Islamic Land Ownership PDF

Principles of Islamic Land Ownership Meaning of Ownership: ○ Ownership in Islam involves the right to use, benefit from, and transfer property, but only through legitimate methods in line with Shari'ah. ○ If someone misuses or exploits their property,...

Principles of Islamic Land Ownership Meaning of Ownership: ○ Ownership in Islam involves the right to use, benefit from, and transfer property, but only through legitimate methods in line with Shari'ah. ○ If someone misuses or exploits their property, the right to own it can be taken away, and it can be transferred to someone who uses it more responsibly. 1. Absolute Ownership of Allah (S.W.T) Islam establishes that Allah is the ultimate owner of all creation, including land. Humans, by extension, are trustees or vicegerents on Earth, responsible for the resources bestowed upon them. This principle of trusteeship is deeply embedded in the Qur’an: Quranic Evidence: ○ Allah warned the people of Prophet Shu’ayb for their wrongful claims to absolute ownership: “Does your way of prayer command thee that we should forsake what our forefathers used to worship or stop doing what we will with our own property?” (Surah Hud 11:87) ○ "To Him belongs whatever is in the heavens and on the earth..." (Surah An-Nahl 16:52) ○ "His is the Kingdom of the heavens and the earth..." (Surah Al-Maidah 5:120) ○ "It is He who has made the earth manageable for you..." (Surah Al-Mulk 67:15) The verses show that man is entrusted with the resources and to utilize them responsibly. 2. Ownership as a Trust In Islam, ownership is viewed as a trust (Amanah) from Allah. Humans are granted the right to use land and other resources, but this right is conditional on their proper use, according to the rules of Shari'ah. If an individual misuses or neglects this trust, the right to ownership can be revoked. The owner’s duties are Utilize the property for productive purposes. Ensure that wealth circulates within the community. Avoid exploitation and hoarding. The Qur'an emphasizes that man is a vicegerent (Khalifah) on Earth: ○ "And He it is Who has made you vicegerents in the land..." (Surah An-An'am 6:165) ○ "And spend of that whereof He has made you His vicegerents..." (Surah Al-Hadid 57:7) 3. Acquisition and Loss of Ownership Ownership in Islam can be acquired through legitimate means, such as inheritance, purchase, or gift. However, ownership is not absolute; if a person fails to utilize the land for the benefit of society, it can be reclaimed by the State for redistribution to those who will use it productively.  This concept is supported by the idea that land should benefit the community and not be monopolized by a few individuals. The state authority can intervene to ensure the fair distribution of resources. Hadith: "He who withholds excess water to prevent others from benefiting from it, Allah will withhold His mercy on the Day of Resurrection." (Sahih Bukhari) This Hadith highlights the importance of sharing resources and discouraging hoarding, even of essential resources like water Right to Private Ownership in Shari'ah Islam grants everyone the right to own, enjoy, and transfer property. This right must be respected by society and the state, as long as the property is lawfully acquired. Qur'anic Evidence: ○ Surah An-Nisaa (4:32): "To men is allotted what they earn and to women what they earn." ○ Surah An-Nisaa (4:2): "Give to orphans their money and do not exchange the good for the evil." ○ Surah At-Taghabun (64:11): "Your riches and your children may be but a trial." Islam allows and encourages private ownership, as long as it doesn't harm society. The state can intervene if needed for public benefit, but must provide compensation. 2. Protection of Ownership Islam recognizes the sanctity of private ownership and provides measures for its protection. Severe penalties are imposed for violating others' property rights, such as theft. Qur'anic Evidence: ○ Surah Al-Maidah (5:38): "As for the thief, male or female, cut off their hands as a punishment for their crime." ○ Surah An-Nisaa (4:21): "Eat not up your property among yourselves in vanities, but let there be trade by mutual goodwill." ○ Surah As-Shu'ara (26:183): "And withhold not the goods of the people, and do not cause mischief on earth." Hadith Evidence: ○ The Prophet (PBUH) said: "No person's property is lawful to be taken except by his consent." ○ He also warned against unjustly taking even a span of land, stating that such wrongdoers will carry the burden on the Day of Resurrection. 3. Limitation to Ownership Property is not meant for harm or exploitation (hoarding or misuse); it should be shared fairly and used for the betterment of society. property must be used following the principles of Shari'ah. Qur'anic Evidence: ○ Surah Al-Baqarah (2:267): "Give of the good things you have earned, and do not aim at bad things to give away, when you yourselves would not receive them except with closed eyes." 4. State Interference The state has the authority to intervene in property ownership for the benefit of society. The idea of Al-Taamim = the state can take private property for public purposes but must provide fair compensation. During the Prophet's time, he obtained land for a mosque in Madinah with the owners' consent and provided compensation. Similarly, Caliph Umar compensated a Syrian farmer when his crops were damaged by the army. The Story of People of Bajeela = The gov in the Umar era took the land that had been cultivated for around 3 years to be allocated for government administration & gave compensation to the landowner Exceptions of Fair Compensation If the land is not cultivated, land can be taken by the government and no compensation awarded - Bilal Ibn Harith = The big portion of land was not cultivated for 15 years and only utilise its small part so the gov took it without giving any compensation Classification of Islamic Land Ownership Islamic land ownership is divided into two main categories: 1. Mode of Acquisition 2. Type of Taxation 1. Categorization by Mode of Acquisition 1. Land Belonging to Muslims: Lands whose inhabitants embraced Islam are owned by Muslims. According to a hadith: "A nation which embraces Islam secures its life and property." Such lands remain with their original owners and are classified as Ushri lands, meaning 10% of the produce is given as Zakat. 2. Contractual Lands: These are lands owned by non-Muslims who have made pacts or treaties with the Islamic State. The State protects their property and trade, and does not interfere unless agreed upon in the contract. 3. Conquered Lands: Lands acquired through war are considered property of Allah and His Messenger, as per Surah Al-Anfal (8:1):"They ask thee about the spoils of war. Say; all spoils of war belong to Allah and the Messenger."  These lands can be distributed to fighters, original owners, and the needy. However, Caliph Umar, following the example of Surah Al-Anfal (8:41), decided not to distribute conquered lands in Syria and Iraq, prioritizing the general welfare of the community. 4. State Land: Lands not owned by anyone are considered State lands. 5. Abandoned Lands: Lands that have never been acquired by anyone are often treated as waqf (endowment) land. Anyone who rehabilitates it may claim ownership, but this must align with the State’s general interests. 6. Mawat Lands (Barren Lands): These are uncultivated lands that can be claimed by anyone who rehabilitates or cultivates them. 7. Free Lands: These include communal resources like grazing lands, forests, and mines. They are shared among the community and are under the administration of the Islamic State. ○ Grazing Lands: Considered communal property. ○ Forests: Shared among all members of the community. ○ Mines: Resources like minerals or springs are communal and under State control. 2. Land Ownership by Type of Taxation 1. Ushri Land: Ushr means "tithe," a religious tax on Muslims. Ushri land is owned by Muslims and taxed as part of Zakat. Owners enjoy full property rights, including the right to sell or make waqf. 2. Kharaj Land: These lands are owned by non-Muslims and are subject to conditions imposed by the Islamic State. ○ Peacefully Acquired Lands: Retained by original non-Muslim owners under treaty agreements. ○ Conquered Lands: Remain with the original owners under State conditions. However, scholars differ on ownership rights: Hanafi School: Treat both types of Kharaj lands as fully owned by the non-Muslims. Maliki and Shafi'i Schools: View these lands as waqf (endowment) for the Muslim community, where non-Muslims only have usufruct rights. Kharaj is not a landlord-tenant relationship but a form of land tenure where the State owns the land as trustee for the community. Quranic Verses and Hadith 1. Surah Al-Anfal (8:1): "They ask thee about the spoils of war. Say; all spoils of war belong to Allah and the Messenger." 2. Surah Al-Anfal (8:41): "And know that whatever booty you acquire, one-fifth thereof is for Allah and the Messenger, and for near of kin, and the orphans, and the needy, and the wayfarer." These verses guide the distribution of land acquired through war and emphasize the importance of public welfare in managing such lands. Historical Examples Prophet Muhammad (PBUH): most conquered lands were left with their original owners, and some were distributed to the Muhajirin (migrants) and poor Ansar (helpers). Caliph Umar: Decided not to distribute conquered lands to the fighters, following Quranic guidance, to ensure that future generations and the general welfare were prioritized Acquisition of Ownership in Islam 1. Ihya al-Mawat (Reviving Dead Land): A person can acquire ownership of unused, barren land by revitalizing it, such as irrigating it or making it fertile for cultivation. 2. Tahjir is the initial steps taken towards reviving dead land to show the intent to cultivate but not yet grant the full ownership over it - Shafie School: Tahjir does not grant ownership unless the land is rehabilitated within 3 years. - Hanafi School: Tahjir is to get priority in claims in case of disputes but does not confer ownership until the land is revived. 3. Al-Iqta' (State Grants): The State may grant land to deserving individuals, helping to ensure equitable distribution and utilization of resources 1. Ownership through Ihya al-Mawat If a person is able to bring land back to life, they are granted ownership. The Prophet Muhammad (peace be upon him) encouraged this practice, emphasizing the importance of using land for productive purposes: Hadith: “Whoever revives dead land, it is his.” (Sunan Abu Dawood)  Hadith: “He who brings dead land back to life shall possess it, and no one has the right to take it by force.” (Al-Bukhari) 2. Meaning and Categories of Mawat Land Mawat land refers to unclaimed, barren, or uncultivated land with no prior ownership. It may also include land that has become waste due to neglect over time. Two categories of Mawat land: 1. Land not owned by anyone: Any person who revives such land can claim ownership, as long as it has never been owned or cultivated before. 2. Previously owned but abandoned land: If the land was owned but abandoned, and the owner has not revived it within three years, the State may grant it to someone who can revive it. 3. Consent of the State Scholars have debated whether permission from the State is necessary to revive dead land: Shafii School: State consent is not required Hanafi and Maliki Schools: Consent is necessary to prevent disputes and ensure that land use is orderly and just. This is based on the hadith: “Nothing is lawful to anyone except what the Imam (leader) permits” (Sahih Muslim), emphasizing the role of the State in maintaining fairness. 4. Rights of Ownership If a person fails to revive the land after receiving permission (Iqta'), ownership can revert to the State. The Hanafi school states that ownership is conditional, and failure to cultivate within the agreed time can lead to loss of the grant. If rehabilitation is done with sincere effort, the right to ownership is preserved. 5. Nature of Ihya al-Mawat The method of rehabilitation depends on the nature of the land: For agricultural land: irrigation, clearing, planting, or creating irrigation channels. For building purposes: constructing homes, walls, or infrastructure. 3. Ownership Through Iqta' (State Grants) Types of Iqta':  Iqta' Tamlik: Full ownership of the land is given to the individual, who can sell, lease, or use it for personal benefit. Iqta' Istiqlal: The grantee(penerima manfaat) only has the right to use the land without ownership. The individual can benefit from the land but must pay taxes or rent to the state. Iqta' Irfaq: Temporary grants for specific purposes, such as setting up a marketplace stall or trading post, where the land is used for community benefit. Objective = to ensure the dead land is brought to life, and it supports social welfare by granting land to those who will use it productively. Revocation of Grants: The state has the right to revoke land grants if the grantee is not able to use the land effectively. - Bilal Ibn Harith was revoked because he was not able to fully cultivate the land. The revocation serves the public interest by reallocating land to someone who can make better use of it. Hadith Example: The Prophet Muhammad (peace be upon him) said, "Whoever does not utilize his land should allow others to cultivate it" (Sahih Bukhari). This emphasizes that land should not remain idle when others could benefit from it. Alienation of Land in Islam The concept of land alienation (transfer or grant of land by the state to individuals) has been present since the time of Prophet Muhammad (peace be upon him) and his companions. 1. Historical Examples of Land Alienation During the time of the Prophet Muhammad, land grants were made to individuals who needed them or had served the community. Abu Bakr granted land to Zubair, while Umar gave land to companions like Ali and Abu Musa al-Ashari. Uthman allocated land to Abdullah bin Mas'ud and Ammar bin Yasir. 2. Criteria for Deserving Grantees(Penerima manfaat) Rendered valuable services to the state, such as soldiers defending the Islamic state, new converts to Islam, and landless farmers who cultivate land to provide food for the community. 3. Restrictions on Alienation of Public Land (Al-Hima) Al-Hima = public land or resources that belong to the community as a whole, such as minerals, water sources, and public forests. The state is prohibited from alienating these public domains to private individuals. Purpose = To ensure the benefit remains accessible to the public. Hadith: "People are partners in three things: water, pasture, and fire (fuel)" (Sunan Ibn Majah). Shows that communal resources must be shared among the people and cannot be owned by individuals. 4. Alienation of Mawat (Dead) Lands Mawat land = unused land that can be revived. Ibn Qudamah = only individuals who can cultivate and rehabilitate the land should receive grants of mawat land. The Hanafi school = The grant will be revoked and returned to the state if the grantee fails to cultivate in 3 years 5. Size of Land Grants Depending on the individual’s ability to cultivate and utilize it effectively. The aim is to avoid giving large plots of land to individuals who are unable to develop them while ensuring that others who can make good use of the land are not deprived. The Story of Talha’s land= When Abu Bakr intended to grant a large piece of land to Talha, Umar objected as the land to be granted was too much for Talha SUMMARY Islamic principles of land ownership are rooted in the belief that Allah is the ultimate owner, and humans are trustees of the land. Ownership is conditional on responsible and productive use, and any form of exploitation or monopoly is discouraged. The state has the power to ensure the land is treated fairly in terms of resource distribution and ownership by awarding the land to those who can develop it or to serve for public benefit. Malay Customary Tenure Malay Customary Tenure = the traditional practices governing land use and ownership in Malay society before the advent of formal land laws, particularly the Torrens system. Before 1400, land ownership was based on a simple principle: “one who fells the trees owns the land.” This meant that clearing the forest for cultivation established proprietary rights. When Islam arrived in Malacca around 1400, Islamic land tenure principles began to integrate with Malay customary practices. These indigenous rules continued through the British colonization of Penang in 1786 and other areas. ( reflects a fusion between local customs and Islamic principles) Case Law Support: Yeap Cheah Neo & Ors v Ong Cheng Neo (1885): It was argued that Penang had no formal legal structure when it was ceded to the British and was claimed as terra nullius , though there is evidence of existing Malay settlements. Rebuttal - The American Journal of Comparative Law There was evidence of the Malay Settlement of kampung in Penang and Penang was owners by Sultan of Quedah at that time Principal Characteristics of Malay Customary Tenure: several features by W.E. Maxwell: 1. Ownership could be acquired by clearing forested land and maintaining continuous cultivation. - Reason = Land in the Malay Peninsula was abundant, but the population was sparse 2. Rights to the land were tied to its occupation or evidence of cultivation (such as fruit trees), particularly for kampong land, wet rice fields (sawah), and hill padi land (huma). 3. Land left uncultivated for three years could revert to the ruler, who could assign it to another cultivator. Maxwell also emphasized that while landholders had rights to cultivate, they did not own the land in the absolute sense, as ultimate ownership lay with the Sultan or ruling chief. Legal Commentary: Maxwell’s views on usufructuary rights—rights to use and derive benefits from the land, but not outright ownership—formed the foundation of his theory that traditional Malay rulers retained land ownership. William Edward Maxwell’s Views: Maxwell played a critical role in formalizing the understanding of Malay land law. His study of proprietary rights (ownership) was grounded in both the physical act of clearing land and the idea of continuous use. He worked to fuse British legal structures with existing Malay land laws. In his 1884 paper, Maxwell summarized proprietary rights in Malay land tenure into three categories: 1. Kampong land (tanah kampong): Ownership lasted as long as the fruit trees remained.  2. Wet rice fields (sawah): Rights endured as long as the land was cultivated, with an additional three-year grace period. 3. Hill land (ladang or huma): Rights existed only during the period of active cultivation. Modes of Cultivation: Malay customary tenure recognized two types of cultivation: Permanent cultivation: Used for wet rice fields and fruit trees. Shifting cultivation: Often used for hill padi, where the land was typically abandoned after a few seasons. Comparison Between Malay Codes of Laws on How Proprietary Rights Are Acquired or Lost: Similarity the emphasis on the act of clearing and cultivating land as the basis for acquiring rights & the loss of rights if land was abandoned. Malay Code of Law Acquiring Rights through Loss of Rights through Clearing & Cultivation Abandonment Adat Perpatih You cultivate it you get rights Return to the tribe’s chief if the owner has no matrilineal heirs Hukum Kanun Melaka Only to Tanah Mati Return to the ruler Tanah Hidop- has a proprietor Perak Code Person is a Muslim & the land If turns to the jungle after is not already occupied. abandonment, it is considered "returned to God and custom." Sahrip v Mitchell (1870): This case established that under old Malay law, while the sovereign was the nominal owner of all land, individuals had the right to occupy and cultivate forest or waste land, subject to paying a tenth of the produce to the ruler. Malay Customary Tenure vs Islamic Principles: Aspect Malay Customary Tenure Islamic Principles of Land Ownership Land Via the use and cultivation of the land Ownership ‘Ihya al-Mawat’ closely aligns with Malay customary tenure, where clearing virgin jungle granted the right to cultivate. Ultimate ownership= the ruler Ultimate Ownership = Allah Landholders have usufructuary rights As a trust (Amanah) to Allah to take care the land without harm & exploitation Allow individual ownership through cultivation(Islam grants a bundle of rights)  Maxwell = pulang belanja shows that individuals did not own the land but just merely the labour and improvements made upon it. Dealings Pulang Belanja shows the man does not own the land but merely a privilege to utilise Jual Janji corresponds to BAI' BIL WAFA (transaction of sale and buyback Pulang Belanja cultivator owned the value of their labour in clearing and farming the land, not the land That’s why the price of the land does not come from the value of the land The transfer of land was paying the seller for the work and costs of making the land usable not buying the land Rehab If the land is left uncultivated for three years, it reverts to the ruler or public. framework Focus on the productive use of land as a condition to get the land. Tax Payment of 1/10 of the produce to the ruler Payment (ushri and Malay tax payment) Nature of Landholders have usufructuary rights Islamic land law grants full ownership to the Private but not full ownership. individual Land Ownership rights to sell, transfer, enjoy, use, control, inherit the land Case Law: Tengku Jaafar & Anor. v Govt. of Pahang : The Supreme Court recognized that before 1889, Islamic law (Shafie school) was the prevailing land law in Pahang, highlighting the deep influence of Islamic principles on Malay customary land laws. Malay Customary Dealings (Pulang Belanja, Sewa, Gadai): Pulang Belanja: This was a form of sale where the purchaser compensated the seller for expenses incurred in cultivating the land rather than for the land itself. It reflected the principle that land was not privately owned, but labor was valued. Sewa(Letting): A rental arrangement, where landowners allowed others to cultivate the land in exchange for a share of the produce. Jual Janji(Security Transaction): A security arrangement where the land ownership was transferred to the lender and the borrower(original owner) had the right to reclaim the land upon full repayment within an agreed time. Different from Mortgage = A security arrangement where the land ownership is retained by the to the lender and the borrower(original owner) had the right to reclaim the land upon full repayment within an agreed time. - Why Jual Janji and Mortgage = These two instruments differ mainly due to the time gap between their emergence. Mortgages arose with the introduction of common law and equity, recognizing the rights of both the legal owner and the equitable owner (the person with an interest in the land). This system developed in Malaya around the 19th century. In contrast, Jual Janji appeared earlier, around the 15th century, as a traditional form of conditional sale. History of the Torrens System in Malaysia The Torrens System is a system of land registration introduced by Sir Robert Torrens in South Australia in 1858. It was later adopted in Malaysia to replace the older Deeds System, which was cumbersome because it involved tracing ownership through historical deeds. Key Timeline: Pre-Colonial Period: Governed by Malay customary tenure, influenced by Islamic law (Shafie school in Pahang). 1786: Penang ceded to the British East India Company, marking the start of English influence in land law 1879: First Torrens Enactment introduced in Perak- General Code of Regulations Regarding Land (Perak) 1879 - Starting from Pangkor Treaty (1874): Allowed British control over the Malay rulers, leading to the formalization of land registration. 1911: The Registration of Titles Enactment formalized the Torrens system in FMS 1928: The Land Code (Cap. 138) was enacted, providing a unified land registration system across the FMS. 1965: Introduction of the National Land Code (NLC), which unified land law under the Torrens principles across Peninsular Malaysia. Deeds System The system where the legal document is issued in every land transaction that has been made. The determination of the land ownership is made by tracing back the chain of title from the King to the current land owner by proving the deeds that one held. Torrens System = A system where the land title and land interest depend on the official registration in the Register Book 1.The Purpose of Torrens System in Malaysia Ensure Certainty of Title: The previous Deeds System was complex and required retrospective investigation, making land transactions uncertain and costly. Facilitate Land Revenue Collection: By formalizing land ownership, the British could more efficiently impose taxes and control land use. Stabilize the Economy: A clear land registration system helped settle land disputes and encouraged land development. 2. Features of the Torrens System 1. Indefeasibility of Title: Once a title is registered, it cannot be challenged except in cases of fraud. 2. State Guarantee: In some countries, compensation is provided for individuals who lose rights due to errors in the land registry, although this was not widely adopted in Malaysia. 3. Caveat System is served to give notice of interest on the title 4. Land Mortgage done by a registered charge 3. Fundamental Principles of the Torrens System: Mirror Principle: The register reflects all interests and rights concerning the land.  - Teh Bee v K. Maruthamuthu 2 MLJ 7: This case emphasized the "register is everything" under the Torrens System, where the title in the register is deemed conclusive. Curtain Principle: Purchasers do not need to investigate past transactions; the register’s details are definitive. - Gibbs v Messer (1891): Affirmed the curtain principle, where purchasers are protected from going behind the register to investigate past titles. Indefeasibility of Title: Once registered, the title is secure and cannot be challenged except in cases of fraud. - Teh Bee v K. Maruthamuthu and Pushpaleela a/p R Selvarajah v Rajamani d/o Meyappa Chettiar 2 MLJ 553 further affirm that indefeasibility is at the core of the Torrens system. Assurance: The system provides compensation to individuals who lose land due to errors or fraud in the registration process. - Not adopted in Malaysia because the conversion to Torrens titles in most Malay states was done without significant losses to landowners. 4. National Land Code (NLC) and Malay Customary Tenure The NLC (1965) unified land law across Peninsular Malaysia but did not override Malay customary tenure. Customary land rights are still recognized under state laws, particularly in states like Negeri Sembilan and Melaka. Section 4(2)(a) of the NLC ensures that the NLC does not supersede existing laws on Malay customary tenure. Case: Tengku Jaafar & Anor. v Govt. of Pahang – The Supreme Court confirmed that Islamic law influenced the land tenure system in pre-colonial Pahang. 5. NLC and the Federal Constitution The Federal Constitution allows the Parliament to legislate land matters to ensure uniformity of law and policy (Article 76(4)). The NLC was enacted under this provision, giving the federal government authority over land matters, even though land falls under the State List. Case: East Union (Malaya) Sdn. Bhd. v Government of the State of Johor & Govt. of Malaysia – This case confirmed the constitutional power of Parliament to enact the NLC. 6. Views on the Application of Equity in the Malaysian Torrens System There are differing views on whether equity plays a role in the Torrens System in Malaysia: 1. Opposition View: Some argue that equity has no place in the Torrens System because land law should be governed solely by statute. ○ Section 6 of the Civil Law Act 1956 reinforces this view by stating that English law related to tenure and conveyance does not apply in Malaysia. 2. Supportive View: Others argue that equity should still play a role, especially in cases of fraud or unconscionability. Case: Wilkins & Ors v Kannamal & Anor – This case confirmed that equity is not entirely excluded but is limited under the Torrens System in Malaysia. Definition of Land 1. Section 5 of the National Land Code (NLC) Under Section 5 of the NLC, “land” includes: The surface of the earth and substances forming it The earth below the surface and all substances within Vegetation and natural products, regardless of whether they require regular labor to produce, both above and below the surface All things attached to the earth or permanently fastened to something attached to the earth Land covered by water Summary- land is not only covers the physical ground but also items attached or fixed to it permanently. 2. English Law of Fixtures The English law of fixtures establishes that items originally considered as movable property (chattels) can become fixtures when they are attached to the land. Once a chattel is affixed, it becomes part of the land and is legally treated as immovable property. Key Case: Holland v Hodgson (1872) LR 7 CP 328 Facts: A wool mill owner had mortgaged his land, including looms.Whether the looms are chattel or fixtures that the mortgage administrator could remove. Judgment: Blackburn J. ruled that looms were fixtures as they were attached to the land, and thus part of it. This case introduced the Annexation Test, consisting of the Degree of Annexation and Purpose of Annexation, which determine whether an item is a fixture or remains a chattel. 3. Annexation Test Under English Law of Fixtures The Annexation Test consists of two components: the Degree of Annexation and the Purpose of Annexation. a) Degree of Annexation This part of the test considers how an item is attached to the land. If an item is attached slightly or by its own weight, it is presumed a chattel. If it is firmly affixed, it’s presumed a fixture unless shown it was intended to remain a chattel. Case Examples:  The Shell Co. v Commissioner of the Federal Capital MLJ 302: Underground petrol tanks were held to be fixtures due to their strong attachment to the land. Hulme v Brigham (1943): Despite their size, heavy printing presses resting by weight alone were not considered fixtures. b) Purpose of Annexation This test assesses why an item was attached. Courts look at whether the attachment is for the land's improvement or merely for the item's enjoyment. (value + period) If an item enhances the land's value, it is likely a fixture. If the attachment is for temporary use or the personal enjoyment of the item, it may remain a chattel. Case Examples: Hellawell v Eastwood (1851): The court looked at whether items improved the land/building or were attached temporarily for personal use. Mather v Fraser (69 ER 895): The test examined whether an object’s attachment enhanced the land’s value for its intended purpose. Goh Chong Hin: The machinery was bolted to the floor in a rubber estate factory and considered it as fixtures - Degree Test:The attachment by bolts shows a permanent connection to the land - Purpose Test: The machinery enhances the value & utility of the land as rubber estate If there’s a conflict between the degree & purpose of the annexation test ( the degree is rebutted by purpose), the purpose is prevail 4. Comparison Between Chattel and Fixtures Aspect Chattel Fixture Definition A movable item that can be removed An item once movable but now part of from land the land Furniture, freestanding equipment Built-in cabinets, underground pipes Legal Personal property, does not transfer Real property, considered part of the land Status with the land Key Case Minshall v Lloyd (1837) Australian Provincial Assurance v Coroneo (1938) In Minshall v Lloyd (1837), the court held that items freely movable from the land are chattels, while in Australian Provincial Assurance v Coroneo (1938), items fixed to the land became fixtures and thus part of the property. 5. Exceptions to the English Law of Fixtures Certain items may be exempted from becoming fixtures, even when attached to the land. These are typically items with temporary attachments or items meant solely for the enjoyment of the land rather than its permanent improvement. (the purpose of annexation test) Effect on the exceptions: - Fixtures considered as chattels - The attached items have a separate identity because they’re not part of the land. 01. The Custom-Malay Wooden House Case: Re Tiambi bt Ma’amin (1904) ○ Facts: A traditional Malay wooden house built on stilts was considered a movable property. ○ Judgment: The house remained a chattel due to Malay custom because they can be dismantled and relocated without damaging the property. Case: Kiah v Som - same as Re Tiambi ○ Facts: The traditional Malay wooden house, built on stilts, can be removed from the land as it does not become a fixture, even when attached to the land. 02. Tenant’s Fixtures- Tenant’s rights General Principle: A tenant who attaches items (fixtures) to a property for the purpose of trade, ornament, or domestic convenience is allowed to remove these items during or shortly after the tenancy, provided removal causes no significant damage to the property. This exception protects a tenant’s right to remove fixtures installed for personal or trade use. The tenant-installed fixtures can remain as chattels, allowing them to be removed upon lease termination. Case: Spyer v Phillipson ○ Facts: A tenant attached various items to the rental property for personal use. When the tenancy ended, the tenant sought to remove the fixtures. ○ Judgment: The tenant was entitled to remove the fixtures, as no substantial damage was done to the premises. ○ Case: Smith v City Petroleum Co. Ltd. Summary: Reinforces that any fixtures not removed by the tenant within a reasonable time after tenancy automatically transfer ownership to the landlord. Additional Principle: The tenant must exercise this right during the tenancy or within a reasonable period afterward; otherwise, the fixtures become part of the land and belong to the landlord. ○ Conditions - The attached item is installed by the tenant during the tenancy - The item is removed within a reasonable time - Not cause any substantial damage upon removal 03. Retention of Title Clause (Romalpa Clause)- Contractual Agreements Definition: Known as the Romalpa Clause, this contractual clause enables sellers to retain ownership of goods until the buyer has fully paid for them, even if the goods are attached to the buyer’s land. Example hire-purchase agreements = The buyer may not own the attached item until payment is complete. Romalpa Clause can override the general rule of fixtures by contractually preserving the seller’s rights even when items become attached to the land. - Reason: the law recognises the parties’ intention in a contractual agreement to determine ownership over a fixture, regardless of its attachment to the property. Case: Wiggins Teape v Bahagia Trading ○ Facts: This case involved a printer attached to the floor of a rented premises under a hire-purchase agreement. The printer was a fixture, thus belonging to the chargee of the land, even though EAC retained title under the hire-purchase agreement. This is because the principles to determine fixtures apply equally to charged and mortgaged land Case: MBF Finance v Global Pacific Textiles ○ Facts: 2 dyeing machines attached to land under a rental agreement were claimed by the lessor after the lessee defaulted. ○ Judgment: The court held that due to the retention of title clause, the machines remained chattels despite their attachment to the land. Case: Sungei Way Leasing Sdn Bhd v Lian Seng Properties Sdn Bhd ○ Facts: A custom-made air-conditioning unit was attached to a building under a hire-purchase agreement with a clause preventing title transfer to third parties. ○ Judgment: Although the unit was deemed a fixture, the court respected the hire-purchase agreement, favouring the lessor’s claim. [Reversed by SC Cases Illustrating Exceptions: Leigh v Taylor (1901) 1 Ch 523: Tapestries were attached to the wall, but they were considered chattels as they were hung for decoration and could be easily removed without irreparable damage. Hulme v Brigham (1943) KB 152: Heavy printing presses that rested on the floor by weight alone were held to be chattels because they were not permanently affixed. EXTENT OF OWNERSHIP & ENJOYMENT OF THE LAND Paramount Rights of Landowners under Common Law General Principle: The Latin maxim “Cujus est solum ejus est usque ad coelum et ad inferos” ="Whoever owns the soil, owns everything up to the heavens and down to the depths."-Shows landowners have unrestricted control above and below their land. But, modern laws restrict these rights due to societal needs (e.g., air travel, resource management). For instance, landowners do not have unlimited rights to minerals or airspace used for aviation. Legal Codification Section 44 of the National Land Code (NLC): This provision extends the common law principle by explicitly granting three paramount rights: 1. Right to use airspace (s. 44(1)(a)). 2. Right to underground land (s. 44(1)(a)). 3. Right to lateral support from adjoining lands (s. 44(1)(b)). 4. Right of access to public places (added by s. 44(1)(c)). Rights Not Absolute: NLC limits these rights to what is "reasonably necessary for the lawful use and enjoyment" of the land. 1. Types of Rights A. Right to Airspace Principle The right to airspace is limited to the height necessary for reasonable use and enjoyment of the land. Beyond this, the airspace is a public domain. Case Law Analysis 1. Exclusive Rights to Airspace: ○ Kelsen v Imperial Tobacco Co. (1957): Even minimal interference (A signboard encroached 8 inches of the plaintiff’s airspace) in the airspace can constitute as trespass. ○ Karuppanan v Balakhrishnen (1994): The aesthetic structure of the building encroaching plaintiff’s land violated airspace rights. FC grant the landowner a perpetual injunction. ○ Lemon v Webb- The branches of a tree encroached on the neighbouring land infringed his rights & the neighbour was entitled to cut down the branches. 2. Balancing Rights with Public Use: ○ Woollerton & Wilson Ltd v Richard Costain Ltd (1970): The crane jib extended over the plaintiff’s land during construction. An injunction was granted but delayed until construction was finished to prevent undue hardship, balancing private and public interests. Restrictions Section 19(1) of Civil Aviation Act 1969: ○ Aircraft flying reasonably above land is exempt from trespass liability. (need to consider weather circumstances and other facts if aircraft fly at low) ○ This recognizes the public benefits of aviation while safeguarding landowners from unreasonable interference. ○ Swetland v Curtis Airport (1932): Plaintiff objected to the building of airport & flying school. The building is allowed as aircraft fly at a reasonable height(200m) which was not considered trespass and they must observe that the operation will not affect the plaintiff’s use & enj oyment of land. ○ Bernstein of Leigh v Skyview and General Ltd (1978):No trespass for aerial photography unless the interference is unreasonable. - Courts limit airspace rights to prevent undue restriction on technology Modern Implications With the rise of drones, cases like Bernstein set a precedent for regulating technology while respecting property rights. B. Right to Underground Land Principle Ownership extends below the surface only to a depth necessary for lawful use. This protects both private ownership and state interests (e.g., mineral resources). Case Law Analysis 1. Trespass to Subsoil: ○ Bulli Coal Mining v Osborne (1899): Trespass occurred when tunnels crossed into a neighbour’s underground. Established clear liability for underground trespass. ○ Terra Damansara v Nandex (2006): Unauthorized ground anchors that encroached neighbour’s underground land constituted as trespass. - Shows the need for consent before encroaching on one’s underground land. 2. Resource Rights: ○ Minerals and resources often belong to the state, not the landowner. For example: Section 45(2) NLC limits extraction without permits. National Heritage Act 2005 governs antiquities and treasure troves. Restrictions Depth and Use Limits: ○ Section 92B NLC allows state authorities to specify the depth of ownership and permissible uses. Breach of these limits can lead to forfeiture of land.  ○ NLC (Underground Land)(Minimum Depth) Regulations 2017 - Agricultural land = 6m - Building Land = 10m - Industrial Land = 15m Practical Implications Developers must consider subsurface rights and statutory limitations when planning projects (e.g., tunneling, mineral extraction). Subsidiary Rights by State Underground Land: ○ Section 45(2) & 92B NLC: Minerals and certain natural resources (e.g., forest produce) remain state property and cannot be extracted without a permit. - Must obtain permit/license for extract forestry produce under National Foresrty Act - Removal of Rock Material- S70-75 NLC + Quarry Rules - Mining license under Mining Development Act 1994 ○ Antiquities found underground must be reported to avoid penalties (National Heritage Act 2005, s.47). National Heritage Act 2005 1. Antiquities and Treasure Troves: ○ Defined as objects of historical significance (e.g., items over 50 years old). ○ Must be reported immediately; failure to do so invites fines or imprisonment (s.47). 2. Ownership and Rewards: ○ Antiquities and ownerless treasure troves belong to the federal or state government. Finders may receive rewards (s.79). "Rock Material" (Section 5 NLC) Includes common natural materials like stone, gravel, and sand but excludes "minerals" governed by mining laws. "Mineral" (Section 3(1) Mineral Development Act 1994) Refers to substances formed geologically, excluding petroleum and rock material. State permits are necessary for extraction. C. Right of Support- S44(1)(b) NLC Principle A landowner has a right to natural support from neighbouring land to prevent subsidence(land sinking). If a landowner changes their land (e.g., digs or builds on it), they cannot demand extra support unless the changes don't add more strain on the neighbor’s land.  The right of support does not cover buildings or man-made structures unless the neighbour agrees to it or the law requires it. Requirement of right of support is natural state( the land in its original, unaltered state) Case Law Analysis 1. Natural State Requirement: ○ Guan Soon Tin Mining v Ampang Estate Ltd (1973):Land weakened by modifications and not in its "natural state," cannot claim additional support. ○ Chan Ah Hah v Lim Kuoh Wee (2018): Excavation caused the neighbouring land collapse. Excavation that removes support constitutes a breach of the statutory right ○ Dalton v Angus (1881)- Natural state = support of land in its natural conditions 2. Negative Right: ○ Right of support is a “negative right,” ○ Neighbours are responsible to support the land as it is needed naturally. ○ But,they are not liable for damage caused by the added weight or effects of things like buildings, digging(excavate) or modifications. Modern Developments Singaporean Perspective: In Xpress Print Pte Ltd v Monocrafts Pte Ltd (2000), the courts extended the right of support to include buildings, diverging from the traditional interpretation seen in Dalton v Angus D. Right of Access Principle Section 44(1)(c)- Landowners adjacent to public spaces (rivers, foreshores) have the right to access them. If access is blocked, landowners can seek statutory easements. Statutory easement is a legal right that allows someone to use another person's land for a specific purpose - If a landowner does not have direct access(like surrounded by other private lands) with no direct to a road, river, or public place, they can apply for an easement to create a "right of way" through a neighbour’s property to access public roads. If approved, the neighbour must allow this access Cheah Kim Tong v Taro Kaur- As long as the trespass exists, the party can start the cause of action of trespass day to day (de die in diem) - D’s house encroached on P’s land but P claimed that the previous owner never claimed it. There is still a trespass and constitutes a continuing trespass. Rights and Powers of the State Authority 1. Institutional Framework for Land Administration National Land Council (NLC) Constitutional Basis: - Article 76(4) - empowers the Parliament to standardise laws and policies in land matters for uniformity, which supposedly fall under state jurisdiction(According to (9th Schedule, List II). - Article 91(1)- establishes the National Land Council. Composition: ○ Chaired by a federal minister. ○ Representatives from each State appointed by the State Ruler or Yang di-Pertua Negeri. ○ Up to 10 federal government representatives. Functions (Art. 91(5)-(6)): ○ Formulate national policies for land utilization (mining, agriculture, forestry, etc.). ○ Federal and State governments must adhere to these policies. ○ Provide consultation and advice on land-related legislation or administration. Ministry of Natural Resources and Nature Sustainability (NRES) Manages federal land matters through the Federal Department of Lands and Mines (Jabatan Ketua Pengarah Tanah dan Galian-JKPTG). 2. State Land Administration Roles of Authorities (S11-18 NLC): 1. State Authority: ○ Ultimate decision-maker for land matters (S12). 2. State Director of Lands and Mines: ○ Oversees all titles under Registry Title in the State. 3. Registrar of Titles and Land Administrators: ○ Manage land offices and titles at district levels. Key Concepts Defined by the NLC: Property in Land (S 40): ○ All State Land, minerals, and rocks are vested in the State Authority. State Authority (S 5): ○ Defined as the Ruler or Yang di-Pertua Negeri acting upon the advice of the State Executive Council. Case: Lebbey Sdn Bhd v Chong Wooi Leong & Anor (1998)  Facts: Defendants occupied State land without authorization and argued they were promised Temporary Occupation Licenses (TOLs) by politicians. Judgment: The court clarified that: ○ The term "State Authority" refers strictly to the Ruler or Yang di-Pertua Negeri, acting on the State Exco's advice. ○ Politicians or committees cannot bind the State Authority. 3. Powers of Disposal and Reversion Disposal (S41-42 NLC): The State Authority can grant rights over land through: ○ Alienation. ○ Leasing. ○ Temporary Occupation Licenses (TOLs). Restrictions: ○ Non-citizens and foreign companies require State Authority approval (Section 433B). ○ Approval may include conditions and levy payments. Reversion (S 46 NLC): Land reverts to the State Authority when alienated land becomes unoccupied or affected by sea/river encroachment. Case: Re Sithambaran Chettiar (1955): ○ A landowner sought reclamation of submerged land after the sea retreated. ○ The court upheld the landowner’s rights but denied extra land created by the retreat. 4. Classification of Land (S 51 NLC) General Classes: ○ Land above the shoreline (e.g., town, village, and country land). ○ Foreshore and seabed. Categories of Land Use (S 52 NLC): ○ Agricultural, Building, and Industry. ○ Applications for changes in land use require State Authority approval under Section 124. Land Reclamation and Territorial Limits: Foreshore reclamation projects are subject to environmental laws. State Authority may alienate foreshore land (S 76 NLC). 5. Meaning of ‘State Land’ (S 5 NLC) Includes all land except: ○ Alienated land. ○ Reserved land. ○ Mining land. ○ Reserved forest. Simplified Key Points 1. The National Land Council formulates land-use policies that all governments must follow. 2. The State Authority (Ruler/Yang di-Pertua Negeri) acts strictly on the State Exco’s advice for land administration. 3. The NLC governs the disposal and reversion of State land, with clear restrictions on foreign ownership. 4. Land classifications and use categories are regulated to ensure compliance and sustainability. 5. Judicial cases like Lebbey Sdn Bhd and Re Sithambaran Chettiar emphasize adherence to the NLC and State Authority roles. Adverse Posesssion 1. Meaning: ○ A situation where a person occupies land without legal ownership or formal title but can acquire ownership rights through prolonged occupation. ○ Malaysia's Position: NLC does not recognize adverse possession, meaning that no individual can gain legal title to state land through occupation except by registration ○ Section 48 NLC: Clearly states that possession, unlawful occupation, or any other unauthorised occupation of state land will not give rise to any title or ownership rights regardless of the duration of occupation. ○ Section 425 NLC:Declares that unlawful occupation of state land is a criminal offense 2. Enforcement Against Squatters: ○ Sections 426A to 426D: empower authorities (e.g., police officers, Land Administrators) to take enforcement actions, such as arrest, property seizure, or demolishing illegal structures without a warrant. ○ Section 72 of the Street, Drainage and Building Act 1974, local authorities may issue demolition notices for unauthorized buildings on private land. 3. Private Land: ○ Section 341 NLC: Adverse possession does not extinguish any title to alienated land, meaning registered landowners can seek legal redress for trespass and obtain possession orders. Relevant Case Law 1. McPhail v Persons Unknown (1973): ○ Lord Denning characterized a squatter as someone occupying land without legal right ○ This case emphasized that homelessness provide no legal justification to stay on the land 2. Sidek's Case: ○ The appellants, who occupied state land based on promises by local officials, argued for legal and equitable possession. ○ The Federal Court ruled that the squatters had no legal rights in law or equity, referencing Section 48 NLC as barring any claim to state land by occupation. 3. Govt. of Negri Sembilan v Yap Chong Lan & Ors (1984): ○ Public facilities provided to unlawful occupants do not bind the state to grant land rights. ○ Squatters cannot claim equitable estoppel against the state. 4. Bohari bin Taib & Ors v PTG Selangor (1991): ○ Highlighted issues when settlers, after receiving promises for land titles, were informed of changes. ○ The state reclaimed the land, showing the limitation of oral agreements or unfulfilled promises against statutory provisions.(No formal alienation) 5. Datuk Bandar KL & Anor v Tan Poh Wah & Ors (2018): ○ Involved squatters claiming legitimate expectations to remain on land developed by DBKL for housing projects.  ○ The court ruled against the defendants' claim of proprietary estoppel because no representation or promise can justify their continued occupation. Addressing Squatters Private Land: Owners can sue for trespass under Section 341 of the NLC and seek possession through the Specific Relief Act 1950 (Order 89 Rules of Court 2012). Solutions Proposed: ○ Persuasion and negotiation with squatters. ○ Offering compensation for voluntary evacuation. ○ Forced eviction if necessary. Islamic Perspective on Housing Islam emphasizes providing adequate housing, especially for the poor, as a matter of social justice. Historical examples illustrate community solutions for homelessness and equitable housing distribution. Simplified Understanding 1. No Legal Claim for Squatters: squatters cannot claim land rights simply by occupying state or private land over time. 2. Strict Legal Enforcement: Legal measures prevent squatters from acquiring ownership, and any disputes must be handled through formal court processes. 3. Equitable Exceptions Rare: Courts may consider equity, but only if substantial proof exists, and generally favor statutory provisions over oral promises or informal agreements.