LAND LAW _ MALAYSIA

Main Legislations

o o r r

National Land Code CNLC) 1965 (Act 56 of 1965) National Land Code (Penang & Malacca Titles) Act 1963
Sarawak Land Code
Sabah Land Ordinance

The above legislations provides for the Torrens System of title registration in M'sia.This system was an invention of Sir Robert Torrens who had earlier introduced it in South Australia. This systems provides for the principle that all dealings in land must be registered in order to be

effective

as

per Section 206 of the NLC 1965.

Though land in M'sia is vested in the Rule & Governor of the State, it does not however prevent the Federal Government to enact laws to ensure uniformity of laws and policy in respect of land matters in the states - Article 76 of the Federal Constitution. But by virtue of Article 95D, Federal Constitution 1957. Article 76 is not exercisable to the States of Sarawak

&

Sabah.

Alienation of land is defined in Section 5 NLC 1965 as, 'to dispose of State land in perpetuity or for a term of years in consideration of the payment of rent (or otherwise) / Section 2 Sarawak Land Code defines alienation as 'the sale, lease or other disposal by document of title of State
land by or on behalf of the Government'. Section 4 of the Sabah Land Ordinance defines alienation as, 'to lease, or otherwise dispose of State land on behalf of the Government in consideration of the payment of such rent and of such premium, if any, as may be requested'.

Land is defined in Section 5 NLC 1965 to include the surface of the earth & all on its surface, the earth below & all substance therein, all vegetation & natural products found on the surface & below, anything attached or fastened permanently either on or below the surface AND land
covered by water. The test whether a particular item is a fixture (& therefore part of the land) or chattel was applied in Goh Chong Hin & Anor v The Consolidated Malay Rubber Estates Ltd. The N.Sembilan

Court of Appeal applied the ordinary English law of fixtures & held that the machinery used in the rubber factory was a fixture & part of the land. Even if the machinery was put in after the date of the charge, it nevertheless accrued to the land & became part of the chargee's security.

REGISTRATION OF TITLE & INTEREST

Registration of instrument of dealings is affected by the making of a memorial of such dealings in the register document of title under the hand & seal of the registering authority, i.e. Registrar or Land Administrator - Section 304 NLC 1965.

Section 89 NLC 1965 provides for the conclusiveness of the register documents of titles/ Section 115 Sarawak Land Codes.
However the conclusiveness of the register document of titles which gives rise to the indefeasibility of title or interest of the registered proprietor or of any person in whose name the interest is registered to as provided in Section 92(l) and 340(1) NLC 1965 & Section 132 Sarawak Land Code (Cap.81). The effect of registration spelt out in Section 340 NLC 1965 bestows indefeasiable title or interest in land to the party in whose favour the registration has been effected. In other words the registered party takes title or interest free of all adverse claims or encumbrances not noted on the register. This is to defeat all prior unregistered claims on the said land.

However such indefeasibility of title or interest is not absolute & subject to subject to the exception of Section 340(2) NLC 1965 and thew principle as laid down in the case Teh Bee v

K.Maruthamuthu

(197 7).

Facts: The Bee(the applicant) applied for the alienation of a piece of land which has then under temporary occupation license. Her application was approved by the State Authority subject to payment of a premium & land revenue to be made by her within 3 months. She failed to pay on time, however she was later registered as proprietress of the land & the registered document of title was in her name. The respondent had been in occupation of the land. Teh Bee claimed procession of the land alleging trespass. The respondent resisted the claim, the principle ground being that the qualified title first registered in the name of the appellant was null & void. The magistrate entered judgement in favour of the appellant.
When the respondent appealed to the High Court, Ajaib Singh J. allowed the appeal & held that when the appellant was registered as proprietress, the approval of alienation of the land to her had already lapsed & therefore it was ultra vires of the State Authority to alienate the land to her. The appellant appealed to the Federal Court.

Held: Allowing the appeal:

1.

the fact that the appellant was registered as proprietress necessarily raised the inference that the State Authority on payment of the premium had given fresh approval for the alienatuion of the land to her;

2. 3.

the fact that the registered document of title was in the name of the appellant was conclusive evidence that the title to the land was vested in the appellant;
under the Torrens System, the register is everything

& it would

be wrong to allow an

investigation as to the right of the person to appear upon the register when he holds the certificate of title.

The effect of registration, i.e. indefeasibility of title or interest in land under Section 340 NLC 1965 is subject to the following exceptions:

. o o o o

ultra vires (as per the above case law, which the Federal Court decided it was not).
fraud (Section 3a0

e)

@))

misrepresentation (Section 3a0 (2) (a))

forgery (Section 340(2)

(b)

insufficient or void instruments (Section34} (2Xb)

By Section 340(3) NLC 1965, the circumstances mentioned in Section 340(2)NLC 1965 can also be set aside not only by the immediate registered proprietor but also by a subsequent purchaser in good faith & for value.
Case law

authority: Boonson Boonyanit v Adorna Properties Sdn Bhd

Effect of Non-Registration may effect the vesting of title or interest to land but where an agreement towards the execution of such dealings are concluded but not yet registered does not however effect its contractual operation. [n such instances, remedies such as specific performance or damages in lieu may be obtained in respect of the agreement.

Alienation of Land:
Under Section 40 f[LC 1965, State authority may alienate land either in perpetuity (Freehold) or for a term not exceeding ninety-nine years (Leasehold) as provided under Section 76 of the

NLC

1965.

DEALINGS
Under the NLC, dealings that necessitate registration under the Torrens system are transfers, leases, charges and easements. Only tenancies & liens do not require registration.

RESTRAINTS ON DEALINGS: NLC 1965 provides for 2 kinds of restraints on dealings:

Private (no power of sale,effect is to prohibit only & valid for 6 yrs - Section 323 NLC 1965) / Trust (protects interest of beneficiaries Section344 NLC 1965) / Lien-holder's (lien, where the custody of title is vital, may have Memorandum of Deposit & has power of sale - Section 281 NLC 1965) / Registrar's (entered by Registrar - Section 320 NLC 1965) AND
caveats

prohibitory orders - Section 334 NLC 1965 - where land or interest in land held by a judgement-debtor is to be sold in execution proceedings, an order made pursuant to rules of court

by a court of competent jurisdiction prohibiting the judgment-debtor from effecting any dealing therewith or from effecting such dealing therewith as may be specified in the order. Usually valid for 6 months from date of order qranted.