out makes the task of
understanding the motive a most frustrating experience.
If only the law (such as the Code) could be written in simple sentences that
most people can read and quickly understand.
