In Malaysian land law, which is primarily governed by the National Land Code (NLC) 1965, the tort of trespass serves as a fundamental protection for those in possession of land. Unlike many other torts, trespass is actionable per se, meaning a claimant can succeed without proving actual damage to the property.
1. Definition and Foundation in Possession
Trespass to land is defined as the unlawful direct and immediate interference with the possession of land which is in the possession of another person, or which another person is entitled to possess.
The essence of a trespass action is the interference with possession, not necessarily ownership. Consequently:
- Lessees and Tenants: A person who takes a lease or a tenancy has immediate possession and can maintain an action for trespass.
- Licensees (TOL Holders): A holder of a Temporary Occupation Licence (TOL) has exclusive possessory rights that enable them to sue for trespass against any person, including other licence holders who infringe upon their specific rights (e.g., cutting down crops).
- The Registered Proprietor: While the owner has the reversionary interest, they can maintain a trespass action if the interference causes permanent damage to the land.
Conversely, if a party has surrendered possession—such as the “Orang Asli” in Agrobest (M) Sdn Bhd v. Rosli Jendutwho relocated from their ancestral burial site—they may lose the locus standi to sue for trespass because they are no longer in actual or exclusive possession.
2. The Scope of Land: Airspace and Subsurface
The legal concept of land extends beyond the surface. Following the Latin maxim cujus est solum, eius est usque ad coelum et ad inferos, a landowner generally owns everything from the heavens to the center of the earth.
- Airspace: Section 44(1)(a) of the NLC grants the exclusive use of airspace as is reasonably necessary for the lawful use and enjoyment of the land. Trespass occurs when structures protrude into a neighbor’s airspace. In Karuppannan v. Balakrishnen, the Federal Court ordered the removal of hotel windows and side exits that encroached into the neighbor’s airspace.
- Subsurface: Possession includes the ground below the surface. Unauthorized tunnelling for minerals or the installation of underground sewerage systems (e.g., septic tanks) constitutes trespass.
3. Continuing Trespass
A trespass is “continuing” if the interfering object remains on the land without authority. In such cases, a fresh cause of action arises de die in diem (from day to day) for as long as the trespass lasts.
This has significant implications for limitation periods. Under Section 341 of the NLC, adverse possession or unlawful occupation, no matter how long, does not bar the registered proprietor from bringing an action to recover the land.
4. Liability of Principals and Contractors
A complex issue often arises when a contractor commits a trespass while working for a developer. In the landmark case of Fanuc Sdn Bhd v. Adenland (Cheras) Sdn Bhd, the Court of Appeal held that a developer (Principal) can be liable for a contractor’s (Agent) trespass if the Principal:
- Gave prior authority or subsequent assent/ratification to the act.
- Was recklessly indifferent to the boundary lines despite having plans and being on “high alert” due to a neighbor’s prior refusal to permit excavation.
- Failed to supervise the work through their appointed clerk-of-works or engineers.
5. Defences: Justification and Statutory Authority
An entry that would otherwise be trespass is not actionable if it is justifiable.
- Statutory Duty: Local authorities have a mandate to maintain public infrastructure. In Datuk Bandar Kuala Lumpur v. R Meyyanathan, the court found that the maintenance of a crucial monsoon drain was in the public interest and served as a justification for the structure’s existence on private land.
- Consent: Entry with the express or implied consent of the occupier is a valid defence, though this consent can be revoked.
6. Remedies and Damages
The courts have several tools to address trespass:
- Injunctions: A mandatory injunction may be granted to compel the trespasser to remove encroaching structures (e.g., sealing windows or removing septic tanks).
- Nominal Damages: Awarded where a trespass is proven but no actual loss is shown.
- Compensatory Damages: Aims to put the claimant in the position they would have been in had the trespass not occurred, often measured by loss of rental or the “user principle” (reasonable sum for the wrongful use).
- Restitutionary Damages: Focuses on the gain or profit made by the trespasser (e.g., profits from an illegal billboard).
- Exemplary Damages: Awarded in cases of egregious conduct where the trespasser shows a “cynical disregard” for the neighbor’s rights to gain a financial advantage.
Conclusion
Trespass to land in Malaysia is a strictly enforced tort designed to uphold the sanctity of possession under the Torrens system. Whether through physical entry, airspace encroachment, or subsurface tunnelling, any unjustified interference allows the person in possession to seek legal redress, ranging from damages to the mandatory removal of offending structures.
Disclaimer: This post is for informational purposes only and does not constitute legal advice. Please consult a qualified Advocate & Solicitor for your specific legal needs.
