LAND LAW I

EXCLUSIVE USE,
ENJOYMENT AND
EXTENT OF LAND
DISPOSAL
S . 4 4 N L C

NAK, SEM 1, 2022/2023

 RIGHT TO PROPERTY
"Ownership implies the right to exclusive enjoyment of a thing, and can be either
‘absolute’ (the right of free and exclusive enjoyment, including the right using,
altering, disposing of or destroying the thing owned) or ‘restricted’ (ownership
limited to some extent).

Is your ownership ABSOLUTE?

Is your ownership RESTRICTED?

So, what is the EXTENT of your right?

 Extent of disposal: general
44. (1) Tertakluk kepada peruntukan-peruntukan Akta
44. (1) Subject to the provisions of this Act and of any
other written law for the time being in force, any person
or body to whom (under this Act or a previous land law)
land has been alienated, reserved land has been leased or
a temporary occupation license (including a license so
styled under a previous land law) has been granted in
respect of any land, shall be entitled to—
(a) The exclusive use and enjoyment of so much
of the column of airspace above the surface of
the land, and so much of the land below that
surface, as is reasonably necessary to the lawful
use and enjoyment of the land;
penggunaan dan penikmatan tanah itu mengikut undang-
(b) the right to the support of the land in its
natural state by any adjacent land, and all other
natural rights subsisting in respect thereof; and
lain yang sedia ada berkenaan dengannya; dan
(c) where the land abuts on the foreshore or any
river or public place, but subject to any express
provision in the document of title, lease or
license, a right of access thereto.
S.44 NLC
Keluasan pelupusan: am
ini dan mana-mana undang-undang bertulis lain buat
masa itu berkuatkuasa, mana-mana orang atau badan
yang kepadanya (di bawah Akta ini atau di bawah
undang-undarig tanah terdahulu), tanah telah
diberimilik, tanah rizab telah dipajakkan atau lesen
pendudukan sementara (termasuk suatu lesen yang
digelar begitu di bawah undang-undang tanah
terdahulu) telah diberi berkenaan dengan mana-mana
tanah, maka orang atau badan itu berhak:
(a) mengguna dan menikmati secara eksklusif seluas mana
ruang udara yang ada di atas permukaan tanah itu, dan
seluas mana tanah yang ada di bawah permukaan itu,
sepertimana yang perlu dengan munasabahnya untuk
undang;
(b) kepada pergantungan atas tanah dalam keadaan aslinya
oleh mana-mana tanah di sebelahnya, dan semua hak asli
(c) di mana tanah itu bersempadan dengan tepi pantai atau
mana-mana sungai atau tempat awam, kepada hak masuk-
keluar ke situ, tetapi tertakluk kepada apa-apa peruntukan
nyata dalam dokumen hakmilik, pajakan atau lesen.
S.44 KTN
THE EXCLUSIVE USE
AND ENJOYMENT
OF AIR SPACE

First limb s.44(1)(a)

ABOVE
S. 44(1)(A)NLC
Extent of Disposal

provides that an owner has the

exclusive use and enjoyment of
so much of the column of
airspace above the surface of
the land and so much of the land
below that surface as is
reasonably necessary to the
lawful use and enjoyment of the
land.

BELOW
 ISSUES

DOES
PROPRIETOR’S
RIGHT OF
DOES AIR SPACE
ENJOYMENT
SUBJECT TO
AFFECTED IF
OWNERSHIP OF THE
NEGLIGENCE
PROPRIETOR?
OCCUR RESULTING

TO MATERIAL LOSS
AND DAMAGE?

IS THERE ANY NEED

TO BALANCE THE
RIGHTS OF
PROPRIETOR
AGAINST THE
RIGHTS OF PEOPLE?

RIGHT TO AIRSPACE
This natural right is in actual fact a modification of
the latin maxim cuius est solum eius est usque ad
coelom et ad inferos which means that “whose is the
soil, his is also that, which is above and below it”.
The maxim could also be interpreted as that
whosoever owns the surface of the earth owned also
the entire airspace above it. This legal maxim appears
to have not imposed any restrictions.
Rules and principles as developed under
English Common Law govern enjoyment of the
column of airspace above the surface of land.
Under the common law, it is used as a governing
principle in determining the extent of ownership.
However, section 44 of the National Land Code 1965
illustrates that the right to enjoy one’s land is not
absolute but an exclusive use and enjoyment of land
This means such right must be exercised in
consideration of limitations and restrictions:
a. subject to other provisions of the NLC 1965;
b. subject to any other written law;
c. such enjoyment must also be reasonable and
necessary; and
d. it must be lawful.
Nuisance or Tresspass?
A landowner owns the airspace above his land and may bring
an action for trespass against an intruder or where another
places an object which projects into their airspace.

Kelsen v Imperial Tobacco [1957] 2 QB 334

The defendant owned the freehold in premises from which he ran a
wholesale tobacco business. He leased part of the premises to the
claimant from which he ran a tobacconist shop and had a flat in
which he resided. The defendant erected a sign that protruded into
the claimant’s airspace by four inches. Held: An injunction was
granted to prevent the trespass of the airspace.

Woolerton and Wilson v Richard Costain Ltd [1970] 1 WLR 411

An injuction was initially granted, however it was suspended to alllow the
defendant to complete the works on his own land despite the intrusion it
caused. In this case, the defendant was a building company involved in a
construction project which required the use of a crane jib. When the crane
jib was erected, in the only position available for it, it passed over the
claimant’s property. The claimant acknowledged that it caused no damage
or risk thereof. The defendant also admitted trespass and offered a
significant sum of money to be allowed permission to operate the crane jib.
The claimant refused the offer which had prompted the court to stay the
order granting an injunction.

*A balance must be made between individual rights of enjoyment and and

the overall public right to to utilise that property for the common good
Limited right
the landdowner has only a limited right to use a limited air
column above his land. one of the modern developments over
the common law concept is that air and space are not
considered as a subject matter of ownership as it falls in the
category of res omnium comunis. This rule is stated in:

Lacroix v The Queen [1954] 4 DLR 470

the owner of a piece of land contended that the
establishment of a flight path and the flying of
planes over his land was an interference with his
rights of ownership and a disturbance of his full
enjoyment of his property. held: the owner of land
has a limited right in the air space over his property;
it is limited by what he can possess or occupy for the
use and enjoyment of his land. By putting up
buildings or other constructions the owner does not
take possession of the air but incorporates
something to the surface of his land. That which is
annexed or incorporated to his land in turn becomes
part of the property he owns.
Bernstein of Leigh v Skyviews & General Ltd [1978]
QB 479
The defendant company took aerial photographs of
properties and offered to sell them to the owners of
the properties in the photos. The claimant owned
Coppings Farm in Kent and complained that the
photographs were taken without his consent, was an
invasion of his privacy and had been obtained by
trespassing onto his airspace. held: there was no
trespass (referred to UK Civil Aviation Act). no
interference to the property. A landowner only has
rights in the airspace to such a height as is necessary
for ordinary use and enjoyment of the land.

Griffiths J:
"The problem is to balance the rights of an owner to enjoy the use of his
land against the rights of the general public to take advantage of all that
science now offers in the use of air space. This balance is in my
judgement best struck in our present society by restricting the rights of
an owner in the air space above his land to such height as is necessary
for the ordinary use and enjoyment of his land and the structures upon
it, and declaring that above that height he has no greater rights in the
air space than any other member of the public.”
Malaysian Civil Aviation Act 1969
s. 19:
(1) The provision states categorically that no action can be
maintained by the land owner for nuisance or trespass simply
because of the flights of aircraft at a reasonable height with
consideration to certain circumstances.

(2) if any material loss/damage is caused by the plane or

objects falling from the plane, the owner of the plane will be
liable whether the damage was caused by carelessness or not
(e.g. : deliberate emisssion of vast quantities of smokethat
polluted the atmosphere which will serious;y interfere with
the owner's use and enjoyent of his land)

Sweetland v Curtis Airports Corporation [1932] 55 F

2nd 201 (USA)
the defendants have the right to establish airports, but
they cannot lawfully establish one at a place where it’s
normal operation will deprive the plaintiffs of the use and
enjoyment of their property
Karuppanan v Balakrishnan [1994] 3 MLJ 584
The side windows of the appellants' hotel protrude into the
respondent's land. The FC held that s.44(1)(a) NLC clearly
gave the respondent the exclusive use and enjoyment of the
airspace above the surface of his land though not a right to
the heaven above. The appellant has no legal right to
encroach into the airspace of the respondent's land unless he
allows it.

Therefore, the right of landowner to enjoy the land is

exclusive but it is not absolute. The extension of rights is
determinable by law.

The State Authority may also grant a permit to use the

airspace above state land/reserved land pursuant to s.75A
NLC. The permit may be issued for a period not exceeding
21 years for the purposes of erecting, maintaining and
occupying a structure on the State/reserved land.
 NATIONAL LAND
COMMON LAW
CODE
DEVELOPMENT
Not Absolute – 4 considerations s.
Absolute - No Restriction 44(1)

Subject to other provisions of
NLC-
Kelsen v Imperial Tobacco Co
Subject to any other written
(1975)2 QB 334
law-
Held: Invasion of the plaintiff’s
Reasonable and necessary-
air space was a trespass and
Lawful-
not a mere nuisance.
Karrupanan v Balakrishnen,

Chong Lee Chin & Ors [1994] 3

Woolertonand Wilson v
MLJ 584
Richard Costain Ltd [1970] 1
Encroachment on land and to
WLR 411
airspace. Once the respondent
The availability of an injunction
had established his legal right and
for trespass in the absence of
its violation, he was entitled to a
damage
perpetual injunction

Liability for damage caused by
Aircraft
s. 19 (1)(2) Civil Aviation Act 1969

THE EXCLUSIVE USE

AND ENJOYMENT
OF AND THE LAND
BELOW THAT
SURFACE
S e c o n d l i m b
s . 4 4 1 ( a )
S. 44(1)(A)NLC
Extent of Disposal

provides that an owner has the

exclusive use and enjoyment of
so much of the column of
airspace above the surface of the
land and so much of the land
below that surface as is
reasonably necessary to the
lawful use and enjoyment of the
land.
RIGHTS BELOW THE SURFACE

COMMON LAW PRINCIPLE

The surface owner’s right extend downwards sufficiently to prevent trespass by

tunneling under the surface or to give rights over minerals.

On the land, unjustifiably interference with the reasonable enjoyment of the

land proprietor’s land may be regarded as a trespass.

Bulli Coal Mining v Osborne (1899) AC 351
Trespass of underground/subsoil; the D mined from their
land through the P's land - fraudulently extracted coal
from the land. Held: entitled to recover from the
appellants the market value of all the coal extracted from
the land.

Star Energy Weald Basin Ltd v Bocardo SA

[2010] UKSC 35
Does drilling the well under Bocardo’s land an actionable
trespass? Yes. The owner of the surface of land was the
owner of the strata beneath it, including the minerals that
were to be found there, unless there had been an
alienation of them by a conveyance, at common law or by
statute to someone else.
 Malaysian Position
NLC - not absolute; subject to other provisions in the NLC.

45(2) – minerals, rock material and forest produce are

belongs to State Authority and the ownership does not
pass to the proprietor upon the alienation of the land.
cannot remove rock material/forest produce beyond
boundaries + cannot extract any metals or minerals found
on the land.

s. 70 – Exception under NLC: permit to extract rock

material. such right is LIMITED not extend to gold,
artifacts, treasure troves, or antiques (REFERRED TO
nATIONAL hERITAGE aCT 2005)- vested solely in the SA

Equity Corporation SdnBhd v Thye Sun Quarry

Sdn Bhd [2002] 6 MLJ 74
Defendant sought to terminate the lease. Plaintiff seeks
specific performance claiming that the defendant had
breach the term – failing to obtain the quarry license and
other permits in 1993. That leads the Authorities refused
to issue a quarry license to the plaintiff in 1997.
 RIGHT TO THE
SUPPORT OF LAND
IN ITS NATURAL
STATE

s . 4 4 ( 1
) ( b )
S. 44(1)(B)NLC
Extent of Disposal

the right to the support of the

land in its natural state by any
adjacent land, and all other
natural rights subsisting in
respect thereof
 RIGHT OF SUPPORT
A landowner is entitled in certain circumstances to have
the land supported by neighbouring land as well as the
right not to have that support removed.

Negative Right: the owner of the adjacent land cannot

withdraw the natural support that his land gives to his
neighbour’s land. - is a duty of the adjacent owner to
support and not do something on his land or property that
might endanger the property of others.

Condition to fulfil in order for one to have right of support

from the adjoining land -
1. The land at lower level must support the land above it
2. The land must be adjoining with each other, however
ownership must be separate
3. The land must be in its natural state
•Means no interference of human hands, only act of god.
•Unburdened with buildings and unweakened by
excavation.
4. No additional support is to be given beyond what is on
the land (ie: owner cannot expect additional support from
the adjacent land if his land is proven to be in its
weakened state)
A B

B
 COMMON LAW PRINCIPLE

Dalton v Agus (1881) 6 App Cas 740

Lord Selbourne:
"In the natural state of land, one part of it receives support
from another, upper from lower strata, and soil from adjacent
soil. This support is natural, and is necessary, as long as the
status quo of the land is maintained."
The principle is that if A owns a plot of land adjoining another
plot of land owned by B, and if A erects a house on his own plot
of land, after 20 years A acquires a right to whatever support
land B gives to his house. If B by excavating land causes A’s
house to fall, B is liable to A for damages as are contractors
who carry out the work, which results in the damage

Yong Joo Lin & ors v Fung Poi Fong (1941) MLJ 63
D claimed that under common law doctrine which
presumed that an easement of support has been
lawfully acquired after proof of uninterrupted user for 20
years, did not apply to Federated Malay State. Held:
Common law doctrine applied in FMS and an easement of
support can be lawfully acquired after 20 years or more
uninterrupted user
However, the principle in Dalton’s case was no longer
applicable in Malaysia after the coming of the NLC 1965. The
presence of section 44(1)(b) of the NLC 1965 confers the right to
support of the land in its natural state by any adjacent land
immediately upon disposal and not after 20 years

Madam Chah Siam v Chop Choy Kong Kongsi

[1939] 1 MLJ 243
The plaintiff had been in occupation of a large pond (an old mine
filled with water) on State land, which she used for the purpose
of rearing fish. She occupied this pond together with a small
pond under a TOL. The defendant occupied the adjoining land,
did mining operations until he almost reached the boundary of
the bank of the adjoining fish pond. The bank collapsed and
water from the pond poured into the mine. The plaintiff claimed
for damages, relying on her absolute right to support from the
land comprised in the mining lease. held: land in its natural
state is only entitled to such a degree of support as it would have
required in its natural condition; and has no right to the
additional support required by reason of its weakened state.

Natural state means unburdened with buildings and

unweakened by excavations. In this case, the pond is simply
and excavation caused by mining which has filled up with water.
The land in its excavated state is not entitled to lateral support.
Guan Soon Tin Mining v Ampang Estate Ltd [1973]
1 MLGJ 25
A’s predecessors used the land for mining, long before A
occupied the land. R claimed that A have worked and gotten
mines and minerals under the said adjacent land and have
thereby withdrawn support from the said land to the R causing
damage to the land. Issue: whether A were under legal obligation
to support R’s land under Sec 44(1)(b) NLC? Held: There was no
evidence that A enlarged/deepened this hole which would make
them liable for withdrawal of support from R’s land. A were not
liable as the land had already been excavated before A entered
into occupation.
Principle: When a subsidence occur to a neighbour’s land he who
causes the subsidence is liable in damages. However, where
there is lapse of time between excavation of land and the
occurrence of the resulting subsidence AND during the interval,
a change has taken place in the ownership/occupation of land,
the new occupier is under no liability.

THUS, the nature of the right to support is negative - the

adjoining proprietor may be sued only where his
actions/omissions result in the loss of or damage to support,
but he cannot be sued if he fails to provide new or additional
support which was not existence earlier + natural state; no
interference from human hands, only by acts of god (e.g. soil
erosion due to heavy rain that leads to collapse of land - no
claims against the adjoining proprietor)
LAND ABUTS ON
THE FORESHORE/
RIVER/PUBLIC
PLACES

s . 4 4 ( 1
) ( c )

S. 44(1)(C)NLC
Extent of Disposal

where the land abuts on the

foreshore or any river or public
place, but subject to any express
provision in the document of
title, lease or license, a right of
access thereto.
 DEFINITION: s. 5 NLC; foreshore (between shoreline and the low water mark)

Source: http://www.discoveringfossils.co.uk/
Right of access to foreshore and seabed

The landowner has a right to access to the land, which

abuts on the foreshore or any river, or public place.
however, this right is subject to any express provision in
the document of title (Issue Document of Title -IDT), lease
or license.

If the land has been submerged by the sea, then the

proprietor's right to claim ownership of the land is subject
to s.46(1) NLC; it shall revert to and vest in the SA in
accordance with s.49 NLC.

s.49 NLC; the area affected cease to form part of that land
and shall become state land

s. 353(1) (2) – re survey of the land having natural

boundaries – if the effect of re-survey might reduce the
area formerly owned, no compensation payable by PBN

Basically, land that had been effected by the

encroachment of the sea (including gradually retreat and
recess) does not form part of one's land - become the
state land, unless the Chief Surveyor provides otherwise.
Re Sithambaram Chettiar (1955) MLJ 213
(Before the NLC) Encroachment by the sea and gradually
retreat. Held: the owner of the land, which becomes gradually
and imperceptibly covered by the sea, is entitled to regain
posession of it if it is subsequently becomes high and dry by
gradual recession of the water.

Government of the State of Penang v BH Oon [1971]

2 MLJ 235
In this case the appellants asked for a declaration that they
were the owners of a piece of land adjoining their land
which piece of land they alleged had been formed by slow and
imperceptible accretion by alluvial deposits from the
sea. Held: assuming the onus of proof was on the
plaintiffs/appellants in this case they had discharged their
burden of showing that the alluvion had been formed gradually
and imperceptibly.

Admiral Cove Development Sdn Bhd v

Balakrishnan a/l Devaraj [2011] 5 MLJ 309
Ainul JARIA Maidin et al. Principles of Malaysian Land Law, 2008,
LexisNexis

Prof Madya Dr Jady Lecture Notes

REFERENCES