Penang’s unique heritage as a former Straits Settlement under the British colony means the Pearl of the East retains several quirks that differentiates its land laws from the National Land Code that is in place in other Malaysian states.
Both Penang & Malacca are subject to the National Land Code (NLC) in regard to land law, but the National Land Code (Penang and Malacca Titles) Act 1963 (“Penang and Malacca Code”) also provides additional depth to land titles registered in Penang and Malacca, as former land deeds registered before the enforcement of the NLC in 1966 transitioned into “Interim Titles” for legacy lands registered before the enforcement of the NLC. Crucially, this granted all Penang land deed holders the same indefeasibility of land title as registered land owners in other solely NLC states. This ensures that the interim titles hold full legal weight for the registered owners or joint tenants. These Interim Titles subsequently became full blown Registered Document Titles by law similar to other states in the Peninsular Malaysia, though they retain some unique features pursuant to the Penang and Malacca Code.
One of the definitive differences lies in Penang permitting joint tenancies and the vesting of land titles in estates via the Right of Survivorship,1 unlike the National Land Code as practiced in other states. However, in line with recent legal development, the Right of Survivorship is no longer automatically applicable. Section 47(1)(c) of the Penang and Malacca Code states that for a pre-existing estate vested under the absolute possession of at least 2 persons as joint tenants, the estate land can be registered with an Interim Title registered in the Interim Register under the names of the multiple joint tenants as co-proprietors, with a “right of survivorship” (ROS).2
ROS legally extinguishes a joint tenant’s interest immediately upon death. It is neither inheritance nor a transfer of interest, but the extinction of a joint tenant’s interest in the land after his passing. The interest does not pass to the estate; it evaporates, leaving the survivors as the sole owners. In other words, once a joint tenant passes, their estate or family members will never have any rights to the land under their joint tenancy unless it was transferred during the lifetime of the joint tenant, either through hibah or regular transfer of ownership as joint tenant.
Nothing will pass to the next-of-kin of the tenants, even through faraid, wills or probate. In one distinguished landmark case of Salmah Omar & Ors v Ahmad Rosli Aziz (Pentadbir Harta Pusaka Osman Mohamed, Si Mati,3 Zakaria Sam J held that the doctrine of survivorship did not apply to Muslims. However, it can be argued that the rule of survivorship was applicable to the Malay population of the time when English law came into force as part of their cultural practices and may therefore be valid. This is supported by the fact that a large proportion of land titles with WAROS (With a Right of Survivorship) that are registered in Penang are held under the names of registered Malay owners.
Traditionally in practice, any Penang land titles registered as Interim Titles before the advent of the NLC in 1965 are registered in two or more owners under ROS, whereby if a registered joint tenant passes away, the remaining joint tenants can simply file a statutory declaration and the joint tenant’s death certificate to the Land Office to remove their name from the land title as joint tenant. This bypassed the need for litigation or court procedures and the associated delays with such process, but also has the effect of removing any potential claims for joint tenancy by the deceased joint tenant’s estate.
This differs significantly from the NLC, which does not endorse joint tenancies as co-ownerships can only be secured via tenancy in common pursuant to Sections 343 to 345 of the NLC, with multiple names registered on the same land title pertinent to the Torrens system. As established in Teh Bee v K. Maruthamuthu,4 registration is everything. To paraphrase, at the beginning, ROS is only applicable to joint tenancies in Penang, a unique feature based on Penang and Malacca’s Straits Settlements colonial heritage.
However, in line with developments, the administrative privilege for transfer of ownership via ROS is no longer applicable. The Penang Land and Mines Office (PTG Penang) circulated a letter dated 5th May 20235 addressed to the Penang Bar, which clarified the State Legal Advisor’s view that WAROS endorsements can only be dealt with on land titles with a court order. This essentially means applications by interested parties to remove any WAROS endorsements from the land’s title can only be performed through a court order. The impact is significant and often unexpected, as the Penang Land Office now requires a High Court order to be issued by the Court before a deceased co-owner’s name can be cancelled and removed from the Interim Title of the land. To apply for this, the surviving joint tenant must commence court proceedings by filing an Originating Summons (OS)6 supported by an Affidavit in Support (AS),7 asking the court to declare that survivorship has taken effect and to direct the Land Office to update the register.8 It must be noted that this requirement applies only for land titles that specifically indicate WAROS under the ownership of the joint tenant.
What has evolved is not the law, but the procedure specifically. Aligning with the aforementioned 2023 letter, the Penang Land Office will no longer recognise survivorship administratively. In the six decades that has elapsed since the NLC came into force, the frequency of Interim Titles for lands that are not converted to NLC-style registration has dwindled massively with the passing of joint tenants. Even where ROS clearly applies, the Land Office now insists on a court order. In other words, Penang has effectively moved from automatic survivorship to court-validated survivorship.
The consequences are immediate for legacy landowners, especially for those holding the title to ROS lands. Until a court order is obtained, the deceased’s name remains on the land title. The survivor cannot sell, refinance, or charge the land. Banks will not accept the title as clean security. This delay opens the door for heirs to question or challenge ownership. A mechanism designed to avoid estate administration now requires litigation simply to function. For legacy Penang landowners, this is now a planning issue. It is no longer enough to know that survivorship exists. Legacy land owners must plan meticulously on how it will be judicially confirmed to uphold the status of the land for all land titles, with time ticking while joint tenants remain alive.
Thus to conclude, ROS still exists as a relic of Penang’s unique rules as Straits Settlements governed directly by the British colonials. However, it is no longer a formality to the Land Office as applications relating to ROS can only proceed with court approval.
For further information, please contact:
Mohamad Redzuan Idrus, Partner, Azmi & Associates
redzuan@azmilaw.com
- Azhani Arshad et al., “A Comparative Analysis of the Application of Joint Tenancy in the Administration of Real Property in Malaysia, Singapore, and Australia,” Planning Malaysia: Journal of the Malaysian Institute of Planners 21, no. 3 (2023): 196–208.
- Azhani Arshad et al., “Application of Joint Tenancy on Real Property and Its Impact Under the Law of Succession in Malaysia,” Planning Malaysia: Journal of the Malaysian Institute of Planners 22, no. 5 (2024): 347–359.
- [2012] 3 MLJ 567.
- [1977] 2 MLJ 7.
- “Pemakluman Mengenai Prosedur Pembatalan Endorsan ‘With A Right of Survivorship’ (WAROS),” May 5, 2023, Ref. PTGPP/PHMT/431 JILID 29 (57).
- Order 7, Rules of Court 2012.
- Order 28 rule 3, Rules of Court 2012.
- Order 92 rule 4, Rules of Court 2012.
