LAWS 3310 Land Law I Final Notes PDF

ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ADVERSE POSSESSION TOPIC SUBTOPIC AUTHORITY ETC KEY NOTES: He is one who, without a...

ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ADVERSE POSSESSION TOPIC SUBTOPIC AUTHORITY ETC KEY NOTES: He is one who, without any colour of right, enters on an unoccupied house or land, McPhail v Persons intending to stay there as long as he can. He may seek to justify or excuse his Case definition Unknown conduct. He may say that he was homeless and that this house or land was standing empty, doing nothing. But this plea is of no avail in law. No adverse possession against the State. Section 48 of NLC No title to State land shall be acquired by possession, unlawful occupation or occupation under any license for any period whatsoever. Unlawful occupation, etc., of State land, reserved land or mining land. Introduction Statutory (1) Any person who, without lawful authority- provisions (a) Occupies, or erects any building on, any State land, reserved/mining land Section 425 of NLC (b) Clears, ploughs, digs, encloses or cultivates any such land or part thereof (c) Cuts or removes any timber or produce on or from such land Shall be guilty of an offence, and liable on conviction to a fine not exceeding ten thousand ringgit, or imprisonment for a term not exceeding one year. Definition of ▪ Law of adverse possession upholds the estates in land of persons who have no adverse formal ownership. possession ▪ “Possession as of wrong” but long possession matures the wrong into a right. ▪ 426A: Power of arrest and seizure. Under the ▪ 426B: Custody and delivery of things seized. Section 426A – 426D NLC ▪ 426C: Forfeiture of things seized. ▪ 426D: No costs or damages arising from seizure to be recoverable. Enforcement ▪ Local authority may issue a notice to the owner of the land to demolish or Under the S 72 of Street, remove any unauthorised building on the land. Town Planning Drainage and Building ▪ Owner may request the authority to demolish the said buildings. Law Act 1947 ▪ Usually resorted to in the case of squatters on private land.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ Adverse possession not to extinguish any title to alienated land. Section 341 of NLC ▪ Registered proprietor may sue for trespass and obtain an order of possession to Squatters on evict the squatter. private land Section 7 of SRA Right to recover possession of land. Order 89 Rules of Must be by way of seeking court order. Court 2012 ▪ Apps came to Perak and opened up a jungle area now known as Seberang Perak. ▪ Other settlers came to the area and state gov resettled some settlers to the land where app was already in occupation. ▪ App were given notices to stop work and vacate the area. ▪ Writ filed seeking a declaration that they were entitled in law and equity to be in possession of the land they had pioneered & occupied. ▪ Grounds in support: Enforcement (1) D.O. had promised each settler 3 acres of padi land subject to successful interviews. Sidek’s case (2) Utusan Malaysia published an article stating that the State Director of Lands and Mines said that each pioneer settler would be given 5 acres of padi land. Case law ▪ Resps applied to strike out the appellants action on the grounds that they had no cause of action as they were squatters. ➔ FC held: a. App had no cause of action as they were squatters who had no right either in law or equity. b. Section 48 of the Code is against them c. The only way to obtain State land is by way of the NLC. ▪ Collector has no authority to commit the State Authority as to alienation of land. Govt. of Negeri ▪ Even if public facilities had been supplied to unlawful occupants of State land, Sembilan v Yap this cannot be used to bind the State Authority to alienate land to occupants. Chong Lan & Ors ▪ Squatters cannot raise the doctrine of equitable estoppel against State Authority.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ Forefathers of app – pioneer settlers of agriculture land in Sabak Bernam. ▪ App alleged that between 1971-1976, they had applied to State Authority for land titles and that the Selangor State Exco had approved the alienation in Sept ’80 and an exco member confirmed this. ▪ App was confirmed that they would only be granted with TOLs and they could acquire titles after 3 years. ▪ Resp handed over the lands to FELCRA and applied summarily under Order 89 Bohari bin Taib & Ors of Rules of High Court 1980 for possession of land without any compensation v PTG Selangor for the app’s eviction. ➔ HC: Allowed the resp’s application and later, appealed to SC. ➔ SC: for the purpose of the summary procedure under Order 89 Rules of High Court, a distinction should be made between squatters simpliciter who have no rights whatsoever and occupiers with license or consent. Enforcement Case law ➔ Apps have a good arguable case that they have remained in occupation with the continued consent of the state govt by virtue of alienation already approved prior to the TOLs. Kabra Holdings Sdn ▪ Oral agreement given by the Menteri Besar of Selangor will not give the defs a Bhd v Ahmad b right to occupy the land. Sahlan ▪ Upheld the decision in Sidek’s case. ▪ Settlers in Kg Sg Rumput were not squatters simpliciter. ▪ Evidence showed that in 1982, the Penghulu encouraged the app’s father to open up new land in the area. Shaheen bt Abu Bakar ▪ Appointment and authority of Penghulu could only be produced at trial. v PKNS ➔ There was a strong arguable case that they occupied the land with implicit consent of the State Authority. ➔ Appeal allowed.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ Defs were occupiers of a parcel of land in Taman Metropolitan, Kepong, which Datuk Bandar KL & they had cleared and built their homes in the 1950s and 60s. Enforcement Case law Anor v Tan Poh Wah ▪ Around 1970s, a tin-mining company was granted a mining lease on the land. & Ors ▪ In 19797, CLC offered the defs to relocate to another lot nearby that was no longer used for mining. 1) Persuasion – by community leaders and developers. How to solve 2) Threats – demolition without compensation. Solution the squatter 3) Payment – to leave. problem? 4) Forced eviction An-Nahl, 80 “It is Allah who made your habitations homes of rest and quiet for you.”  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ALIENATION OF LAND TOPIC SUBTOPIC AUTHORITY ETC KEY NOTES: To dispose of state land in perpetuity or for a term of years, in consideration of Section 5 of NLC the payment of rent, or otherwise in accordance with section 76. State Authority may alienate land: (a) For a term not exceeding ninety-nine years; Definition (aa) In perpetuity – - Grant made to the Federal Government Section 76 of NLC - Land used for public purpose - Special circumstances ➔ Areas within foreshore and seabed can only be alienated in fixed term not exceeding 99 years. (1) Final title (a) Registry title Types of titles Section 77 of NLC (b) Land office title Introduction (2) Qualified title Section 77(2) and Qualified title is issued in respect of land that has not yet been surveyed. Differences section 176(1)(a) between final Boundaries of land held under qualified title are provisional whilst boundaries of Section 176(2)(a) and qualified land under final title are fixed. title Land under qualified title shall not be capable of subdivision, partition, or Section 176(2)(b) amalgamation. Registry title: Differences (a) Town or village land between (b) Country land exceeding 4 hectares Section 77(3) of NLC registry and (c) Foreshore/seabed land office title Land office title: any lot of country land not exceeding 4 hectares.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I Following matters shall be determined by SA at the time of approval: (a) Area approved (b) Period of alienation General Approval of (c) Form of qualified title provisions land for Section 79(2) of NLC (d) Form of final title relating to alienation (e) Rate to calculate annual rent approval (f) Premium and rate (g) Category of land use (h) Express conditions and restrictions in interest Payable upon approval of alienation: (a) First year’s rent Items of land Relevant Section 81(1) (b) Premium revenue provision (c) Survey fees (d) Fees for preparation of title LA will send a notice in Form 5A to the intended proprietor that land revenue is due Effect of non- Notice in Section 81(2) of NLC Approval of alienation will lapse. payment Form 5A and effect of non- - Ex-TOL holder occupying the land challenged the registered title of def. payment Teh Bee v K - Alleged that def had not paid the items of land revenue on time and by virtue of Relevant case Maruthamuthu s 81(2), approval had lapsed. Therefore, registration was alleged to be wrong. ➔ Under the Torrens system, register is everything. - Endorsed by RDT/IDT. - Examples of express conditions: Express Section 120 of NLC (a) Land may only be used to plant rubber trees. conditions Conditions (b) Land may be used only as a residence. attached to a (c) This land is to be used for the purpose of a petrol station title Implied - Not endorsed on RDT/IDT. Section 114-118 condition - Must refer to the NLC. Breach of Section 127(1)(a) Breach of conditions by proprietor will make the land liable to forfeiture. conditions  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I PART 14 OF NLC Restrictions in interests are restrictions imposed by the State Authority upon alienation of land on the proprietor imposing limitations on the powers to sub- Definition Section 5 divide, partition and amalgamate the land or limiting the proprietor’s powers to deal with his land, i.e. to transfer, lease or charge the land. - This land cannot be transferred or charged without the written approval of SA. Examples of - Land may not be sub-divided, partitioned or amalgamated without the express restrictions approval of the SA. UMBC v Sykt - Such land application or dealing would be unfit for registration. Perumahan Luas Sdn Restrictions - If registered, the dealing would not be indefeasible. Bhd. (No 2) in interest - Land in Penang contained restrictions in interest as follows: (1) Land cannot be transferred within a period of 10 years from the date of Consequences registration of title. of a breach (2) After the period of 10 years, the land can only be transferred with the Toh Huat Khay v Lim consent of the State Authority. A Chang - Land was transferred to the def 18 months after the alienation of land. - Pff appealed to HC to set aside the transfer for being contrary to restriction. - Def appealed to both COA and FC. ➔ Dismissed as the transfer of said land was clearly in breach of a restriction in interest and was incapable of registration. Thus, the title was not indefeasible. - Alienation of State Land takes effect upon registration of a register document of title. Provision Section 78(3) of NLC - Notwithstanding its alienation being approved by State Authority, the land shall remain State land until that time. Effective Dr Ti Teow Seow & date of Section 78(3) of the Code determines when an alienation of State land shall take Ors v Pendaftar alienation effect, and it is clear from sub-section that alienation takes effect upon registration. Cases to Geran2 Tanah illustrate Pembinaan Batu Jaya - State Authority has an implied power to revoke an approval for alienation under Sdn Bhd v PTG, section 78(3) of NLC. Selangor & Anor - When such right is exercised, reasons must be given to the applicant.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I (1) Alienation under final title confers an indefeasible title. (2) Rights include: Rights of a a) Right to apply for sub-division, partition and amalgamation of the land holder of a Provision Section 92 b) Right to subdivide building on the land final title c) Right to effect dealings on the land d) Right to transmit land upon death Disposal (1) Temporary Occupation License otherwise (2) Permits to remove rock materials (section 70-75) Provision Section 42 than by (3) Permits to use airspace above state land/reserved land (section 75A-75G) alienation (4) Reservation of land (section 62)  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I FORFEITURE OF LAND TOPIC SUBTOPIC AUTHORITY ETC KEY NOTES: Power of the State Authority to take back alienated land from the registered Introduction Definition proprietor due to non-payment of land (s. 100) or breach of conditions (s. 127(a)). Includes – (a) Any annual sum payable to the State Authority by way of rent (b) Any other annual payment due to the State Authority which by any written law Section 5 is to be collected as if it were rent or land revenue Definition (c) Any fee due to the State Authority in respect of arrears of rent by virtue of rules under section 14 Rent to be a debt due to State Authority. Section 93 Rent payable in respect of any alienated land shall be a debt due to State Authority. The rent reserved in respect of any alienated land shall be payable as from the When is it Section 94(1) beginning of the calendar year in which land is alienated or, if it is alienated after payable? the end of September in that year, as from the beginning of the next calendar year. When is rent in Rent payable in respect of any calendar year shall fall due in full on the first day of Section 94(2) Non-payment arrears? that year and, if not sooner paid, shall be in arrears on first day of June that year. of rent Section 97 Notice of demand Section 98 Right of chargees, lessees, etc., to pay sum demanded Section 99 Effect of payment of sum demanded Section 100 Forfeiture for non-payment of sum demanded Relevant procedures In summary, the procedure is as follows: (1) Land Administrator (LA) serves Notice of Demand in Form 6A. (2) LA endorses a note of service in Form 6A on the RDT. (3) LA serves a copy of Form 6A on persons and bodies having interest in land. (4) If sum demanded is not paid, order of forfeiture is made under section 100. (5) Notification of forfeiture (Form 8A) is published in the Gazette. ➔ Date of notification in the Gazette is the official date of forfeiture.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I Type of Section 120 Express conditions conditions Section 114 – 117 Implied conditions Nature of a) Conditions requiring continuous performance Section 103 of NLC conditions b) Conditions subject to a fixed term (1) A breach of a condition requiring continuous performance shall arise so soon, and continue so long, as the condition is not complied with. (2) A breach of a condition subject to a fixed term shall arise- When does a (a) In the case of a condition requiring the doing of any act within any time Section 125 of NLC breach arise? (being the time specified therein, or that time as extended under s 107) upon the expiry of that time without the act having been done; (b) In the case of a condition requiring any act to be refrained from until any time, upon the doing of that act before that time. Upon any breach arising of any condition to which any alienated land is for the time Breach of What happens Section 127(1) being subject- conditions in a breach? (a) The land shall become liable to forfeiture to the State Authority Land Administrator has a choice: (a) Impose a fine (section 127(1A)) (b) Ask proprietor to remedy the breach (section 128) (c) Hold enquiry to forfeit the land (section 129) Procedure If the notice to remedy the breach is not complied with, can forfeit under s 129. Section 129 They will then have to hold an enquiry. Where breach is capable of being remedied, LA will take summary action to secure Section 128 remedying the breach by serving Form 7A. 1. LA serves form 7B: Notice to Show Cause on the proprietor calling for attendance at enquiry and date and venue of enquiry specified. Enquiry Stage Section 129 2. LA endorse about the fact of service of Form 7B on RDT. 3. Enquiry held – look at section 129(4) to find out what could happen.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I What can happen during the enquiry? (a) If breach has been remedied, shall so declare by order, and cancel or cause to be cancelled any note endorsed under this section or section 128 Breach of (b) If it appears to him just that time should be allowed for remedying the breach, Enquiry Stage Section 129(4) conditions shall make an order specifying the action to be taken for that purpose (c) In any other case, shall take temporary possession of the land as he may be directed by State Authority or in the absence of such direction, make an order declaring the land forfeit to the State Authority. (a) Land reverts to the State Authority Statutory Section 131 of NLC (b) All buildings on land vests in the State Authority without compensation provision (c) Any item of land revenue due is extinguished Effect of There shall also vest in the State Authority, to the extent specified in section 47 and forfeiture Section 131(b) without payment of compensation, any buildings then existing on the land. Compensation Pemungut Hasil Appeal against forfeiture on the ground of equitable relief against forfeiture was Tanah Kota v UMBC dismissed as being unrecognised by NLC. (1) The validity of any forfeiture under this Act shall not be challenged in any Statutory Section 134 of NLC court except by means of, or in proceedings consequent upon, an appeal under provision section 418 against the order of the Land Administrator under section 100… Who can (1) Any person or body aggrieved by any decision under this Act of the State appeal and by Section 418 of NLC Director, the Registrar or any Land Administrator may, at any time within the when? period of three months which it was communicated to him, appeal to the Court. Appeal 1. Order of forfeiture made contrary to the NLC. against Section 134(2) 2. There was a failure on the part of the LA to comply with the requirements of forfeiture any provision of the NLC. Grounds of - 19/9/1978: Form 6A was served on the proprietor and no endorsement of this appeal fact was made on the RDT as required by section 97(2) → did not pay rent due. Pow Hing & Anor v - 3/1/1979: Proprietor sold the land to a third party. Registrar of Titles - 21/6/1979: Land was declared as forfeited. ➔ Non-compliance with section 97(2) rendered the forfeiture invalid.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I - Endorsement on the RDT about issuance of Form 6A should be made on the same day as service of Form 6A on the app. If made after the expiry, such endorsement has no effect in law. Permodalan YBK S/B Grounds of - 3 months period to pay amounts in Form 6A runs from the date of endorsement v Pentadbir Tanah dan appeal in section 97(2). Daerah Hulu Selangor - Section 98 does not prohibit anyone not having any interest in the land to pay arrears of rent on behalf of the proprietor. - Act of LA to reject and return the payment of arrears of rent was unreasonable. - Forfeiture proceedings began by a notice to remedy the breach. - Breach was using the land to store industrial chemicals and fertilizers when the CLR JB v South land was only for light industrial purposes only. Malaysia Industries - Proprietor challenged the LA in court and said the proceedings were illegal. Appeal ➔ Forfeiture proceedings held to be valid. against Lam Eng Rubber - Setting up of a rubber processing factory on land subject to the express forfeiture Factory (M) SB v condition that it be used for a rubber estate does not amount to a breach. State Director, Kedah Cases to illustrate on - Ayah Pin used his wife, Che Minah’s, agricultural land to build cult structures. breach of - Several buildings on the land including a giant teapot, sundry shop and surau. conditions - Sent a notice that there was a breach of an implied condition in section 115 and asked pff (Che Minah) to apply for change of category of land use in 2 weeks. - Pff’s application for change of category was rejected. Case of Che Minah - Notice to show cause was served to pff as to why should land not be forfeited. - Def made order under s 129(4)(b) that the breach should be remedied within 15 days, failing which, further action would be taken. - Pff brought action seeking a declaration that the order of LA under s 129(4)(b) was defective as it did not specify the action to be taken to remedy the breach. ➔ Declaration was granted.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ Who can apply for annulment of the forfeiture order? Any person or body who was the proprietor of any alienated land immediately before its forfeiture. ▪ How is the application made? By petition to State Authority. Can a ▪ What is expected from the applicant? forfeiture Statutory (a) If forfeiture was for non-payment of rent, of such penalty, not exceeding Section 133 order be provision six times the sum which he was required to pay by the notice of demand annulled? served on him as the SA may think fit to impose (b) If forfeiture was for breach of any condition, of such amount as the State Authority may determine in respect of expenses occasioned by forfeiture ▪ Effect of annulment of the order? Forfeiture would be cancelled, and land can be re-alienated to the original proprietor. Appeal by Pemungut Hasil Appeal against forfeiture on the ground of equitable relief against forfeiture was Relevant case equity Tanah Kota v UMBC dismissed as being unrecognised by NLC.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I REGISTRATION OF DEALINGS TOPIC SUBTOPIC AUTHORITY ETC KEY NOTES: Any transaction with respect to alienated land effected under the powers conferred Introduction Dealing Section 5 by Division IV, and any like transaction effected under the provisions of any previous land law, but does not include any caveat or prohibitory order. Dealings capable of being effected with respect to alienated lands and interests Section 205(1) therein shall be those specified in Parts Fourteen to Seventeen, and no others. Following instruments may be registered and presented to Registrar: Dealings (a) Any transfer under Part Fourteen of land, of an undivided share in land, or of capable of any lease, sublease or charge being effected Section 292(1) (b) Any lease, sublease or surrender thereof (c) Any charge, discharge or instrument of postponement Instrument of (d) Any certificate of sale under Part Sixteen dealings (e) Any instrument granting or releasing any easement under Part Seventeen Transfer Section 218(1) Transfer under this Act of any lease/charge is effected by instrument in Form 14A. Lease Section 221(4) Every such lease shall be granted by an instrument in Form 15A. Every charge to secure repayment of a debt, or the payment of any sum other than Charge Section 242(1) debt, shall be effected by an instrument in Form 16A. Easement Section 286(1) Grant of any easement under this Chapter is effected by an instrument in Form 17A. In this Act, “tenancy exempt from registration” means – (a) Any tenancy or subtenancy for a term not exceeding 3 years granted pursuant Tenancy Section 213(1) to section 223; and Dealings (b) Any tenancy or subtenancy for a term not exceeding 1 year granted pursuant to without the provisions of any previous land law. instruments ▪ Security by way of depositing the original IDT to the financier. Lien ▪ Not registrable. ▪ Lienholder can lodge a lienholder’s caveat to protect its interest.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I Duty to Except if such instrument is subsequently withdrawn under section 296, Registrar Section 297 determine has the duty to determine the fitness for registration of every instrument entered. An instrument shall be fit for registration if following conditions are satisfied: (a) It is one of the classes of instrument set out in s 292(1) as authorised (b) Complies with provisions of Part Thirteen and Fourteen to Seventeen Conditions for (c) Dealing which it effects is not contrary to any prohibition or limitation imposed Duties of Section 301 fitness by this Act or any other written law for the time being in force registrar (d) Does not declare or, except as permitted in s 344, disclose the existence of any trust (e) That it is duly stamped in accordance with Stamp Act 1949 Island & Peninsular ➔ As long as an instrument of dealing is in order and fit for registration, it is the Nature of duty Development Bhd & duty of the Registrar to register it. Anor v Legal Adviser ➔ The nature is administrative, and not judicious. No instrument effecting any such dealing shall operate to transfer the title to any Effect of non- Section 206(1)(b) alienated land or, as the case may be, to create, transfer or otherwise affect any registration interest therein, until it has been registered under Part Eighteen. The Registrar shall register any instrument by – (a) Making on the register document of title to the land to which, or a share or How is interest in which, it relates a memorial under his hand and seal in the terms set registration Section 304(2) out in subsection (3); and Importance of effected? (b) On the instrument itself, completing under his hand and seal that part of the registration Heading included therein pursuant to subsection 207(2) which is shown as reserved for Registry use. – see Form 13A for Heading. Memorial required by section 304(2)(a) shall consist of: ▪ A short description of the nature and effect of the instrument, including names of Contents of the parties Section 304(3) memorial ▪ Statement of its number in the Presentation Book ▪ Reference number ▪ Time and date it is registered  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I Every memorial of registration made shall be conclusive evidence of the Section 304(4) registration to which it refers and the effective time and date thereof. ▪ Collector found Form 14A was not fit for registration and rejected it. Effect of ▪ Collector had entered the fact of presentation in the Presentation Book but had memorial not signed the entry, and subsequently cancelled the entry. Mohammad b Buyong ➔ Registration is ‘the making of a prescribed memorial of the dealing in the v PHT Gombak register document of title under the hand and seal of the registering authority’. Importance of ➔ If any such memorial is made without the registering authority signing and registration sealing it, there would be no registration. Effect of The title or interest of any person or body for the time being registered as proprietor registration of Section 340(1) of any land, or in whose name any lease, charge or easement is for the time being dealing registered, shall, subject to the following provisions, be indefeasible. Island & Peninsular Correction of Power of the Registrar to correct errors is only confined to errors or omissions made Development Bhd & errors by the registering authority, and no other. Anor v Legal Adviser  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I INDEFEASIBILITY OF TITLE AND INTERESTS TOPIC SUBTOPIC AUTHORITY ETC KEY NOTES: The title or interest of any person or body for the time being registered as proprietor Section 340(1) of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible. Case of Teh Bee The register is the exclusive and only evidence of title. Indefeasible Introduction ▪ Concept of indefeasibility of title is so deeply embedded in our land law that it title almost seems trite to restate it. PJTV Denson (M) ▪ Registration of the transfer of said land under NLC defeats all prior unregistered Sdn Bhd v Roxy (M) interests in that land unless the party who acquires the registered title has been guilty of fraud. ▪ Examples of defective instruments: o Where the signature of the transferor or transferee was forged o Insufficient stamp duty Defective instruments o Invalid power of attorney used to effect transfer o Signed by a minor ▪ Types of indefeasibility relates to the effect of registration obtained through a defective instrument. ▪ Register establishes title Types of ▪ Act of registration cures any defect in the instrument. Type 1: indefeasi- ▪ Example: Immediate bility o A transfers land to B through a defective instrument. o Registration cures the defect, so B’s title is indefeasible (Breskvar v Wall) ▪ Registration of a title through a defective instrument remains potentially open to attack until the title is transferred to another. ▪ The next transferee, if bona fide, will then get an indefeasible title. Type 2: ▪ Example: Deferred o A transfers land to B through a defective instrument. o Registration does not cure the defect, and B’s title can be defeated. o If B transfers land to C (bona fide purchaser), C has an indefeasible title.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I contract voidable The title or interest of any person or body shall not be indefeasible – (a) In any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or Introduction General Section 340(2) (b) Where registration was obtained by forgery, or by means of an insufficient or to exceptions provision void instrument; or (c) Where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law Tai Lee Finance Co The question of the existence or otherwise of fraud is one of the facts to be Introduction Sdn Bhd v Official determined in light of the facts and circumstances surrounding each particular case. Assignee & Ors Waimiha Sawmilling Actual fraud is ‘dishonesty – a wilful and conscious disregard and violation of the Co Ltd case rights of other persons. Element #1: Tai Lee Finance Co ▪ There must be actual fraud to defeat a person of his title or interests. Actual fraud Sdn Bhd v Official ▪ Fraud in actions seeking to affect a registered title means actual fraud, dishonest Assignee & Ors or some sort, not what is called constructive or equitable fraud. “…to which the person or body, or any agent of the person or body, was a party or Section 340(2)(a) privy” Exception #1 Assets Co v Mere Fraud must be brought home to the person whose registered title is impeached or to Fraud Roihi his agents. ▪ Registered proprietor, Tara, lived on the land with her husband and five children Element #2: ▪ Husband’s brother obtained a loan to finance his computer medical centre, and Party or privy consulted Devan who persuaded Tara to put up the land as security for the loan to the fraud ▪ Jagindar, a lawyer, was a guarantor of the loan; he went to Tara’s house with Datuk Jagindar Singh two friends (Arul & Suppiah) and asked her to sign several documents. v Tara Rajaratnam ▪ They misrepresented to Tara that security on land was effected by a transfer; Tara transferred land to Suppiah, who transferred to Arul, and then to Jagindar. ▪ The land was subdivided and sold to various purchasers. ➔ Purchaser’s titles could not be defeated – bona fide purchasers for value. ➔ Tara could not claim the land back, and court awarded damages.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ It is not enough to show that the transfer had the effect of depriving the pff of a Element #3: Go Hooi Yin v Lim known existing right. Intention to Teong Ghee ▪ It must be demonstrated that the transfer was executed with the intention of cheat cheating the pff of such right. Onus to prove Letchumanan Chettiar On a balance of probabilities. land fraud ▪ Pff was the registered proprietor of a share of land and asked def (his brother) to hold the land under trust until he completed his sentence. ▪ Def brought some documents to signed by pff which are needed to create trusts, and pff signed without understanding it as he did not understand English. Owe Then Kooi v Aw ▪ Documents were for land transfer to def and a charge was created on the land. Thiam Seng & Anor ▪ Issue: whether charge is conferred an indefeasibility of title where def obtained the title by fraud? ➔ Def’s title is defeasible but the interest of the charge remains intact as the charge was a bona fide purchaser for value without notice of the fraud. Exception #1 ▪ Pff, registered proprietor of a piece of land, loaned the title of disputed land to Fraud first def upon his request, believing he required it for contract works and on condition that the title be returned to her within a month or two. Nallammal v Relevant cases ▪ Used the title as security for a loan obtained from the second def, who lodged a Karuppanan lien-holder’s caveat over the disputed land. ➔ The 1st def did not convey to pff that the title is for security for loan from 2nd def ➔ There was fraud committed and the 1 st def’s title of the land can be defeated ▪ Pff discovered the land was no longer the registered proprietor of land and that it had been dispossessed when 8th to 12th defs had convered land titles to computer. Shayo (M) Sdn Bhd v ▪ Computerised IDT of pff’s land was issued in the name of 1st def. Nurlieda bt Sidek ▪ There were now two titles to the land, namely for the pff and the 1st def. ➔ 8th to 12th def had fallen short of the expected standards and breached their duties ➔ Pff restored as the registered proprietor and true legal owner of the land Liputan Simfoni Sdn ▪ Fraudstrer sold resp’s land to immediate purchaser who sold to next purchaser Bhd v Pembangunan ▪ Next purchaser was unaware of fraud for the first 3 ½ years, but was later aware Orkid Desa Sdn Bhd ➔ Next purchaser was not a purchaser in good faith based on their conduct  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ Involves the act of falsifying someone else’s signature. ▪ Invalidates the instrument of dealing, hence the focus is on the instrument. ▪ Proprietor does not need to be a party of privy, so long as signature was forged. ▪ Pff (Messer) is the proprietor of land, and had executed a POA to her husband with the power to transfer the land before leaving the country in 1884. ▪ Pff left the land title and POA in the custody of a solicitor, who forged the husband’s signature and transferred the land to a fictitious person. ▪ Posing as agent of Mr Messer, solicitor presented the transfer for registration. Gibbs v Messer ▪ Transfer was registered, and solicitor posed as agent for the fictitious person to borrow money from McIntyres and created a mortgage on the land for them. ▪ Pff returned in 1986 and the solicitor was absconded. ▪ Issue: whether pff could defeat the mortgage on grounds of forgery? ➔ Mortgage is invalid due to the forgery. Exception #2 ▪ Pff, holding a Thai passport, was the registered proprietor of the land. Forgery ▪ Def presented a stamped memorandum of transfer purportedly signed by pff to Relevant cases transfer the land to def, and this was registered at the land office. ▪ Pff claimed that the memorandum was procured by forgery and/or fraud as she did not enter into any agreement with def and denied executing a memorandum. ▪ Thai passport indicated she was not in Malaysia when memorandum was signed. ▪ Pff claimed for recovery & reinstatement of right to title and declaration that the Boonsom Boonyanit v transfer was void ab initio. Adorna Properties ➔ He who alleges forgery must prove this beyond reasonable doubt as forgery involves a high element of fraud. APPLY IMMEDIATE ➔ It was insufficient for pff to assert that the signature was not hers and that she was not in Malaysia; must call signature expert and attestors to prove the onus. ➔ Onus was not discharged and section 340(1) conferred indefeasibility to def. ➔ Def obtained immediate indefeasible title notwithstanding the forged memorandum and def was a bona fide purchaser for value.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ App is the registered proprietor of a land in Kuantan, Pahang ▪ 1st rep, purportedly acting under a POA, executed 2 charges in favour of UMBC to secure 2 loans in favour of the 2nd resp Tan Ying Hong v Tan ▪ App claimed that she did not sign the POA and claimed forgery. Relevant cases Sian San & Ors ▪ He sought court declaration that the charges were void. ➔ FC decision in previous case of Boonsom Boonyanit was incorrectly decided. APPLY DEFFERED- CONSENSU WITH BOOKS ➔ Proviso to s 340(3) cannot apply to subsection 2. ➔ Malaysia applies deferred indefeasibility – charges were void & appeal allowed. (1) Expert evidence of handwriting experts to conclusively prove that the signature Boonsom’s case How to prove did not belong to the original registered proprietor. Exception #2 forgery? Letchumanan v (2) In absence of expert evidence, a case of forgery can still be proven through Forgery Secure Plantations considering the totality of the evidence, the evidentiary facts and inferences made. Difference between fraud & forgery Fraud Forgery Will always defeat a title whether under Will only defeat a title under deferred immediate or deferred indefeasibility. indefeasibility. Focuses on the effect of forgery on the Focuses on the fraudulent act and instrument of dealing, thus making the intention to cheat. instrument defective. No need to be party and privy; must only Party whose title is to be defeated must prove the person who signed the transfer be party and privy to the fraud. was not the transferor. Void or Section 340(2)(b) Where registration was obtained… by means of an insufficient or void instrument insufficient Tan Hee Juan v Teh ▪ Transfer executed by a minor is a void instrument. Additional instrument exceptions Boon Keat ▪ If registered, the title is not indefeasible. Invalid power Tan Ying Hong v Tan Instrument of dealing signed by an attorney under an invalid power of attorney is an of attorney Sian San & Ors insufficient or void instrument and can vitiate a title.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I Where the title or interest was unlawfully acquired by the person or body in the Section 340(2)(c) purported exercise of any power or body in the purported exercise of any power or authority conferred by any written law. Tan Ying Hong v Tan Registrar that registers an instrument of dealing that is defective has therefore acted Sian San & Ors ultra vires and the registration can be set aside under this exception. UMBC Bhd v Where a charge was registered in breach of a restriction in interest on the title Title Syarikat Perumahan requiring the express sanction of the State Authority, such charge is defeasible as Additional unlawfully Luas Sdn Bhd (No 2) the Registrar, in registering the charge, had acted ultra vires. exceptions acquired Nothing in this section shall prejudice or prevent the determination of any title or Section 340(4)(b) interest by operation of law. Courts have taken ‘by operation of law to mean where the right to title is extinguished by contractual or equitable obligations (in personam claims). ▪ Parliament enacted s 340(4)(b) for the purpose of dealing with fact patterns that Krishnadas v do not fall squarely within the other exceptions to indefeasibility in s 340(2). Maniyam ▪ Cases that do not fall within s 340(2) may fall under s 340(4)(b). Effect of Where the title or interest of any person or body is defeasible by reason of any of Statutory defeasible Section 340(3)(a) the circumstances specified in (2), it shall be liable to be set aside in the hands of provision title any person or body to whom it may subsequently be transferred. “Purchaser” means a person or body who in good faith and for valuable Section 5 consideration acquires title to, or any interest in, land. How to prove? Liputan Simfoni Sdn Bhd v Pembangunan Prove that there is absence of mala fide at the time of registration of title or interest. Bona fide Orkid Desa Sdn Bhd purchaser Can immediate ▪ Even though ss (3)(a) and (b) refer to the circumstances specified in ss(2), they transferee be a Tan Ying Hong v Tan are restricted to subsequent transfer or to interest in the land subsequently bona fide Sian San & Ors granted thereout. purchaser? ▪ Immediate transferee may not claim to be bona fide purchaser; subsequent only.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ App were nephew and nieces of the decd, registered proprietor of 1/3 land. ▪ 43 years after the death, 1st resp obtained order of distribution for the decd’s Can immediate share of land in favour of 1st – 4th resp falsely claiming to be decd’s children Bona fide transferee be a Kamarulzaman & Ors ▪ Lands were later sold to the 5th and 6th resps purchaser bona fide v Yakub & Ors ▪ Apps brought an action to set aside the order of distribution and the titles of the purchaser? 5th and 6th defs due to fraud. ➔ In FC: defs could not claim protection as they were immediate purchasers. ➔ Bona fides of an immediate purchaser is not a shield to defeasibility. Note: 1. Proviso of section 340(3) protects the title or interest of a bona fide purchaser for value without notice of the vitiating nature of the first transaction. 2. Bona fide purchaser must be a subsequent purchaser and not the immediate purchaser. 3. Malaysia applies deferred indefeasibility, not immediate indefeasibility.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I TRANSFER TOPIC SUBTOPIC AUTHORITY ETC KEY NOTES: Type of dealing where the registered proprietor transfers the title and the ownership Transfer (or interest, e.g. lease, tenancy, charge) of the land to another party by way of executing Form 14 and presenting it for registration at the land office. The following shall be capable of transfer under this Act: (a) The whole, but not a part only, of any alienated land What can be (b) The whole, but not a part only, of any undivided share in alienated land Section 214(1) transferred? (c) Any lease of alienated land (d) Any charge Introduction (e) Any tenancy exempt from registration Instrument of The transfer under this Act of any alienated land shall be effected by an instrument Section 215(1) transfer in Form 14A. The title of the transferor shall pass to and vest in the transferee upon the Section 215(2) registration of any such transfer, together with benefit of any registered interests Effect of then enjoyed with the land. transfer Execution of Form 14A does not vest any title until the instrument is properly Section 304(1) registered at the land office, at the time and date thereof. The transferee of any alienated land shall hold the same subject to– (a) Any lease, charge or other registered interest subsisting in respect thereof at the How will time the transfer is registered transferee hold Section 215(3) (b) Subject to s 213(3), any tenancy exempt from registration granted by the the registered transferor or any predecessor in title title? (c) All conditions and restrictions in interest then applicable thereto (d) All other matters appearing on or referred to in the register document of title Statutory The following shall be capable of transfer under this Act: Section 214(1) Transfer of prohibition (a) The whole, but not a part only, of any alienated land part of land Case of Punca Section 214 of the NLC prohibits totally the transfer of a part of any alienated land Relevant case Klasik Sdn Bhd or a part of an individed share in that land.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I Land proprietor should apply for subdivision and separate title before applying for the transfer. Rationale: Case of Punca ▪ There can only be one title to one piece of land. Transfer of Klasik Sdn Bhd ▪ If registered proprietor wishes to transfer a part of that land, he must apply for Alternatives subdivision first and get a separate title to be transferred to the transferee. part of land ▪ Proprietor wished to make a gift of a one-half interest in land to his wife. Peter Lai Kee Chin & ▪ As it was not possible to transfer a part only of the land, he executed a transfer of Anor v Collector of the whole land to himself and his wife in equal undivided shares. Stamp Duties ➔ Procedure was accepted by the registrar – one title, two names. ➔ Can be resorted to if the proprietor wishes to retain a portion of land to himself. ▪ Pff entered into a sale and purchase agreement with Bakar, whereby Bakar agreed to sell the land to pff. Who may Owner of the Md Kamis b Yakob v ▪ Under the sale and purchase agreement, Bakar was not the landowner but is a transfer? land Ismail b Abdullah person who has a right to part of the land belonging to deceased – legal heir. ➔ Person who has no ownership of the land has no right to transfer the land in SPA ➔ Relies on legal maxim: ‘nemo dat quod non habet’ No subdivision shall be approved by State Director or, as the case may be, Land Administrator unless the following conditions are satisfied: - That the area of any subdivisional portion – Restriction (i) In the case of land subject to the category “agriculture”, or to any condition on transfer of Condition for requiring its use for an agriculture purpose, will not be less than two-fifths small Section 136(1)(f) subdivision of a hectare; and agriculture (ii) In any other case, will not be less than the minimum area appropriate for lots land of the class or description in question, as determined for the purposes of this subparagraph by the planning authority for the area in which the land is situated or (if there is no such authority) by the State Authority  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I (1) The transfer under this Act of any lease shall be effected by an instrument in Transfer of Form 14A. leases and Section 218 of NLC (2) The transfer under this Act of any charge shall be effected by an instrument in charges Form 14B. Transfers of other than (1) Tenancies exempt from registration may, as provided by s 213(2), be transferred land under this Act by word of mouth or by a written instrument in any form. Transfer of (2) Ss 219(2) and (3) shall apply, mutatis mutandis, to the transfer of tenancies Section 220 tenancies exempt from registration as they apply to the transfer of leases. (3) Nothing in this section shall authorise the transfer of a tenancy exempt from registration contrary to the terms or conditions of the tenancy. Gratuitous (a) On terms of ‘love and affection’ (parent and child) Transfer transfers (b) Gift (husband and wife) without monetary Transfer by (a) Death consideration operation of (b) Bankruptcy law (c) Order for sale or foreclosure by bank  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I LEASE AND TENANCIES TOPIC SUBTOPIC AUTHORITY ETC KEY NOTES: A contract by which one party conveys land, property, services, etc. to another for a Lease specified time, usually in return for a periodic payment. Lessor One who grants a lease. Terminology One who receives possession of the property under a lease and pays rent as Lessee consideration. Reversion expectant One who has the right to the remaining period under the lease. 1. Given right to exclusive possession of premises 2. Parties must have intended to create a lease, not a license 3. Lease must be for a definite duration ▪ App, a tenant, rented the ground floor of a shophouse in 1958 for $150; rent was increased to $200 in 1964. ▪ Parties signed an agreement that the ‘tenancy shall be for so long as the resp Introduction wished to occupy’ at a rental of $200 with no increase in rent. to lease Characteristics ▪ In 1966, landlord served a 1-month notice to quit unless he accepts new tenancy Yong Tong Hong v at an increased rental; landlord then transferred his land to his own children. Siew Soon Wah & Ors ▪ The children brought action to eject app who counterclaimed the agreement. ▪ Resp challenged the validity of agreement on the ground that there was no fixed duration, and it was not registered. ➔ No uncertainty as parties had agreed to some form of ‘permanent letting’ ➔ Court qualified the duration according to section 222(3)(b) whereby the maximum duration for a lease of part of a building is 30 years. ▪ App granted the resp a lease over a shophouse for 25 years at RM280/month. ▪ They signed an agreement, but app did not register the lease under Enactment. Unregistered Margaret Chua v Ho ▪ App wanted to sell shophouse and gave resp option to purchase within 3 days. lease Swee Kiew & Ors ▪ Resp brought action for specific performance of lease agreement → allowed. ➔ Although lease was not registered, agreement was valid and can be enforced in equity by a decree of specific performance.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I Difference between lease & license Lease License Creates an interest in land which, on Does not create an interest in land, but is dispossession, entitles the lessee to a personal obligation compensable on recover possession of the land. breach with damages. Introduction Granted a right to occupy and enter the Right to occupy premises, but grantor to lease premises. retains a right to enter premises at will. ▪ No proof shown by apps of exclusive possession of the short-term renters Innab Salil & Ors v Status of ▪ No evidence to suggest that the nature and quality of the occupancy of renters Verve Suites Mont condo units was ever intended to be a tenancy. Kiara ➔ Short-term rental of condo units do not constitute a landlord-tenant relationship. ▪ Resp alleged that app had given him a tenancy of the premises, not a license. ▪ Resp was allowed to enter and occupy ground flow of premises for rental of $230 per month, including light, water, and use of furniture. Mohd Mustafa v ▪ Issue: what was the nature of app’s interest in the premises? Kandasamy ➔ Resp was a mere licensee, not a tenant, as the dominant intention of the parties Deciding Intention of was to give a license to the resp to run the app’s business. factor the parties ➔ Exclusive possession is not the decisive test to determine creation of tenancy; look at the nature and quality of the occupancy. ➔ Looked at the intention of parties in the tenancy agreement: Yeop Mah Ee v Kuan there may be a stronger case that the sub-tenant was not a mere licensee but a Kun Chiew & Anor tenant of the premises. ➔ Refer to Street v Mountford: exclusive possession is no longer a decisive factor. (1) Subject to sections 225 and 226, proprietor of any alienated land may grant Power of Section 221 leases of the whole or any part thereof in accordance with this section. proprietors Grant of ➔ Subsection (4): Lease shall be granted by an instrument in Form 15A. lease & sub- (1) Subject to sections 225 and 226, any lessee or sublessee for the time being of lease Power of any alienated land may grant subleases for the whole or any part of land lessees and Section 222 comprised in his lease or sublease in accordance with this section. sublessees ➔ Subsection (4): Sublease shall be granted by an instrument in Form 15B.  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I (1) Tenancies (or subtenancies) not exceeding three years may be granted as such: (a) By the proprietor of any alienated land, in whole or any part thereof Power of (b) By any lessee or sublessee for the time being of any alienated land, in whole lessee to create Section 223 or any part comprised in his lease or sublease tenancy (c) By any person for the time being holding any alienated land under such a tenancy or subtenancy, in respect of the whole or any part of the land. (1) Powers conferred shall be exercisable subject to – (a) Any prohibition or limitation imposed by this Act or any other written law Grant of for the time being in force. lease & sub- (b) Any restriction in interest to which the land in question is being subject Section 225 lease (c) So far as they are conferred on lessees, sublesees and tenants, the provisions, Restrictions on express or implied, of the lease, sublease or tenancy in question. power to create (2) No lease or tenancy may be granted to 2 or more persons or bodies otherwise lease that trustees or representatives. (1) Proprietor, lessee or sublessee shall not be capable of granting any lease, sublease or tenancy without the consent of the chargee. Section 226 (2) Consent shall be signified by his joining therein in Form 15A or 15B, and his consent to the granting of any tenancy shall be given in writing, signed by him or his lawfully authorised agent. (1) Any agreements by lessee set out in Sixth Schedule may be incorporated in any Agreements lease granted under Chapter 1, referring to the paragraph of that Schedule. set in Sixth Section 229 (2) Said agreements may be incorporated in any sublease so granted. Schedule (3) Incorporation of any of the said agreements in any lease or sublease may be Express and expressed to be subject to such modifications as the parties think fit. implied provisions Agreements implied in all Section 230 Refer to provision in the NLC. leases and subleases  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I Lessees and sublessees: Implied in absence of Section 231 Refer to provision in the NLC. contrary intention Lessors and Express and sublessors: implied Implied in absence of Section 232 Refer to provision in the NLC. provisions contrary intention Construction Any agreement to keep any building or part of it in repair implied – of implied (a) Shall be construed in accordance with the definition in section 5 Section 233 agreements to (b) Shall not be taken to require the building or part in question to be put into a keep ‘in repair’ better state of repair than that at the commencement of lease or sublease. (a) Breaches any of the provisions thereof, express or implied Forfeiture Section 234(1) (b) Is adjudicated bankrupt (c) Being a company, goes into liquidation Any lease, sublease or tenancy exempt from registration may, with the agreement of Termination Surrender of Section 239 person or body entitled to the reversion expectant, be surrendered to the person or of lease lease body in accordance with this section. (1) If lease of sublease has been determined otherwise than by its surrender, Determination registration may be cancelled by Registrar under section 313. Section 240 otherwise (2) Where any tenancy exempt from registration has been so determined, any endorsement made on the register document of title may be cancelled. Grounds of Section 234(1) Refer above. forfeiture Forfeiture of Forfeiture of any lease, sublease or tenancy may be enforced by the person or body lease Methods of for the time being entitled to the reversion thereon either by: Section 234(2) forfeiture (a) Re-entry onto the land – subject to any written law in force (b) Action in the court – refer to s 7(2) of Specific Relief Act  ANIS SUFEA’S NOTES LAWS 3310 | Land Law I ▪ Lessor may not commence action for forfeiture of lease until lessor has served on the lessee a written notice specifying the breach or violation, and requiring Notice before Section 235 the lessee to remedy the breach. forfeiture ▪ If the breach is incapable of remedy, then the lessee must make reasonable compensation in money for the breach. ▪ Where the lease is subject to forfeiture, the lessor should no longer accept payment of rent from the lessee after the date of alleged breach of provisions. Section 234(3) ▪ If lessor still accepts rent, it will constitute waiver of right to forfeit. ➔ Acceptance of rent: shows intention to treat lease as subsisting. ▪ 1st def granted a lease of her land for 35 years to pff (lessee) for annual rental. Waiver of right ▪ Pff paid the total rental for the lease upfront and registered it at land office. to forfeit ▪ Pff appointed 1st def as its dealer at the service station built on land under a SSA. BP Malaysia v ▪ When pff defaulted in paying monthly licence fees to pff, pff terminated SSA. Zabedah bt Mohamad ▪ 1st def purported to terminate lease by forfeiting lease for breach of laws and & Ors applied for cancellation of lease at the land office; it was then cancelled. Forfeiture of ➔ Forfeiture was not valid as there was no evidence of breaches of law etc. lease ➔ 1st def had waived her right to forfeit the lease as she had received full payment of rent upfront and did not make payment to pff after the alleged breach. Landlord who has obtained an order of vacant possession against the tenant cannot Forfeit via Mas Anita v Lew enforce such order through re-entry into the property but through court order, court order namely, Order 45 Rule 3 of the Rules of Court. (a) Extinguish any charge (b) Extinguish any derivative sublease or tenancy Effect of Section 236 (c) Extinguish any charge of any derivative sublease, but without prejudice to the forfeiture revival of those interests in the event of the forfeiture being subsequently set aside by the Court on any grounds Any lessee, sublessee or tenant may apply to Court for relief against forfeiture. Section 237(1) Relief against ➔ Ground for relief: proceedin