Property & Dealings

Registration of Title
Transfer
 Possession
• More than physical occupancy; may be in
possession w/o being in occupation = behavioural
fact indicates mindset
• Prove = factual P + possessory intent = co-exist.
CONTINUOUS
• Control = complete & exclusive = P
• Only 1 person limited to have possession =
• P ≠ ownership BUT control on access & decide
how land will be used shows u hv possession
even without actual ownership

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 Possession – unregistered interest
• No absolute ownership
• Only registered proprietor w an absolute title which is
indeafeasible

• Demonstrate that he has a better right

• It is assumed that the person in physical possession is
rightfully there.
• Such a person can bring an action against anyone who
interferes with his enjoyment of the land, except
someone who can show a better right to possess it
Possession – unregistered interest
• If A sues B for trespass
• As the person in possession, A has a better
right to the land than B.
• Possession raises the presumption that the
possessor of the land has a fee simple in that
land, unless and until some other person
establishes a better right to it.
 Possession – unregistered interest
• In time, the possession, originally wrongful, may
be sufficiently prolonged to prevent anyone else
from successfully challenging the possessor’s
right to the land.

• Equity?
• Equitable tenancy
• Equitable lease
• Doctrine of irrevocable licence
 DIVISION – NLC Contents
• Div 1 – introduction
• Div 2 – Disposal of Land
• Div 3 – Alienated Land – incidents & registration
• Div 4 – Dealings
• Div 5 – Alienated Land – Supplemental
• Indefeasibility
• Div 6 – general
• Powers & duties of registrar, etc. jurisdiction of
the court
What is land Dealings on Land s.5 Use of Property & Interpretation of
fixtures application of various provisions &
Types of Land legislation Application of equity
Usage of Land Who can deal with land Transfer Competing equities
Residential s.343 Validity of Contract Unregistered interests
Commercial, industrial, s.433B Stakeholder Possession
agriculture Duty of solicitor
Conditions & Valid & Effective Tenancy
Restrictions on land Dealing Lease
Registration
s.206
s.207-s.212
Indefeasibility s.340
Challenge & remedies
Alienation Instrument Security Transaction
TOL Eligibility to register Charge
State Reserve Instruments Lien
Permit Ss297-303 Mortgage (CL)
Procedure Equitable Charge &
Lien
Remedies
Easement Land Registry Restraint on Dealing
Right of Way Land Office Registrar’s Caveat
Duties – NLC -remedies Private Caveat, LHC etc
 Legislation- Property Law
[property built on land or over air space]
• Housing Development (Control and Licensing) Act
1966
• Housing Development (Control and Licensing)
Regulations 1989
• Housing Development (Tribunal for Homebuyers
Claims) Regulations 2002
• Housing Development (Housing Development)
Regulations 1991
• Housing Development (Compounding of
Offences) 2002
 Legislation- Property Law
[property or roads and highways, built on
land or over air space]
• Land Acquisition Act 1960
• Building and Common Property (Maintenance and
Management) Act 2007
• Strata Titles Act 1985
• Contracts Act 1950
• Valuers, Appraisers and Estate Agents Act 1981
• National Land Code 1965
• Street, Drainage and Building Act 1974
• Uniform Building By-Laws 1984
• Local Government Act 1976
• Town and Country Planning Act 1976
 Legislation- Property Law
[property or roads and highways, built on land
or over air space]
• Federal Territory of Kuala Lumpur Land Rules
1995 (housing development undertaken in Kuala
Lumpur)
• Federal Territory of Putrajaya Land Rules 2002
(for housing development undertaken in
Putrajaya)
• Fire Services Act 1988
• Water Services Industry Act 2006
• Environmental Quality Act 1974
• Electricity Supply Act 1990
 Dealings s.5
• Any transaction “on” alienated land under
powers conferred by Div IV
• Like transaction under previous land law
• Caveat or prohibitory order are not dealings

• Transfer Pt 14 - registration Pt 18
• Lease & tenancy Pt 15 - restraint Pt 19
• Charge & lien Pt 16
• Easement Pt 17
 Non-registrable dealings- tenancy &
lien
• Tenancy not exceeding 3 years
• A tenancy may be granted orally or by way of
written instrument in any form whatsoever.
• ‘tenancy exempt from registration’. S.213
• Lien is created upon the entry of a lien-
holder’s caveat by a person or a body with
whom the IDT, or the duplicate lease has been
deposited as security for a loan. S.281(1)
 Registration – general provisions
• Under the Torrens systems, title or interest in land
vests and divests (s.89) only upon registration.(p.182-
185)
• R is an act of the State & constitutes the final stage of
any dealings in land.
• No title or interest in the land will be transferred or
created until the instruments effecting these dealings
have been registered.s.206(1)
• S.119 Sarawak Land Code (Cap 81)
• Sabah Land Ordinance (Cap 68) – no express provision
– s.88 merely provides that no dealing is valid unless it
is registered.
s.205(2)
s.43 - PERSONS
Natural persons other than
minors
Corporations having the power
under their constitution to hold
land
Sovereigns, governments,
organisations & other persons
authorised to hold land under
the Diplomatic and Consular
Privileges Ordinance 1957
Bodies expressly empowered to
hold land under any written law
Restrictions on FCs
PART 33A – 1992 – s.433B Approval of SA not required for
Restrictions on the acquisition (i) land in industrial category
of land by non-citizens & foreign and (ii) the creation of charges,
companies liens and leases over any land.
Prior approval of SA where land FC – include companies with
is disposed of or dealt with in 50% or more of its voting shares
favour of non-citizens or foreign being held by non-citizens or
companies FCs.
– bid at a sale for agricultural
land or building land subject to
a charge or lien. Contravention
of s.433B would render the
dealing null and void. S.433C
Other ways land may be
conveyed or disposed in favour
of foreigners but after prior
approval of SA and upon
payment of levy.
Restrictions on dealings

Agricultural land – effect of Prohibit co-proprietorship of Restricts the power of the SA

creating an undivided share – if agricultural land of less than to dispose of agricutural land
partitioned, the resulting area 2/5of a hectare. w is less than 2/5 hectare to 2
would be less than 2/5 of a or more persons. S42(2)
hectare. S.205(3)
Does not apply to cases, prior
to coming into force of the
subsection, the land or other
interest held already less than
2/5, or an undivided share held
by any person or body
represents a portion less that
2/5s of a hectare.
Procedures & formalities
Ss297-303
Forms must be duly executed,
attested and stamped
Presented together with fees
payable & necessary
documents
Time of presentation noted . -
Instruments affecting the
same land are registered - The R is not obliged to enquire into the validity of any
according to the order in
which they were presented for
registration. - Where the dealing is effected by a person registered as a
The registering authority must
ascertain the instruments are
fit for registration according
to the requirements. S.301,
s.309. s.311(a) – instrument
executed under a POA.
S.298(2)
RA empowered to make
enquiries & require the
Registration R under no obligation to
make any enquiries or
Making of a memorial of the seek further information
dealing on the RDT under the even if he suspects that
hand and seal of the Registrar the transaction may be in
or Land Administrator. S.304 breach of trust.
R need not be concerned to enquire whether any transfer of a
lease, sublease or a grant constitutes a breach of any
agreement against assignment or subletting.
The R is not obliged to enquire whether the chargee is
rightfully in possession.
certificate of sale issued in pursuant to a sale upon default
of a charge.
trustee or representative, the R is not concerned to enquire
wr the dealing is consistent or permitted by the trust
instrument.
- However it has come to his knowledge that the transaction
is in breach of trust and to prevent fraud or improper
dealing – R may enter a REGISTRAR’S CAVEAT s.320
- prohibit the registration of any instrument of dealing.
Where the instrument is executed under a POA – the R shallnot
require proof of the execution of the POA
 Read pages 165-185.
• Teo Keang Sood and Khaw Lake Tee, (2012)
(3rd ed), Land Law in Malaysia : Cases and
Commentary. Petaling Jaya: Lexis Nexis.

• Muhammad bin Buyong v Pemungut Hasil Tanah Gombak &

Ors [1982] 2 MLJ 53
• Island & Peninsular Development Bhd & Anor v Legal Adviser,
Kedah & Ors [1973] 2 MLJ 71
 s.214 Transfer- refer to NLC
s.215
• Subsect (1) WHAT
• Whole alienated land NOT PART
• Whole of undivided share
• Lease
• Charge
• Tenancy exempt from registration

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 s.214 Transfer
subject to prohibition or limitation under NLC

• Categories of persons or bodies in whose

favour transfer may be effected
• S.205(3)(4)
1. Prohibition of joint ownership of agricultural
land where the resulting individual portion
upon partition is less than two-fifths of a
hectare
2. Prior approval of Estate Land Board

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 s.214 Transfer
subject to prohibition or limitation under
NLC
3. Restriction in interest that the land is subject:
4. Leased land/ charges/ tenancies exempt from
registration – subject to express OR
implied provisions s.214(2c)
5. Leases & charges can only be transferred to 2
OR MORE persons /bodies as trustees or
representatives held jointly by them.
 Effect transfer w Form 14A or 14B
• S.214
• Land, undivided share or lease – Form 14A

• Charge – Form 14B

 Effective & Valid ~ Registered =
s.206(1)
• NO instrument will operate to transfer the
title or interest to any alienated land until it
has been registered.

• BUT failure will not affect any contractual

operation of the transaction between the
parties.
 Remedies for breach
• Injured party who had performed his part of
the obligation
1. Sue for damages – breach of agreement
2. Seek aid of court – equitable relief
: specific performance of the agreement
: injunction against the guilty party
 Privity of Estate
s.215 & s.216
• What is attached to the land under the title
will also attach to you the rights & obligations
- Subject to any registered lease, charge or
easement existing
- Tenancy exempt from registration protected
by an endorsement s.316
 Read for next class
ask facts & principles
• Tan Chiw Too v Tee Kim Kuay
[1997] 2 MLJ 221 Federal Court

• Peter Lai Khee Chin & Anor v Collector of

Stamp Duties
[1973] 2 MLJ 33 High Court