LAWS 3111 (LAND LAW 1)

SECTION 4

TUTO SLOT: MONDAY 3-4 P.M.

TOPIC:

LEGAL OPINION

https://youtu.be/plqKcPi5Q_s

LECTURER: DR. SHARIFAH ZUBAIDAH SYED ABDUL KADER

SUBMISSION DATE: 3RD JANUARY 2024

NO. NAME MATRIC NO.

1. Muhammad Mikhail bin Muhammad Mustafa 2113007

2. Anas Bin Ahmad Zaharim 2117837

3. Muhammad Imran bin Ryan Zakry 2111155

4. Muhammad Ihsan Husaini bin Rosli 2118211

Your legal firm is appointed to represent Gentra Developments Sdn Bhd (‘Gentra’) that is
facing a problem of a portion of its land being occupied by individuals without any legal right
or permission. Gentra is concerned about this unlawful occupation and requires advise to
understand the legal options to address the situation. The land in question is located in Hulu
Selangor and held under the category ‘agriculture.’ Gentra has known about the occupiers for
a number of years but has so far not taken any action. It has now obtained planning
permission to develop the land into a township with residential, commercial and industrial
property. The occupiers have set up makeshift structures, cultivated crops and claim to have
been living there for years. They claim to have obtained temporary occupation licenses from
the state government when the land was still state land prior to the land being alienated to
Gentra. They also say that Gentra has not taken any action against them for more than 15
years and thus, Gentra cannot now evict them. Gentra now wants to take possession of the
land and prevent any further unlawful occupation. The issues raised by Gentra are as follows:

1. What legal steps can it take to address unlawful

occupation of land by the occupiers?

2. Can the occupiers claim that they have a better right to the
land than Gentra since they had obtained TOLs prior to the
land being alienated to Gentra?

3. Can Gentra be estopped from claiming the land as it had

failed to take any action against the occupiers for the last
15 years?

4. What legal principles should Gentra keep in mind to ensure

that its actions are in compliance with the law and do not
result in any legal liabilities?

A consultation session is scheduled with encik izzati/puan izzati, the managing director of
Gentra. Provide your advise to Gentra to help it make an informed decision regarding the
unlawful occupation of its land.
 MIKHAIL & ASSOCIATES

Muhammad Mikhail 3517 Rod River North Jinjang

LL.B (Hons) IIU (Malaysia) Utara, 52000, Wilayah
LL.M Khan Academy Persekutuan, Kuala Lumpur
No: 09-36258-4734
Muhammad Imran Ryan Telefax: 09-38458-4734
LL.B (Hons) IIUM (Malaysia) Email:[email protected]
LL.M King’s College (London)

Muhammad Ihsan Husaini

LL.B (Hons) UM (Malaysia)
LL.M Queen’s College (London)

Anas bin Ahmad Zaharim

LL.B (Hons) IIUM (Malaysia) Advocates & Solicitors
LL.M Prince’s College (London) Civil Practitioners
___________________________________________________________________________
Reference No: CVL/LAND/2024/69 Date: 3/1/2024

Gentra Developments Sdn Bhd (‘Gentra’),

Jalan Ridzuan Lim,
Kampung Pinang Sebatang,
44000 Kuala Kubu Baru,
Selangor

Dear Gentra,

Re: Legal Opinion on Squatters in Hulu Selangor

With kind reference to the above and our meeting with your managing director, Encik Izzat
on 14/1/2024 , we are pleased to provide herein our legal opinion on the said matter.
1.0 FACTS

1.1 The land which is located at Hulu Selangor is agricultural land and it was
previously a state land before being alienated to Gentra.

1.2 The occupiers have set up makeshift structures and cultivated crops. They are also
claiming to have been living there for years and held a temporary occupation licence from the
state government.

1.3 Gentra wants to take possession of the land and prevent further unlawful
occupation. They have also been concerned about occupiers' claims and lack of previous
action since Gentra has known about the occupiers for years but not taken action until now.

1.4 Gentra obtained planning permission to develop the land into a township. The
Occupiers claim Gentra cannot evict them due to inactivity.

2.0 ISSUES

Based on our sessions with you, the legal issues are as follows:

2.1 Whether Gentra has the right to apply to the court to evict the occupiers?
2.2 Whether the occupiers can claim they better right since they had obtained TOLs
prior to the land being alienated to Gentra?
2.3 Whether the time lapsed of 15 years causes Gentra to not be able to claim back
their land?
2. 4 Whether the occupiers can raise the defence of ‘proprietary estoppel’ against
Gentra in such action?
2.5 Whether there are any legal principles which Gentra must comply with to avoid
any legal liabilities?

3.0 APPLICABLE LAW

3.1 Whether Gentra has the right to apply to the court to evict the occupiers?

3.1.1 Section 7 of Specific Relief Act 1950 (Revised 1974) on Recovering of specific
immovable property: 7. (1) Subject to subsection (2), a person entitled to the
possession of specific immovable property may recover it in the manner prescribed by
the law relating to civil procedure. (2) Where a specific immovable property has been
let under a tenancy, and that tenancy is determined or has come to an end, but the
occupier continues to remain in occupation of the property or part thereof, the person
entitled to the possession of the property shall not enforce his right to recover it
against the occupier otherwise than by proceedings in the court. (3) In subsection (2)
 "occupier" means any person lawfully in occupation of the property or part thereof at
the termination of the tenancy.

3.1.2 To apply, Gentra does not have the right to forcefully evict the squatter out of
the land as the force eviction has been abolished in the eye of law. Gentra must seek a
civil proceeding from the high court as the last option if the squatter still insists to not
move from the land after several attempts. Therefore, Gentra cannot forcefully evict
the squatter instead they can apply for civil proceedings from the High Court.

3.2 Whether the occupiers have a better right since they had obtained TOLs
prior to the land being alienated to Gentra

3.2.1 In the Section 48 of the National Land Code, with the title of No Adverse
Possession Against the State, it is said that “ No title to State Land shall be acquired
by possession, unlawful occupation or occupation under any license for any period
whatsoever”. Based on this, the occupiers could not argue that they have any rights as
the possession is absolute on behalf of Gentra

3.2.2 Later in Section 340(1) of National Land Code states that the title or interest of
any person or body for the time being registered as proprietor of any land, or in whose
name any lease, charge or easement is for the time being registered, shall, subject to
the following provisions of this section, be indefeasible. Indefeasible means not being
able annulled or voided, the right of ownership that own by Gentra towards the land is
considered to prevailed to the TOL claimed by the squatters.

3.2.3 Gentra may also referred the case of Bohari bin Taib &Ors v Pengarah Tanah
Galian Selangor, in this case, the forefathers of the appellants were pioneer settlers of
agricultural land in Sabak Bernam.The appellants claimed that they had applied for
land titles to the Selangor State Authority (SA) between 1971 and 1976, and that an
Exco member had verified that the land had been approved for alienation in
September 1980 by the Selangor State Executive Council (Exco). Subsequently,
though, the appellants were told that all they would receive were Temporary
Occupation Licences (TOLs), and that they would eventually obtain land titles after
three years. The respondent then gave the lands to FELCRA and filed a summary
application under Order 89 of the High Court 1980 Rules to take possession of the
land without paying the appellants' eviction costs. After the respondent's application
was granted by the High Court, the appellants filed an appeal with the Supreme Court
(SC). The SC held that squatters, who have no rights at all, and occupiers who have a
licence or consent should be distinguished for the purposes of the summary procedure
under Order 89 of the Rules of the High Court. Due to the alienation that had already
been approved before the TOLs, the court determined that the appellants had a strong
case for continuing to be in occupation with the state government's approval. The
court came to the conclusion that a trial should be held in this case.
 3.2.4 If the squatters still persist in denying the right to own by Gentra, Gentra and its
team may refer to Section 425 of the National Land Code, Unlawful occupation, etc.,
of State land, reserved land or mining land. It is stated here that,
(1) Any person who, without lawful authority- (a) occupies, or erects any building
on, any State land, reserved land or mining land, or (b) clears, ploughs, digs, encloses
or cultivates any such land or part thereof; or (c) cuts or removes any timber or
produce on or from such land, shall be guilty of an offence, and liable on conviction
to a fine not exceeding ten thousand ringgit, or imprisonment for a term not exceeding
one year.
(1A) Any person who abets the commission of an offence under subsection (1) shall
be guilty of an offence, and liable on conviction to a fine not exceeding ten thousand
ringgit, or imprisonment for a term not exceeding one year, or to both.
(2) For the purpose of this section, State land shall include all land held by or on
behalf of Federal or State Government a local authority or a statutory authority
exercising powers vested in it by Federal or State law. Thus, the squatters may be
brought to the court and liable on these stated punishments as they had become
unlawful occupiers on the land that is owned by Gentra.

3.3 Whether the time lapsed of 15 years causes Gentra to not be able to claim back their
land

3.3.1 By virtue of Section 341 of the National Land Code, you as the owner of the
land have the right to recover or claim back your land and that no adverse possession
of land for any length of time shall bar you from doing so. The Limitation Act 1953 is
not able to extinguish your title to the land.

3.3.2 According to Section 7 of the Special Relief Act 1950, Recovery of specific
immovable property. The provision states that a person entitled to the possession of
specific immovable property may recover it in the manner prescribed by the law
relating to civil procedure.

3.3.3 In applying to your situation, since you are entitled to the possession of the said
specific immovable property which in this case is the land. You may recover the land
as long as you follow civil procedures.

3.4 Whether the occupiers can raise the defence of ‘proprietary estoppel’ against
Gentra in such action

3.4.1 In order for a party to successfully raise the defence of proprietary estoppel they
(the occupiers) must first fulfil all the requirements that are needed and a case that can
further illustrate this is the case of Brinnand v Ewens and another [1987] where in
this case it was established that there were four elements to fulfil for a valid action of
proprietary estoppel. First being that the claimant must have incurred or otherwise
 acted to his detriment. Second , that the claimants must have acted in belief that they
would own sufficient interests in property to justify expenses. Third being that the
claimants must have been encouraged by the landlords and last element being that
there must be no bar to equity such as contravening any statutes. From this it clearly
outlines the requirements that the squatters need to fulfil and prove if they want to use
the defence of estoppel against you.

3.4.2 In the case of Inwards v Baker [1965] 2 QB 29 where Jack Baker was
encouraged by his father to construct a bungalow on his property. The son built it at
his own expense using mainly his own labour. After the house was finished, the son
moved in and stayed there until 1931. When the father passed away in 1951, Ms.
Inwards, his live-in partner, inherited all of his possessions. Miss Inwards filed legal
action in 1963 to have Mr.Baker removed from the land. It was held that Mr. Baker
had the right to stay on the land. At his father's encouragement, he spent money on the
land, creating an equity that was satisfied by issuing a lifelong licence.

3.4.3 In applying both cases to your current scenario it can be understood that all the
elements need to be fulfilled in order for the defence of proprietary estoppel to be
used against you. In our current scenario it can be seen that the element of
encouragement had never existed from Gentra’s side. Gentra was never in contact
with the occupiers hence no encouragement could have ever existed that could make
the occupiers think it was ok for them to develop the land that they never owned in
the first place. Since the element of encouragement is not fulfilled in your scenario,
the squatters/occupiers have no right to raise this defence against you and stop you
from claiming your land.

3.5 Whether there are any legal principles which Gentra must comply with to avoid any
legal liabilities?

3.5.1 When administering land, the principle of forfeiture must be taken into
consideration to avoid any future legal liabilities. Section 100 and section 127 of the
National Land Code outlines the States Authority to take back alienated land for
reasons of either; i. Non-payment or ii. Breach of Condition.

3.5.2 The relevant sections to your scenario would be section 114-117 which are a
collection of implied conditions which must be complied with by proprietors. Section
115 specifically outlines Implied conditions affecting land subject to the category
“agriculture” with guides from s.115(a)-s115(e). Among the relevant ones being;

(a) that no building shall be erected on the land other than a building or buildings to
be used for one or more of the purposes specified or referred to in subsection (4);

(b) that a bona fide commencement of cultivation of the land shall be made within
twelve months of the relevant date;
 3.5.3 The following section to be read is section 125 which explains when the breach
of a condition occurs. This section acknowledges conditions both in fixed terms as
well as in continuous performance. Section 125 (2)(a) clearly defines acts which are
required to be done within a specified time frame, to be considered breached if the
period expires.

3.5.4 Assuming there is a breach, the Land Administrator has a choice between one of
three options that is;

a) Imposing a fine according to section 127(1A)

b) Ask the proprietor to remedy the breach section 128, or
c) Hold enquiry to forfeit the land according to section 129.

3.5.5 Therefore, to avoid any legal liabilities, you must consider the type of
developments, which must comply with the status of agricultural land. Otherwise, the
government would have legal grounds to forfeit said land.

4.0 ACTIONS TO BE TAKEN

4.1 First of all, it is encouraged that you start by persuading the squatters through an
informal meeting with a compensation package which includes enough incentive to
relocate the squatters comfortably. If it still does not work, you can increase the
compensation in order for the squatter to leave. As a last resort, it is highly
recommended for you to file your case to the High Court to recover the land at Hulu
Selangor with a proper civil proceedings under section 7 of Specific Relief Act 1950.

4.2 Gentra must take into consideration the specified purpose of their land
(agriculture) before carrying out any development. Therefore, Gentra must reconsider
their initial plan to develop residential, commercial and industrial facilities on their
land. Failure to comply with this, would result in a breach of condition which would
result in liabilities.

5.0 CONCLUSION

We hope that the advice given is satisfactory to answer your queries. Please feel free to
contact us for any further enquiries.

Yours Faithfully,

…………………
Mikhail & Associates