Land Law 101 – Is Squatting Allowed?
Justice Good once said in Kuppu v Brown & Anor:“ The desire in mankind for a place of one’s own- a roof over one’s head- is so strong that men will build dwellings on land over which they have only the flimsiest claims to occupancy. The urge to build has in this country created what is known as the squatter problem…”. So what is squatting? Today, we will briefly explore the issue.
What is squatting?
Squatting is an act where a person occupies another person’s land (illegally) without:
- Any valid claim to the title or rights towards the land;
- Making payment to the owner of the land;
- The permission or knowledge or the owner of the land.
Squatting is not confined to scenarios where a person occupies another person’s land illegally for dwelling purposes. It can also include instances where people use the land illegally for agricultural, business, industrial or even educational purposes. Furthermore, squatting should not be confused with people who overstayed on a land that was temporarily leased to them (such as in instances where a person is granted a temporary occupation license by the state to use a piece of land) or in instances where the person is claiming for native title.
What are the implications of squatting?
The act of squatting has brought with it multiple problems. Chief among all is that it can prevent or hamper a legitimate owner’s desire to develop his land until the squatter is evicted by a court order. Matters such as this can drag on for years, as if the court decidedly rules against the squatters, they might still seek political influence to adjudicate the matter on their behalf.
Amongst others, squatting could potentially cause environmental degradation as well. The act of “land grabbing” and opening up lands illegally to conduct agricultural activities is nothing new in Malaysia. Governments have in the past try to rectify the matter but to no avail. The Cameron Highland flooding and landslides as a result of soil erosion stemming from the opening up of lands for illegal farming in 2015 is a prime example where illegal squatting has caused a huge environmental impact on the country.
Does the law recognize the rights of a squatter?
Before the British occupation and the introduction of National Land Code (‘the Code’), a person can literally squat in another person’s backyard, with or without their knowledge, build an abode for himself, extensively renovate it, and subsequently claim the backyard as his own after a certain amount of time. If it happens, the person effectively just acquired legal ownership towards the backyard. In law, this concept is called ‘adverse possession’.
This was recognized in the pre-colonial era, where the law recognizes 2 kinds of lands, namely:
- Waste land/ Tanah mati i.e. land that has no indication of it being cultivated by anyone. As there is no sign of cultivation, no one can claim ownership of the land.
- Living land/ Tanah hidup i.e. land that has been cultivated into a rice field. Anyone who cultivates the land will adversely possess the land.
During that time, even though the King of each state owns all the land, they allowed the people to cultivate a waste land into a living land as long he receives as a tenth of the produce of the land.
However, the concept was subsequently abolished and replaced by the Torrens system i.e. in order to claim ownership of land, a person must be able to prove that he owns the land either through registration, holding the title and interest towards the land. This concept was named after Sir Robert Torrens who introduced the concept in South Australia in 1858.
As such, a squatter currently neither has legal or equitable rights over the land that they are occupying, however long it may be. Any person who unlawfully occupies, cultivates or even removes produces from such land commits an offense under Section 425 of the National Land Code 1965 and can be punished with a fine not exceeding RM5,000.00 or imprisonment not exceeding 5 years or both.
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