NST-PROP By Salleh Buang
Let’s say several years ago you purchased, after a cursory visual
inspection, a four-acre plot of land some 20km away from your city centre
You thanked your lucky stars for getting hold of such a beautiful piece of
agricultural property with undulating terrain and a tiny stream cutting
across one corner. As a bonus, a dozen durian trees, all ready to bloom,
have been planted on your land.
Your primary intention in buying it then was to keep it purely as an
investment. If the price was right, and you needed the money, you would have
no qualms selling it.
Now, after all these years, your plans have changed. Money is no longer in
You have decided, after getting the consent of your family members, to spend
your twilight years breathing the country air, tending to your orchard.
From a corporate maverick, at ease in the boardroom located in the concrete
jungle of the city, you have decided to go back to nature. To retreat to
greenery; to take a slower pace in life and become a gentleman farmer, so to
In keeping with this plan, you want to trade-in your high-powered BMW for a
Toyota pick-up. You also want to stash away your expensive set of golf
clubs, at least for the time being, and re-learn the skills of using the
primitive cangkul and other farming equipment.
But as luck would have it, you soon discover that you are landlocked. Your
dream property is in the second layer of properties, without road-frontage.
That privilege is enjoyed by your neighbour, Pak Dollah.
The enormity of the situation hits you. You do not have free and
uninterrupted access to the main road.
In theory, yes, you have legal access. But since the land was alienated more
than five decades ago to the vendor from whom you purchased it, access was
meant to be only for two-legged transport or at best, a two-wheeled bicycle
There is no way it will accommodate your Toyota pick-up. And it’s certainly
not wide enough for the lorries you have to hire to bring all kinds of stuff
from the town to build your country cottage and to plant other things.
You think of Pak Dollah, who at first glance appears to be the decent sort.
You realise that you must engage him in serious conversation on this issue
of proper access to your land. You hope to persuade him to let you and your
vehicles use part of his land as a permanent passageway to the main road. If
he wants payment, so be it.
After spending almost a month holding several discussions with Pak Dollah,
it dawns upon you that money is hardly a material consideration for
financially independent village folk. And Pak Dollah has just made it clear:
“Thank you for your offer. But I’m sorry, I cannot grant you passage through
He does not mind giving you passage for a short while, say a couple of
weeks. But not on a permanent basis.
Now you are really worried. That “right of passage” you hoped Pak Dollah
would grant you is called “easement” under the National Land Code 1965.
Without the benefit of an easement (a legal right running with the land),
you now understand what “landlocked” means.
You seek legal advice. If Pak Dollah had acceded to your request, both of
you only need to execute an instrument known as Form 17A and then have it
registered at the appropriate land registry. This is spelt out in the Code.
Once registered, your land, being “the dominant land”, will enjoy an
easement over Pak Dollah’s land, which is the “servient land”. Since the
easement would “run with the land”, it does not matter if Pak Dollah
subsequently sells his land to someone else. Your next-of-kin will also
enjoy it, for it is permanent, as long as it is on the register. That is the
essence of the Torrens system.
The problem is that an easement, like any other “dealing” under the Code,
must be granted voluntarily by the owner of the servient land. There is no
easement by compulsion under the law.
Since your easement is out of the question, you will have to find another
way. Your lawyer has a solution: Seek the aid of the Land Administrator,
under Part 28 of the Code.
In short, you are to apply for the creation of a Land Administrator’s Right
of Way. Your lawyer will work on all the legal technicalities but, he points
out, he cannot guarantee the result.
So this is where you realise that you need a friend, with the connections,
to take you to see the right people in the Land Office.
You also realise that you will need to do this early – or forget your dreams
of motoring across your neighbour’s land in the years to come.
Salleh Buang is senior advisor of a company specialising in competitive
intelligence. He is also active in training and public speaking and can be
reached at email@example.com