HISTORICAL BACKGROUND
a)The Straits Settlement
Penang – Ong Cheng Neo :uninhabited t/f common law & equity.
Malacca – self-rule under Malacca Muslims Sultans later on by Portuguese & Dutch. English took over consisting of Islamic law & Muslim custom (Malay Customary Tenure & Dutch Grants in the urban areas).
Sahrip v Mitchell & Anor
“it is well-known that by the old Malay law/custom of Malacca, while the Sovereign was the owner of the soil, every man had nevertheless the right to clear & occupy all forest & waste land subject to the payment to the Sovereign of 1/10 of the produce of the land so taken”.
Characteristics of the Malay Customary Tenure
1- not of absolute ownership but of a lesser extent “proprietary rights” right of ownership not to the soil but to the usufruct/right to utilise soil
2- method of acquisition is by opening up & cultivating virgin jungle land or waste land (tanah mati into tanah hidup)
3- maintaining the land under continuous cultivation & obliged to pay 1/10 to the Rulers as tax. (tnh kampung, tnh bendang & tnh huma)
4- land neglected wx any reasonable cause, forfeited by the Ruler
5- if wishes to sell land, price base on “pulang belanja”.
6- wishes to borrow money on the security of land, “jual janji” & if fail to settle the loan on stipulated date become “jual putus”.
All the above characteristic reflects the Islamic principle of ownership of property.
H/e in Malacca the Malay Customary Tenure abolished end 19th century. 1861 law was
passed land shall be deemed to be “vested in the Crown”
b) The Federated Malay States
1) Independent states under sovereign Muslim rulers practising Mohammedan Law & in certain parts such as Negeri Sembilan special local custom law h/e replace by Torrens system by the British.
2)1st Jan 1928 – The Federated Malay States Land Code 1926
c) The Unfederated Malay States
British influence came later since Kedah, Perlis, Kelantan and Trengganu under the influence of Siamese King. 1909 Anglo Siamese Treaty - British Adviser appointed to look after British interest. Johor was the last state to receive the adviser.
TOWARDS NATIONAL LAND CODE
Existing situation before independence
1) 1 uniform land code for 4 federated Malay State.
2) 5 separate State legislation in Unfederated Malay States.
3) English deed settlement in Straits Settlement.
Report of the Chick Mission
1)TOL easy to get renewals t/f false expectation.
2)Inability to check & prevent illegal occupation.
3)Large scale fragmentation of alienated land.
4)Alienation not in order.
5)Disadvantageous position of the Malay Reserved lands.
TORRENS SYSTEM
originated Australia h/e modified according to local needs. Differ from the system in England whereby interest in land is only recognise through registration by the authority.
Curtain & Mirror Principle
S89 – RDT conclusive evidence : persons dealing with the registered proprietor of the land can safely act on the information presented on the register, not necessary to go behind the register to ascertain the validity
of the information (name of the proprietor, survey plan,area & location and its boundary limit) – like a mirror reveals all particulars.
The register – a curtain – need only concern with the register.
Effect: Torrens System conferred an indefeasibility of title to the registered owner.
Teh Bee v K. Maruthamuthu –the register is everything.
Basic Features of NLC
1- No adverse possession (S48,341) Sidek & Ors
2- No possessory right –Teh Bee –TOL for 21years. Developing &cultivating & irregularity in alienation procedures not an issue.
3- Rules of equity still apply
4- Reversion to the State under several circumstances. Eg: state lease, forfeited for non-cultivation, non -payment of rent etc.
5- Indefeasibility is guaranteed but not absolute (S89 & S340)
a)statutory exceptions S340(2)
b)exceptions in equity
c)exceptions under Malay custom or adat.
6-Strata titles recognised.
7-Four types of caveats –Registrar’s caveats
- Private caveats
- Lien-holder’s caveats
- Trust caveats
8- Easement by express grant only –S284
9- A non-exclusive system
i) admitted the rules of equity – Mahadevan s/o Mahalingam v Manilal & Sons Sdn Bhd. – no provision in NLC prohibiting creation of equitable charges & liens. Silent as to the effect of securities which do not conform to the Code’s.
ii)Malay custom & Islamic Law also admitted –
1) Kiah v Som – malay wooden house huilt on stilts as moveable property.
2) Roberts v Ummi Katlhom – “harta sepencharian” & whether a gift by husband as “hibah”.
DEFECTS UNDER DEED SYSTEM
1)Difficult tracing true owner due to multiple dealings.
2)Difficulties in preparing rent rolls & report t/f heavy loss of revenue.
3)Discrepancies size actually occupied with area stated in the title.
4)Encroachment/illegal occupation of the state land + other confusions
ADVANTAGE OF THE TORRENS SYSTEM
1)Time saving, speedy, fast.
2)Organized orderly,disciplined.
3)Reliable, certain, credible, trustworthy.
4)Reflective, through the mirror principle.
5)Economical, cheap, cost-saving.
6)Neat, nice, refined, clarity.
7)Safe, secured, sheltered thru curtain principle, immunity from attack
8)Systematically structured, systematic.
9)Yellow pages simplicity, easy, brevity.
10)Satisfactory (successfully implemented in 123 jurisdictions)
11)Total, complete, perfect, thorough, accurate.
12)Efficient, effective, dynamic practical.
Land: S5 NLC –surface of the earth & all substances forming it.- earth below & all substances therein;
- all vegetation & other natural products w/t on /below.
- all things attached/ permanently fastened. .
- land covered by water. .
Fixture/chattel: i) degree of annexation .
- Merely resting by its own weight – chattel .
- Article affixed/attached to land even slightly - fixture
i) purpose/ object of annexation .
- more damage if remove – fixture .
- whether to improve the land or building – fixture or to facilitate the enjoyment of a chattel
as a chattel. Inferrence not fr motive of the person who affixed it but from consideration
of the circumstances of the case.
1) The Shell Co of the Federation of Malaya Ltd v Commissioner of the Federal Capital of Kuala Lumpur – w/t underground tanks rateable.
2) Kiah bte Hanapiah v Som bte Hanapiah – Custom wooden houses separate from ownership of soil.
Document of title: alienated land – Register Document of Title (RDT) & Issue Document of Title(IDT). H/e in the case of qualified title only RDT.
Foreshore: land lying between shore line & low-water mark of ordinary spring tides.
Shore line: high-water mark of ordinary spring tides.
Pre-computation plan: Plan of the layout of lots showing the intended new boundaries & areas.
Register document of title(RDT): any document evidencing title to land registered which is being kept at the land office/ registry.
Issue document of title(IDT): document prepared for issue to the proprietor.
Qualified title: issued in advance of survey.
Final title: issued after survey completed.
RIGHTS & POWERS OF THE STATE AUTHORITY
-State matter within List II in the 9th Schedule Constitution of Malaysia, state authority is
1)vested with the entire property in all state land within the territories of the state & all minerals & rock material within or upon any land in the state the rights to which have not been disposed of (S40).
2)vested with power to dispose of land as provided by NLC, Mining Enactment, Forest Enactment (S41,42)
3)determine recipient (S43)
Recipient S43;
a)Natural persons.
b)Corporation having power.
c)Sovereign, government, organisation – The Diplomatic & Consular Privileges Ordinance 1957
d)Bodies expressly empowered to hold land (written law).
State Land – including riverbed, foreshore & seabed within territories.
- not alienated land, reserved land, mining land & reserved forest.
Position of the state paramount with regards (S42(1);
a)To alienate state land S76.
b)To reserve state land & grant leases of reserved land S62.
c)To permit occupation (TOL) S65.
d)To permit extraction & removal of rock material S70.
e)To permit the use of air space S75A.
S46 Reversiona) expired – S47
b)non payment of rent/breach condition
c)death without successors/abandonment of title
d) surrender
- encroachment by sea/river
S49 Effect of advance/retreat
S353 Re-survey having natural boundaries
S13(ii) 50m cannot dispose
Sidek & Ors v The Govt of Perak
Restrictions S42(2);
1)Dispose for purpose of mining.
2)Extraction/removal of rock material purpose obtain metal/mineral
3)Dispose for purpose of removal forest produce.
4)Alienation with regards to agricultural land (cannot less 2/5 hectare).
Alienation S76 (S425 unlawful occupation – RM10k/imprisonment not exceed 1year)
Since Mac 1985 – x more in perpetuity. H/e exception (S76(aa);
1)Where the Federal Govt required (govt/public authority).
2)State authority satisfied for public purpose.
3)State authority satisfied special circumstances renders appropriate.
* Foreshore/ seabed cannot exceed 99 years.
Before alienated following requirements;
•Pay premium, survey fees & other fees S76.
•Land will be subject to specific category/condition/restriction S79.
Titles 1) Registry title (State Capital) } -Qualified titles –actual areas & boundaries still tentative.
2) L/Off title (Land Office) } -Final titles –exact size & boundary mark. Can partition,
} sub divide & amalgamate S92(2.
Rights Of The Owner
Paramount rights S44
•The exclusive use & enjoyment above & below (exclusive x absolute
•Right to support – adjacent land.
•Right to access to foreshore, river/public place.
Subsidiary rights S45
-right to extract, move/use rock material & to fell, clear, destroy/use forest produce – within the confines of the land.
* Cannot extract metal/mineral from any rock material Disposal otherwise than by alienation
a)to reserve state land & to lease reserved land - S62.
Eg: roads, drainage & rivers. State Authority may upon application by the officer having control leases reserved land/ any part less 21 years.
b)To issue temporary occupation – S65.
c)To permit the extraction and removal of rock material (valid year of issue only & not assignable) –S70
S426 Unlawful extraction/removal of rock material – RM10k/imprisonment not exceed 1year.
- alienated land- consent of the proprietor.
- mining land- approval of the Senior Inspector of Mines.
- reserved land- approval of the relevant officer.
d) To permit the use of air space above State land/reserved land -75A.
H/e 25/03/1985 less 21years purpose erecting, maintaining & occupying a structure on/over state land/reserved land. S425A Unlawful use of airspace RM2k/ not exceed 6 months.
Temporary Occupation Licence
-Licence/ permission of a temporary nature granted by the State.
-restricted and permitted purpose (Contents of Form 4A).
-expires at the end of each calendar year S67(1).
-State rivers cannot – proviso S66.
- Maybe renew to a maximum 3 times h/e “special purpose TOL” 5 years or longer S67(3).
-Rights of TOL holder = right of an owner.
Characteristic of TOL compared to alienation.
1)No right to get renewal – Teh Bee v K. Maruthamuthu –occupying the land for two decades h/e state authority alienated to other person.
2)TOL holder can sue in trespass – Julaikha Bibi v Mydin –defendant was in occupation of a house on the land before plaintiff received her TOL and refuse to vacate the land.
3)Dual purpose of TOL – Mohammed v Kunji Mohidin- respondent permitted to pluck coconut while appellant permitted to rear poultry on the same land.
4)TOL not capable to being inherited – Fatimah v Moideen Kutty- TOL belong to deceased husband. Wife sued for rent due. (S68)
5)Right to grant tenancy – Govindaraju v Krishnan- rented out 2 rooms.
6)No right of sale – Cheng v Krishnan – Purchase of house on TOL.
An ex-licensee is a trespasser – Public Prosecutor v Yap Tai – occupy state land for a number of years h/e x renewal & to demolish house within 80 days.Classification & Use of Land
Classification – S51 : location of a land – a) land above the shore-line.
i)- town land. ii) - village land. iii) - country land.
b) foreshore & sea-bed (x disposal)
Categories : nature of the use of land – agricultural, building (commercial & residential) , industry.
Agricultural land – S115
1)No building.
2)Commence cultivation within 12 months.
3)Fully under cultivation within 3 years.
4)Maintained according to good husbandry.
5)Shall be continuously cultivated.
The followings allowed;
1)For proprietor/dwelling house (cannot 1/5 of the whole area) .
2)Extracting/processing raw materials.
3)Preparing for distribution of livestock/fish.
4)Welfare facilities
5) Any other purpose State Authority deems fit.
Building land – S116
1)Building erected within 2 years
2)x part for agricultural/industrial purpose.
3)Shall be maintained in repair.
4)Cannot demolished, altered/extended without consent of appropriate authority.
The followings allowed;
1)Residential purposes.
2)Administrative/commercial purposes.
3)Exhibiting, selling by retail, repairing
4)Welfare facilities.
5)Entertainment, refreshment/recreation.
6)Any other purpose state authority deem fit.
Industrial land- S117
1)Within 3 years.
2)Every building/installation must be maintained in repair.
3)Cannot demolished, altered/extended without prior consent.
Erection /maintenance of factories, workshops, foundries, warehouse, docks, jetties, railways/other building/ installations in connection;
a)manufacture.
b)Smelting.
c)The production of power.
d)Storage, transport, distribution of goods/ other commodities.
e)Such other purposes as may be prescribed by state authority.
●
Land alienated before NLC (S53)-until category of land imposed, implied
condition – country } land office title - agriculture land
- town }| Registry title - x agriculture/industrial land
- village }
Express Condition and Restriction in Interest (limitation impose by state on registered proprietor)
1)Initial alienation – no guideline/control, only political/social economic consideration.
2)H/e when approving application for conversion – power limited.
PTG Wilayah Persekutuan v Sri Lempah Enterprise
Land in perpetuity, apply for sub-division & conversion for hotel construction.Approved subject to condition – 99 years lease. Federal Ct held; authority have x power & directs reconsider application & should act fairly & x arbitrarily.
- S120, determine at the time when the land is approved for alienation & must be endorsed on/referred to in the document.
-conflict with any by-laws, condition prevail.
-S124 – vary conditions, restrictions & categories on application.
Commencement of Restrictions (from date of alienation)
Dr Ti Teow Seow & Ors v Pendaftar Geran-Geran Tanah
‘could not be transferred/lease for a period of 15 years without consent’. Date of commencement of title – 18/08/64. Alienation registered 9/09/67. On 5/05/80 sold the land h/e registration rejected.
Breach of Condition
1)non-payment of rent.
2)Breach any implied/express condition such as;
i) requiring continuous performance. As long x comply it is a breach.
ii) subject to fix term
a) requiring the doing of any act within time, upon expiry of that time.
b) requiring to refrained from until any time,upon the doing of that act before that time.
iii) 2/more separate obligations/liabilities – failure to fulfill any of these.
Once breach, forfeiture h/e since 25/03/1985 can choose;
-Imposing a fine.
-Take temporary possession to remedy the breach.
Relief: 1) ground of non-compliance. Pow Hing & Anor v Registrar of Titles Malacca. ‘endorsement of service of notice of demand in Form 6A on the register document of title is mandatory & not mere formality.
2) ground of equity h/e maybe fail because importation of English law can be allowed if it is provided so by NLC.
DEALINGS : S5; any transaction- alienated land (not caveat/prohibitory order; these are restraints)
-transfers. } Indeafeasibility of title if comply requirements h/e equitable principles applies;
-Leases & tenancies. } 1) equitable ownerships.
-Charges & liens. } 2) equitable leases.
-Easements. } 3) tenancies & licenses coupled with equity.
4) equitable charges & liens.
Instrument of Dealings (exempt tenancies & liens no instrument use)
(1)Transfers a) whole, x part only of alienated land. } Subject to
b) whole, x part only any undivided share. } prohibition or
c) lease of alienated land. } limitation,
d) charge. } restriction in
e) tenancy exempt from registration. } interest.
Formality
a),b) & c) – Form 14A } S206 – shall operate until
d) – Form 14B } duly registered.
e) – orally/any written form }Once registered, effects;
a)-Title of the transferor pass & vest on the transferee + benefit.
b)-transferee received subject to lease, charge/other registered interest subsisting eg exempt tenancy duly endorse (anything appear on RDT).
c)-(b) above enforceable against transferee as if he was a party.
Than Kok Leong v Low Kim Hai – tenancy exempt from registration not bind purchaser unless endorse.
Mohammad Buyong v Pemungut Hasil Tanah Gombak – Transfer (bare entry not sign by collector) presented not in accordance S294. Using power of attorney h/e IDT not produce. Put in statutory declaration saying lost in custody.2nd respondent h/e states Power of Attorney false,forge.
(2)Leases & Tenancies – grants to another an interest in the land less than a freehold & less than what he is entitle to.
S5 defines only registered lease/ subsidiary lease of an alienated land. T/f excludes lease agreement, equitable lease, tenancy exempt from registration.
H/e equitable lease/tenancy exempt from registration protected under equity. Margaret Chua v Ho Swee Kiew & Ors – lease for 25 years. Held though void lack of registration h/e valid as agreement for a lease enforceable in equity. (h/e depends on fact).
Characteristic
1)Right of exclusive possession enjoyed by lessee.
2)Duration specific & certain/capable of being made certain Siew Soon Wah & Ors – unregistered written agreement “as long as the tenant wishes to occupy”. Valid –equitable lease for 30 years.
3)Lease/sub lease – exceed 3 years. Maximum - if whole land 99 years, part only 30 years (S221).
4)Sub-lease – depend on main lease. Part only 30 years.
Formality
1)Lease – Form 15A } part only + plan & description sufficient to
2)Sub-lease –Form 15B } enable the part to be accurately identified.
3)Tenancy exempt from registration – no formality, want to protect interest endorse under S213(3). H/e maybe protected under equity. Susila Devi v Pang Kwee Kow – though not endorse – clear evidence
Who Has Power To Grant?
1)Lease – Proprietor } 1) subject to prohibition/restriction.
2)Sub-leases – Lessee/Sub-lessee } 2) express/implied provision of the lease, sub-lease/tenancy (agrmt)
3)Tenancies – tenant } 3) if charge must obtain consent.
Effect
1)Duration uncertain – Siew Soon Wah – w/t can be made certain.
2)Land subject to charge Murugappa Chetty v Low –30 months unregistered lease not protected. Foreclosure – lessee’s caveat to be removed.
RIGHTS & LIABILITIES (implied)
Lessee/sub-lessee 1) pay rent.
2) observe & perform all conditions, express/implied.
(if no express provisions provided + following;
3) rates, taxes, other outgoings.
4) keep ppty in repair & allow lessor/agent to enter ppty & examine condition.
5) refrain from transferring, charging, sub-letting, parting without consent.
Lessor 1) pay all rent due to State Authority.
(if no express provisions provided + the following;
2) guarantee quiet enjoyment.
3) if involve part of building – keep in repair which is shared.
4) unfit for occupation – rent/just proportion cease to be payable.
If continue for 6 months – may terminate.
Determination
- Express surrender – with agreement of lessor (Form 5C)
- tenancy (oral/written)
2) Effluxion of time (unless agreed to renew).
3) Notice (only if expressly provided in agreement)
4) Operation of law – frustration of contract.
5) Forfeiture – breach provisions } - re-entry/action in court.
- bankrupt } - notice in writing.
- co (liquidation) }
Tenancies couple with equity. Devi v Francis
Sale & purchase of house & payment of ground rent with an option to purchase if owner decide to sell – Ct held: contigency contract.
(3)Charges – transaction as security for repayment involve chargor & chargee.
a)Existence only upon registration.
b)IDT deposited h/e not registered – equitable chargee h/e should lodge liens-holder caveat. Mercantile Bank v The Official Assignee – Bank lent money to customer. Though IDT deposited h/e fail to lodge caveat until customer adjudicated bankrupt OA have take over.
c)If no instrument – base on contract.
Effect
1)Ownership not vest in chargee. Only acquires interest. H/e if chargor want to deals with land must get consent first.
2)If 1st chargee – priority.
3)It is possible to create several charge.
4)Can assign to another.
What can be charge?
1)The whole, but not a part only of alienated land.
2)The whole, but not a part only of undivided share.
3)Any lease.
H/e subjected to;
1)prohibition/limitation.
2)Restriction in interest.
3)Lease – provision w/t express/implied.
4)Cannot in favour to 2 person/more/bodies – unless trustee.
RIGHTS OF PARTIES (express /implied)
Implied S249
Chargor (1) pay sum due to chargee.
(2) pay rents taxes & other outgoings.
(3) comply condition express/implied.
(4) lease – observe & comply condition.
(5) keep in repair all buildings on land.
(6) insured. (7) permit inspection. Chargee (1) not to withold consent (lease/tenancy).
(2) though entitle to custody of IDT but this is only contigent contract.
Default & Remedies Of Chargee
Breach continues for 1 month – serve Form 16D (specify, request remedy,warn-Order for Sale)).
1) Expired – Order for Sale. Certificate of Sale –registry title – High ct.
- Land Office title – Land administrator
Purchaser takes the land free & discharge from all liabilities.
Chargor – not relief if still indebted.
2)Taking possession of the land – actual Form 16K - constructive Form 16J (receives rent)
– not land office title. } If these 3 situation not in existent
- not qualified title. } than only can exercise this
- not occupied by chargor } remedy.
3) Appoint a receiver(company loan) – base on contract
Relief to the Chargor & 3rd Parties
If chargee unreasonable , ct would assist.
Public Finance Bhd v Narayanasamy Held: fr the facts there involve collusion with chargor to defeat the rights of purchasers.Land had actually be subdivided & sold to purchasers whom had paid part payment.
