Easement - (privilege without profit) S282(1) any right granted by proprietor to another for the beneficial enjoyment of his land.
Dominant land – receives benefit.
Servient land – grant easement.
-Must comply statutory form & procedure. Right can be positive & negative in nature.
S283(1) Right that can be given easement.
a)Any right to something in, over/upon servient land.
b)Right that something should not be done.
S283(2) do not include.
a)Any right to take anything from the servient land.
b)Any right to the exclusive possession of any part thereof.
Characteristic
1)Dominant land & servient land.
2)Benefit or accommodate the dominant land.
- Must be connected with the bus of the land & not other purposes.
- whether makes dominant land “better & more convenient tenement”
- right which are appurtenant to land & enhance value & enjoyment of dominant land.
3)Proprietors different person. Land should be sufficiently close to each other.
4)Right capable of forming subject matter of a grant.
- sufficiently definite.
- competent grantor – registered as proprietor.
- competent grantee – registered as proprietor.
S284 - no implied easement -> S286 formalities (F17A) -> S288 "right of footway/ carriage-way".
S285 - restriction on granting easement -> S287 enjoyment by lessees, tenants & chargees.
Breach by Servient Owner
-abate the wrongful interference.
-Sue for damages.
-Injunction.
Termination
1)S289 – release by dominant owner. Form 17C h/e sub to lease, charge, tenant (obtain consent).
2)S290 –operation of law
- vested in same owner.
- h/e only if no lessee, tenant/chargee entitle to the benefit.
- servient land x sub to lease, tenancy/any chargee.
3)S291 – registrar empowered to cancel. Servient owner apply. Registrar notify dominant owner.
- extinguish by S290.
- term expired.
- abandon by dominant owner.
- easement obsolete/impedes reasonable use of servient land.
Contrast (Not Easement)
1)Natural Right S44
-exclusive use & enjoyment airspace above the space & land below that surface.
-Right to support of land in its natural state.
-Right of access to the foreshore, river/public place.
2)Land Administrator’s Right of Way – S387
-private right of way (S/A or proprietor) }| to the public terminal,
-Public right of way. }| river/ foreshore.
3)Licences
-permission to enter land.
-Restricted in term of nature & duration.
-Does not give licensee exclusive possession & revocable at will.
4)Restrictive covenants (in M’sia base on ctt)
5) Profit a prendre (base on contract) enter land only to take something from it.
REGISTRATION OF DEALINGS
S304- Registrar making under his hand & seal a memorial of dealing on RDT & completing on instrument of dealings with the fol;
1)Short description of nature & effect of instrument.
2)Identity of parties.
3)Statement of its number in ‘Presentation Book’.
4)Reference, time & date.
Procedure
1)Prescribe instrument of dealings –S207.
2)Instrument contain full description of parties, proper description of land.
3)Instrument properly executed & attested.
4)Adequately stamp, presented + fees + necessary document.
•Time of presentation noted, if more than 1 instruments presented same time than Registrar will determine.
Limitation On Registrar Power
1)Not concerned to enquire breach of any agreement.
2)Not concerned w/t chargee rightfully in possession.
3)Not concerned as to the validity of certificate of sale
4)Not concerned w/t dealings with body registered/trustee is consistent with the trust instrument.
(1) Rejection/Suspension
-Not fit for registration – reject it immediately unless formal defect/clerical error.
-Formal defect/clerical error/ x duplicate (suspend 14 days) –’Rejected’ & return to the person presenting.
-Instrument fit h/e not accompanied with document required – registrar must make enquiries.
(2) Correction of errors
-registered wrong name, contains erroneous description/boundaries/ other error.
-Any memorial/entry made in error on any document of title/other instrument relating to land.
-Any memorial/entry made on any such document of title/instrument itself contains any error/ommission
* Provided the above errors made by registrar. Maintain ‘Correction Note-Book’
Endorse on the instrument in Question – reason & date effected.
Effect of Registration – Indefeasibility
1)Fraser v Walker ‘the immunity from attack by adverse claim to the land/interest ….’(shield of protection).
2)Gives & extinguishes title under NLC, corner stone of the Torrens system.
3)State guarantees; the registered proprietor title is unimpeachable, unchallengable & unquestionable.
4)S89, every register document of title duly registered conclusive evidence;
i) land described vested to person/body name therein.
ii) conditions, restrictions in interest & others provision.
*H/e not absolute, subject to S340(2)
Exception – S340(2) not indeafeasible
a)fraud/misrepresentation.
b)Registration obtain by forgery, insufficient/void instrument.
c)Title/interest unlawfully acquired.
Though if the above exist it is liable to be set aside h/e under S340(3) a bona fide purchaser for value – safeguarded.
Fraud
1) Must proof that registered pptr/his agent party/privy to the fraud
Hajah Aishah v Yah bt Taib. – was told that she sign charge document to secure a debt of hers. H/e actually transfer document of title transfer to Hj Musa who then transfer to defendant. Deft privy to the said fraud.
2) The fraud must be actual fraud not mere knowledge.
Ong Tin v The Seremban Motor Garage – Plaintiff purchase land with knowledge that land previously leased. Once transferred took steps to eject defendant. The lease not registered t/f pltf entitle to do that.
Misrepresentation– ‘fraudulent misrepresentation’ species of fraud.
Loke Yew v Port Swettenham Rubber Co. Ltd. – Hj Mohamed Eusope sold a portion (1/6) of his land to Loke Yew. H/e not registered.Resp co. have knowledge & negotiate to purchase the entire ppty –
mutually agreed app portion excluded. H/e transfer the whole land & offer to purchase below market value. Held- fraudulently representing that there was no intention to use it until purchase it from Loke Yew.
Forgery
Ong Lock Cho b Quek Shin & Sons – give doc of title to solicitor to create charge. Solicitor clerk, by forgery create charge in favour of anor person.
*In the case of forgery, though can make good title to bona fide purchaser for value without notice h/e depends if forge name of real owner/non existent person – cannot. It is purchaser duty to ascertain he was dealing with an existing registered proprietor. (Adorna Properties Sdn Bhd v Boonsom Boonyanit (2001) overturn by Tan Ying Hong v Tan Sian San (2010)- immediate right cannot only subsequently obtain can.
Insufficient/void instrument
Tan Hee Juan v Teh Boon Keat – instrument of transfer executed by an infant – void.
Puran Singh v Kehar Singh & Anor – executed by an attorney, acting in pursuance of an invalid power of attorney.
Unlawfull Acquisition(S340(2)(c)
Unlawfully acquired. Where the law does not give power to do so.
Survey for Title Under the NLC
S114 - Boundary Marks
S396 - S405 Survey
Rights of Land Owner to Develop Land
S92(2) final title & rights of dealings.
S136 general condition need to be fulfill before amalgamate, subdivide or partition.
Amalgamation - S146
Combination of 2/more lots of alienated land to form 1 lot under single title. - 1 common boundary (contiguous lots).
- same type of title & same classification.
Characteristic need to be satisfied;
1)Own by same person in same capacity.
2)Land Office Title (x exceed 4 hectares)
3)Qualified Title cannot.
4)Different mukim, town/village cannot.
Sanction of State Authority necessary S147;
1)Land Office exceed 4 hectares;
2)Partly registry, partly Land Office;
3)Dissimilarity periods, rates, categories, conditions and restrictions in interest.
Upon amalgamation – discretion of the State Authority.
Sub-division – S135
Single title sub divide into 2/more portion held under separate title (breaking up of lot).
1) Final title – S135, Qualified title – S204B(surrender & re-alienation final title/qualified title).
2) Change of category etc + subdivision S124A.
3) S136(ca) agreed in application to surrender for public purpose.
4) S136(f) agriculture not less 2/5 of a hectare.
5) shape suitable, means of access to each portion.
6) S137 estate land recomendation by Secretary of estate Land Board.
Upon approval title in continuation will be issued.
Partition – S140
Breaking up of lot by co-pptr to correspond to their interest.
The effect is to terminate the co-proprietorship.
1) agreement between co-proprietor
2) S140(3) agriculture less 2/5 hectare approval of State Authority.
3) S141A any co-pptr may apply
1) agreement between co-proprietor
2) S140(3) agriculture less 2/5 hectare approval of State Authority.
3) S141A any co-pptr may apply
Assistant of court S145.
i) if co-proprietor refuse to give consent.
ii) partition become less 2/5 hectare.
iii)co-proprietor could not be trace.
iv)majority share refuse consent.
v)application of co-proprietor with majority share rejected by L/A
(Both S135 & S140 must submit pre-computation plan)
RESTRAINTS ON DEALINGS
Caveat & Prohibitory Order.
Similarity – restrain the registered owner from any dealings in respect of his land.
Differences – caveat : maintain/preserve status quo pending ct action etc
P/O : only after judgement (creditor successful in court)
•An exception to indeafeasibility.
•Protection for unregistered interest.
Nature of caveat
1)As a statutory injunction.
2)Issued ex parte by Registrar in administrative capacity wx ct intervention & unsupported by any evidence.
3)Can be impose by anyone who claims to have an interest in land.
Function
1) restraint registered pptr from dealings.
2) protects interest of caveator temporarily.
3) As a notice to the world at large caveator has interest.
4) Freezes the situation.
S322(2) Private Caveat prohibits as long as it continues in force registration, endorsement/entry on the RDT;
i) instrument of dealings
ii) certificate of sale.
iii)claim to the benefit of tenancy.
Protection
Of alleged as well as proved interests, & have not yet become actual interests in land.
Notice to the world
1)Proprietor title subject to the equitable interests alleged in the caveat.
2)Notice to any person who wish to deal – prior claim (prevent 3rd party from being defrauded)
Freezes Situation
Preserve the status quo pending the taking of timeous steps by applicant to enforce his claim.
*H/e not final & conclusive. Only like an interim injunction.
Types Of Caveat
1)Private Caveats
2)Registrar’s Caveats
3)Lien-holder’s Caveats
4)Trust Caveat
Private Caveat
Protects the interest of any person who claims to have any title/ registrable interest.
a)Any person claiming title/ registrable interest.
b)Any person claiming beneficially entitled under any trust.
c)Guardian/next friend of (b) above.
R.A.P Nathan v Hj Abdul Rahman
2nd defendant purchase land from 1st defendant. Plaintif entered j/v with 2nd def to develop housing project. Few months later sold to 3rd defendant. Pltf claim br of ctt, fraud by 2nd & 3rd def.
“the protection of alleged as well as proved interest & of interest that have not yet become actual interest in land”.
N.Vangedaselam v Mahadevan & Anor
If interested in only a specific portion of the land – “he limits the efect of his caveat to cover only the particular interest claimed.
Procedure:-
1)Formal application – F19B 1-nature of the claim w/t bind the land/ particular interest only.
2-statutory declaration.
3-fee.
2)Registrar note the time & enter the caveat by;
i) endorsing “Private caveat”
ii)specify w/t binds the land/ a particular interest.
iii)details of caveator.
iv)time to take effect.
v) notify the registered proprietor & serve F19A.
*He is not concern to inquire into the validity the claim which it is base.
Duration
Continuously for 6 years h/e maybe shorter if;
1)withdrawn by caveator
i) at any time
ii) notice F8 + prescribe fee
iii)Registrar cancel & notes reason.
2)withdrawn by caveatee
i) F9 + prescibe fee.
ii) Registrar once received serve on caveator F19C & if not
extended by ct,
iii)remove once 1 month expired.
iv)cancel and notes reason.
3)if ct order removal, order serve on Registrar who will cancel.
•Caveat once remove cannot entertain application for futher caveat based “on the like claim” as the previous. Damodaran v Vasudeva – “extinguished forever”
•If wrongly entered/failed to withdraw – liable for damages.
•S326 –application to remove by caveatee.
•S327 –application to remove by other interested person in ct.
H/e if another type of caveat though base on same claim can.
Registrar’s Caveats
1)To prevent fraud/improper dealings.
2)To protect the interest of government/ person under disability (include person absent from federation).
3)To satisfy debt to government.
4)To correct errors.
Nature & Effect
1)Prohibiting registration, endorsement/entry though presented before it take effect (restrospective effect).
2)Differs from Private Caveat which operates later.
3)Prohibits entry of claim benefit of tenancy exempt from registration & lien holder caveat.
Entry
1)Federal/State Authority.
2)Any private person- fears fraud/improper dealings.
3)Person under disability.
4)Superior than Private Caveat.
5)Quasi judicial function in exercising discretion.
6) F7, endorsement “Registrar’ Caveat Entered”.
7) Serve notification on proprietor – F19A.
8) Ct can order enter.
Duration
-indefinitely until cancel i- Registrar own motion.
ii- application by proprietor.
iii- ct order made on appeal.
-once cancel, proprietor will be notify.
-Registrar note date of cancellation.
Lien-Holder’s Caveats
Proprietor/Lessee 1) deposit title to anybody as security.
2) depositee – apply to Registrar to enter lien holder’caveat.
3)obtained judgment – entitle to apply to court for order for sale.
Creation & Effect
-F19D –duly attested + IDT/duplicate lease + prescribe fee.
-Registrar enter time a) enter caveat on RDT/lease
b) serve notification F19A on pptr.
c) Endorse “Caveat (lien)” + statement
i) w/t binds land/lease.
ii)details of caveat.
iii)time effective.
iv)Ref.
*If Registrar caveat, Private caveat, Trust caveat, prohibitory Order exist – cannot.
*Effect of Lien-holder’s caveat similar to Private Caveat.
Mercantile Bank Ltd v O.A – equity lien.
Chew Sze Sun v Muthiah Chettiar – lien-holder’s caveat entered earlier prohibits Private Caveat.
Determination
1)At any time notice to Registrar by person entitle to lien.
2)When proof all sum due duly paid.
3)Certificate of Sale
Trust Caveats
-only by Trustee.
-F19E + fee.
-Registrar endorse “caveat (trust)” on RDT +;
i) land/ particular interest.
ii) precise effect.
iii)time effective.
iv)reference.
-enforceable until cancelled by trustee/beneficially entitle.
Power to Amend
- If larger area covered by caveat –ct order removal.
In Mosbert Berhad v Stella – amendment cannot.
however in Chng Sin Poey vQuek Lian Meng – ct allowed amendment.
