land law and survey regulation (sghu 3313)€¦ · land code 1965 or under the relevant provision...

LAND LAW AND SURVEY REGULATION (SGHU 3313)

WEEK 5-LAND DEVELOPMENT

SR DR. TAN LIAT CHOON07-5530844

016-4975551

1

OUTLINE

• Background

• Category Of Land

• Conditions And Restrictions In Interest

• Subdivision, Partition, Amalgamation (Land)

• Surrender, Surrender And Re-Alienation (SBKS)

2

BACKGROUND

3

Background

Land Owner and their rights, powers and responsibilities

Alienated land title will be issued to the land owner:

i) The document of title contains category of land,condition, restriction of interest, lot number, titlenumber, area etc. If there is no category on land, usageof land usually regulate through express condition.

4

Background

ii) Land owner has the rights and powers as providedunder S92 of the National Land Code 1965, namely:

a) Right to subdivided or partition the land or amalgamateland with other land.

b) Right to sub divide any multy-storey building underStrata Title Act 1985.

c) Right to effect transfers, leases, charges, surrenders andother dealings.

d) Right to dispose of the land or any undivided share bywill.

5

Background

iii) The land owner is responsible for his land in terms of:

a) To pay quit rent as precribed under S93 of the NationalLand Code 1965.

b) Ensure the use of land is in line with the category,express condition, implied condition and does notagainst any restrictions. Upon any breach arising of anycondition to which any alienated land, the land shallbecome liable to forfeiture to the State Authority inaccordance with S127 of the National Land Code 1965.

6

Land Development Control

In Malaysia, land development is governed by land laws andplanning laws. This means that there is dualistic control in landdevelopment. Land laws include the National Land Code 1965,the Strata Titles Act 1985 and others while planning laws includethe Town and Country Planning Act as well as the Road, Drainageand Building Act. Therefore, all land development proposed tobe conducted shall comply with the requirements of land lawsand also the requirements of the planning laws.

The meaning of planning authority is defined in Section 5 of theNational Land Code 1965 as any authority having jurisdictionunder any law at the time in force on town and country or both.

7

Land Development Methods

If a land owner plans to develop his land, he should ensurethat the use of the proposed land does not violate thecategories, express conditions, implied conditions and therestriction in interest that to be imposed.

If the category of land is different from the proposed,appropriate action should be taken in order to avoid breach ofthe conditions.

Current land development includes horizontal, vertical, as wellas under ground development.

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Land development methods horizontally under the NationalLand Code 1965 include:i) Change of conditions and dealings (S124); Sub-division of

land (S135);ii) Partition of land (S140);iii) Amalgamation of land (S146);iv) Surrender and re-alienation (S204A); andv) Simultaneous application for sub-division and change of

conditions (S124A).

The method of surrender and re-alienation and Simultaneousapplication for sub-division and change of conditions is a quickmethod introduced in 1985 through the Amendment Act A587.

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For vertical development involving multi-storeybuildings, sub-division of building under the Strata Titles Act1985 was introduced for the purpose of issuing strata titlesto strata parcels and Qualified strata title to provisionalblocks (for phased development).

For underground land development, the provision underPart Five (A) of the National Land Code 1965 apply. The newprovisions (Sections 92A to 92I) are incorporated into theNational Land Code 1965 through the Amendment ActA752/1990.

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Features In Land Development Methods

Conversion of express condition and related dealing

Section 124 explains that any proprietor of alienated land mayapply to the State Authority for:

i) To amend land use type;ii) To impose land use type;iii) To remove express conditions;iv) To remove the phrase 'rice', 'rubber' or 'village';v) To amend express conditions;vi) To impose new express conditions;vii) To remove restriction of interest; andviii) To impose restriction of interest.

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Application of the conversion shall be submitted to the StateAuthority through the form prescribed in the State Land Ruleswith the accompanying:

i) Payment made in the State Land Rules; Plan;ii) Official search certification; andiii) Written concern from all person/body which having

registered interest on the land.

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Application of conversion will not be processed unlessthe quit rent has been paid.

If it involves estate land, the Land Administrator shallrefer to the Estate Land Board to give opinion and thesecretary of the Board shall as soon as possible give opinionto the Land Administrator (Section 124(1A)(a)(b),A1104/2001) .

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Upon the State Authority approves any application forconversion, the State Authority may impose the following:

i) Additional premium;ii) New quit rent;iii) Other fees specified in the State Land Rules; andiv) Other conditions that are necessary.

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CATEGORY OF LAND

15

Introduction

The provisions on conditions and restriction in respect ofalienated lands in the National Land Code 1965 are notnew. The previous land laws too had these provisions. TheNational Land Code 1965 improves them further andintroduces the concept of categories of land use.

The conditions imposed so far on alienated lands underthe land laws, whether the National Land Code 1965 or anyland law previous to it, are mainly those pertaining to landuse. It is also possible to have a condition other than landuse as long as it is conformable to law [S120(1) of NationalLand Code 1965].

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Introduction

The land use condition under the National Land Code 1965are contained in the land title itself or implied in theNational Land Code 1965. The provisions on these arecontained in Chapter 2 of Part Three and in Chapter 1, 2, 3and 4 of Part Seven of the National Land Code 1965.

17

Introduction

There are differences between the conditions of landswhich were alienated under the land laws before theNational Land Code 1965 or approved under the lawsbefore the National Land Code 1965 but alienated underthe National Land Code 1965 and those in respect of landsapproved and alienated under the National Land Code1965. The differences can also be seen between theconditions of alienated town or village lands and those ofalienated country lands. Therefore, it is also necessary tounderstand the terms ‘town land’, ‘village land’ and ‘countryland’.

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Classification Of Land Into Town, Village And Country Land

Five types of lands:

(a) Town land;(b) Village lands;

(c) Country Lands;(d) Foreshore; and

(e) Sea-bed

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The provision on this is in Section 51 of the National Land Code1965. According to this section, land is first classified as follows:• Land above the shoreline (S5 National Land Code 1965)• Foreshore and sea-bed (S5 National Land Code 1965)

Land above the shoreline can be a town, village or country land. Atown land is situated in a town declared under Section 11 of NationalLand Code 1965 or under the relevant provision of the land lawsbefore it.

A village land is situated in a village declared under the sameprovision as in the case of a town.

The area not included in a town or village land is deeded to be acountry land. 20


A town or village land should not be confused with a localauthority area declared under the law relating to local authority,which at present is the Local Government Act 1976 (Act 171).Within a local authority area, there may be a town or village landbesides a country land.

A piece of land in a Majlis Perbandaran, is not a town land if itis not within an area declared as a town under the National LandCode 1965 or the previous land laws. That land, if it is also notwithin a village declared under the National Land Code 1965 orthe previous land laws, is a country land.

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Category Of Land Use

The provision on the category of land use did not exist in any landlaw before the National Land Code 1965. Under the National LandCode 1965 (S52), three categories of land use are provided (i)agriculture, (ii) building, and (iii) industry.

One of the circumstances under which a category of land use isdecided in respect of a land is when the approving authority approvesits alienation. The approving authority may not impose a category if itfinds that the use could be more appropriately controlled by theimposition of express conditions.

Under Section 52(2) of National Land Code 1965, the StateAuthority can also prescribe a category to which land in a certain areaspecified in the State Gazette is to be subject and upon the StateAuthority doing so, any State land alienated will be subject to thatcategory which will be endorsed in the document of title.

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Under S54 and S55 National Land Code 1965, any land alienatedbefore National Land Code 1965 or any land approved for alienatedbefore National Land Code 1965 but alienated under National LandCode 1965 can be made subject to a category if the area within it issituated is specified in the State Gazette as an area where all suchlands will be subject to a certain category.

Through these provisions, it is possible to have the categoriesand conditions of land use endorsed in the documents of title forany land alienated before National Land Code 1965 or any landapproved before National Land Code 1965 but alienated under itwhich is not to an express condition requiring its use for aparticular purpose but which is subject to an implied condition inS53(2) or S53(3).

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These provisions too enable any alienated land beforeNational Land Code 1965 or any land approved beforeNational Land Code but alienated under it which is subjectto an express condition to have an appropriate categoryand to be subject to the implied conditions under it.

Under S124 National Land Code 1965, a proprietor of anyalienated land can also apply for the imposition of acategory of land use for his land if it is not yet subject to acategory. He may also apply to change the category of landuse or to have deleted from the land title.

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CONDITIONS AND RESTRICTIONS IN INTEREST

25

Background

26

Background

Section 124 of the National Land Code provides that aproprietor of any alienated land may apply to the State Authorityfor an alteration of a category of land use or an imposition of anew category of land use; or a rescission, or an amendment ofan express condition or an imposition of a new express conditionto enable him to use or develop his land for a purpose otherthan that allowed at present.

As an example, a piece of land alienated several years ago forthe purpose of planting rubber may now be more beneficiallyused for building. In such case, the proprietor may apply for animposition of a ‘building’ category. Such a change in the use ofland is commonly know as ‘conversion’.

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Background

Besides the above, under the same section, a proprietor ofany alienated land can also apply to the State Authority for arescission or an amendment of a restriction in interest or animposition of a new restriction in interest. The proprietor canalso apply to the State Authority for the removal of theexpression ‘padi’ or any other equivalent variant thereof or theexpression ‘rubber’ or any other expression pertaining to landuse and the imposition of other conditions pertaining to landuse.

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Background

Normally, an application under section 124 of the NationalLand Code 1965 is made if the desired change in the land usecondition is a simple one, that is, from one use to another. If anarea is to be developed, for example, into a housing estate, theproprietor should make an application under section 124A of theNational Land Code 1965, that is, simultaneous applications forsub-division and for variation of conditions, restriction orcategories of the proposed sub-division portions. To develop anarea into housing estate, he can also submit an application undersection 204D of the National Land Code 1965.

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Background

The provisions under section 124A and 204D are dealt with inChapter 11 (Simultaneous Application for Sub-division andVariation of Conditions, Restrictions and Categories), and inChapter 12 (Surrender and Re-Alienation – Special Provisions)respectively.

The power to approve application under section 124 of theNational Land Code is with the State Authority. For a certainapplication such as the one involving a change of crop, the StateAuthority may have delegated its power to the Director of Landsand Mines or Land Administrator. Where there is such adelegation, the Land Administrator should know the authorityand the scope, if any.

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Implied Conditions

31

Implied Conditions

These conditions are in the law itself, that is, in theNational Land Code 1965. They are not written in thedocument of title as in the case of express conditions.

In National Land Code 1965, the implied conditions arenot only in respect of land use. There are also impliedconditions regarding the boundary marks (S114).

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Implied Conditions

The implied conditions on land use in National LandCode 1965 are listed under each of the three categories (i)agriculture (S115), (ii) building (S116), and (iii) industry(S117).

• Other implied conditions:

– the implied conditions in S53(2) and S53(3) ofNational Land Code 1965;

– the implied conditions in the Second and ThirdSchedule of National Land Code 1965; and

– the original implied conditions preserved by operationof S4(1) of National Land Code 1965.

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S114 - Boundary Marks

(a) that the proprietor will, take all reasonable steps to prevent theirdamage, destruction or unlawful removal;

(b) that the proprietor will if any of them are damaged, destroyed orunlawfully removed, give immediate notice of the fact to the LandAdministrator, or to the penghulu having jurisdiction in the area inwhich the land is situated;

(c) that the proprietor will, if so required by the Land Administrator,pay the cost of repairing or, as the case may be, replacing any of themwhich may have been damaged, destroyed or unlawfully removed; and

(d) that the proprietor will, if so required by the Land Administrator, athis own expense clear any boundary line between any of them.

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S115 – Agriculture1(a) that no building shall be erected on the land other than a building orbuildings to be used for one or more of the purposes specified or referred toin subsection (4);

1(b) that a bona fide commencement of cultivation of the land shall be madewithin twelve months of the relevant date;

1(c) that the whole area of the land of the underground land, other than anypart thereof-

(i) occupied by or in conjunction with a building (whenever erected)used for one or more of the purposes specified or referred to in sub-section (4), or(ii) used for any of the purposes mentioned in paragraph (e) of thatsub-section, or any other purpose which the State Authority mayspecially authorise, shall be brought fully under cultivation withinthree years of the relevant date;

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S115 – Agriculture

1(d) that the area of the land referred to in paragraph (c)shall be maintained and cultivated according to the rules ofgood husbandry; and

1(e) that the said area of the land shall be continuouslycultivated:

Provided that the condition specified in paragraph (e) shallbe regarded as complied within the case of any area of theland so long as any period during which less than the wholethereof is cultivated does not exceed twelve months.

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(2) In sub-section (1) "relevant date" means the date onwhich the land became subject to the category: Providedthat, where any land becomes subject to the category on itsamalgamation with other land already so subject, the dateon which a register document of title to the amalgamatedarea of the land is first registered shall become the relevantdate as respects the whole of that area of the land.

(3) The conditions specified in sub-section (1) shall beimplied in the case of any land to the extent only that theyare not inconsistent with any express conditions to whichthe land is for the time being subject.

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(4) The purposes referred to in paragraph (a) of sub-section (1)are the following:

(a) the purposes of a dwelling-house for the proprietor of theland or any other person lawfully in occupation thereof, or forthe servants of, or any persons employed for agriculturalpurposes by, the proprietor or any other such person:Provided that the dwelling-house for the proprietor of the landor any other person lawfully in occupation thereof shall notoccupy more than one-fifth of the whole area of the land or twohectares, whichever is the lesser;

(b) the purposes of agriculture;

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(c) the purpose of extracting or processing raw materialfrom any agricultural produce of such land;

(d) the purpose of preparing for distribution any suchmaterial or produce, or any honey-bees, livestock orreptiles kept or bred on such land, or the produce of suchlivestock or aquaculture on such land;

(e) the purposes of providing educational, medical, sanitaryor other welfare facilities, including (so far as they areprovided primarily for use by persons employed on theland) facilities for the purchase of goods and othercommodities; 39


(f) any purpose which the State Authority may prescribe forthe purposes of this section;

(g) any purpose which the State Authority may think fit toauthorise in the circumstances of any particular case;

(h) any purpose incidental to a purpose falling within any ofthe preceding paragraphs.

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S116 – Building1(a) that, unless on the relevant date such a building already existedon the land, there shall within two years of that date be erectedthereon a building suitable for use for one or more of the purposesspecified or referred to in sub-section (4);

1(b) that no part of the land shall be used for agricultural or industrialpurposes (except in so far as the erection or maintenance of anybuilding for a purpose or purposes falling within paragraph (f) or (g) ofsub-section (4) may constitute such a use);

1(c) that every building thereon (when so ever erected) shall bemaintained in repair;

1(d) that no such building shall be demolished, altered or extendedwithout the prior consent in writing of the appropriate authority.

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S116 – Building

(2) In sub-section (1) "relevant date" means the date onwhich any part of the land first became subject to thecategory.

(3) The conditions specified in sub-section (1) shall beimplied in the case of any land to the extent only that theyare not inconsistent with any express conditions to whichthe land is for the time being subject.

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S116 – Building

(4) The purposes referred to in paragraph (a) of sub-section (1)are the following:

(a) residential purposes;

(b) administrative or commercial purposes, or the purposes ofpassenger transport;

(c) the purposes of exhibiting, selling by retail, repairing orotherwise dealing in any goods or commodities, or of providingany services;

(d) the purposes of providing educational, medical, sanitary orother welfare facilities;

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S116 – Building

(e) the purposes of entertainment, refreshment orrecreation;

(f) any purpose which the State Authority may prescribe forthe purposes of this section by rules under section 14;

(g) any purpose which the State Authority may think fit toauthorise in the circumstances of any particular case;

(h) any purpose incidental to a purpose falling within any ofthe preceding paragraphs.

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S117 – Industry

(a) It shall be used only for industrial purposes, that is to say, forthe purposes of the erection or maintenance of factories,workshops, foundries, warehouses, docks, jetties, railways orother buildings or installations for use for or in connection withone or more of the following purposes:

(i) manufacture;(ii) smelting;(iii) the production or distribution of power;(iv) the assembling, processing, storage, transport ordistribution of goods, or other commodities; and(v) such other purposes as the State Authority mayrescribe.

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S117 – Industry

(b) The industry shall commence operations within three yearsof the relevant date and that every building or installation;

(c) No such building or installation shall be demolished, alteredor extended without the prior consent in writing of theappropriate authority:

(i) for the provision of educational, medical, sanitary orother welfare facilities for the proprietor of the land orany other person lawfully in occupation thereof, or forthe servants of, or any person employed for industrialpurposes by, the proprietor or any other such person;(ii) for any purpose which the State Authority may thinkfit to authorise in the particular circumstances of thecase.

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Express Conditions

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Express Conditions

Under the land laws before National Land Code 1965, these couldalso be the ‘nature of cultivation’ or ‘conditions’.

An express condition is to be found in the land title itself or is justreferred to in it.

An express condition is not in respect of land use only. UnderNational Land Code 1965, it can be anything which is conformable tolaw.

One of the circumstances under which an express condition isimposed is when the alienation of land is approved.

Under S124 National Land Code 1965, a proprietor of any alienatedland can also apply to have his land subject to a certain expresscondition, to have an express condition deleted from the land title orto have the existing express condition changed to another one.

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(1) The State Authority may without prejudice to the generalityof those powers, impose such conditions as it may think fit:

(a) requiring the cultivation of a particular crop;

(b) prohibiting the cultivation of a particular crop;

(c) fixing the dates in any year on or before which any work ofclearing, cultivation, sowing, maturing or harvesting, or anyother agricultural activity, is to be commenced or completed;

(d) limiting the maximum volume of the area of the land whichmay be occupied by dwelling-houses and other buildings.

(2) In this section "crop" includes trees cultivated for thepurpose of their produce.

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S122 – Building And Industry

The State Authority may without prejudice to the generality ofthose powers, impose such conditions as it may think fit:

(a) the area of the land or proportion of the land to be builtupon;

(b) the type, design, height and structure of any building to beerected on the land, and the type and quality of the materials tobe used in its construction;

(c) the dates on or before which any such building is to becommenced or completed;

(d) the use to which any building is to be put. 50

Restrictions in Interest

51

Restrictions In Interest

Under National Land Code 1965:(a) the restrictions on the proprietor to make any dealing (transfer,granting of lease, charge, granting of easement);(b) the restrictions on the proprietor to subdivide or partition his land,to amalgamate his lands or to subdivide a building.

One of the circumstances under which a restriction in interest isdetermined is when the approving authority approves alienation ofland. It is endorsed in the document of title.

The restriction imposed too must be conformable to law.

Under S124 National Land Code 1965, a proprietor of any alienatedland can apply to have a restriction in interest to which the land issubject deleted from the land title, to have the existing restriction ininterest amended or to have the land subject to a restriction ininterest.

52

Conditions, Restrictions And Categories In Respect Of Lands Alienated Under NLC

Lands alienated under National Land Code 1965 refer to thoseapproved for alienation under National Land Code 1965 and thetitles for which are registered on or after 1 January 1966.

These lands may have the following in the document of title:(a) a category of land use-agriculture, building,industry or “null” [S52(1) & (5) National Land Code 1965].(b) an express condition [S109(2)(a) National LandCode].(c) a restriction in interest [S109(2)(a) National LandCode].

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Conditions, Restrictions And Categories In Respect Of Lands Alienated Under National

Land Code 1965

Such lands are also subject to the conditions stated in S109(2)(b)National Land Code 1965 as follows:

(a) the condition on boundary marks (S114 National Land Code1965).(b) the implied conditions under the category agriculture (S115National Land Code 1965).(c) the implied conditions under category building(S116 National Land Code 1965).(d) the implied conditions under category industry(S117 National Land Code 1965).(e) the implied condition for agriculture land under a QT (S118National Land Code 1965). 54

Conditions, Restrictions And Categories In Respect Of Lands Approved Under The

Previous Land Laws And Alienated Under The National Land Code 1965

These lands are the ones approved earlier, that is, before 1January 1966 but have the titles registered under National LandCode 1965. They can be of two types as follow:

(a) the ones where an express conditions was decided as one ofthe terms of alienation;

(b) the ones where no express conditions was decided as one ofthe terms of alienation.

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Conditions, Restrictions And Categories In Respect Of Lands Approved Under The Previous

Land Laws And Alienated Under The NLC

Under S112 National Land Code 1965, with respect tothe lands for the ones where an express conditions wasdecided as one of the terms of alienation, as from 1 January1966 (unless they are effected by a variation under S124,S124A, S147(3) or S54 National Land Code 1965), they aresubject to the following:

(a) an express conditions as stated in the title;

(b) a restriction in interest (if the was decided at the time ofapproval and it is in the document of title);

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(c) the implied conditions as state in S114 National LandCode 1965 regarding boundary marks;

(d) the implied conditions for agriculture land under a QT(S118 National Land Code 1965);

(e) the implied conditions as stated in the Second Scheduleand Thirteenth Schedule National Land Code 1965 if theland is a country land on 1 January 1966);

(f) the implied conditions as stated in the Third Scheduleand Thirteenth Schedule National Land Code 1965 if theland is a town or a village land on 1 January 1966).

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Under S112 National Land Code 1965, with respect to the lands forthe ones where no express conditions was decided as one of the termsof alienation, as from 1 January 1966 (unless they are effected by avariation under S124, S124A, S147(3) or S54 National Land Code 1965),they are subject to the following:

(a) a restriction in interest (if this was decided and it is in thedocument of title);

(b) an implied condition in S53(2) National Land Code 1965 for countryland and own or village land held under Land Office title;

(c) an implied condition in S53(3) National Land Code 1965 for town orvillage land held under Registry title; 58



(d) the implied conditions as stated in S114 National Land Code 1965 regarding boundary marks;

(e) the implied condition for agricultural land under a QT (S118 National Land Code 1965);

(f) the implied conditions stated in the Second Schedule and the Thirteenth Schedule National Land Code 1965 if the land is a country land on 1 January 1966;

(g) the implied conditions stated in the Third Schedule and the Thirteenth Schedule National Land Code 1965 if the land is a town or village land on 1 January 1966. 59

Conditions, Restrictions In Respect Of Land Alienated Before NLC

Such lands consist of lands approved and having thetitles registered before 1 January 1966 National Land Code1965.

The lands are of two types as follows:

(a) lands which are subject to any express conditionrequiring it to be used for a particular purpose;

(b) lands which are not so subject.

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Under S110 National Land Code 1965, with respect to thelands for lands which are subject to any express conditionrequiring it to be used for a particular purpose, as from 1 January1966 (unless they are effected by a variation under S124, S124A,S147(3) or S54 National Land Code 1965), they are subject to thefollowing:

(a) an express condition as stated or referred to in the documentof title;

(b) a restriction in interest, if this is in or referred to, in thedocument of title;

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(c) the implied conditions regarding boundary marks as in S114National Land Code 1965;

(d) the implied conditions as in S119 National Land Code 1965regarding padi cultivation if the land is for such use;

(e) the implied conditions stated in the Second Schedule and theThirteenth Schedule National Land Code 1965 if the land is acountry land on 1 January 1966;

(f) the implied conditions stated in the Third Schedule and theThirteenth Schedule National Land Code 1965 if the land is atown or village land on 1 January 1966.

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Under S110 National Land Code 1965, with respect to the landsfor a restriction in interest, if this is in or referred to, in thedocument of title, as from 1 January 1966 (unless they are effectedby a variation under S124, S124A, S147(3) or S54 National LandCode 1965), they are subject to the following:

(a) a restriction in interest, if this is, in or referred to, in thedocument of title;

(b) the implied conditions regarding boundary marks as in S114National Land Code 1965;

(c) the implied condition in S53(2) of National Land Code 1965 forcountry land and town or village land held under a Land Office title;

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(d) the implied condition in S53(3) National Land Code 1965for town or village land held under Registry title;

(e) the implied conditions stated in the Second Scheduleand the Thirteenth Schedule National Land Code 1965 if theland is a country land on 1 January 1966;

(f) the implied conditions stated in the Third Schedule andthe Thirteenth Schedule National Land Code 1965 if theland is a town or village land on 1 January 1966.

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Conditions And Restrictions In Of Land Alienated Before NLC Or Lands Approved Before NLC But Alienated

Under NLC And Subject To A Category Of Land Use By Virtue Of S54

Under S54 National Land Code 1965, the State Authoritycan specify by a notification in the State Gazette any areawithin which all lands alienated before National Land Code1965 and all lands approved before NLC but alienated underit (if they are not subject to any category pursuant to anapplication under S124 or a direction under S147(3)National Land Code 1965 or they exempted from theoperation of S54), will become subject to a certain categoryof land use as stated in S54(2).

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Conditions And Restrictions In Of Land Alienated Before NLC Or Lands Approved Before NLC But Alienated

Under NLC And Subject To A Category Of Land Use By Virtue Of S54

When this happens, lands alienated before National LandCode 1965 and lands approved before National Land Code1965 but alienated under it will be subject to the conditionsand restrictions in S111 National Land Code 1965 (inrespect of lands alienated before National Land Code 1965)and those in S112(3) National Land Code 1965 (in respect oflands approved for alienation before National Land Code1965 but alienated under National Land Code 1965)respectively.

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Specifying Area Of State Land For A Certain Category Of Land Use

Section 52(2) enables the State Authority to specify by anotification in the State Gazette any area within which anyState land when it is to be alienated, will have in thedocument of title a category of land use as prescribed in thenotification and so far this provision has not been invoked.

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Variation Of Conditions, Restrictions And Categories

The conditions (express or implied), restrictions andcategories to which alienated lands are subject to specifyingarea of State land for a certain category of land use will bein force so long as the lands remain alienated lands and theconditions, restrictions or categories to which they aresubject, are not changed under S124, S124A, S147(3) or S54National Land Code 1965.

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Lands Held Under Grant(First Grade)

These lands are to be found in Penang and Malacca. Theyare subject to the condition as in Paragraph of the ThirdSchedule National Land Code (Penang and Malacca Titles)Act 1963.

Under Paragraph 6 National Land Code (Penang andMalacca) Order 1965, in Penang, they can be used for anypurpose In Malacca, they are subject either to S53(2) or toS53(3) National Land Code 1965.

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Non-application Of Implied Conditions In S115, S116 Or S117 NLC In Respect Of Lands Alienated

Before NLC Or Lands Approved For Alienated Before NLC But Alienated Under NLC

It is to be noted such lands (unless a variation has been madeunder S124, S124A, S147(3) or S54 National Land Code 1965) arenot subject to any of the implied conditions under the categoriesof agriculture, building or industry as in S115, S116 or S117National Land Code 1965 respectively.

This also means that, with regard to agricultural land held byco-proprietors, the implied condition in S115(4)(a) National LandCode 1965 does not apply. In other words, the co-proprietorscannot build dwelling houses for themselves in such a way thatthe land is no longer suitable for agricultural use.

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Use Of Lands Alienated Before NLC Or Approved Before NLC But Alienated Under NLC Without Any Express Condition Requiring Them To Be

Used For A Particular Purpose

With regards to lands alienated before National Land Code 1965which do not have any express condition requiring them to be usedfor a particular purpose, they are subject to S53(2) or S53(3)National Land Code 1965 depending on the types of titles (Registryor Land Office) they are held and on the types of lands (town,village or country).

Under S53(2) National Land Code 1965, a town or village landheld under a Land Office title or a country land shall be used foragricultural purposes only while under S53(3) National Land Code1965, a town or village land held under a Registry title shall neitherbe used for agricultural nor for industrial purposes. 71

Lands Subject To S53(2) NLC But Are Later Included In A Town Or Village

Under S101 NLC It is to be noted when any land which is subject to S53(2)National Land Code 1965 is brought within a town or a villageunder S11 National Land Code 1965 after 1 January 1966, theimplied condition that it shall be used for agricultural purposes onlywill remain.

It should not be regards as land subject to S53(3) National LandCode 1965. As such the proprietor of such land is not required topay an annual rent at a building rate under the revision of rent inaccordance with S101 National Land Code 1965. Such land toocannot be used for a building purpose. The proprietor has to getnecessary approval under S124 National Land Code 1965 first if hewants to use it for a building purpose.

72

SUBDIVISION, PARTITION, AMALGAMATION (LAND)

73

Subdivision

74

Subdivision (S135 – S139)

Chapter 1 of Part Nine National Land Code 1965,subdivision of land means that any alienated land heldunder Registry or Land Office title may, with the approval ofthe State Director or Land Administrator, subdivide the landinto two or more portions to be held by him under separatetitles.

75

Application Of Provision On Subdivision Of Land In The NLC

The provisions on subdivision are usually use in simple casesof subdividing land into portions for the same purpose (use).

For cases involving conversion where a piece of land is to besubdivided into portions to be used for different purposes as inthe case of the development of agricultural land for residential,commercial and industrial purposes, there are other provisionsmore appropriate to cater this kind of development.

The provisions to be used are S124A National Land Code 1965(simultaneous applications for variation of conditions etc andsubdivision) or S204D National Land Code 1965 (surrender andre-alienation-special provisions).

76

Control Of Subdivision Of Land

A proprietor of land held under a final title can have hisland subdivided only after he has complied with certainconditions imposed under National Land Code 1965. Theseconditions are mainly to ensure that the subdivision of landis done in an orderly manner so as to avoid any adverseconsequences which may arise out of it.

77

Conditions For Approval Of Subdivision (S136 NLC)

The subdivision can be approved only if certain conditions aresatisfied:

(a) the restriction in interest [S136(1)(a)];

(b) the provisions and requirements of any other written law[S136(1)(b)];

(c) the approval of the planning authority [S136(1)(c)(i) and (ii)];

(d) the consent of certain body/authority [136(c)(iii)];

78

Conditions For Approval Of Subdivision (S136 NLC)

(e) the item of land revenue outstanding [S136(1)(d)];

(f) the consent of every person/body having a certain interest inthe land [136(1)(e)];

(g) the permissible area of each of the sub-divisional portionsaccording to use [S136(1)(f)(i) and (ii)];

(h) the suitability of the shape of the sub-divisional portions[S136(1)(g)];

(i) the satisfactory means of access for the sub-divisionalportions [S136(1)(h)].

79

The Restriction In Interest [S136(1)(a)]

If the land is subject to a restriction in interest to the effectthat a subdivision cannot be done, then the application forsubdivision in respect of that land cannot be approved.

80

The Provisions And Requirements Of Any Other Written Law

[S136(1)(b)]A subdivision of land cannot be approved if it is contrary toany of the provisions or requirements of any written law.E.g. S15(1) of the Land (Group Settlement Areas) Act 1960prohibits the subdivision of any rural holding and as such ifthere is an application for subdivision of a rural holding, ithas to be rejected.

81

The Approval Of The Planning Authority Or State Authority

[S136(1)(c)(i) And (Ii)] For subdivision of land situated outside a local authority area,the requirements of S136(1)(c)(i) & (ii) National Land Code 1965are not applicable. In order to ensure that subdivision is done inan orderly manner, it is practice that the views of the respectiveState Town and Country Planning Departments are obtainedbefore a subdivision of any land outside a local authority area oroutside the area under the jurisdiction of the body is approved.

However, it is more appropriate if an action is taken quickly tobring such an area under the jurisdiction of a local authority or abody having town and country planning powers.

82

The Approval Of The Planning Authority Or State Authority

[S136(1)(c)(i) And (Ii)]

It is to be noted that the State Authority may extend theapplication of the laws on town and country planning to areaoutside any local authority area. As such the requirements underS136(1)(c)(i) becomes applicable to such area.

It is also to be noted that in exercising its power as a planningauthority, the local authority or the body concerned will alsoseek the views of the respective State Town and CountryPlanning Department if the local authority or the body does nothave its own town and country planning officers.

83

The Consent Of A Certain Body/Authority [136(c)(iii)]

In same State, the State Authority has made a directionunder S135(2) National Land Code 1965 to the effect that asubdivision of certain land cannot be approved unless theconsent of the body/authority established under thatdirection has been obtained. One of the reasons for settingup this body/authority is to check the fragmentation ofestates which normally gives rise to a number of socialproblems.

84

The Item Of Land Revenue [S136(1)(d)]

A subdivision of land cannot be approved if there is anyitem of land revenue outstanding in respect of it.

85

The Consent Of Every Person/Body Having A Certain Interest In The

Land [136(1)(e)]

If the land is subject to a charge, lease or lien or if the leaseof the land is subject to a charge, lease or lien and unless inthe case of the lease of part of the land where that partcorresponds precisely to one of the proposed sub-divisionalportions, the written consent of every person/body entitledto the benefit of the charge, lease, lien at the time theapplication of subdivision is made has to be obtainedbefore the subdivision can be approved.

86

The Minimum Area Of Each Of The Sub-divisional Portions [S136(1)(f)(i) And (Ii)]

A subdivision cannot be approved in respect of land subject to thecategory ‘agriculture’ or to any condition requiring its use for anagricultural purpose if the area of any sub-divisional portion is less thantwo fifths of a hectare (in Kelantan, as stated in Twelfth Schedule NLC, itshould not be less than one fifth of a hectare).

If the subdivision is in respect of land not subject to the category‘agriculture’ or not subject to any condition requiring its use for anagricultural purpose, the area of any sub-divisional portion should not beless than the minimum area as determined by a local authority in itscapacity as a planning authority (if the land is within a local authority areaor within an area under a body having town and country planning powers)or by the State Authority (if the land is situated outside a local authorityarea or outside an area under the jurisdiction of the body). 87

The Shape Of The Sub-divisional Portions [S136(1)(g)]

A subdivision should not be approved if the shape of eachsub-divisional portion is not suitable for the purpose forwhich it is intended to be put.

88

The Access [S136(1)(h)]

A subdivision cannot be approved if any of the sub-divisional portions does not have any of following means ofaccess to a road, a river a part of the foreshore or a railwaystation (of these, the means of access to a public road ispreferred):

(a) direct access; or(b) a satisfactory means of access (e.g. in the form of a tractof State land set aside for access purpose); or

89


(c) any of the following means of access within the lotwhich the proprietor in his application for subdivisionagrees to provide:

(i) over land which is to be treated as surrendered tothe State Authority; or(ii) By private road to which a separate title is to beissued; or(iii) by a right of way to be declared by the landadministrator.

90


For a land situated within an area designated by the StateAuthority under S136(2)(a) National Land Code 1965 for, asubdivision cannot be approved if the proprietor does not agreeto the conditions to provide a means of access and also to makeup a road (to a standard specified in the designation) on thattract of land which is to be used as a means of access.

It is be noted that in respect of a means of access, theproprietor is not required to make an application for surrenderof part of the land for access under S200 National Land Code1965. The land for the access is deeded to have beensurrendered to the State Authority upon the registration ofseparate titles for the sub-divisional portions.

91

Pre-Computation Plan

S137(1) National Land Code 1965 requires, among others,that an application for subdivision should be accompanied by apre-computation plan of the land showing the details of thesubdivision. This provision came into effect in 1 January 1993.

Pre-computation plan is defined in S5 National Land Code1965 as a plan of the layout of lots showing the intended newboundaries and areas of those lots which are based oncomputation from existing survey and other relevant data,where the linear misclosure of the computation is not less than1:8000. The purpose is essentially to ensure that there will notbe any change in number of portions after an approval is given.

92

Pre-Computation Plan

In the past, changes were often made to the approvedsubdivision plan and such changes are not in order becausethere is no provision in the National Land Code 1965allowing any change to be done. For the purpose of S137, apre-computation plan means a pre-computation plan basedon an approved layout plan. The pre-computation planmust be prepared and endorsed by a licensed land surveyor.

93

Title In Continuation Upon Approval Of Subdivision

Any title registered in continuation of another title is calltitle in continuation.

In the case of subdivision, qualified titles in continuationare registered for the subdivided portions if there is anapplication for such titles. If land approved for subdivision isheld under a final title, qualified titles for the subdividedportions will be registered in continuation of the final title.The procedure on the registration of these qualified titles iscontained in S183, S186 and S188 National Land Code 1965.

94

Title In Continuation Upon Approval Of Subdivision

If upon approving subdivision, no application for qualifiedtitle is made, final titles for the subdivided portions will beregistered in continuation of a final title when the survey ofthe subdivided portions is completed. The procedure on theregistration of these final titles is contained in S171, S173and S174 National Land Code 1965.

95

Identification Of Subdivided Portions Before Survey

The subdivided portions are identified for the purpose ofregistering qualified titles. This is done by using a land officenumber (No. PTD/PTB). This number is assigned only afterthe Settlement Officer/Licensed Land Surveyor demarcatesthe provisional boundaries of the subdivided portion on theground. On doing so, he will record the demarcation detailsof the bearings and distances in his field book (or digitalfield book). All land office numbers given are recorded inthe land office index.

96

Survey Of Subdivided Portions A piece of land cannot be exactly identified until it issurveyed. The manner in which a survey is carried out isprovided in S396 National Land Code 1965. Basically a landis said to be have been surveyed if in respect of which a lotnumber exists.

E.g. where a piece of land is shown in the plan as Lot No.844, it is definite that the land has been surveyed and thereis a certified plan for it. A final title can be registered for aland only after it has been surveyed in accordance with theprovisions of S396 National Land Code 1965. As such thefinal title to the subdivided portion can only be registeredupon the completion of survey.

97

Settlement Upon Completion Of Survey Of Subdivided Portions And

Upon Registration Of Qualified TitlesSettlement here refers to the act of showing the boundariesand boundary marks of a land to the proprietor upon thecompletion of survey. Where a survey is done by DSMM,settlement will be done by the Land Office upon completionof survey. During settlement, the attention of the proprietorshould be drawn to the implied conditions in S114 NationalLand Code 1965 relating to the preservation of boundarymarks.

98

Settlement Upon Completion Of Survey Of Subdivided Portions And

Upon Registration Of Qualified Titles

It is to be noted that where the survey is done by alicensed land surveyor, the task of showing the boundariesof the land upon completion of survey is to be performedby the licensed land surveyor concerned.

It is also found necessary that the proprietor should beshown the provisional boundaries of the subdividedportions upon the registration of the qualified titles.

99

Survey Of Subdivided Portions Done By Licensed Land Surveyor Must Be

Certified By Director Of Survey

The survey of the subdivided portions can be done either bythe DSMM, i.e. by a Survey Officer appointed under theNational Land Code 1965 or by a licensed land surveyorregistered under the Licensed land Surveyors Act, 1958.Although the survey work may be undertaken by a licensedland survey, the plan for the title (B1) has to be certified bythe Director of Survey.

100

Survey Fees For Survey Of Subdivided Portions

Where the survey is to be carried out by the DSMM, thesurvey fees are charged according to the rates prescribed inNational Land Code (Survey Fees) Order, 1965. The rates ofsurvey fees charged by a licensed land surveyor areprovided in the Licensed Land Surveyors Regulations, 1959.

For the survey by DSMM, the land administrator shouldalso noted the remission of survey fees that may be givenunder National Land Code (Survey Fees) Order, 1965.

101

Partition

102

Partition (S140 – S145)

In Chapter 2 of Part Nine National Land Code 1965, Partition of landmeans:

(a) that a land held under Registry or Land Office title by two or morepersons as co-proprietors is partitioned so as to vest in each of them,under a separate title, a portion of the land of an area proportionateas nearly as may be to his undivided share in the whole [S140(1)(a)National Land Code 1965]; or

(b) that a land held under Registry or Land Office title by more thantwo persons as co-proprietors is partitioned so as to vest in two ormore persons to continue as co-proprietors under a separate title; and

(c) in the remaining co-proprietor or each of the co-proprietors, aseparate title [S140(1)(b)]. 103

Control On Partition Of Land

The co-proprietors of land held under a final title or aqualified title in continuation of a final title can have theland held by them partitioned only if certain conditionsimposed in National Land Code 1965 have been satisfied.These conditions are mainly to ensure that the partition isdone in an orderly manner so as to avoid any adverseconsequences which may arise out of it.

104

Conditions For Approval Of Partition

The partition can be approved only if certain conditions aresatisfied:

(a) the agreement of the co-proprietor of the land to partition[S141(1)(a)];(b) the area to be vested in each co-proprietor/the continuing co-proprietor [S141(1)(b)];(c) the restriction in interest [S141(1)(c) & as in subdivision];(d) the provisions and requirements of any other written law[S141(1)(c) & as in subdivision];(e) the approval of the planning authority [S141(1)(c) & as insubdivision];(f) the consent of certain body/authority [S141(1)(c) & as insubdivision];

105

Conditions For Approval Of Partition

(g) the item of land revenue [S141(1)(c) & as in subdivision];

(h) the consent of every person/body having a certain interest inthe land [S141(1)(c) & as in subdivision];

(i) the permissible area of each of the partition portionsaccording to use [S141(1)(c) & as in subdivision];

(j) the suitability of the shape of the partition portions[S141(1)(c) & as in subdivision];

(k) the satisfactory means of access for the partition portions[S141(1)(c) & as in subdivision].

106

The Agreement Of The Co-Proprietors Of The Land [S141(1)(a)]

Except in the case of an application for partition by any co-proprietor, an application for partition cannot be approvedunless each of the co-proprietors has either joined in, orconsented to the making of the application for partition.

This means that if A, B and C are co-proprietors in respect of apiece of land, the application for partition of that land cannot beapproved if, e.g., B does not sign the application form togetherwith A and C or a written consent of B to the effect that heagrees with the partition is not accompanied with theapplication form signed by A and C.

107

The Area To Be Vested In Each Co-Proprietor [S141(1)(b)]

Partition under S140(1)(a):

A partition cannot be approved if the area to be vested in each co-proprietor is not as nearly as may be proportionate to his undividedshare in the whole land.

This means that if P, Q, R and S are co-proprietor of a piece of land of24 hectares, the application for partition in respect of that land cannotbe approved if, e.g., the area to be vested in P is 3 hectares and thearea to be vested in Q, R and S is 7 hectares each.

In this case the area to be held by P, Q, R and S should be 6 hectareseach. If e.g., ¼ of a hectare is to be used for access, then the area tobe vested in P, Q, R and S should be approximately 5.93 hectares each.

108


It is to be noted that the number of portions into which aland can be partitioned cannot exceed or less than thenumber of co-proprietors. If a piece of land is held by threeco-proprietors, then the number of portions into which theland can be partitioned is three. In this case, if in theapplication for partition, it is indicated that the land is to bepartitioned into only two portions, then the applicationcannot be approved.

109


Partition under S140(1)(b):

A partition of land cannot be approved if the area to be vested in eachco-proprietor who wishes to have a separate title is not asproportionate as nearly as may be to his undivided share of the wholeland and the area to be vested in the co-proprietors who wish tocontinue as co-proprietors is not proportionate as nearly as may be totheir total undivided shares of the whole land.

This means that if P, Q, R and S are co-proprietors in a piece of land of24 hectares and R and S wish to remain as co-proprietors, theapplication for partition of land cannot be approved if, e.g., theportions to be vested in P and Q are not 6 hectares each and theportion to be vested in R and S together is not 12 hectares.

110


If, e.g., about ¼ of a hectare is to be used for access, thenbased on the requirement that the area of a portion mustbe as nearly as may be proportionate to the undividedshare or the total of undivided shares, P and Q should eachget a portion of an area of 5.93 hectares and R and Stogether should get a portion of an area of 11.86 hectares.It is also to be noted that in this example, the portions ofland to be vested should not be more than three.

111

The Restrictions In Interest

As provided in S141(1)(c) National Land Code 1965,S136(1)(a) is also applicable to a partition of land. As suchan application for partition cannot be approved if the landis subject to a restriction in interest to the effect that apartition cannot be done.

112


As provided in S141(1)(c) National Land Code 1965 andS136(1)(b) is also applicable to a partition of land. As such apartition cannot be approved if it is contrary to any of theprovisions or requirements of any written law.

113

The Approval Of Planning Authority

As provided in S141(1)(c) National Land Code 1965,S136(1)(c)(i) and (ii) is also applicable to a partition of land.As such the approval or consent of a local authority or abody vested with the town and country planning powersunder the various laws in is necessary before a partition ofland situated within a local authority area or within an areaunder the jurisdiction of a body vested with town andcountry planning powers can be approved. In granting anyof such approval, the requirements of S136(1)(c)(ii) NationalLand Code 1965 which is applicable by virtue of S141(1)(c)would have been covered.

114

The Consent Of Certain Body/Authority

As provided in S141(1)(c) National Land Code 1965,S136(1)(iii) is also applicable to a partition of land. As such ifthe State Authority has made a direction under S135(2)National Land Code 1965 that a partition of certain landcannot be approved unless the consent of thebody/authority established under that direction has beenobtained, then any application without that consent cannotbe approved.

115

The Item Of Land Revenue

As provided in S141(1)(c) National Land Code 1965,S136(1)(d) of National Land Code 1965 is also applicable toa partition of land. As such a partition of land cannot beapproved if there is any item of land revenue outstanding inrespect of it.

116

The Consent Of Every Person/Body Having A Certain Interest In The Land

As provided in S141(1)(c) National Land Code 1965, S136(1)(e)of National Land Code 1965 is also applicable to a partition ofland. As such if the land is subject to a charge, lease or lien or ifthe lease of the land is subject to a charge, lease or lien andunless in the case of the lease of part of the land where that partcorresponds precisely to one of the portions resulting from theproposed partition, the written consent of every person/bodyentitled to the benefit of the charge, lease or lien at the timeapplication is made, has to be obtained before a partition can beapproved.

It is be noted that the definition of lease in S5 National LandCode 1965 also includes a sub-lease.

117

The Minimum Area Of Each Of The Portions Resulting From The

PartitionAs provided in S141(1)(c) National Land Code 1965,S136(1)(f)(i) & (ii) of NLC is also applicable to a partition ofland. Therefore, a partition cannot be approved in respectof land subject to the category agriculture or to anycondition requiring its use for an agricultural purpose if thearea of any portion resulting from the partition is less thantwo fifths of a hectare (in Kelantan, as stated in the TwelfthSchedule National Land Code 1965, it should not less thanone fifth of a hectare).

118

The Minimum Area Of Each Of The Portions Resulting From The

PartitionIf the partition of land not subject to the categoryagriculture or not subject to any condition requiring its usefor an agriculture purpose, the area of any portion resultingfrom the partition should not be less than the minimumarea as determined by a local authority or a body or by theState Authority (if the land is situated outside a localauthority area or outside an area under the jurisdiction ofthe body).

119

The Shape Of The Portions Resulting From The Partition

As provided in S141(1)(c) National Land Code 1965,S136(1)(g) of National Land Code 1965 is also applicable toa partition of land. As such a partition cannot be approvedif the shape of the portion resulting from the partition isnot suitable for the purpose for which it is intended to beput.

120

The Partition Relating To Access

As provided in S141(1)(c) National Land Code 1965,S136(1)(h) and (2)(a) and (b)(i) and (ii) of National LandCode 1965 are also applicable to a partition of land. As sucha partition cannot be approved if any of the portionsresulting from the partition does not have any of thefollowing means of access to a road, a river, a part of theforeshore or a railway station (of these, the means of accessto a public road is preferred):

(a) direct access; or(b) a satisfactory means of access (e.g. in the form of a tractof State land set aside for access purpose); or

121


(c) any of the following means of access within the lotwhich the co-proprietors in their application for partitionagrees to provide:

(i) over land which is to be treated as surrendered tothe State Authority; or(iii) by a right of way to be declared by the landadministrator.But with respect to a partition of land subject to thecategory agriculture, the requirement may be waved.

122


For a land situated within an area designated by the StateAuthority under S136(2)(a) National Land Code 1965 for, apartition cannot be approved if the co-proprietors do not agreeto the conditions to provide a means of access and also to makeup a road (to a standard specified in the designation) on thattract of land which is to be used as a means of access.

It is be noted that in respect of a means of access, the co-proprietors are not required to make an application forsurrender of part of the land for access under S200 NationalLand Code 1965. The land for the access is deeded to have beensurrendered to the State Authority upon the registration ofseparate titles for the sub-divisional portions.

123

Refusal Of Any Co-Proprietor To Join In An Application For Partition

As provided in S145(1)(a) National Land Code 1965, where in the caseof any land vested in co-proprietors, any of the co-proprietors neitherjoins in nor consents to the making of an application for partition, theHigh Court may, on application of any of the co-proprietors in theterms specified in the order shall be deemed to have been made bythem all. As such land administrator should check whether such anorder exists or not in the case where any of the co-proprietors hasneither joined nor consented to the making of the application. It is tobe noted that this order of the High Court cannot override othercondition for approval of partition. In other words, if there is such anorder, a partition cannot be approved if, e.g. in respect of anagricultural land, the portion resulting from the partition is less thantwo fifths of a hectare (or in Kelantan less than one fifth of a hectare).

124

Application For Partition By Majority Co-Proprietors

S141A National Land Code 1965 provides that a co-proprietor or co-proprietors holding the majority share inthe land may apply for approval to partition the land. If theland is subject to the category agricultural, the requirementregarding access may be waived. Other requirements forthe partition remain the same.

125

Application For Partition By Majority Co-Proprietors

When land administrator receives an application for partitionunder S141A National Land Code 1965 and if all the conditionsare satisfied, as stated in S142(3) National Land Code 1965, hehas to notify the other co-proprietors/co-proprietors informinghim/them of the proposed partition and requiring him/them tosubmit in writing within a period of twenty eight days from thedate of service of the notice, any objection setting out fully thegrounds on which the objection is based. Under S143(4) NationalLand Code 1965, if there is an objection, he has to hold anenquiry to determine whether the application should beapproved or rejected. In a case where no objection is received,the approval can be given provided that all other conditions aremet.

126

Title In Continuation Upon Approval Of Partition

Any title registered in continuation of another title is call title incontinuation.

In the case of partition, qualified titles in continuation are registeredfor the portions resulting from the partition if there is an application forsuch titles. If land approved for partition is held under a final title,qualified titles for the subdivided portions will be registered incontinuation of the final title. The procedure on the registration of thesequalified titles is contained in S183, S186 and S188 National Land Code

1965.

If upon approving partition, no application for qualified title is made,final titles for the subdivided portions will be registered in continuation ofa final title when the survey of the portions is completed. The procedureon the registration of these final titles is contained in S171, S173 and S174National Land Code 1965. 127

Survey Of Portions Resulting From Partition

A piece of land cannot be exactly identified until it issurveyed. The manner in which a survey is carried out isprovided in S396 National Land Code 1965. Basically a landis said to be have been surveyed if in respect of which a lotnumber exists.

E.g. where a piece of land is shown in the plan as Lot No.844, it is definite that the land has been surveyed and thereis a certified plan for it. A final title can be registered for aland only after it has been surveyed in accordance with theprovisions of S396 National Land Code 1965.

128

Identification Of Portions Resulting From Partition Before Survey

The identification is required for the purpose of registeringqualified titles for the individual portions. For this purpose apiece of land is identified by a land office number (PTD No.)This number is assigned only after the Settlement Officerdemarcates the provisional boundaries of the land on thesurface of the ground. On doing so, he will record thedemarcation details of bearings and distances in his fieldbook or digital field book. All land office number given arerecorded in the land office index.

129

Settlement Upon Completion Of Survey Of Portions Resulting From Partition And


Settlement here refers to the act of showing the boundariesand boundary marks of a land to the proprietor upon thecompletion of survey. Where a survey is done by DSMM,settlement will be done by the Land Office upon completionof survey. During settlement, the attention of the proprietorshould be drawn to the implied conditions in S114 NationalLand Code 1965 relating to the preservation of boundarymarks.

130

Settlement Upon Completion Of Survey Of Portions Resulting From Partition And



It is also found necessary that the proprietor should beshown the provisional boundaries of the portions upon theregistration of the qualified titles.

131

Survey Of Portions Resulting From Partition Done By Licensed Land

Surveyor Must Be Certified By Director Of Survey

The survey of the individual portions can be done either bythe DSMM, i.e. by a Survey Officer appointed under theNational Land Code 1965 or by a licensed land surveyorregistered under the Licensed land Surveyors Act, 1958.Although the survey work may be undertaken by a licensedland survey, the plan for the title has to be certified by theDirector of Survey.

132

Survey Fees For Survey Of Subdivided Portions

Where the survey is to be carried out by the DSMM, thesurvey fees are charged according to the rates prescribed inNLC (Survey Fees) Order, 1965. The rates of survey feescharged by a licensed land surveyor are provided in theLicensed Land Surveyors Regulations, 1959.

For the survey by DSMM, the land administrator shouldalso noted the remission of survey fees that may be givenunder NLC (Survey Fees) Order, 1965.

133

Amalgamation

134

Amalgamation (S146 – S150)

In Chapter 3 of Part Nine National Land Code 1965,amalgamation of lands means that two or more contiguouslots of alienated land held under separate final titles by thesame person or body are combined into one and held byhim or that body under single title. As stated in S146(3)National Land Code 1965, any two or more lots areconsidered to be contiguous if each of them shares oneboundary at least in common with another of them. Thelots cannot be amalgamated if they are not situated in thesame town, village or mukim.

135

The Approving Authority

As provided in S146(2) National Land Code 1965, in theabsence of any direction to the contrary by the StateAuthority, the approval of amalgamation shall be given bythe land administrator where the lot to be amalgamatedare held under Land Office titles and their combined areadoes not exceed four hectares, and by the Director of Landsand Mines in every other case. A direction to the contrarymay be to the effect that the amalgamation is to beapproved by the State Authority itself or by any otherauthority delegated by the State Authority.

136

Conditions For Approval Of Amalgamation

The amalgamation can be approved only if certainconditions are satisfied:

(a) the restriction in interest [S147(1) & as in subdivision];

(b) the provisions and requirements of any other writtenlaw [S147(1) & as in subdivision];

(c) the approval of the planning authority [S147(1) & as insubdivision];

(d) the item of land revenue [S147(1) & as in subdivision];137

Conditions For Approval Of Amalgamation

(f) the consent of every person/body having a certaininterest in the lands [S141(1)(c) & as in subdivision];

(g) the minimum area of each of the amalgamation lot[S147(1) & as in subdivision];

(h) the shape of the amalgamation lot [S147(1) & as insubdivision];

(i) the sanction of the State Authority [S147(1)].

138

The Restrictions In Interest

As provided in S147(1) National Land Code 1965, S136(1)(a)is also applicable to a amalgamation of land. As such theamalgamation cannot be approved if any of the lots to beamalgamated is subject to a restriction in interest to theeffect that the amalgamation cannot be done.

139


As provided in S147(1) National Land Code 1965 andS136(1)(b) is also applicable to the amalgamation of lands.As such the amalgamation cannot be approved if it iscontrary to any of the provisions or requirements of anywritten law. E.g., the Terengganu Malay Enactment No. 17of 1360 provides in S10 that no Malay holdings outside aMalay reservation shall be combined to form a new holdingexceeding 10 acres in area. As such in Terengganu, if there isan application for amalgamation of Malay holdings outsidea Malay reservation, it has to be rejected if theamalgamated area exceeds 10 acres.

140


As provided in S147(1) National Land Code 1965,S136(1)(c)(i) and (ii) is also applicable to the amalgamationof lands. As such the approval or consent of a localauthority or a body vested with the town and countryplanning powers under the various laws in is necessarybefore the amalgamation of land situated within a localauthority area or within an area under the jurisdiction of abody vested with town and country planning powers can beapproved.

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If the lands to be amalgamated are outside an area subjectto a law on town and country planning, views of therespective State Departments of Town and CountryPlanning are normally sought before an application foramalgamation is approved. In granting any of suchapproval, the requirements of S136(1)(c)(ii) which isapplicable by virtue of S147(1) would have been covered forthe reason as stated in subdivision.

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The Item Of Land Revenue

As provided in S147(1) NLC, S136(1)(d) of National LandCode 1965 is also applicable to the amalgamation of lands.As such the amalgamation cannot be approved if there isany item of land revenue outstanding in respect of any ofthe lands.

143

The Consent Of Every Person/Body Having A Certain Interest In The Land

As provided in S147(1) National Land Code 1965,S136(1)(e) of National Land Code 1965 is also applicable tothe amalgamation of land. As such if the land is subject to acharge, lease or lien or if the lease of the land is subject to acharge, lease or lien, the written consent of everyperson/body entitled to the benefit of the charge, lease orlien at the time application is made, has to be obtainedbefore the amalgamation can be approved.

It is be noted that the definition of lease in S5 NationalLand Code 1965 also includes a sub-lease.

144

The Minimum Size Of The Amalgamated Area

As provided in S147(1) National Land Code 1965,S136(1)(f)(i) & (ii) of National Land Code 1965 is alsoapplicable to the amalgamation of lands. Therefore,amalgamation cannot be approved in respect of landsubject to the category agriculture or to any conditionrequiring its use for an agricultural purpose if theamalgamated area is less than two fifths of a hectare(in Kelantan, as stated in the Twelfth Schedule NationalLand Code 1965, it should not less than one fifth of ahectare)

145

The Minimum Size Of The Amalgamated Area

If the amalgamation is in respect of lands not subjectto the category agriculture or not subject to anycondition requiring its use for an agriculture purpose,the amalgamated area should not be less than theminimum area as determined by a local authority or abody or by the State Authority (if the land is situatedoutside a local authority area or outside an area underthe jurisdiction of the body).

146

The Shape Of The Amalgamation Area

As provided in S141(1)(c) National Land Code 1965,S136(1)(g) of National Land Code 1965 is also applicable toa partition of land. As such a partition cannot be approvedif the shape of the portion resulting from the partition isnot suitable for the purpose for which it is intended to beput.

147

The Sanction Of The State Authority

As provided in S147(1) National Land Code 1965, the sanction of theState Authority is also necessary before any amalgamation can beapproved by the Director of Lands and Mines or the LandAdministrator in any of the following circumstances:

(a) where the lots to be amalgamated are all held under Land Officetitle and their combined area will exceed 4 hectares;(b) where the lots to be amalgamated are held partly under Registrytitle and partly under Land Office title;(c) where any dissimilarity exists between any of the lots to beamalgamated in any of the following respects:

(i) the periods for which they are held;(ii) the rates at which rent is payable;(iii) the categories of land use, conditions and restrictionsin interest to which they are subject.

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As provided in S147(3), the sanction of the State Authority to anyamalgamation of lots would be to the effect that the combined area isto held under a Registry title.

S147(3) also provides that where the lots are dissimilar onsanctioning amalgamation, the State Authority will have to give any ofthe following directions:(a) if the dissimilarity of the lots is in respect of the periods of title forwhich they are held, the State Authority is to give a direction relatingthe period for which the combined area is to be held;(b) if the dissimilarity of the lots is in respect of the rates at which rentis payable, the State Authority is to give a direction relating to the rateat which the rent for the combined area is to be paid;

149


(c) if the dissimilarity of the lots is in respect of the categories ofland use to which they are subject, the State Authority is to givea direction relating to the categories for the combined area;

(d) if the dissimilarity of the lots is in respect of the conditions ofto which they are subject, the State Authority is to give adirection relating to the conditions for the combined area;

(e) if the dissimilarity of the lots is in respect of the restriction ininterest, the State Authority is to give a direction relating to therestriction in interest for the combined area;

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It is to be noted that if the approval is to be given by theState Authority, then on approving the application, theState Authority will give the appropriate directions.

As provided in S147(4) National Land Code 1965, whenthe State Authority gives the direction, it may require thepayment of a premium if the period for which thecombined area is to be held is more than any of the periodsfor which the original lots are held.

151

Title In Continuation Upon Approval Of Amalgamation

In the case of amalgamation of lands, a qualified title incontinuation is registered for the amalgamated area if there isan application for such title. If the lands are held under finaltitles, a qualified title is registered in continuation of the finaltitles. The procedure on the registration of this qualified title iscontained in S183, S186 and S188 National Land Code 1965.

If upon approving amalgamation, no application for qualifiedtitle is made, a final title for the combined area in continuationof a final titles will be registered when the survey of theamalgamated area is completed. The procedure on theregistration of this final titles is contained in S171, S173 and S174National Land Code 1965.

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Survey Of Amalgamated Area

A piece of land cannot be exactly identified until it issurveyed. The manner in which a survey is carried out isprovided in S396 National Land Code 1965. Basically a landis said to be have been surveyed if in respect of which a lotnumber exists.

E.g. where a piece of land is shown in the plan as Lot No.844, it is definite that the land has been surveyed and thereis a certified plan for it. A final title can be registered for aland only after it has been surveyed in accordance with theprovisions of S396 National Land Code 1965.

153

Identification Of Amalgamated Area Before Survey

The amalgamated area needs to be identified for thepurpose of registering qualified title. This is done by using aland office number (PTD No.) This number is assigned onlyafter the Settlement Officer demarcates the provisionalboundaries of the amalgamated area on the surface of theground. On doing so, he will record the demarcation detailsof bearings and distances in his field book (or digital fieldbook). All land office number given are recorded in the landoffice index.

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Settlement Upon Completion Of Survey Of Amalgamated Area And Upon Registration Of Qualified Titles

Settlement here refers to the act of showing the boundariesand boundary marks of a land to the proprietor upon thecompletion of survey. Where a survey is done by DSMM,settlement will be done by the Land Office upon completionof survey. During settlement, the attention of the proprietorshould be drawn to the implied conditions in S114 NationalLand Code 1965 relating to the preservation of boundarymarks.

155

Settlement Upon Completion Of Survey Of Amalgamated Area And Upon Registration Of Qualified Titles


It is also found necessary that the proprietor should beshown the provisional boundaries of the portions upon theregistration of the qualified titles.

156

Survey Of Amalgamated Area Done By Licensed Land Surveyor Must Be

Certified By Director Of Survey

The survey of the individual portions can be done either bythe DSMM, i.e. by a Survey Officer appointed under theNational Land Code 1965 or by a licensed land surveyorregistered under the Licensed land Surveyors Act, 1958.Although the survey work may be undertaken by a licensedland survey, the plan for the title has to be certified by theDirector of Survey.

157

Survey Fees For Survey Of The Amalgamated Area

Where the survey is to be carried out by the DSMM, thesurvey fees are charged according to the rates prescribed inNational Land Code (Survey Fees) Order, 1965. The rates ofsurvey fees charged by a licensed land surveyor areprovided in the Licensed Land Surveyors Regulations, 1959.

For the survey by DSMM, the land administrator shouldalso noted the remission of survey fees that may be givenunder National Land Code (Survey Fees) Order, 1965.

158

Summary Of Subdivision, Partition And Amalgamation

159


The process of partition and subdivision of land allowsthe owner to break the land into small units. This is donewhen the owner intends to develop his land for a moreproductive use or to sell or transfer part of his land to otherparties.

The difference between partition and subdivision is forpartition, all owner names appearing on original titles willbe registered on each new unit Title. Subdivision meanssame name will be registered on a separate new Title.

160


For a minimum area of agricultural land after subdivisionshall be not less than one acre or approximately 0.4hectares, while for other use land shall be in accordancewith the minimum area permitted by the Building By-Laws,Local Authority. To develop land into various uses, theowner must apply for the conversion after subdivision.

161


For example, agricultural land to be developed for housingand commercial needs to be converted to new uses,because of the conditions and quit rent are different forboth uses. Therefore, owner or owners need to subdividethe land into smaller lots, in accordance with therequirements of the law, followed by a request forconversion by separating lots for housing, lot foragricultural use and other uses.

162


In addition, if the parties have multiple adjacent piecesof land under same type of Title, the same expressconditions and land use, the lands may be amalgamatedinto one amalgamation of land.

For convenience, the owner usually will appoint aLicensed Land Surveyor to survey the land and submit (onits behalf) the application of subdivision, partition, oramalgamation of Land to the Land Office.

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Power to Approve

Director of Lands and Mines for Registrar Title. Land Administrator for Land Office Title.

Forms Used

Application for subdivision of land (Form 9A). Application for partition of Land (Form 9B). Application for amalgamation of land (Form 9C).

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Payment

Plan fee of RM10.00 per plot.

Qualified Titles Registration Fee RM20.00 per plot.

Final Titles Registration Fee RM20.00 per lot.

Survey Fees. Please refer to the Survey Fees by LandSurvey Board.

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Documents to be included for individual application

Four (4) sets:i. Form 9A for Subdivision of land application; or

ii. Form 9B for Partition of land; or

iii. Form 9C for Amalgamation of land application; or

iv. Fifteen (15) certified true copies of Registry Document ofTitle.

v. One (1) certified true copy of Issue Document of Title.166


vi. One (1) copy of current year quit rent land.

vii. One (1) copy of the appointment letter of the Licensed LandSurveyor from the Land Surveyor Board (if using theLicensed Land Surveyors service).

viii. One (1) copy of consent letter of interested person (ifapplicable).

ix. Receipt of application fee of RM30.00 per plot.

x. One (1) copy of the applicant's particulars. One (1) copy ofthe applicant's identity card. 167


Documents to be included for Company application

One (1) sets:i. Form 9A for Subdivision of land application; or

ii. Form 9B for Partition of land; or

iii. Form 9C for Amalgamation of land application; or

iv. Copy of plan

v. Certified true copies of Registry Document of Title.

vi. Copy of current year quit rent land168


vii. Copy of the appointment letter of the Licensed LandSurveyor from the Land Surveyor Board (if using theLicensed Land Surveyors service).

viii. Copy of consent letter of interested person (if applicable).ix. Copy of receipt of application fee of RM100.00/titlex. Copy of Company Resolution.xi. Copy of the Company's Constitution/Memorandum and

Articles. Copy of Director Board List (Form 49) certified byRegistrar Company/Company Secretary.

xii. Copy of Share Statement (Form 24) or Transfer of Sharecertified by Registrar of Companies/Company Secretary.

169

SURRENDER, SURRENDER AND RE-ALIENATION

170

Surrender Of Title

171

Power To Surrender (S195 KTN)

The proprietor of any alienated land help under RegistryTitle, Land Office Title or Qualified Title may, with theapproval of the State Director of Lands and Mines or LandAdministrator surrender to the State Authority:

i) Whole alienated land; orii) Part of the alienated land for the use or intend to use

for religious, education, recreation or public purpose.

172

Conditions For Approval Of Surrender

According to Section 196(1)(a) – (c):

i) NO item of land revenue is outstanding in respect of the land;

ii) The land will not create or cause any liabilities to the State Authority;

iii) The land is not under attachment by any court; and

iv) Every person or body has consented in writing to the making of the application.

173

Action To Be Taken After Surrender Of Whole Land

Reminder of surrender is made in the register documentof the land.

The land will be returned and vested in the StateAuthority as State land.

Title document of land is cancelled.

174

Action To Be Taken After Surrender Of Part Land

Reminder of surrender is made in the register document ofthe land.

The land will be returned and vested in the State Authority asState land.

The part with no surrender will be surveyed.

Issued of title document of continuous to the balance part.

Calculate quit rent to be paid based on balance area aftersurvey.

175

Surrender And Re-Alienation Contiguous Lots Held Under Land

Office Title (S203 NLC)Definition

Land Administrator may approve the surrender of any twoor more contiguous lots held by same proprietor underLand Office title on the terms that the land comprisedtherein be immediately re-alienated to the proprietor indifferent units, each of less than four hectares, and eachunder the form of qualified title corresponding to LandOffice title.

176


Office Title (S203 NLC)Conditions For Application

i) 2 or more contiguous lots;ii) All lots held under Land Office Title;iii) All lots held by same proprietor;iv) All lots are all situated in the same mukim, town or village;v) No dissimilarity exists between any of the lots as respects the periods for

which they are held, the rates at which rent is payable, or the categoriesof land use, conditions and restriction in interest to which they aresubject;

vi) The combined area of the lots exceeds four hectares;vii) None of the lots is subject to any registered interest or tenancy exempt

from registration protected by endorsement on the register document oftitle; and

viii) Area of individual unit that re-alienated less than 4 hectares.177


Office Title (S203 NLC) Any proprietor wishing to apply for an approval pursuant tothis section shall do so in Form 12C and attach with:

i) Prescribed fee that in State Land Rules;ii) Pre-Computation plan according to the specified number

which indicates the lots to be surrender and plan forproposed new lots; and

iii) Consented letter from person/body who has registeredinterest on such land.

178


Office Title (S203 NLC)Re-Alienation

i) Re-alienation will follow the process under Section 79 of theNational Land Code 1965;

ii) Categories of land use, express condition and restriction ofinterest should be the same with original (before surrender);and

iii) Survey for title from Qualified Title to Final Title shouldfollow Section 191 of the National Land Code 1965 (Section204 – Procedure for re-alienation, National Land Code 1965).

179

Surrender And Re-Alienation -Johor Old Procedure

180

Application Process Through SBKS Johor State (Old)

The State of Johor adopts a surrender and re-alienation (SBKS)application process for housing, industry, commercial, mixeddevelopment, tourism and so on. The practice of these processesand procedures was first introduced in 1973, in accordance withthe provisions under Section 204 of the National Land Code 1965(Act 56). Through this system, the process of amalgamation,subdivision of land, application of detailed layout plan and landconversion will be conducted concurrently in a developmentapplication. For a particular purpose, in particular to expedite theapproval process, the SBKS system is made in two stages: SBKSstage 1 and SBKS stage 2. Johor only uses Form 12A and Form 12B.

181


Application for development order

By adopting Act 172, it enable related Local Authority toconduct the Development Order process of application(provision Bab 1, Act 172).

182


Application for Surrender and Re-Alienation – Stage 1

Application for SBKS Stage 1 is submitted to the StateAuthority in order to obtain a basis decision whether theapplication for the housing development can be developedor vice versa. At this stage, the Lands and Mines Office willact as a secretariat before the application is brought to themeeting of the State Authority through the JawatankuasaHasil Bumi and EXCO Meeting.

183


The requirements for the Stage 1 SBKS process are subjectto the application area of land (proposed site) exceeding 10acres. For applications of less than 10 acres, there is noneed to go through the SBKS stage1 process. Asconsideration is only the basis is needed, only 3departments are referred to, i.e. Town and CountryPlanning Department, District Land Administrator and LocalAuthorities.

184

186

> 10ek, P1

< 10ek, P2

Surrender And Re-Alienation - Stage 1 (Old)

187


Application for Surrender and Re-Alienation – Stage 2

Application for SBKS Stage 2 (detailed layout plan stage) issubmitted directly to the relevant Local Authority which is theauthority that to approve the layout plan for planning. This stageinvolves more detailed on the details of the proposal and toensure every aspect of the legislative, departmentalrequirements and standards adopted is adhered to in carryingout a development. For this purpose, several technical agencies(involving 14 departments) will be referred to the views andreviews.

188

Surrender And Re-Alienation - Stage 2 (Old)

191