This is another email I received relating an issue of Temporary Occupation of Land (License to Occupy):
aruah ayah saya ada mendapat tanah T.O.L yang telah diusahakan selama bertahun untuk bercucuk tanam. Setelah pemergian aruah ayah, adik saya mengusahakan tanah ini, tetapi atas tuntutan kerja dia kena bkursus di Tampin dan tanah ini telah terbiar dalam beberapa bulan. Oleh kerana kami sedang berusaha untuk mendapatkan geran tanah ini, ada saudara belah emak saya yg menghulurkan bantuan untuk proses tanah ini tanpa diketahui oleh emak saya yg rupanya dia ada niat lain di mana dia telah menukarkan tanah itu ke atas nama dia. Pada sabtu lepas saya telah pergi melawat tanah tersebut sebab saya nak buat kebun sayur tetapi tanah tersebut telah diratakan oleh manusia tersebut tanpa pengetahuan kami tapi yg bestnya adik saya yg tolak pokok2 tersebut atas arahan manusia itu yg mengatakan dia ada geran. (adik saya bekerja sebagai pemandu jentolak utk (deleted) dan semasa melalui kawasan tersebut dia telah menyuruh adik saya meratakan tanah tersebut tanpa apa2 bayaran)
Sekarang ini kami belum pasti samada tanah tersebut telah didaftarkan ke nama dia , kerana baru sebulan lepas dia meminta segala dokuman berkenaan daripada ibu saya. Boleh tak bagitau saya cara2 yang patut saya buat untuk memastikan tanah tersebut tidak terlepas ke tangan manusia itu.
kalau ada sedikit petunjuk makin kuat ler semangat saya untuk memperjuangkan perkara ini kerana sekarang saya macam takde arah lagi.
harap sangat sedikit petunjuk dari (deleted).
- (deleted) –"
My late father received a TOL (Temporary Occupation Land) and had been used for cultivation for years. After he passed away, my brother continues to work on this land, however due to work demand, he had to attend course in Tampin and the land left for few months. Because our family is trying to obtain a valid title, my mother's nephew came to offer assistant, without knowing that he had a crook attention to have the land registered under his own name. Last Saturday, I went to visit the land and thinking to start planting vegetable, I found out that the land had been cleared by this person without our family knowledge, the funny thing is that my own brother helped him to clear the land on his instruction saying that he already obtain a valid title of the land under his own name without any payment.
Now we are not sure whether the land title has been issued under his name or not because only last month he asked for relevant document from my mom. Can you help me to tell how should I do to ensure that the land does not go to him? …'
All land matter in Malaysian is governed under our National Land Code, in particular section 65 until 69. I append bellow the sections for easy and clear understanding (I underline the important part);
NATIONAL LAND CODE Act 56_65, DIVISION II:
DISPOSAL OF LAND, PART FOUR: DISPOSAL OTHERWISE THAN BY ALIENATION, CHAPTER 2: TEMPORARY OCCUPATION OF LAND.
Section 65. Power to licence temporary occupation of State land, mining land and reserved land.
(1) The State Authority may, in accordance with the provisions of this Chapter and of any rules under section 14, permit the temporary occupation under licence of-
(a) State land;
(b) mining land not for the time being used for the purposes of mining;
(c) reserved land not for the time being used for the purposes for which it was reserved.
(2) Temporary occupation licences may be issued for any purpose other than one prohibited by sub-section (2) of section 42.
Section 66. Issue of temporary occupation licences.
Temporary occupation licences may, subject to any contrary direction by the State Authority and to the provisions of any rules under section 14, be issued or renewed on behalf of the State Authority-
(a) in the case of State land, by the Land Administrator;
(b) in the case of mining land, by the Land Administrator acting with the approval-
(i) of the Senior Inspector of Mines, or such other officer as may for the time being be charged with the administration within the State of any written law relating to mining, and with the approval also of any lessee thereof;
(ii) the person or body for the time being entitled to the benefit of the mining lease or certificate in question;
(c) in the case of reserved land-
(i) by the Land
Administrator acting with the approval of the officer for the time being having the control thereof; or
(ii) by that officer, whenever and to such extent as he may be authorised in that behalf by the State Authority.
Provided that nothing in this section shall authorise the Land Administrator to issue temporary occupation licences in respect of any such river as may be declared by the State Authority by notification in the Gazette for the purpose of this proviso.
Section 67. Duration, conditions, etc., and form of temporary occupation licences.
(1) Except in so far as it is otherwise prescribed, every temporary occupation licence other than one to which section 69 applies (that is to say, a temporary occupation licence combined with a permit to extract and remove rock material) shall be issued for a term expiring not later than the end of the calendar year in which it commences, and subject to sub-section (3) may be renewed annually:
Provided that a licence issued for the purpose of enabling any public exhibition or entertainment to be held may be issued for such other term as may be appropriate in the circumstances.
(2) Every temporary occupation licence shall have effect subject to such provisions as may be contained therein and so far as not inconsistent therewith, to any other provisions which may be prescribed.
(3) Subject to the condition under which a temporary occupation licence is issued, the Land Administrator may on the application of a licensee renew such a licence for a term of not more than one calendar year.
Provided that there shall not be more than three renewals made in respect of a temporary occupation licence unless a prior written approval of the State Authority has been obtained.
(4) Every temporary occupation licence other than one to which section 69 applies shall be in Form 4A and in the case of renewal of such licence it shall be endorsed with a note of such renewal and the date of its intended expiry.
Section 68. Temporary occupation licences not capable of transfer or transmission on death.
Except so far as it is otherwise prescribed, a temporary occupation licence shall not be capable of assignment; and every such licence shall, except as provided in section 416, terminate on the death of the person, or dissolution of the body, for the time being entitled to the benefit thereof.
Section 68A. Deposits in respect of temporary occupation licence.
The State Authority may if it thinks fit direct that, except in such circumstances as may be specified in the direction, the Land Administrator or other officer by whom any temporary occupation licence is issued shall require the person or body to whom it is issued to deposit with him such sum as he may consider reasonable as security for the rehabilitation of the land to which the temporary occupation licence relates upon the termination thereof.
Section 69. Combined temporary occupation licence and permit under Chapter 3.
(1) Without prejudice to the generality of sub-section (2) of section 65, the purposes for which a temporary occupation licence may be issued shall include the extraction and removal of any rock material (otherwise than for the purpose of obtaining metal or mineral therefrom) from the land to which the licence relates; and, in any such case, the licence-
(a) shall be in Form 4B, and
(b) may be issued for maximum term not exceeding five years, or such greater number of years as may be prescribed.
(2) So far as it authorises the extraction and removal of rock material from land, a temporary occupation licence shall, notwithstanding that it is issued in accordance with, and has effect subject to, the provisions of this Chapter, be deemed to constitute a permit validity issued on behalf of the State Authority in accordance with the provisions of Chapter 3; and accordingly-
(a) any direction given by the State Authority under section 74 shall apply in relation to licences authorising the extraction and removal of rock material as it applies to permits under that Chapter, and
(b) any such licence shall have the like effect in relation to any conditions to which the land in question is for the time being subject as such a permit has by virtue of section75.
Let us summarize the law above in relation to sender's problem.
- now we know that the original licensee (the father) passed away and the law clearly says that except under section 416 of the Code, the license to occupy terminate upon death and further the license is not transferable to the next of kin. Section 416 read as follows;
REGISTRATION OF STATUTORY VESTING
Section 416. Substitution of transferee for transferor in documents of entitlement.
(1) Any lease of reserved land or underground land below reserved land, any temporary occupation licence, any permit for the extraction, removal and transportation of rock material, or any such combined licence and permit, or any permit to use air space above State land or reserved land, or any approval for use of underground land under Part Five (A), as the case may be, granted under this Act or under any previous land law and held by the transferor immediately before the statutory vesting took effect, shall, upon application made by the transferee in Form 30C, be amended by the Registrar by substituting therein for the name of the transferor the name of the transferee, upon the Registrar being satisfied that a statutory vesting in the transferee of the same has been effected.
(2) The substitution of the name of the transferee for that of the transferor under subsection (1) shall have effect from the date on which the statutory vesting took effect.
(3) A statutory vesting effected under this section shall have full force and effect in every respect and for every purpose, notwithstanding anything to the contrary or inconsistent therewith contained in this Act, or in the term or condition of any lease, temporary occupation licence, permit, combined licence and permit, permit to use air space or approval referred to in subsection (1).
- Now should the late father manage before his death transfer the rights of TOL by filling and submitting form 30C above to one of his family member, the land now can be said licensed to him or her (from his family member). Presumably that there is no such application made, the license to occupy is not cease to exist. And any person may upon successful application obtain the TOL.
- In other words, the family member of the late licensee (father) has to apply fresh from the land administrator.
- The new person (the mother's nephew) claiming that he has obtain the TOL may be determine by conducting relevant land search at the land office, try to do it as soon as possible. This is because in normal cases processing the application takes few months. From the brief given, the relevant document just been taken from your mother at about a month ago.
- Submit a fresh application at the land office even if the TOL already given to the nephew, this is because a TOL only valid for one year (except under section 69 which is not in your case) and maximum renewal allowed is three times, in other words the most you will lost is about three years waiting.
- Remember also that TOL can be terminated at any time by the land administrator due to valid reason. Try to convince the land administrator that there has been improper influence to your mother in giving out 'her consent' to the nephew application (though legally that is not the case).
- I believe the land administrator will consider your mother or your brother application on the account that the land has been cultivated for years by your late father and now that the family survivors need the land to support themselves.
Kamarul Irzuan Bin Hj. Busu Piah. Advocate & Solicitor, High Court of Malaya.