Alienation of Land

ALIENATION

LAW 504
Prepared by:
Pn Hamsiah Omar

INTRODUCTION

 Sec. 40 – all state land vest in the SA
 Sec. 41 – SA has the right to dispose of and
take back the land
 Sec. 42 – one of the right to dispose of state
land is by way of alienation.

Illustration

Ahmad would like to apply for a piece of land in
Klang under alienation. He seeks your advice
on what is alienation and how is the process.

Advise Ahmad

STEPS TO BE TAKEN

 Application for the land under alienation
 approval stage and conditions to be imposed
by SA;
 Payment of land revenue;
 Survey ( for issuance of title);
 Preparation of title; and
 Registration.

Sec. 76 – what is alienation?

 Another mode of disposal of state land
– sec 42(1) (a)
 The best mode of disposal;
 Means to convey or give away a right and
title of a piece of state land.

Why alienation is the best mode of
disposal?

 Proprietor will get title to the land;
 Period is longer than other mode of
disposal;
 Proprietor feels secured to develop and
invest in the land;
 If land is acquired by SA for public purpose,
proprietor will get compensation;
 Proprietor can deal with the land.

…continue

Sec 76- alienation consists of:
 (a) term not exceeding 99 years; or
 (aa) perpetuity (forever);
 Payment of rent;
 Payment of premium;
 Subject to category of land use;
 Subject to condition and restriction in interest

Who can apply (applicant)?

 Any person/body described in sec 43
Term of alienation
Sec 76(a)- maximum term 99 years;
Sec76(aa) – in perpetuity if-
v. It is made to the Federal Govt or to a public
authority;
vi. The land is to be used for public purpose;
vii. SA feels there is special circumstances.

Who can alienate land?

 Sec. 40 – all land vest in the SA
 Sec. 41 – SA can dispose and take back the land
 Sec. 42 –(a) right is given to SA to dispose of state
land and no one else;
 State Executive Council (EXCO) will meet and
discuss the application of the land for alienation.
 Cases – Sidek Mohammed
Kabra Holdings

EXCO meets and discuss the
following:-

 To approve or not to approve application.
If approves, to determine the following matteers;-
 Sec 76(a)- terms of alienation;
 Sec 76(b)- application must pay the annual rent;
 sec 76(c)- applicant may have to pay premium(at the
SA’s discreation)
 Sec 76(d)- land alienated will be subject to the
category of land use;
 Sec 76(e)- SA may impose condition or restriction
in interest on the title;

Payment of land revenue

Alienation is subject to payment to land
revenue.
What is Land Revenue?
Sec 5 – every sum due to the SA can be either
premium or rent payable in respect of
alienated land; or
Can be fees under any license of permit
relating to land”
Payment of land revenue to be made before alienation
takes effect.

Items of land revenue to be paid upon
approval- sec 81(1)

After the SA has approved the application
made, the following items of land revenue to be
paid to the SA:-
 1st year’s annual rent;
 Premium if any;
 Amount of any survey fees;
 Fees for preparation and registration of
document of qualified title and final title;

Sec 81(2)- time frame to make payment

The collector by notice in F5A shall require
proprietor to pay them (sums due) within a
specified time.
What if payment is not made within the time
limit?
The approval shall lapse
Case : Teh Bee

Teh Bee’s case

 A, an applicant of land under alienation made
payment of land revenue beyond specified time
 Payment was accepted and registration of title in her
name was perfected.
 A TOL holder, B, who occupied the land in question
challenged the alienation to A and claimed that
approval had already lapsed when payment was
made, t/fore SA has acted Ultra Vires the NLC.

…Teh Bee’s case

Held- SA did not ultra vires NLC. At the time payment
was made, there was no other applicant and when
SA accepted the payment means that it has given a
fresh approval.
Decision shows that:
 Payment of land revenue to be made within time is
not mandatory, only directory;
 SA has the discretion to accept payment even if
made beyond time limit.

Sec 82 - deposit

 SA may also ask for deposit be paid apart
from the land revenue .
 Notice in F5A will be served on the applicant
for payment of deposit within specified time
 If fail to do so, application deem withdrawn.

Survey for alienation under final title –
sec 83

When alienation is approved and payment of
land revenue is made, title will issued to the
applicant. Before title can be issued, survey to
the land must first be done.
 SA will conduct a survey to determine boundaries
according to Sec 396
 Survey is carried out by Survey Officer appointed
under NLC or by licensed surveyor registered under
Licensed Land Surveyors Act 1958

…continue

 The actual area of land for alienation at the
time of approval is provisional ie not definite
and temporary only;
 After survey, it may became smaller of
bigger;
 Area should as near may be with what is
stated in the plan and description to which
been approved.

What if there are
differences/discrepancies in area
approved and after survey is done

 Sec. 83(3)
 If Director of Survey satisfied that boundaries
are substantially different from the
provisional area, he will refer matter to SA;
and
 To re-determine the area.

Right of proprietor on
differences/discrepancies in area

 Can proprietor take action against SA?
 Sec 83(4)
 No person shall have the right to claim
against SA if the area alienated is smaller
then provisionally approved.
Case – Khoo Kay Boon

Yap Lai Yoke v. Chin Fook Wah

 R, proprietor of QT claimed the B had unlawfully
encroaching on R’s land.
 B’s defense was that a road had been sited in
correctly thus reducing the size of their lots
 Means that the area stated in the title differ from
what they actually had.
 Held – B has no right to extend his building on
another’s land to make up his lost land. It was the
problem between the authorities and proprietors, no
excuse for encroachment.

Re-computation of land revenue- sec
84

Land revenue previously paid was computed:-
 Based on area temporarily approved;
 Before the survey
After survey , actual land area is determined,
it may differ.
 If land becomes smaller, means land revenue may
be overpaid, SA will refund accordingly; or
 If land becomes bigger, land revenue is underpaid,
SA will add to rental next due.

Preparation of Title – sec 77(1)

 After payment of land revenue has been
made, the SA will determine what form of
title to be issued:

3. Qualified Title; or
4. Final Title

Qualified Title(QT) – “Hak Milik
Sementara”

 Land under QT has not been survey – sec 77(2)(a).
 SA may first issue QT before Final Title.
 Land area is not final/is provisional;
 The land is not capable of being subdivided,
partitioned or amalgamated.
 No building on the land can be subdivided/strata title
cannot be issued.
 However, NLC confers the same rights as applicant
under final title – proprietor has the power to
lease,charge or transfer the land.

Final Title

After is done, final title will be issued.
SA will determine what forms of final title to be
issued (look at the type of land);_
 Registry Title -sec 77(3)(a)
 Land Office Title – sec 77(3)(b)

Registry Title

 Appropriate is the case of town/village land,
and country land exceeding 4 hectares in
area and any part of foreshore or seabed
 Can be in the form of QT or FT

Land Office Title – sec 77(3)(b)

 Relevant for country land not exceeding 4
hectares in area.
 Proviso in sec 77(3)(6) – SA may direct to
be issued under registry title even it does not
exceed 4 hectares.

Sec. 84 – RDT and IDT

 After SA has determine whether land falls
under Registry Title or Land Office Title, SA
proceed to prepare 2 forms of document
title.
2. RDT- Register Document Title
3. IDT – Issue Document Title

Register Document Title

 Sec 5
 Mirror to IDT
 Kept at the Land Office

Issue Document Title

 Sec 5
 Extract of RDT
 Issued to proprietor

Who prepares title?

 Whether land is alienated under Registry
Title or Land Office Title, both RDT and IDT
to be prepared:
 Registry Title – by the Registrar – sec 86
 Land Office Title – by the Land Administrator
sec 87

Forms of document for Registry Title –
sec 86

 RDT – a plan of land certified by Director of
survey – Grant (Form 5B) (in perpetuity)
_ State lease (Form 5C) a term of
years)
 IDT – a plan of land certified by Director of
survey.

Form of Document for Land Office Title
- sec 87

 RDT – a plan of land certified by Director of
survey. Mukim Grant – (Form 5D) – in
perpetuity
Mukim Lease – (Form 5E) – a term of
years

Sec. 78(3) - Registration

 Land title will only be issued by the SA through the
process of alienation
 Alienation will only takes effect upon registration of
RDT
 Even though alienation has been approved, it
remains state land until registration is completed
 Case ; Dr. Ti Teow Siew
 Sidek Hj Mohammed

How alienation perfected – sec 78

 Alienation of state land under final title shall
be effected in accordance with sec 83 – 92;
 Alienation of state land under qualified title
shall be effected in accordance with sec 176
– 182;

What is registration?

After payment of land revenue, survey done
(for final title) and preparation of title
completed, registration to be perfected
Registration consists of :-
 Authentication (signed), and
 Seal
Of the Registrar/Land Administrator on the
RDT

Who register Registry Title? – Sec
88(1)

 Registration of grant (F5B) and State Lease
(F5C) shall consists of authentication and
seal of the Registrar on the RDT

Who registers Land Office Title? – sec
88(2)

 Registration of MUkim grant (F5D) and
Mukim Lease (F5E) shall consists of
authentication and seal of the Land
Administrator on the RDT

Effects of registration of RDT?

 Sec 89
RDT shall be conclusive evidence of all
matters appearing in it;
 Sec 340

Proprietor will get the indefeasibility of title to
the land ( no body can challenge except for
cases under sec 340(2) )

….continue
 Sec 92
 FT once issued, it confers on the proprietor an
indefeasibility title;
 FT gives proprietor right to deal with the land
 Proprietor may subdivide, partition and amalgamate
the land.
 Proprietor may transfer, lease, charge and dispose
land by will
 Proprietor will also be subjected to the paramount
and subsidiary rights.

Alienation of Land

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