TOPIC 1 HISTORICAL BACKGROUND

Historical background
1. Before 1400 : concept of one who fells the trees own the land was practiced
2. 1400-1786 : Ihya al mawat from Islamic teachings . method of acquisition by opening up and
cultivating jungle land or waste land. 1/10 will be given to the ruler.
3. 1786 : arrival of Francis Light in penang. British Deed System(BDS) was introduced.
4. Second charter of justice :*to be look forward into*
5. Land law 1911
6. Land Law 1926
7. National Land Law 1965

Pulau Pinang
1. Application of three Charter of Justice 1807, 1826, 1855.
2. EDS introduced
3. 1833 Commission :*to be look forward into*
4. 1839 Straits Land Act : (i) Land office established (ii) survey were carried out (iii) collection of
land revenue
5. Due to the establishment of Land office : written grants were given to those occupied virgin
land.
(i) Measurement paper: no restriction to deal with inter vivos land.
(ii) Permit to clear land within 2 months

Melaka
1. Malacca customary tenure remained unchanged during Portuguese or dutch colonial
2. Everyone has the right to occupy waste land and forest. Pay 1/10 of the produce of the land
to the ruler.

FMS (Selangor, Perak, Pahang., Negeri Sembilan)

1. Treaty of pangkor introduce resident system: advice of the resident selected by british for all
matter including land matter excluding malay custom or adat.
2. Lex loci : The  law of the  state  or the  nation  where  the matter in  litigation transpired.
3. Tengku Jaafar & Anor v the State of Pahang [1987] 2 MLJ 74 : Pahang practice malay
customary law before torren system was introduced.

Introduction of Torren System in FMS

1. The General Land Regulations in : Perak(1879) , Selangor(1882) , Negeri Sembilan(1887) ,

Pahang(1888)
2. Registrations of title Regulations : Selangor(1891) , Perak and Pahang (1897) , Negeri
Sembilan(1898)
 3. The land enactments of 1897 to all 4 states
4. 1911 two uniform laws: (I) FMS Enactment of 1911 - dealing with the registration of country
land less than 100 acres (ii) The FMS registration of Titles Enactment 1911 - deals with the
registry land ie. Town land and country land exceeding 100 acres
These two continued in force until it was amended by Land Code of 1926 which came into force
on 1st january 1928

The Land Code 1928 affected further changes in law, among others are:
1.the principle of indefeasibility of title was more clearly defined
2. adverse possession no longer possible.
3. Customary tenure under Adat Perpatih is preserved
4. The strictness regarding compliance with statutory form and register has been
abandoned.
5. Specific types of cultivation were enforced.
In 1965, the Land Code 1928 was repealed and replaced by the National Land code 1965.

UFMS (Johor(1914) Kedah(1923) Kelantan(1910) Perlis(1926)

Terengganu(1910))
No resident system
- British officer appointed as advisor to assist the administration of the states (similar to the officers
inder residency system)

Enacted land Enactments - Kedah(1934) johor(1935) perlis 1935) terengganu(1936) Kelantan(1938)

- land solely belongs to the ruler on two conditions:
(i) 1/10
(ii) Continuous cultivation
Replaced by NLC 1965 aim of introducing uniform system of land and registration of titles in Tanah
Melayu.

MALAY CUSTOMARY TENURE

(a) Proprietary right
- No absolute ownership
- proprietary rights is the right to utilise the soil and usufruct
- forest land/any land which though once cleared has been abandoned and bears no trace of
appropriation = Tanah Mati
- who live the land by cultivating or clearing or by building a house acquires proprietary right = tanah
hidup
- right is absolute as long as occupation continues / as long as the land bears signs of appropriation
- 3 types Tanah Hidup:
(i) Tanah kampong (planted with fruit trees)
(ii) Tanah bendang (wet rice field)
(iii) Hill land (tanah huma/ladang)

(b) Methods of acquisition ; opening up / cultivating virgin forest or waste land

(c) Payment 1/10 of the peoduce of the land

(d) If land is neglected(abandoned no cultivation) , land reverts back to ruler

(e) Pualng belanja - return of expenses . the price of the land reflects the sum of his labour and out of
pocket expenses

(f) Jual janji - borrow money and land as security . fails = jual putus

Portugese colonial administration(1511-1641)

- land tenure remain unchanged bcs portugese did not interfere the system.
- malay customary land tenure system continued exist

Dutch colonial administration (1641-1785) and (1818-1824)

- malay customary land tenure
- reason: their objective is to conquer malacca for trade opportunities
- Dutch Grants was introduced : aim to control transfer and trasmissions of land. Need to be validated
by the Court of Justice
- Under DG , land divided into 2 categories:
(i) Town land - dealings need to be declared, recorded and proved to the authorities in the Court
of Justice
(ii) Country land - no such requirement was imposed and held by mainly Dutch settlers, traders
and officials)
- end of 17th century, the dutch instritued a court of judicial commissioners, duties to:
(i) Made surveyed and confirmed the boundaries and ownership of holdings in and around the
town of Malacca
(ii) Issues ceritficate of possession to the owner. Origin of Dutch Title Deeds when NLC was
introduced in Malacca

British occupation (1975-1818) and )1824-1957)

- main objective of 2nd charter of justice was to extend the court’s jurisdiction to cover malacca and
singapore
- the granting of 2nd charter of justice abrogated(mansuhkan) the dutch law and english law was
introduced.
- as in Penang , english deeds system introduced also in malacca
- when malacca was administered by the british, three systems of the land tenure were prevail:
(i) The Malay Customary Tenure
(ii) The System Of The Dutch Grants (DG)
(iii) The English Deed System

- 1839, DG were converted to >>> English Fee Simple

- all those land previously alienated by the Dutch will continue be regarded as having been alienated
in perpetuity to their existing owner.
Land not been alienated by dutch were declared in 1861 been vested to the Crown.

English Deed System (Malaca & Penang)

- old english land system called Deed system
- not recognised absolute right in land but only law of possession
- principle : those who own the land have to prove that his title is good against the world

Deeds sysem : tracing chain of title

- purchaser or thos who interested can investigate the title of vendor
- english deed system which was practiced in malacca before the introduction of NLC was being
modified to suit the need of the community
- 1st january 1966 change over in Penang and Malacca to the Torren system under NLC 1865
- NLC 1965 only applicable to Penang and Malacca to regulate the process of replacing the existing
titles in both states with the torren system of acquiring title by registration.

Defect of English Deed System

- retrospective investigation of title
- time consusming
- longer process
- incurs costs and expenses
- dificulity to track and read old docs
 TOPIC 2 INTRODUCTION TO TORREN SYSTEM

- Principle: a system of land title where a register of land holdings maintained by the state guarantees
indefeasibility title to those included in the register.
- case : Teh Bee v Maruthamutu [1977] 2 MLJ 7 - curtain principle
- it is wrong to allow an investigation as the right of the person to appear upon the register when he
holds the certificate of title
- case : Gibbs v Messer (1891) AC 248
- Objective : is to save person dealing with registered proprietor from the trouble and expense of
going behind the register

Main characteristics of the torren system

(a) Confers indefeasibility title upon registration
- Can be defeated where there is:
• Fraud, Forgery, Misrepresentation, Mistake, Void
(b) Any dealing must be register in order to confer title/interest to te new proprietor

Principle of torren system

(i) mirror principle
- The register (certificate of Title) reflects (Mirrors) accurately and completely the current facts about
a person’s title.
- the facts are:
- the name of the proprietor
-particulars of land,its area and location
- survey plans and boundaries

(ii) curtain principle

- the latter will only concern with the register
- sufficient only by looking at the RDT
(iii) insurance principle
- provide losess if the is any error made by registrar of titles
- did not adopted

- The chick mission by Sir Louis Chick

- A Commission of Experts was set up to closely study the Chick Mission report and resulted in the
drafting the NLC 1965.
- The Reid Constitutional Commission (1956-1957 report) intention of the gov to have a uniform set
of land law

Basic features of NLC 1965

 Indefeaasibility of title upon registration - s 340 of NLC
 Adverse possession : legal term to describe a person known as illegal squatter occupies a piece
of land without the knowledge of the rightful owner and eventually acquire legal ownership of
the land through their continuous use and occupation of the land - s 48 & 341 of NLC
 The rules of equity are recognized and applicable for the protection of unregistered interest (sec
206(3) NLC).
 Possessory right will not be granted (TOL)
 Reversion of land to the state
 Strata title recognised
 4 caveats are recognised : to protect the non-registrable title
 Easement section 282(1)
 CONCEPT OF LAND

Definition of property : something that can be owned - tangible / non tangible

Real property : immovable property - land / fixtures
Personal property : all properties which are not land
Proprietary right : a right exist in a relation of a thing . Ex: ownership right

Differences

Ownership possession

Ownership signifies a title to the subject matter. • Possession denotes a right over land of a lesser
• Ownership confers: interest than ownership.
- The right to exclusive use and enjoyment of the • The right to occupy the land under a titles.
land. • Eg: lessee, tenant, person under Temporary
- The right to alienate. occupation of License (TOL).
- The right to possess. • Obtained consent to stay and occupy the land
- The right to transmit upon death. by the registered proprietor or State Authority.
- A person who owns a land is called as • Unlawful occupation: occupy the land without
‘registered proprietor’ consent of registered proprietor or State
Authority.
• E.g: Squatter. – does not have legal rights over
land.

Title interest

• Title signifies that the registered owner has • Interest denotes something which is less than
legal rights over the land. proprietorship or ownership.
• Evidenced by Issue Document of Title (IDT). • Recognised interest in land under National
• Registered proprietor can sell the land to a Land Code 1965:
third party. o Registered lease
•A purchaser of land would be said to have the o Registered charge
title to the land upon the land being registered in o Registered easement
his name in the register and issue documents of o Statutory lien
title to the land. o Tenancy exempt from registration
 Legal interest
• Legal interests are interests which have been
validly and formally created in accordance with
the statute (i.e. NLC).
• Also known as ‘registered interest’.
• Must fulfill proper requirements to register the
dealing/transaction.
• Eg: Registered charge, registered lease.
• Effect: it can be enforced against the whole
world – right in rem.
Disposal
• Disposal refers to granting of certain kind of
rights by the state, in respect of lands in favour
of individuals or bodies.
• Manner of disposal:
o Alienation
o Issue of TOL
o Issue of permit of grant of lease of
reserved land
• Denotes a transaction between the state and
individuals or bodies.
Restriction of interest
• Restriction in interest refers to the limitation
imposed by the state on the powers of a
registered proprietor to deal with the land.
 • E.g: the land used for agricultural, building and
• E.g: power to transfer the land, charge, lease,
easement, statutory lien or power to subdivide
the land, partition or amalgamate the land.
Equitable interest
• Equitable interest is an interest that is only
recognised in courts (does not derive from
statutes).
• An interest which is capable of being registered
but yet to be registered or not capable of being
registered.
• An equitable interest is liable to be defeated by
the registration of any interest.
• E.g: unregistered charge, lien where lien-
holder’s caveat is not entered, tenancy exempt
from registration.
dealings
• Dealings are any transaction undertaken
between individuals or bodies in respect of
alienated land to convey title or interest in land
to each other.
• E.g: transfer, lease, tenancy, charge, lien,
easement.
• Not included: caveats and prohibitory order
(restraint on dealings.)
condition
• Conditions refers to the imposition by the state
relating to the use of land.
industrial purposes.
• The conditions may be imposed by the state to
regulate the use of land held under permit or
temporary occupation of license or by way of
lease of reserved land.
 DEFITION OF LAND

Section 5 of NLC
(a) The surface of the earth & all substances forming that surface
(b) The earth below the surface and all substances therein
(c) All vegetation and other natural products
(d) All things attached to the earth or permanently fastened to any thing attached to the earth,
whether on or below the surface
(e) Land covered by water

Exception
1. Landlord - tenant :
- tenant has the right to remove his fixture as long as it was done during the tenancy
- became landlord’s if he fails to remove
- remove within reasonable time
Exception 1 : tenant’ fixture
- if he renew his tenancy, he still has the right to remove it during the period of his new tenancy
- can remove as long as he has the possession as a tenant
If tenancy expired, he must remove within reasonable time . if not, it will become landlord’s title in
absolute
Exception 2 : ornament fixture
- fixtures attached by tenant for ornament/ convenience in order to render it more habitable.
- Example of ornamental fixtures include curtains, chimney grates, blinds, and beds fastened to
walls.

Exception 3: trade fixture

- for the purpose of business or trade
- tenant has the right to remove it during tenancy or within reasonable time after tenancy ended
- usually it is removable without cause damages to the premises

2. Vendor purchaser:
- any fixtures affixed to the land at the time of the contract pass to the purchaser is belong to the
purchaser

3. Chargor- chargee:
- all fixtures whether affixed before or after the date of charge, pass to the chargee unless contract
state otherwise
NATURE AND EXTEND OF ENJOYMENT OF LAND