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Malaysian Land Law - topic 1

Land Law I (Multimedia University)

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Sources of land law

1. Federal Constitution
-Article 74: Parliament may make laws on Federal matters while State
Legislature make laws on state matters. State’s legislative power on
land matters can be seen under 9th schedule, List II, Item 2.
-Article 76(1)(b): Parliament may make laws on land matters for the purpose of
promoting uniformity of the laws
-Article 76(4): Parliament may, for the purpose only of ensuring uniformity of
law and policy, make laws with respect to land matters.
2. -Federal laws : Strata Titles Act 1985, Land Acquisition Act 1960, Strata
Management Act 2013, Malay Reserve Enactment.
-State Enactments : Sarawak Land Code, Sabah Land Ordinance
3. Customary Law : Malay Customary Land Tenure, Tanah Adat Negeri Sembilan
4. Specific legislation relating to ownership/occupation of land : Land (Group
Settlement Areas) Act 1960
5. English Common Law & Equity: S.3 & S.6CLA 1956

Constitution and Land

1. Definition of State Authority: Section 5 of NLC

Hamdan bin Johan & Ors v State authority & the chief minister are separate
FELCRA Bhd & Ors legal entities, although the latter formed part of
the formal.
Kerajaan Negeri Sarawak & Ors State authority and chief minister are separate
v Basnol bin Abol (deceased) legal entity.
Lebby Sdn Bhd v Chong Wooi State government, minster, Exco member or
Leong politician has nothing to do with the proceedings
under NLC which recognizes ONLY the State
Authority.

2. Article 74 of FC
3. 9th Schedule, List II, Item 2 (state list): Although land is vested on Ruler or
Governor, it is a state matter which only the state legislature may make laws with
respect thereto.

East Union (Malaya) Sdn Bhd v Federal Government may make laws with respect
Government of State of Johore to land matters if it is enacted to ensure
& Government of Malaysia uniformity in respect to land matters.

3. Article 76(1)(b) & (4) of FC

Lim Chee Cheong v Pentadbir NLC was enacted by the Parliament at the
Tanah Daerah Seberang Perai request of states under s.76(4) for uniformity.
Tengah Thus, there was no need for any adoption before
the Code could be applied to any of the States.

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4. Article 95D: In relation to the State of Sabah or Sarawak, Art.76(4) shall not apply,
nor shall Art 76(1)(b) enable Parliament to make laws with
respect to any of the matters mentioned in 76(4).

English Title Deeds System

(a) Definition: It is a fundamental principle of deeds registration. A system of
registration of instruments affecting title to land.

(b) Nemo Dat rule: “no one can give what he does not have”. It means one cannot
transfer something that he or she does not own. Under Common Law, the land
owners needed to prove their ownership of a particular piece of land by tracing back
to the earliest grant of land by the Crown to its first owner.

(c) Weakness:
-not a conclusive evidence. Registration itself may not confer title and unregistered
interest may be enforceable against subsequent owners.

-consisted of a chain of documents/deeds detailing the lands past and present

ownership and mortgage history.
- The system where equitable interest could not prevail under the deed system when
a purchaser took with actual notice of that interest.
- the complex & uncertain deed system which was time consuming & costly. The
lawyers conveyancing fees have often exceeded the value of the land dealt with.
-Subdivision, transfer, mortgage of land without registration renders the Land Office
as unable to trace the persons liable for the payment of rent. Thus, it is impossible to
prepare accurate rent rolls.
-Consequently, there will be loss of revenue to the government.
-Discrepancies between areas described in titles and those in actual occupation of
land holders.
-There may be encroachment on Crown lands.
-The general confusion cause hopeless arrears due to the insufficient staff provided
for working the land and survey.

Torrens System
-conceived by Sir Robert Torrens in Australia in order to simplify the cumbersome
Land Title registration procedure, which was based on the old British system.
-influenced by Merchant Shipping Act 1854

(a) purpose and effect

-is a system of registration of titles & dealings on the land which is reliable, cheap,
speedy & suited to the needs of the community. It is a mode of registration where by
the titles to land and interests in land depends upon registration & not upon
instrument inter-parties.
-there is certainty of title subject to only matters registered in the title register and
will not affected by unregistered claims.
-purpose: simplify titles to land, general effect on property law: certainty

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(b) 3 main principles (in Malaysia)

Mirror Principles: The register certificate of title reflects accurately and completely
the current facts about a person’s title. This means if a person was to sell an estate,
teh new title has to be identical to the old one in terms of description of lands,
except for the owner’s names.

RDT: is the mirror which reflects the description of lands, registered proprietor’s
name & etc. It would be retained at the Registry or Land Office.

IDT: would be kept by the registered proprietor as an evidence of his ownership.

S.340 of NLC: Stated that the title or interest of any person being proprietor shall be
indefeasible.

Curtain Principle: One does not need to go behind the certificate of Title as it
contains all information about the title. This means that ownership need not be
proved by long complicated documents that one kept by the owner. All the
necessary information regarding ownership is on the certificate of title.

S.89 of NLC has clearly stated that every register document of title by delay
registered of under this chapter shall be conclusive evidence.

This principle emphasizes on the intending purchaser or interest acquired of need

not looking behind or beyond the curtains of the register. It is sufficient if the
purchaser examines the Register Document of Title in order to obtain particulars
related to the land.

Insurance Principle: It provides for the compensation of loss if there are errors made
by the Registrar of Titles. However, the system that has been developed for Msian
Land law has only adopted the 2 principles, namely, mirror & curtain principle.

Cases Facts
Teh Bee v Maruthamuthu Under Torrens system, the Registration is
everything and it would be wrong to allow an
investigation as to the right of the person to
appear upon the Registrar when he holds the
certificate of title.
Moden Hartawan Sdn Bhd v Under the Torrens system of land administration
Pentadbiran Tanah Johor practice in Malaysia & legisture via NLC, the
Bahru registration is everything and absolute with regard
to the title of ownership save for some exceptions.
Poh Yang Heng v Ng Lai Yin Registration is everything. As the effect of
registration is to defeat all prior and subsequent
unregistered claims.

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Definition of Torrens system: The TS strikes for

simplicity & certitude in transfer of TS land or
registered land. It seeks to get away from the
complicated system of rules which in England
regulate dealings in unregistered land.
Creelman v Hudson Bay Court held that the investigation as to the right of
Insurance Co person who holds the certification which is the
evidence of his title would defeat the very purpose
and object of the statute of registration.
Oh Hiam v Tham Kong The TS is designed to provide simplicity and
certitude in transfer of land which is achieved
without depriving equity of the ability to exercise
its jurisdiction in personam on the ground of
conscience.

Facts: P and D entered into a contract for sale of 7

lots of land which certtified in written agreements
as rubber land. Also included in the contract was
Lot 3660 which stood a house. After all the lands
were transferred & registered, Oh Hiam started
proceedings with reason that Lot 3660 was not
intended to be part of the agreement or transfer &
was included by mistake.
Rectification was sought & a retransfer of the lot
against repayment of its purchase price.

Indefeasibility:

Frazer v Walker The term ‘indefeasibility’ was defined as ‘a

convenient description of the immunity from
attack by adverse claim to the land or interest in
respect of which he is registered, which a
registered proprietor enjoys’.

-NLC under s.340 does not provide any definition as to what is meant by
indefeasibility under the Malaysian Torrens system, but it does describe the effect of
registering a land interest under the Malaysian land law.
-s.340 has clearly laid down the registration to confer indefeasible title or interest,
except in certain circumstances.
-S.340(2) stated the exception. (fraud, forgery, unlawful…)
-A warranty is given by the state of an indefeasible title in favour of a person
registered as an owner of any title or interest to land. The register creates an
unimpeachable, unexaminable and conclusive title.
S.92(1), alienation of State land to any person or body under the final title shall
confer on that person or body a title to the land which shall be indefeasible.

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Ong Chat Pang & Anor v The court has observed that in the absence of any
Valiappar Chettiar of the vitiating factors, laid down in s.340, a title
once is registered is indefeasible.
PJTV Denson (M) Sdn Bhd & Ors Raja Azlan Shah held that the concept of
v Roxy (M) Sdn Bhd indefeasibility of title is so deeply embedded in
Malaysian law that it seems almost trite to
restate it. The registration of the transfer if the
lands under NLC defeats all prior unregistered
interests in that land unless the party who
acquires teh registered title has been guilty of
fraud.
Mohammad bin Buyong v Court held that s.340 refers to the doctrine of
Pemungut Hasil Tanah Gombak indefeasibility. “It protects…the title or interest of
& Ors any person for the time being registered as
proprietor of land shall be indefeasible”.

Forms of Torrens system in Peninsular Malaysia (NLC)

4 features
a. Conclusiveness of Register
- mirror & curtain principles
-s.340, s.89, Teh Bee v K Maruthamuthu, Creelman v Hudson Bay Insurance Co
- Conclusiveness of the Register is only prima facie.

Ho Hon Wah v UMBC The appellants were purchasers of two

apartment units. The registered owner of the
land executed charges to the Respondent to
finance the developer.
The appellants paid the developer the full
purchase price. However, the developer still
owed another judgment debt to the bank.
Subsequently, the bank obtained a prohibitory
order over the two apartments purchased by the
appellants. 
Supreme Court held that although under the
Torrens system, although the registration is
everything, this is only prima facie.

b. Indefeasibility
-s.92(1), s.340(1) & (2)
-Immediate indefeasibility

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Tan Ying Hong v Tan Sian San
Immediate indefeasibility means that immediate
registered title or interest of the proprietor or
transferee immediately to the vitiating
circumstances will be conferred statutory
protection despite the existing of any vitiating
circumstances. In the case of defeasibility, the
indefeasibility only comes to be attached to the
title or interest upon a subsequent transfer.
Before the decision of Adorna Properties, the
prevailing view was that s.340 of the NLC confers
deferred indefeasibility as opposed to immediate
indefeasibililty.

c. Registration
-S.206(1): all the dealings to any alienated land are to no effect unless it has been
registered.
-E.g., a purchaser does not acquire legal title under the transfer to him is registered.
He must wait until the transfer is registered in his name and in the interim his
interest is equitable only.

Buxton v Supreme Finance The interest of a bona fide purchaser for value
cannot prevail over that of a registered chargee.

d. Caveat system
-to protect an unregistered interest.
-four types: registrar’s caveat, private caveat, lien-holder’s caveat, trust caveat

Dealings
4 types of dealings that can be registered:
-transfer
-charge
-lease
-easement

Non-registrable:
-A lien is a non-registrable transaction but can be protected by way of lodging a
caveat.
-tenancies

Terminology
Ownership
-the proprietor who can enjoy the proprietorship of the land
-right to exclusive use and enjoyment of the subject matter, right to alienate, right to
possess, right to transmit upon death.
-right to the exclusive but not absolute enjoyment.
Possession

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-lesser interest than ownership

-a person who takes a lease of the land would only have immediate possession, but
not the ownership of the land.

Title
-evidenced by a document such as the issue or register document of title
Interest
-something which is less than proprietorship or ownership.
-in NLC context, means a registered lease, charge or easement as well as statutory
lien or a tenancy exempt from registration created in respect thereof.

Legal interest
-interests which have been validly and formally created in accordance with the
requirements of the statute in question.
-registered interests, cannot be defeated by unregistered interest
Equitable interest
-unregistered interest
-liable to be defeated by the registration of any interest

Real property
-immovable property such as land, buildings, everything which is part of a piece of
land or affixed to it.
Personal property
-movable property such as goods, chattels

Disposal
-granting of certain kinds of rights by the State in respect of any land generally and in
favour of individuals or bodies, whether private or public.
-can be by way of alienation
-between State & individual/body
Dealings
-any transaction undertaken between individuals or bodies, private or public,
effected with respect to alienated land but does not include any caveat or
prohibitory order.
-between individuals

Restriction in Interest
-limitation imposed by the State on the powers of a registered proprietor to deal
with his land by way of a transfer or the creation of a lease, charge, easement,
tenancy or statutory lien over his land
-as well as his powers to subdivide, partition or amalgamate his land
Conditions
-Imposition by the State of obligations relating to the use of land for agricultural,
building and industrial purposes.
-regulate the use of land held under a permit or temporary occupation licence or by
way of a lease of reserved land.

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