A lot has been said about the conversion of leasehold land to freehold land. The state sometimes relies on the “special circumstances” under section 76(aa)(iii) of the National Land Code 1965 (NLC) to justify the conversion from leasehold to freehold but this section is frequently misunderstood.
The term “special circumstances” is not expressly defined in the NLC. The statutes or the rules of court do not shed much light either. So I asked a senior lawyer to clarify what constitutes “special circumstances”, and this was the reply:
It is left entirely to the opinion and discretion of the courts.
I have not been able to find any case law wherein the courts have defined special circumstances for the purpose of s. 76(aa)(iii), but the courts have in other cases unrelated to s.76(aa)(iii), held that a ‘special circumstance’ must mean ‘something out of the ordinary or something unusual’ or ‘something exceptional in character, something that exceeds or excels in some way that which is usual or common’.
In other words, although s. 76(aa)(iii) states that the State Authority must be satisfied that there are special circumstances, the State Authority does not have an unfettered discretion to arbitrarily declare “special circumstances” to convert leasehold land to freehold, unless they can prove something exceptional or out of the ordinary.
The lawyer added that if the land happens to be foreshore land, that strip of land between the high-tide mark and the low-tide mark, then it is clear that the State cannot convert it from leasehold to freehold under any circumstances, whether special or otherwise. Section 76 of the NLC expressly prohibits the State from doing so:
“Provided that nothing in paragraph (aa) shall enable the State Authority to dispose of any part of the foreshore or sea-bed for a period exceeding ninety-nine years ……”