Disposal otherwise than by alienation

areej@iium.edu.my

Powers of disposalSection 42

BY ALIENATION

Alienation confers proprietary rights.RP has right of dealings with the land etc.

OTHER THAN BY ALIENATION

1. Reservation2. Permit3. Temporary Occupation

License

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

1. Reservation s.62

Section 62 SA may reserve State land for any public

purpose

2. 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

3. Temporary occupation license (TOL) SS 65-69

Section 65 SA may permit TOL under:

State land Mining land (not being used for mining) Reserved land (not being used for the

purposed reserved)

Types of TOL

GENERAL PURPOSE TOL Section 67 Form 4A May be renewed up to

3 times, or more with consent of SA

SPECIAL PURPOSE TOL

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 TOL

Section 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 TOL

Section 67 (3) On application of the licensee Renew 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.

Conditions

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

See Form 4A, Schedule May not plant permanent crops or

erect permanent buildings. The land may not be used for any

purpose other than those permitted and stipulated in the license

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

Papoo v Veeriah

"A temporary occupation licence is exactly what the name implies. It is a

licence to occupy (State Land) and nothing more…”

“The license is personal to the holder; it dies with the holder.”

Right to possession of land

TOL holder can sue for trespass Julaika Bibi v Mydin [1961]

However, in Mohamed v Kunji Mohidin [1967]

Two TOLs were issued in respect of the same land. Held: the appl and resp share possession of the land.

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 of his rights under the TOL.

Not capable of assignment Section 68 Every TOL shall not be capable of

assignment Confers personal rights on the holder Any transaction amounting to a transfer or

assignment of any rights under the TOL is null and void

Hoe Cheng v Krishnan [1955] MLJ 103. The plaintiff claimed specific performance or

alternatively for damages for a breach of contract entered into between him and the defendant for the purchase of a house built upon a piece of State land held under a temporary occupation licence.

Held: that the alleged contract was in fact an attempt to sell and to purchase defendant's rights under the T.O.L. and was therefore unlawful.

Paruvathy v Krishnan [1983] – gave “equal shares in the land” to two other persons.

Court: contravenes S 68, null and void

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, the court held that the sale agreement was not in breach of the law.

Hee Cheng case can be distinguished from the facts of Cheo Lean How v Fock Fong Looi in that Too Sun, the holder of the temporary occupation licence did not sell the dwelling house erected on State land held under temporary licence to Loke Seng. It was Chung Yen, his friend, who sold the building to Loke Seng. Too Sun merely signed as a witness and he was not a party to the transaction.

Not capable of being inherited Section 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.

Termination 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…”

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

“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…”

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

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?