Public
Series
Lunch
Talks
Land
Acquisi=on,
Compensa=on
and
Disputes
Raymond
Mah
Managing
Partner
27
August
2013
www.mahwengkwai.com
Defini=on
www.mahwengkwai.com
3
Land
Ownership
in
Malaysia
3
routes
to
ownership:
• dealings
• inheritance
• aliena3on
The
rights
of
property
owners
in
Peninsular
Malaysia
are
governed
by
the
following
legisla=ons:
• Federal
Cons3tu3on
• Na3onal
Land
Code
1965
• Land
Acquisi3on
Act
1960
www.mahwengkwai.com
4
Land
Ownership
in
Malaysia
2
types
of
land
ownership:
• Land
held
in
perpetuity
(freehold
land);
and
• Land
held
for
a
term
of
years
(leasehold
land
–
maximum
99
years).
Land
ownership
and
du=es:
• Paying
the
annual
quit
rent
• Express
and
implied
condi=ons
Ø
agricultural
land
Ø
building
land
Ø
industrial
land
www.mahwengkwai.com
5
Indefeasibility
of
Title
• Ownership
cannot
be
“challenged
or
ques=oned”
• Sec=on
340(2)
NLC
• Excep=ons:
Ø fraud
Ø Misrepresenta=on
Ø Void
or
insufficient
instrument
www.mahwengkwai.com
6
Par==on
and
Amalgama=on
Par==on
• Sever
joint
interests
and
take
individual
share.
• Voluntary
or
compulsory.
Amalgama=on
• Combine
one
or
more
allotments
of
land
together.
• Reduce
rates
and
taxes.
www.mahwengkwai.com
7
Squacers
• Occupying
somebody’s
land
without
permission
• No
macer
how
long
illegal
occupa=on
• Tort
of
trespass
• Liable
in
damages
• Squacers
on
state
land
Ø Temporary
occupa=on
licences
(TOLs)
Ø Land
=tles
www.mahwengkwai.com
8
Federal
Cons=tu=on
www.mahwengkwai.com
9
Land
Acquisi=on
Act
1960
Purpose
and
func=on
Ø rela=ng
to
the
acquisi=on
of
land
Ø to
make
an
assessment
of
compensa=on
due
to
such
acquisi=on
Ø to
govern
the
procedures
involved
www.mahwengkwai.com
10
Who
can
Compulsorily
Acquire?
LAA
1960
and
the
NLC
1965
empower:
• State
Governments
without
prior
consent
or
agreement
www.mahwengkwai.com
11
When
is
it
Allowed?
Sec=on
3(1)
LAA
1960
provides
that
the
State
Authority
may
acquire
any
land
which
is
needed
:
• for
any
public
purpose;
• by
any
person
or
corpora=on
for
any
purpose
which
in
the
opinion
of
the
State
Authority
is
beneficial
to
the
economic
development
of
Malaysia
or
any
part
thereof,
or
to
the
public
generally
or
any
class
of
the
public;
or
• for
the
purpose
of
mining
or
for
residen=al,
agricultural,
commercial,
industrial
or
recrea=onal
purposes
or
any
combina=on
of
such
purposes.
www.mahwengkwai.com
12
Land
Acquisi=on
Process
(1)
Form
F
(Sec=on
11)
-‐
Form
A
-‐
Land
is
likely
No=ce
to
Persons
to
be
acquired
Interested
www.mahwengkwai.com
13
Land
Acquisi=on
Process
(2)
(Sec=on
12)
-‐
Enquiry
Form
K
(Sec=on
22)
-‐
before
Land
Take
possession
Administrator
www.mahwengkwai.com
14
Land
Acquisi=on
Process
(3)
(Sec=on
37)
-‐
6
weeks
from
(Sec=on
38(1)
-‐
Object
to
date
of
award
(Sec=on
14)
the
compensa=on
Object
to
compensa=on
awarded
(Form
N)
to
the
amount
Land
Administrator’s
Office
www.mahwengkwai.com
15
What
should
you
do?
Get
a
Lawyer
Get
a
Valuer
www.mahwengkwai.com
16
Challenge
the
State
Government’s
decision?
• Judicial
Review
• Decision
is
in
Form
D
(Declara=on
of
Inten=on)
• Failure
to
follow
procedures
in
LAA
1960
• Not
for
purpose
stated
in
Sec=on
3
LAA
1960
• Bad
faith
www.mahwengkwai.com
17
Who
should
be
Compensated?
• Sec=on
2
LAA
1960
Ø every
person
claiming
an
interest
in
compensa=on
to
be
made
on
account
of
the
acquisi=on
of
land;
www.mahwengkwai.com
18
Form
N
–
Applica=on
to
Court
• Objec=ons:
www.mahwengkwai.com
19
Court
Hearing
Process
Exchange
of
Valua=on
&
Role
of
Submissions
Rebucal
Judge
Reports
www.mahwengkwai.com
20
How
is
compensa=on
assessed?
• Based
on
the
Market
Value
• Compensa=on
for
the
Land
taken
• Compensa=on
for
other
losses
suffered
in
consequence
www.mahwengkwai.com
21
Market
Value
• Willing
buyer
and
willing
seller
• Comparison
with
recent
sales
• Similar
characteris=cs
• Within
2
years
• Valua=on
report
with
reasons
and
calcula=ons
www.mahwengkwai.com
22
Compara=ve
Method
• Loca=on
and
surroundings
• Size
and
shape
• Road
frontage
and
access
• U=li=es
–
electricity
and
water
• Date
of
acquisi=on
• Freehold/Leasehold
• Category
of
land
use
• Restric=ons
• Local
authority
zoning
www.mahwengkwai.com
23
Poten=al
Development
www.mahwengkwai.com
24
Other
Losses
• Injuries
affec=on
• Severance
• Loss
of
rental
• Cost
of
building
• Expenses
www.mahwengkwai.com
25
Decision
Making
Process
www.mahwengkwai.com
26
Appeals
• Against
decision
on
ques=on
of
law
• Against
decision
of
compensa=on
• S40(D)(3)
LAA
• S49(1)
LAA
• Estate
of
Tan
Bok
Yin
v
PTD
(2013)
• Cons=tu=onal
right
of
appeal
www.mahwengkwai.com
27
Conclusion
Work closely
with your
lawyer and
valuer to
achieve the
best possible
outcome.
www.mahwengkwai.com
28
Ques=ons?
www.mahwengkwai.com
29
www.mahwengkwai.com
30