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What is adverse possession?
Adverse possession is a legal term commonly used to describe a person, also known as an illegal squatter, who occupies a piece of land without the knowledge of the rightful landowner and eventually acquire legal ownership of the land through their continuous use and occupation of the land.
As such, anyone who has access to your property can literally squat in your backyard, with or without your knowledge, build an abode for himself, extensively renovate it, and claim that your backyard now belongs to him after a fixed amount of years, if you do not chase him away before his rights kick in.
Existence of adverse possession – a brief history
The concept of adverse possession is not unheard of in Malaysia. Before the formation of Malaysia, each state has its own comprehensive set of rules, traditions and customs governing the occupation of land. Generally, the law recognizes 2 kinds of lands [1]:
- Waste land/ tanah mati i.e. land that has no indication of it being cultivated by anyone. As there are 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 possessed the land.
While the King or the state is still the rightful owner of all the lands, they nevertheless allowed the people to cultivate a wasteland into a living land as long as a tenth of the produce of the land is paid to the King/ state[2].
This concept was however abolished during the British occupation, coupled with the introduction of the National Land Code 1965 (‘the Code’), which codified the concept of Torrens system i.e. registration of ownership, title and interest, named after Sir Robert Torrens who introduced the concept in South Australia in 1858.
Remedies for squatters
As Malaysia no longer recognizes the concept of adverse possession [3], a squatter neither has legal nor equitable rights over the land that they are occupying illegally, however long it may be. This was confirmed in Sidek bn Hj Muhammad & Ors v Government of Perak [4], where the federal court dismissed the claims of the squatters and held that a person can only obtain a state land by way of a formal application for land-based on the rules and regulations set down in the Code.
Any person who unlawfully occupies, cultivates or even removes produces from such land [5] commits an offence under Section 425 of the Code and can be punished with a fine not exceeding RM5,000.00 or imprisonment not exceeding 5 years or both[6].
Remedies for landowners
In the same case[7], Chief Justice Raja Azlan Shah noted that the landowners do not have an obligation to bring the matter to court for the owner to repossess their own land. The owner can even resort to the use of force so as long as it is reasonable to do so and he uses no more force than it is reasonably necessary[8].
The landowner also has other options to choose from if he decides to bring the matter to court.
For example:
- The landowner can bring an action for trespass under the law of tort and sue for damages [9];
- Bring an action under summary proceedings for possession of land under the Rules of Court [10] and obtain an order for possession [11], which may then be served upon the squatters and order them to move out; or
- Enter the land to forcefully evict and demolish the squatter huts according to Emergency (Clearance of Squatters) Regulations (‘ECSR’) [12]. This can only be done after the appropriate notice is given to the squatter to warn him of the impending eviction/ demolition [13].
Conclusion
As stated above, a squatter is not afforded with any legal nor equitable rights in Malaysia. While this issue is a serious one and garners sympathies from the public at large, there is nothing anyone can do unless and until parliament decides to amend the rules and regulations in regards to the rights of squatters.
1. Abdul Latif v Mohamed Meera Lebe (1824) 4 Kyshe 249.
2. Sahrip v Mitchell & Anor (1870) Leic 466.
3. Section 48, National Land Code 1965.
4. [1982] 1 MLJ 313.
5. Section 425 (1) (a)-(c), National Land Code 1965.
6. Section 425, National Land Code 1965.
7. Sidek bn Hj Muhammad & Ors v Government of Perak [1982] 1 MLJ 313.
8. Ibid, page 314.
9. Bukit Lenang Development Sdn Bhd v Penduduk-Penduduk yang menduduki atas tanah HD(D) 151079 – HS(D) 151601, Mukim Plentong, Daerah Johor Bahru [1996] 6 MLJ 25.
10. Order 89, Rules of Court 2012.
11. Order 89 Rule 6, Ibid.
12. 1969
13. Regulation 7, Emergency (Clearance of Squatters) Regulations 1969.
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