Bab4-Jenis-Jenis Hak Milik

JENIS-JENIS HAKMILIK

  1. TYPES OF TITLE

The national Land Code, 1965 makes provisions for a number of different types of title. The following are the more common ones:

  1. Qualify Title

 

Before the issuance of a final to the proprietor of a piece of land, the National Land Code provides that a qualified title may be issued. The basic difference between a final title and a qualified title is that land held under a qualified title has not been subject to a survey and therefore the area is not final.

A qualified title issued under the National Land Code confers on the proprietor the same rights as those conferred by a final title except that the area of land held under a qualified title is provisional and the land is incapable of being subdivided, partitioned or amalgamated nor can any building on the land be sub-divided.

Except for this limitation, a qualified title is similar to a final title in all other respects. A proprietor of land held under qualified title, has power to lease, charge or transfers the land before completion of the survey.

 

  1. Final title

 

Upon a survey conducted in accordance with section 396 of the national Land Code, a proprietor of land holding a qualified title may be issued with a final title. It should be emphasized that the area of the land may differ after the survey and therefore the area of the land held under qualified title may not be the same as that held under final title. If the land, after survey, is determined to be smaller than that provisionally approved under the qualified title, the proprietor does not have any claims against the State Authority in respect of the discrepancy.

A final title, once issued confers on the proprietor of the land an indefeasible title. A final title gives the proprietor the right to deal with the land, subject to any restrictions in interest endorsed on the title. The proprietor may sub-divide, partition, or amalgamate the land. He may transfer, lease, charge or dispose of the land by will.

 

  1. Registry and land Office Titles

 

Qualified and final titles can either be Registry or Land Office titles. Under section 77 (3) of the National Land Code, Registry title is appropriate in the case of town or village land, any lot of country land exceeding ten acres in area and any part of the foreshore or sea-bed. Land office title, on the other hand, is appropriate for any lot of country land not exceeding ten acres in area. However, under the proviso to section 77(3), the State Authority may direct that any country land shall be held under Registry title notwithstanding that its area does not exceed ten acres. Under the same proviso, all holdings under the Land (Group Settlement Areas) Act 1960 shall also be registered as land Office title.

 

Section 86 provides for two forms of Registry titles, that is, Grant in Form 5C. A grant is for land alienated in perpetuity whereas a State lease is for land alienated for a term of years. Under section 158 of the National Land Code, the Registrar shall maintain a register of grants and a register of State leases.

 

Section 87provides for two forms of Land Office title that is, Mukim  grant in Form 5D and Mukim lease in Form 5E. Mukim grant is for land alienated in perpetuity and Mukim lease is for land alienated for a terms of years. The Collector of each district must maintain two series of books known as the Mukim Register. One series of the books shall be for Mukim grants and the other for Mukim leases. As in the case of registry titles, the titles in the Mukim Registers of the former Federated Malay States, commonly known as EMR (Extract from Mukim Register) continue to be used for registration of dealings.

 

 

  1. Register Document of Title and the Issue Document of Title

 

The register document of title is a document registered under section 88 of the National Land Code which evidences title to land. The issue document of title, on the other hand, is the copy of a register document of title prepared for issue to the proprietor of the land. The issue document of title is indispensable for the purposes of carrying out any dealings in land such as the creation.

 

  1. Possessory Title

 

Possessory titles are only applicable to land in the State of Kelantan. It was introduced by the Kelantan Land Settlement Ordinance to determine the legal status of persons who were occupying land and to register the land subsequently in the name of lawful owner. The Ordinance provides for an inquiry to be conducted to determine and register the interest of the person having possession of the land. A possessory title is then granted to such a person. If the title of such a person is not challenged by anyone else who claims to be the owner, the person having possession will acquire an indefeasible title. A person who successfully challenges the title of the holder of the possessory title, will from the date of the judgment be registered as the proprietor of the land. The existing interests of the person in possession will then cease.

 

  1. Subsidiary Title

 

A subsidiary title commonly referred to as ‘strata title’, is a title issued to each of the parcels within a building (having two or more storeys) which has been subdivided. All subsidiary titles to the parcels of a building on a particular lot will be prepared in a Register known as the Subsidiary Register. The owner of a subsidiary title may deal with such title in the same manner as any other title under the National Land Code. He may transfer, charge or lease the land. Rights of support, shelter and service are given to each subsidiary proprietor by implication. However, he may only deal with his rights in the common property as appurtenant to the parcel. He has the rights of user of the common property as if he were a tenant in common with the other subsidiary title holders.

 

Owners of flats and condominiums will normally be issued with a subsidiary title. Though the National Land Code contains detailed provisions for the issuance of subsidiary titles, proprietors of alienated land (developers) on which flats have been built and sold have been slow in applying for subsidiary titles. As a consequence, purchasers of these facts have not been able to obtain subsidiary titles of proof of ownership.

 

Difficulties were also faced by them when attempting to obtain loans to finance their purchase. Most financial institutions (including the Government Housing Loans Division) are reluctant to grant loans as it is felt that without a charge, the protection afforded to them was insufficient.

 

To compel the proprietors to apply for such subsidiary title, the National Land Code was amended in 1981 whereby a new provision was introduced making it compulsory for such proprietors to make the necessary applications for the approval of the sub-division of the not assist the purchasers of flats in any substantial degree as most developers were holding only a qualified title-to the land which is incapable of sub-division under the Code.

 

The omission in the amendment Act to compel developers to apply for a final has rendered the purported benefits to the purchasers nugatory.

 

  1. Surat Akuan

 

It is a document of title authorizing the occupation of State land in expectation of the registration of title, is deemed to have acquired a right to registration of title to the State land occupied.

 

His approved application cannot be cancelled at any time before the document of title has been registered. However, before obtaining the final title, the land cannot be charged, leased or transferred.

 

A person holding a surat akuan may enter into a conditional contract to sell the land.

 

  1. Other titles

 

Land may also be held under titles issued under the Customary Tenure Enactment which are applicable to the State of Malacca and Negeri Sembilan; Aboriginal Peoples Ordinance 1954; and Land (Group Settlement Areas) Act 1960.

 

  1. CLASSIFICATION OF LAND USE

 

Land under the National Land Code is subject to any one of the three categories of land use. A title to the land may restrict the use of the said land to agriculture, building or industry. When any one of these categories is endorsed on the title, a number of conditions, both express and implied, peculiar to each of category of land use will apply. The following are the various conditions applicable to each of these categories of land use.

 

  1. Category ‘agriculture’

 

In the case of agricultural land, the express conditions are those: (a) requiring the cultivation of a particular crop or any class or description of crops; (b) prohibiting the cultivation of a particular crop or any class or description of crops; (c) fixing the dates for which agricultural work is to be commenced or completed; (d) limiting the maximum area of the land which may be occupied by dwelling houses and other buildings.

 

The word ‘agriculture’ is define under section 5 of the Code to include the cultivation of any crop (including trees cultivated for the purpose of their produce), market gardening, and the breeding and keeping of livestock and fish.

 

The implied conditions for the category of ‘agriculture’’ land are conditions relating to boundary marks and the following conditions are provided for in section 115: that no building shall be erected on the land other than a building or buildings for the following purpose; (i) dwelling house for the proprietor of the land or his agent or servant or any persons employed by the proprietor; (ii) agriculture; (iii) extracting or processing raw material from agricultural produce; (iv) preparing for distribution of material or agricultural produce or livestock; (v) providing educational, medical, sanitary or other welfare facilities; (vi) any other purpose prescribed by the State Authority or as it may think fit to authorize, or (vii) any purpose incidental to a purpose described above.

 

Other implied conditions under the category ’agriculture’ include:

 

  • That commencement of cultivation shall be made within a certain date;
  • That the whole area other than the area occupied for building  shall be brought under cultivation within three years;
  • That the rules of good husbandry will be maintained;
  • That cultivation must be continuous.

 

  1. Category ‘building’

 

In the case of land subject to the category ‘building’, the State Authority may impose such express conditions as it may think fit with respect to; (a) the area or proportion of the land to be built upon; (b) the type, design, height and structure of any building to be erected on the land, and the type and quality of the materials to be used in its construction; (c) the dates on or before which any such building is to be commenced or completed; (d) the use to which any building is to be put’

 

The implied conditions of land subject to the category ‘building’ (besides those relating to boundary marks) are provided for in section 116; namely that the building shall be erected within two years for the purpose of ; (i) residential; (ii) administrative or commercial or passenger transport; (iii) exhibiting, selling by retail, repairing or dealing in any goods or commodities or of providing any services; (iv) educational, medical, sanitary or other welfare facilities; (v) entertainment, refreshment or recreation; (vi) any other purpose prescribed by the State Authority or as it may think fit to authorize or, (vii) any purpose incidental to a purpose described above.

 

The term ‘building’ is defined under section 5 of the National Land Code to include any structure erected on land.

 

  1. Category ‘industry’

 

In the case of land subject to the category ‘industry’ the express conditions are the same as for category ‘building’.

 

The implied conditions of land subject to category ‘industry’ are those relating to boundary marks and the following; (a) that it shall be used only for industrial purpose, that it to say, for the purposes of the erection or maintenance of factories, workshops, foundries, warehouses, docks, jetties, railways or other buildings or installations for use for or in connection with one or more of the following purpose; (i) manufacture; (ii) smelting; (iii) the production or distribution of power; (iv) the storage, transport or distribution of goods, or other commodities; (v) such other purpose as the State Authority may prescribe for the purpose of this section by rules under section 14; (b) that every building or installation thereon (whoensoever erected or installed) shall be maintained in repair; (c) that no such building or installation shall be demolished, altered or extended without the prior consent in writing of the State Authority.

 

In respect of each of the categories above, the implied conditions only operate to the extent that they are not inconsistent with any express conditions.

 

 

  1. SUB-DIVISION OF LAND

 

A proprietor of land held under final may apply to have the land sub divided into two or more portions. It is only through sub-division that a proprietor will be able to sell parts of the land to various purchasers. On sub-division, separate titles are issued for each sub-divided portion of the land.

 

Where a housing developer constructs a number of houses on a piece of land, the housing developer must apply for sub-division so as to enable each purchaser of a house to have a separate title. It must, however, be emphasized that a proprietor may only apply for sub-division if the land is held under a final title and not merely a qualified title. It is, however, not uncommon for housing developers who hold a qualified tactile to delay the issuance of separate titles to the purchasers until final title has been applied for.

 

There is no law requiring housing developers to ensure that on completion of the project, they should be in a position to apply for sub-division.

 

The provisions relating to sub-division are contained in sections 135 to 139 of the National Land Code. A p proprietor’s application for sub-division shall be approved by the relevant authorities if he satisfied all he statutory requirements for such approval. The following are certain of the requirements which an applicant for sub-division has to fulfill; that no regulation, law, restrictions would be infringed by the sub-division; that all persons interested in the land, for example a charge, have given their consent; that sufficient access will be available for the sub-divided lots and that no revenue relating to the land its outstanding.

 

When sub-division of any land has been approved, a qualified title will usually be issued. Only after survey of the sub-divided portions will final titles be granted.

 

  1. PARTITION OF LANDS

 

Any alienated land held by two or more persons as co-proprietors may be partition, each co-owner will have a separate title. Such portion of the land will be in proportion to the undivided share of the whole land which he possessed before partition. Partition, therefore entitles co-proprietors of land to have a separate title over an identified portion of the land to the extent of their undivided share in the land as a whole.

 

Before partition may be applied for, all co-proprietors must consents to it. Where any one of the co-proprietors refuse to give the necessary consent, the other co-proprietors may apply to Court to order a partition. In exercising its discretion as to whether to grant such an order, the Court may order any one of the following; the partition; the undivided share to be transferred to the other co-proprietors or to any one or them or that the land be sold.

 

In the case of Ichah Binte Bador v Collector of Land Revenue, Kuala Pilah, it was held that on an application of any co-proprietor for a partition of the land, the Collector has no power to refuse a partition on the ground that the unregistered interest of some other party would be affected.

 

  1. AMALGAMATION OF LANDS

 

Where a person is a proprietor of two or more contiguous lots of alienated land held under separate titles, he may apply to amalgamate the various lots of land to be held under one title. No amalgamation, however may be approved by the State Authority in any of the following circumstances; (a) where the lots to be amalgamated are all held under Land Office title and their combined areas if amalgamation is approved will exceed ten acres; (b) where the said lots are partly held under Registry title and partly under Land Office title; (c) where there are differences between the said lots as to the terms on which they are held, or to the rates of the rents payable or as to their categories of land use, or to the conditions or restrictions in interest to which they are subject.

 

In cases where there is a difference between the lots as to the tenure for which they are held or their conditions, the State Authority in granting its sanction may give any directions it may think fit as to the period for which the combined area is to be held and also to the category of land use, conditions and restrictions in interest to be endorsed on the new document of title.

 

  1. PRIVATE SEARCH

 

Section 384 of the National Land Code provides that any person may, at any time during normal hours of any Registry or Land Office, inspect and take notes of or extracts from any register of title, Presentation Book of Correction Note Book maintained by the Registrar. Such person may also made to, or in the custody of the Registrar.

 

In conducting a private search, the purchaser should not only note what is registered on the register document of title but must make inquiries as to whether any instruments or caveats relating to the land in question have been presented for registration but have not been registered as yet. Under section 300 of the National Land Code, instruments are registered an instrument are registered in the order of their presentation. The Registrar. However may register an instrument which had been presented later if the prior instrument presented had been rejected or withdrawn. It should be notes that priority for registration is in accordance with the date the instruments are presented for registration and not according to the date of the instrument. On registering an instrument, the Registrar shall enter the time when the instrument was presented for registration. Where two instruments affecting the same land are to be taken as having been presented at the same moment of time, the Registrar may determine the order of their presentation. In doing so, the Registrar will best give effect to the intention of the parties. It is further provided by the National Land Cod that.

 

  1. OFFICIAL SEARCH

 

Instead of making a personal search in Land Registry, a purchaser may also apply to the Registrar for an official search to be conducted in respect of any land. The Registrar shall then issue a certificate of search. The certificate of search will specify the name of the registered proprietor of the land, whether it is held by such a person in his capacity as a trustee or representative; a summary of all the memorials and other entries on the register document of title, indicating whether at the time of issues of the certificate any instrument of dealing has been presented for registration and certain other matters. One major disadvantage of an official search is that it would take a much longer time for the purchaser to obtain the relevant information, which may in fact be prejudicial to him. It is therefore, advisable that a private search be always conducted.

 

Section 386 of the National Land Code Provides that any purchaser who suffers loss or damage as a consequence of any error in, or omission from, any certificate of search shall be entitle to receive compensation.

 

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