©The
Star (Used by permission)
by Chelsea L.Y. Ng
HOLDING on to a piece of land title used to be the most secure way for
landowners to state ownership of their properties.
The situation has however turned wobbly lately with the implementation of the
computerised e–Tanah system.
Fraudulent land ownership transfers can be done at the click of the mouse. It
can happen quickly and right under one’s nose.
Designed to streamline land transactions and ownership, the system was
introduced late last year with a noble intention.
It aimed to cut transaction time in half, enable online comprehensive land
database collection and make the application and registration of titles more
efficient.
However, the new system which was gazetted through the National Land Code
(Amendment) Act 2007 did not address the bigger problems of land fraud and the
loophole in Section 340 of the National Land Code (NLC) 1965.
The loophole had resulted in the Federal Court’s landmark ruling in Adorna
Properties Sdn Bhd v Boonsom Boonyanit in 2001.
The case revolves around a Thai woman, Boonsom Boonyanit, who lost two pieces of
prime land in Tanjong Bungah, Penang, to a third party – Adorna Properties Sdn
Bhd – after some unscrupulous parties forged her signature to sell and transfer
the land.
The result of the case, which was heard right up to the Federal Court, could be
said to be unfair to Boonsom. At the end of it, she lost everything.
The court held that Adorna Properties could rightly claim ownership over the two
pieces of land worth millions of ringgit because it was an innocent buyer.
Since then some have felt that justice had not been administered according to
the law stated in Section 340 of the NLC as the section does not contain any
remedy for landowners.
The most senior Court of Appeal judge, Datuk Gopal Sri Ram, said on July 13 last
year in Au Meng Nam & Anor v Ung Yak Chew & others that the controversial
decision of the Adorna Properties case should not be followed because it was
wrongly decided.
His view, however, immediately drew flak from then Chief Justice Tun Ahmad
Fairuz Sheikh Abdul Halim who chided him for ignoring the ruling of a superior
court merely on the grounds that someone felt the higher court had made a wrong
decision.
This dilemma has got the Bar Council working on a memorandum which it submitted
to the then Natural Resources and Environment Minister Datuk Seri Azmi Khalid on
July 24, last year.
In the memorandum, the Bar Council proposed several amendments to be made to the
relevant sections of the NLC, especially Sections 340(3) and (4) and 187B.
The move, however, did not bring about any change to the status quo as
amendments to the NLC in December last year did not include Section 340.
It was only during a workshop on Thursday, organised by the Land and Mines
Department to find ways to overcome the Adorna case, that a glimmer of light was
seen at the end of the tunnel.
Land and Mines director–general Datuk Zoal Azha Yusof, whose department had
organised the workshop, said the change was necessary to restore property
owners’ rights.
“It is not fair to property owners to have their rights taken away,” he had said
before.
The Bar Council’s Conveyancing Practice Committee chairman Roger Tan said the
step was a positive move towards giving protection to land owners.
Apart from the Adorna Properties case, there were a serious number of fraudulent
cases involving land in the country.
Statistics disclosed by police showed that 16 cases were recorded in 2001, 19 in
2002, 22 in 2003, 32 in 2004, 35 in 2005 and 40 in 2006.
The Consumers Association of Penang has cried foul over why hardly anyone had
been prosecuted for the crimes.
The Government has also not been sitting idle. The National Resources and
Environment Ministry has been correcting some of the teething problems in the e–Tanah
system.
Among the measures noted for action since December were the use of digital
signatures and security codes to increase security for land matters such as
keeping data on transferring property in a special read–only database to prevent
tampering.
Steps had also been taken to stop fraudsters from getting land titles by
claiming that they had “lost” their land titles and trying to apply for new ones
via their lawyers.
Now, landowners have to go personally to the Land Office to get replacement
titles to ensure they are the legitimate owners.
These measures would definitely help to solve some of the teething problems but
it is hoped that the amendment to Section 340 will provide the quantum leap for
a more drastic change in the law for the benefit of bona fide landlords.
- * Committees | Introduction
- Ad Hoc Committee on Conditional Fee Rules (Re Non-Personal Injuries)
- Ad Hoc Committee on Conditional Fee Rules (Re Personal Injuries)
- Ad Hoc Committee on Contempt of Court
- Ad Hoc Committee on Legal Services Blueprint
- Ad Hoc Committee on Personal Data Protection
- Ad Hoc Committee on Touting
- Ad Hoc Pandemic Response
- Ad Hoc Peer Support Network
- Advocacy Training
- Arbitration
- Bahasa Melayu
- Building
- Child Rights
- Civil Law
- Committee on AMLA
- Committee on Orang Asli Rights
- Committee on Reform to the Legal Sector
- Common Bar Course
- Constitutional Law Committee
- Construction Law
- Conveyancing Practice
- Corporate and Commercial Law
- Court Liaison
- Criminal Law
- Cyberlaw
- Environment and Climate Change
- Family Law
- Finance
- Human Rights
- Industrial and Employment Law
- Integration
- Intellectual Property
- International Malaysia Law Conference 2023
- International Professional Services
- Islamic Finance
- Law Reform and Special Areas
- LawCare
- Legal Databases Liaison
- Legal Profession
- Mediation
- Migrants, Refugees and Immigration Affairs Committee
- National Legal Aid
- National Young Lawyers and Pupils
- Personal Injury Claims and Awards
- Professional Indemnity Insurance
- Professional Standards and Development
- Publications
- Risk Management
- Shipping and Admiralty Law
- Small Firms Practice
- Solicitors' Remuneration Enforcement
- Sports
- Syariah Law
- Task Force on Independent Police Complaints and Misconduct Commission ("IPCMC") and Police Accountability
- Technology, Cyber and Privacy
- Trade in Legal Services
- Women's Rights
- Yayasan Bantuan Guaman Kebangsaan Committee
- * Previous Committees | Introduction
- Ad Hoc Committee on Amendments to the LPA
- Ad Hoc Committee on Anti-Money Laundering
- Ad Hoc Committee on Benchmarking Law Firms
- Ad Hoc Committee on Judicial Commission
- Ad Hoc Committee On National Legal Aid Foundation
- Ad Hoc Committee on Quality and Standards
- Ad Hoc Committee on Rules and Regulations
- Alternative Dispute Resolution
- Gender Issues & Equal Opportunities (2005-2007)
- Institutional and Law Reform
- International Malaysia Law Conference 2012
- International Malaysia Law Conference 2014
- International Malaysia Law Conference 2016
- International Malaysia Law Conference 2018
- International Malaysia Law Conference 2020
- International Malaysia Law Conference 2022
- LawCare Fund Management
- Library
- Malaysian Law Conference 2007
- Malaysian Law Conference 2010
- Motor Insurance Review Ad Hoc Committee
- No-Fault Liability Scheme
- Practice Management Support
- Safer Malaysia
- Standing Committee for the Promotion of Best Practices by Detaining Authorities (2005-2007)
- Standing Committee on Court Rules (2005-2007)
- Standing Committee on Eliminating Discrimination (2005-2007)
- Standing Committee to Review LPA 1976
- Study Loan
- Task Force on Combined Rules of Court
- Task Force to Review the Compendium of Personal Injury Awards
Protecting the landowners
17 Mar 2008 12:00 am