346170 TRI 2010 UDL3612 3 T04 PDF

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UDL3612 Land Law I Tri 1, 2020/Topic 3 Extent of Ownership and Enjoyment of LandTutorial 4 (Week 5) As a proprietor, one may not enjoy the absolute rights over his land. Discuss. Read the following cases and discuss to what extent a registered proprietor over an alienated land may enjoy the right of...

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UDL3612

Land Law I

Topic 3

Tri 1, 2020/2021

Extent of Ownership and Enjoyment of Land

Tutorial 4 (Week 5) 1.

As a proprietor, one may not enjoy the absolute rights over his land. Discuss.

2.

Read the following cases and discuss to what extent a registered proprietor over an alienated land may enjoy the right of support of land in “its natural state”: (a) (b) (c)

3.

Madam Chah Siam v Chop Choy Kong Kongsi [1939] MLJ 243; [1939] MLJ Rep 187; Ampang Estate Ltd v Guan Soon Tin Mining Co [1972] 1 MLJ 131 HC; and Guan Soon Tin Mining Co v Ampang Estate Ltd [1973]1 MLJ 25 FC

With reference to the relevant provisions and case law (if any), distinguish the following rights of a registered proprietor of an alienated land under the National Land Code: (a) (b) (c)

right to subdivision; right to partition; and right to amalgamation.

Written exercise: 4.

Along is the registered proprietor of land known as Lot 88 in Kampung Aman, Sepang. In May 2007, Along built a double-storey shop house on the land. At the time of construction the adjacent land, i.e. Lot 89, was a vacant land. To maximize the space, Along had the shop house built with its windows and the edge of the roof protruding into Lot 89. In September 2008, Hou Choy Kongsi bought Lot 89 and planned to construct a tenstorey hotel thereon. However, the proposed construction work could not be carried out due to the protruding windows and roof of Along’s shop house. It was also discovered later that Along had caused to be inserted ground anchors into Lot 89 in carrying out the construction work earlier. The ground anchors were 10 metres below the ground of Lot 89. It was on this area where the ground anchors were the proposed hotel will be built. Hou Choy Kongsi requested Along to remove the protruding windows and roof of his shop house as well as the ground anchors below Lot 89 so as to enable the proposed construction work to be carried out. Along refused as his son Abeng, a law student, told him about the Latin maxim cujus est solum ejus est usque ad coelum et ad inferos (to whom belongs the soil, his it is, even to heaven, and to the middle of the earth). Upon his refusal, Hou Choy Kongsi has brought an action against Along. Advise Along on the above matters. (15 marks) [Tri 1, 2008/09, Final]

The issue here is whether Along is liable for his refusal to remove the protruding windows and roof of his shop house as well as the ground anchors below Lot 89. Natural

rights

of

landowner

under

common

law

are

right

to

airspace, right to underground land and right to support. All of the rights under common law are incorporated in the Sec.44(1) of the National Land Code (NLC). Para (a) states “the column of airspace above the surface of the land”, and “the land below that surface…”.Para (b) states the right to the support of the land. These are natural rights of a landowner, as opposed to acquired or imposed rights. Para (c) also states the right to access.

Land

owner

may

sue

for

trespass

when

someone interferes with these rights. McGilligan J in Liew Yu Fatt v Teck Guan interpreted trespass as “…an unlawful entry by one person on, or an unlawful interference by one person with, land in the possession of another”. Landowner has the right to sue for any interference. In the case of Karuppanan v Balakrishnan, a four storey hotel stood on Lot 26.Previous owner of Lot 26 obtained planning permission to build windows which protrude into adjacent Lot 25. There was an undertaking to remove the windows if later any buildings were built on Lot 25. Later, owner of Lot 25 wanted to build a hotel, asked new owner of Lot 26 to remove the windows. He failed to do so. The Federal Court held that the law has clearly spelt out the right of an individual over his land – he is given the exclusive use of airspace above his land. The appellant (owner of lot 26) had no right to encroach into the airspace of Lot 25. In the case of Terra Damansara Sdn Bhd v Nandex Development, the defendant was undertaking

a

construction

inserted

ground anchors that encroached

plaintiff’s

land

without

plaintiff’s

project on beneath

its the

land surface

and

had

of

the

consent.Defendant claimed that he honestly

believed that the adjoining land was unoccupied and unalienated. The court held that the trespass to land is actionable per se without any proof of damage and liability is strict. It is not the law that a man cannot be a trespasser unless he knows he is one. If the entry is intentional, it is actionable even though that entry was made under a mistake or D honestly believed that the land was his own or, like the present case, the land was unoccupied and unalienable or that defendant believed that he had a right of entry on the land. Defendant had caused to be inserted ground anchors into the plaintiff’s land and that constituted trespass. The trespass will last so long as the ground anchors are inserted into P’s land, at whatever depth, constitutes an actionable trespass. In applying the law to this situation, firstly, Along had the shop built with its windows and the edge of the roof protruding into Lot 89. This means that Along had interfered with the right to airspace of Hou Choy Kongsi in Lot 89 where

their

proposed construction work could not be carried out due to the protruding

windows and roof of Along’s shop house. Secondly, Along also had caused to be inserted ground anchors into Lot 89. The ground anchors were 10 metres below the ground of Lot 89 and it was on this area where the proposed hotel will be built. So, Along had also interfered with the right to the underground land of Hou Choy Kongsi. In conclusion, Along is liable for his refusal to remove the protruding windows and roof of his shop house as well as the ground anchors below Lot 89.

Prepared by Amir Nur Ikhwan Amernudin, FOL, MMU...