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LAND LAW II - NURLAILA GHANI LEB140108

2015/2016

LAND LAW SEM 2


TOPIC 1: REGISTRATION OF DEALINGS
1.1 DEFINITION OF DEALINGS

S 5 NLC Dealing - any transaction with respect to alienated land effected under the
powers conferred 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
S 205 NLC Dealings capable of being effected, and persons capable of taking
thereunder, specified in Parts 14-17 (14 - Transfer, 15 - Leases and Tenancies, 16 Charges and Liens, 17 - Easements, and no others.
No title or interest in land will be created until the instruments affecting these dealings
have been registered.
Dealings not capable of registration:
1. Tenancies exempt from registration (TER)
2. Liens

1.2 PERSONS & BODY TO WHOM THE DEALINGS MAY BE EFFECTED

S 205(2) NLC
Those under S 43, State land is capable of being alienated
S 43 NLC
a) Natural persons other than minors
b) Corporations having power under their constitutions to hold land
c) Sovereigns, governments, organisations and other person authorised to hold land
under the provisions of the Diplomatic and Consular Privileges Ordinance, 1957
d) Bodies expressly empowered to hold land under any other written law

1.3 REQUIREMENTS

S 207 Form of instruments of dealing


S 208 Instruments to contain description, etc., of parties
S 209 Instruments to contain proper description of land affected
S 210 Execution of instruments of dealing
S 211 Attestation of instruments of dealing
S 212 - Inclusion in one instrument of dealings affecting different lands

S 293 Fees to accompany instruments so presented


S 294 Documents to accompany instruments so presented

S 206 Need for proper instrument of dealing duly registered


1) Subject to the following provisions of this section
a) Every dealing under this Act shall be affected by an instrument complying with
the requirements of S 207 212; and

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b) No instrument effecting any such dealing shall operate to transfer the title to any
alienated and or, as the case may be, to create transfer or otherwise affect any
interest therein, until it has been registered under Part 18
2) The provisions of sub-section (1) shall not apply to
a) The creation of, or other dealings affecting, tenancies exempt from registration
(which may be effected, instead, as mentioned in subsection (2) of S 213); or
b) The creation of liens (which may be created, instead, ad mentioned in S 281)
Instrument- fit for registration?
Before dealings can be accepted for registration, there are certain procedures and
formalities to be complied with. The relevant prescribed forms must be duly executed,
attested and stamped after which they are presented together with the relevant amount of
fees payable and necessary documents for registration.

S 301 When an instrument is fit for registration


S 309 Documents to accompany instruments executed under power of attorney
(POA)
S 303 Limitations on Registrars powers
S 311(b) Enquiries, etc. by Registrar shall not require proof of the due execution of
any POA where the document delivered to him pursuant to paragraph (a) of subsection (1) of S 309 was an office copy.

If instrument is unfit?

S 298(2) If unfit Registrar shall suspend registration for such period, not
exceeding 14 days, as he may consider necessary to rectify error or defect or, as the
case may be, the document(s) in question to be produced, and, at the expiry of the
period, shall register/reject the instrument as appropriate.

If instrument is fit for registration & the effective date of registration of instrument

S 304 - How instruments to be registered, and time from which registration effective

CASES:
BANK PEMBANGUNAN DAN INFRASTRUKTUR MALAYSIA BHD
(FORMERLY KNOWN AS BANK PEMBANGUNAN MALAYSIA BHD) V OMAR
BIN HJ AHMAD [2011] 1 MLJ 810 CA
Facts: APP (bank) entered into loan agmt with the borrower. Loan was to have been
secured, inter alia, by a 3rd party charge over certain Malay reserve land (the land)
owned by the DF. Charge was to be executed by the DF (as chargor) and attested by
an adv & sol instead of by the land administrator. Subsequent to the execution and
attestation, the bank disbursed the loan to the borrower. H/E bank had no knowledge
that DF had been adjudicated to a bankrupt. DF thereafter lodged a caveat on the land.
The 3rd party charge on the land could not be registered at the land office because the

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charge was attested by an adv & sol. Bank thus applied to HC for orders, inter alia,
declaring the existence of equitable charge over the land and directing the DF to
withdraw the caveat and to execute a valid registrable 3 rd party charge over the land
before the land administrator. HC h/e dismissed the banks application and bank thus
appealed to the COA. Issue for the COA was whether the 3rd party charge over Malay
reserve land attested by an adv & sol instead of by a land administrator, could create a
3rd party equitable charge over the same land for subsequent registration as a 3 rd party
legal charge, upon due and proper attestation by the land administrator.
Held: Appeal allowed.
1) Charge executed by the DF (chargor) and attested by adv & sol instead of by the
land administrator was clearly not in accordance w S 211 read w 5 th Schedule of
NLC. Thus - not registrable as a legal charge (important part of decision)
1.4 REGISTRATION

Instrument of dealing is presented to the Registrar


He notes the time of presentation (S 292)
He enters the particulars of the instrument in the Presentation Book.
See whether certain requirements are complied with under S 301.
Register the dealing in the manner stated under S 304-308.
S 304 How instruments to be registered, and time from which registration effective.
Registration under NLC is effected when a prescribed memorial of the dealing is
made on the register document of title under the hand and seal of the registering
authority.

CASES:
MOHAMMAD BIN BUYONG V PEMUNGUT HASIL TANAH, GOMBAK & ORS
[1982] 2 MLJ 53
An appeal under S 418 of NLC against decision of Collector of Land Revenue,
Gombak. Decision involved two transactions over the undivided shares of the second
resp in a land in the Mukim of Setapak.
Important parts: S 304(2) Registrar shall register any instrument by making a
memorial on the RDT under his hand and seal.
The making of a prescribed memorial of the dealing in the RDT under the hand and
seal of the registering authority. Therefore, if any such memorial is made without the
registering authority signing and sealing it or only under his hand and seal without the
offer, there would be no registration.
In this 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.
1.5 DUTIES OF REGISTRAR IN EFFECTING REGISTRATION

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S 300(1) 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 had settled
the earlier one.
Every instrument of dealing must be registered in the order of time in which it is
presented for registration.

MOHAMMAD BIN BUYONG V PEMUNGUT HASIL TANAH, GOMBAK & ORS


[1982] 2 MLJ 53
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?
Hashim Yeop Sani J: on the facts of this case, the words shall not register appearing un
S 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
However, in Teos book= mandatory.
S 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.
View of Hashim Yeop Sani J in Mohammad Buyong should be confined to the facts of the
case.
POW HING & ANOR V REGISTRAR OF TITLES, MALACCA [1981] 1 MLJ 155 FC
As long as an instrument of dealing is in order and fit for registration, it is the duty of the
Registrar to register it.
ISLAND & PENINSULAR DEVELOPMENT BHD & ANORV LEGAL ADVISER,
KEDAH & ORS
1.6 CORRECTIONS OF ERRORS IN ENTRIES ON REGISTER

S 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 w
as affected.
Corrections cannot be made by erasing words or figures.

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ISLAND & PENINSULAR DEVELOPMENT BHD & ANOR V LEGAL


ADVISERMKEDAH [1973] 2 MLJ 71
Application by way of originating summons for an order requesting the
Registrar of Land Titles, Kedah to rectify certain mistakes under S 380 of
NLC.
1st applicant IPDB submitted a proposed amalgamation and subdivision plan
of several lots and the plan was approved by the Land Office. The approval
was for the erection of a row of single storey terrace houses. Subsequent to the
approval of the plan, the 1st app prepared a site plan of the houses for sale to
the public but numbered them wrongly by giving the plot numbers 1 to 33
from right to left instead of left to right. Because of the error, the purchaser
buying one of the houses was given the grant to another lot. All these
purchasers have occupied the right houses but were given wrong grants which
have not been registered their names. In the circumstances they have not
acquired ownership of the correct houses by virtue of having been registered
in the wrong grant.
Neither the applicant nor the Registrar was aware of the mistakes at the time
the respective grants were issued. It is apparent that the mistakes lie w the app
who drew up smaller replicas of the approved subdivision plans annexing
them to the agmt of sale of prospective buyers in the wrong order numbering
the plots from right to left instead of the other way. The request by the app for
the correction of mistakes appearing in the documents of title under S 380 was
turned down by the Registrar on the grounds:
1) Registrar was not satisfied there was any mistake as the documents of title
were not registered in the wrong names
2) Since a purchaser has purchased and occupied the correct house, the resp
maintain he has been registered as proprietor of the right grant because
under the Code, the land includes all things attached to the earth whether
on or below the surface.
3) Because of indefeasibility of the title of a registered proprietor under S 340
of the Code any alteration to the instruments of transfer or other
documents is ultra vires to his power.
Questions:
1) Where the Registrar is satisfied
a) That any doc of title has been registered or issued in the wrong name,
or contains any misdescription of land or boundaries, or other error or
omission; or
b) That any memorial or other entry has been made in error or any doc of
title or other instrument relating to land; or
c) That any memorial or other entry made on any such doc of title or
instrument itself contains any error or omission,

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He may, subject to (2) and (3), make such correction on the doc or interest
in question as may be appropriate in the circumstances of the case.
Important part: Main disputed issue- any doc of title has been registered in
the wrong name in simple language it points to a mistake made by the
Land Registry. Can the subsection be construed to extend to mistake made by
the parties?

Error/omission referred to in S 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.

1.7 EFFECT OF REGISTRATION

Under Torrens system, act of registration vests title or interest. Once


registered, the title/interest cannot be divested except otherwise statutorily
provided. Registered title/interest is also free of all adverse claims or
encumbrances not otherwise noted on the register.
Effect of registration is to defeat all prior and subsequent unregistered claims.
S 340 Registration to confer indefeasible title or interest, except in certain
circumstances.

TAN YING HONG V TAN SIAN SIAN [2010] 2 MLJ 1 FC


Facts: APP/PF is the registered owner of a piece of land. The 1 st resp/DF
purporting to act under a POA executed 2 charges in favour of UMBC, the third
resp/DF herein, to secure loans of RM 200,00 and RM 100,000 respectively. APP
claimed that he did not sign the POA. He claimed it was forged. He only became
aware of it when he received notice of demand from 3rd resp.
Issue: Whether an acquirer of a registered charge or other interest or title under the
National Land Code 1965 by means of a forged instrument acquires an immediate
indefeasible interest or title.
Decision- Appeal was allowed. Held: It is trite law that this Court may depart
from its earlier decision if the former decision sought to be overruled is wrong,
uncertain, unjust or outmoded or obsolete in the modern condition. Reason: that
the FC in Adorna Properties had misconstrued s 340 (1), (2) and (3) of the NLC
and came to the erroneous conclusion that the proviso appearing in sub-s (3)
equally applies to sub-s (2). By so doing the FC gave recognition to the concept of
immediate indefeasibility under the NLC which we think is contrary to the
provision of s 340 of the NLC. D3 (UMBC) is an immediate holder of the 2
charges. Therefore D3 could not take advantage of the proviso to sub-s (3) of s
340. The fact that D3 acquired the interest in Q in good faith for value is not in
issue, because once it is satisfied that the charges arose from void instruments, it

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automatically follows that they are liable to be set aside at the instance of the RP.
(Arifin Zakaria CJM).
I totally agree with the learned CJMs view that the error committed by the FC
in Adorna Properties Sdn Bhd v Boonsom Boonyanit was to read the proviso to
sub-s (3) as being a proviso to sub-s (2) as well. The error is very obvious because
the proviso expressly refers to this sub-section which must in the context of that
sub-section be read as proviso to sub-section (3) only.
I am legally obligated to restate the law since the error committed in Adorna
Properties is so obvious and blatant. It is quite a well known fact that some
unscrupulous people have been taking advantage of this error by falsely
transferring titles to themselves. I hope with this decision, the Land Authorities
will be extra cautious when registering transfers.
1.8 EFFECT OF NON-REGISTRATION
S 206(3) - Nothing in sub-section (1) shall affect the contractual operation of any
transaction relating to alienated land or any interest therein.