Eviction of Unlawful Occupiers of Land in Malaysia – Judicial Responses and Policy

15 Pages Posted: 16 Jan 2013

Date Written: December 14, 2011

Abstract

Eviction is the act of recovering possession of land that is under the unlawful possession of another. In order to understand the situations under which eviction occurs, it is useful for one to examine when a person is taken to be in unlawful occupation of land and the position under the law relating to such persons. The consequential remedy for one whose land has been trespassed is to sue for damages under the law of tort. Nonetheless, the more exacting remedy is to dispossess the trespasser and recover possession of the land and one of the swiftest ways to do this is by way of forced eviction. But gone are the days of feudal landlords forcefully storming into a village and burning down houses in exercise of the landlord’s power to evict. Most countries in the world today have begun to restrict and in some cases, have rendered such self-help remedy as illegal for being inconsistent with human rights.

One may enter into a discourse on eviction under four principal branches of law, under trespass to person and property under the law of torts, civil procedure, land law and humanitarian law. The discussion in this paper focuses largely on the land law aspects with some reference to humanitarian law with the aim of suggesting law reform.

Occupiers of land or buildings may be lawful occupiers or unlawful occupiers. This paper focuses on the latter. Such occupiers are either on state land or on private land and are often termed as ‘squatters’ by the authorities and the media. Malaysia has been grappling with the squatter issue in the face of increasing urbanization since the 1980s. The law in Malaysia is clear: squatters have no rights either in law or in equity, a statement supported by section 48 and 425 of the National Land Code 1965 as well as the Federal Court in Sidek and Ors v Government of the State of Perak [1982] 1 MLJ 313. Nonetheless, several cases have come before the courts where ‘squatters’ have managed to prove that they have ‘triable issues’ and should not therefore be summarily dispossessed from the land/ building. Malaysia has been implementing the Emergency (Clearance of Squatters) Regulations 1969 that legalizes forced eviction of squatters by the local authorities. This paper analyses judicial responses to unlawful occupation of land, the application for an order of possession as well as enforcement of forced eviction under the law and concludes on the need for better consolidation and revision of the laws and policies dealing with eviction and the squatter problem in Malaysia.

Keywords: eviction, land, unlawful occuppiers

JEL Classification: K11

Suggested Citation

Abdul Kader, Sharifah Zubaidah, Eviction of Unlawful Occupiers of Land in Malaysia – Judicial Responses and Policy (December 14, 2011). Available at SSRN: https://ssrn.com/abstract=2199758 or http://dx.doi.org/10.2139/ssrn.2199758

Sharifah Zubaidah Abdul Kader (Contact Author)

International Islamic University Malaysia ( email )

P.O. Box 10
Jalan Gombak
Kuala Lumpur, selangor 50728
Malaysia
603-61964293 (Phone)
603-61964854 (Fax)

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