DEALINGS AND REGISTRATION

LAND LAW II
LECTURE WEEK 1

1
Introduction

The NLC 1965 require certain matter to be

Registered :-

(d) dealings in alienated land

(e) Interest in alienated land

2
Dealings of Alienated Land

• Torrens system - a land administration

system based on registration
• Registration is a vital prerequisite of
indefeasibility
• Teh Bee v K Maruthamuthu [1977] 2 MLJ 7

3
What are dealings?

There are four (4) types of dealings of any

alienated land recognized by the Code:-
 Transfers;
 Leases and tenancies;
 Charges and liens ; and
 Easements.

However not all the above dealings require

to be registered.

4
Definition of “dealings”

s 5, s 205(1) and s 292(1) NLC

5
Dealings that require registration are:-

 Transfers;
 Leases
 Charges and easements

6
Dealings that do not require
registrations are:

 Tenancies; and
 Liens.

7
What is “interest in alienated land”?

Includes:-
 a lease and sublease of alienated land;

 A charge of alienated land; and

 An easement.

The above interests are required to be registered by the NLC to

become effective. Once registered, the party or person who
accepts the lease, sublease, charge or easement will have a
registered interest over the alienated land.

8
Forms for registrable dealing

o s 207: instrument (Forms) - First Schedule

o Forms 14A-14B, 15A-15C, 16A-16C, 16F,
16I, 17A-17C
o Types of registrable instruments: s 292(1)

9
What constitutes Registration – s
304
• s 304: definition of registration
• Section 304(2):
• The Registrar shall register any instrument
by making a memorial on the register
document of title under his hand and seal.
• Formalities and procedures - sections 207
to 212: s 206(1)

10
Mohamad bin Buyong v Pemungut Hasil
Tanah Gombak

“the making of a prescribed memorial of

the dealing in the register document of title
under the hand and seal of the registering
authority”
• In that case, an entry of a transfer on the
RDT was not signed.
• It constituted a “bare entry”.
• Since it was not signed by the Collector,
there was no registration effected.
11
Making a memorial on the RDT.

 a short description of the nature and effect

of the instrument,
 a statement of its number in the
Presentation Book,
 the reference under which it is to be filed,
 the time and date of registration.

12
Section 304 (4):

“Every memorial of registration made…shall

be conclusive evidence of the registration to
which it refers and the effective time and date
thereof.”

13
Execution of instrument

• Execution of an instrument of registrable

dealing: s 210(1)
• How to execute: s 210(2), (3) & proviso

14
Attestation of an instrument of
registrable dealing: s 211
• Natural person: Fifth Schedule.
• Attestation by LA only [paragraph 3 of Fifth
Schedule]

15
Presentation of instrument and
endorsement on the presentation book

• Division IV Alienated Lands: Dealings, Part

Eighteen – Registration of Dealings,
Chapter 1 Presentation of Instruments for
Registration
• ss 292-296, 437 and Form 34A

16
Determination of qualification of
registrable instrument
ss 297-303 NLC

17
Registration

• Instrument is treated according to the

sequence of presentation: s 300
• Manner of registration: Division IV, Part
Eighteen, Chapter 4 – s 304
• Mohamad bin Buyong v Pemungut Hasil
Tanah, Gombak [1982] 2 MLJ 53
• Duties of Registrar after registration: ss
305-308

18
Duties of Registrar when
Effecting Registration
• Section 300(1):
“The Registrar shall not register an instrument
until every instrument presented prior thereto, and
affecting the same land or interest, has been
registered, rejected or withdrawn”.
• In other words, the Registrar shall not enter a
second registration until he has settled the earlier
one.
• Every instrument of dealing must be registered in
the order of time in which it is presented for
registration. 19
Is this provision mandatory of
merely directory?
Mohammad bin Buyong
There were several transactions that were
sought to be effected over the same land.
Issue: Whether LA can register the transfer
while entry of an earlier transaction remained
on the land?

20
Duties of Registrar when
Effecting Registration
Hashim Yeop Sani J:
“on the facts of this case, the words
“shall not register” appearing in section
300(1)(a) of the Code are merely
directory and not mandatory and it is also my
view that the apparent failure on the part of
the registrar to comply with this section does
not invalidate the registration…”

21
Duties of Registrar when
Effecting Registration
• However, in Teo’s book mandatory
• Section 300(1) expressly lays down the
principle that every instrument of dealing
must be registered in the order of time in
which it is presented for registration.
• The view of Hashim Yeop Sani J in
Mohammad Buyong should be confined to
the facts of the case.

22
Duties of Registrar when
Effecting Registration
• Fitness of an instrument of dealing: s 301
• Limitation on Registrar’s powers: s 303
• Rejection or suspension: ss 298 & 299

23
Duties of Registrar when
Effecting Registration
• Matters for consideration:
• S 297: registrar to determine whether fit for
registration.
• If fit for registration, Registrar may register it.
• If not fit for registration, proceed to S 298 or
299: suspend registration in order to rectify
the error, or reject the instrument my marking
it with the word “Rejected” and return it with a
note of the reasons for rejection.
24
• When is an instrument fit for registration?
• When it fulfills the conditions under Section
301.
(eg attestation, not contrary to law, not contrary
to any restriction in interest, stamped etc)
• Nature of the Registrar’s dutyadministrative.
S 302, S 303.

25
Registrar’s Power to Correct Errors in
Entries Made on Register – s 380

• Section 380 circumstances where the Registrar

may make corrections on the document of title or
instrument.
• Registrar is required to maintain the “Correction
Notebook” where he shall record details of all
corrections made.
• Registrar must endorse on the instrument the reason
thereof and the date it was effected.
• Corrections cannot be made by erasing any
words or figures.
26
Registrar’s Power to Correct Errors in
Entries Made on Register – s 380

• s 380(1)(2), s 382
• Island & Peninsular Development Bhd. &
Anor v. Legal Adviser Kedah & Ors [1973]
2 MLJ 71
“The error or omission referred to in Section
380(1)(a) is confined to those made by the
Registry of Land Titles and not to those made
by the parties in the instrument of transfer.”

27
Transfer

 Who are the parties to transfer

• s 205(2) cross refer s 43 [subject to Part
Thirty-Three (A) – s 433B]
• All persons or bodies in sec. 43
• Transferor – party who transfer the land;
• Transferee- party who accepts the
transfer.

28
What may be transferred – sec. 214(1)

 The whole, but not a part only, of any

alienated land;
 The whole, but not a part only of any
undivided share, or any alienated land;
 Any lease;
 Any charge;
 Tenancy exempt from registration

29
Limitation in Transfer

a. sec. 214(2) – power to transfer are subject

to:-
 Any other written law;
 Restriction in interest;

Consent from lessee or chargee;

30
…continue

b. sec. 214(3) – prohibits transfer of lease or a

charge to 2 or more persons or bodies as
trustees or representatives.

31
Section 214A – control of transfer of
estate land

What is estate land ? – sec 214A(1)

 “agricultural land”
 Under one title or more
 Which area is more than 40 hectares
 Land constituting the area are
contiguous/joining (the 40 hectares must be
adjoining)

32
…continue

Estate land cannot be transferred or disposed

of to 2 or more persons unless consent/
approval is obtained from the Estate Land
Board.

Case: Kumpulan Sua betong.

33
Illustration – Transfer of alienated land

Ali is a registered proprietor of a piece of land

has agreed to transfer his land to Siti. Ali would
like to know his duty and obligation to make the
transfer effective.

34
General rule on transfer

a. sec. 206(1)(a) – every dealing shall be effected in a

proper instrument (forms)
b. Sec. 215(1) – the relevant instrument for transfer of
any alienated land is Form 14A
c. Sec. 206(1)(b) – no instrument shall be effective to
operate as a transfer of a title until it is registered.
d. Sec. 215(2) – upon registration, the title of trnsferor
(Ali) in the land shall pass and vest in the
transferee (Siti)

35
…continue

e. sec. 304(1) – registration of any instrument

shall be effected by the Registrar.
f. sec. 304(2) – the Registrar shall register
the transfer by making a memorial on the
RDT, signs and seals on the instrument.
Case: Jasbir Kaur

36
..continue

g. sec. 215(3) – upon registration, the transferee (Siti)

shall take over.
 Lease, charge or other registered interest existing at
the time of registration of transfer, if any;
 Tenancy exempt from registration, if any and
endorsed;
 Whatever matters appear in the register document of
title.

37
LEASE

A person who lease the land is called a lessor

while the person who accepts the lease is
called the lessee.

Lease is one of the dealings which is capable

of being registered.

38
..continue

By virtue of sec. 5 - “lease” simply means “

a registered lease or sublease of an
alienated land”

Thus, lease must be registered to be effective.

39
…continue

 Once registered. A lease creates a legal

interest in the land

- enforceable against third party

- enjoys protection within the terms of
legislation

40
Lease under common law

 Need not be registered

 Legal interest created upon signing of
agreement

41
Elements of a lease under CL

a. Lessee has an exclusive possession

 lessee can exclude all person including
the lessor.
 lessor will not deprive lessee of
enjoyment of the land

42
Erington v. Erington & Woods

Principles to establish:-
ii. Not only that exclusive possession had been
granted;
iii. But also the intention to create the relationship of
landlord and tenant;
iv. And thereby to create an interest in the land.
Case Mohamed Mustaffa v. Kandasami
if there is no possession the transaction cannot be
a lease

43
… continue - element

b. Lease is of a definite period

c. Inconsideration of payment of rent.

44
Power to lease

Sec. 221(1) – proprietor of any alienated land

can grant a lease
 Wholly; or
 partly

45
Term of lease

Sec. 221(2) every lease must be for a term

exceeding 3 years.
Maximum term to grant lease – sec 221(3)
d. lease of the whole piece of land – 99 years.
e. Lease of part the land – 30 years.

46
Lease and its limitation.

a. Sec 225(1) may be subject to

 any other written law;
 restriction in interest.
d. Sec 225(2)- lease cannot be granted to 2 or
more persons or bodies as trustees or
representative.
e. Sec 226 – consent from lessee or chargee
be obtained before leased can be created.

47
Instrument of lease – sec 221(4)

 Every lease shall be in Form 15A

48
Effect of registration – sec 227(1)

 a lease will have legal effect upon

registration
 Interest of lesse shall vest in him upon such
registration

49
What if lease not registered?

 General – sec 206(2) – no instrument of

dealing shall operate to effect any interest
unless it registered
 Sec 206(3) – however the requirement in sec
206(1) shall not affect any contractual
operation of any transaction of alienated
land.

50
…continue

 Even though the instrument is not registered,

the contract to lease entered between the
lessor and lesser is still valid.
 Thus, unregistered lease is void as a lease
but the contract is valid as an agreement for
a lease.
 The contract is enforceble under the law of
contract
51
… continue

 Margaret Chua v. Ho Swee Kiew

 Ong Heng Hwa Realty Sdn Bhd

52
Tenancy Exempt From
Registration(TXR)

 Sec 213(1)

53
Types of Tenancy

a. Periodic Tenancy
b. Tenancy will
c. Tenancy at sufferance
d. Tenancy by estoppel
e. Tenancy coupled with Equity

54
Endorsement

 Sec 213 (3)

55
What if the tenant fails to endorse his
tenancy against the title?

 Than Kok Leong v. Low Kim Hai

 Hotel Ambassador

56
How endorsement made?

 Sec 316 – application for endorsement

57
Sec 317 - procedure

58
Cancellation of endorsement – sec 318

The Registrar may cancel any endorsement

 By court order;
 Upon expiry of the tenancy;

The Registrar shall endorsement against the

cancelled endorsement note of the date of
cancellation and the reason thereof.

59
THANK YOU

60