BIE2001: Law of Land Development

TUTORIAL
WEEK 1: INTRODUCTION TO LAND ADMINISTRATION
SYSTEM IN MALAYSIA
Lecturer: Dr. Hasniyati Hamzah

Land Administration in Malaysia

1. How does the Federal Constitution influence the land administration in Malaysia?
 Article 74 - FC Article that specifies the division of powers between Federal
and State Government via Schedule 9 federal list ,state list, concurrent list

 Article 76(4) of Federal Constitution : Federal Government has the authority to

enact any land related laws for the purpose of uniformity.This allows the
Federal Government to enact/pass the National Land Code 1965 to govern
land administration for Peninsula Malaysia.

a. What is the land law in Malaysia?

 National Land code
 Sabah : Sabah Land Ordinance (Cap 68)
 Sarawak : Sarawak Land Code (Cap 81)

b. Who has more power over land in Malaysia: State authority or Federal
Government?
Based on the NLC, Federal government has the authority to enact any land-related
laws for the purpose of uniformity. While State Authority has the power on the
property in all State land, minerals and rock material within the territories of a state.
For example, where the Federal government needs land in a State for matters of
national interest, the State government must use its power to make sure that the
Federal government gets the land. Therefore, state authority has more powers over
land.

Torrens System and Indefeasibility of title

1. What is the origin of the Torrens System?

The origin of the Torrens System was introduced in South Australia in 1857-
1858, which later spread to other parts of Australia and the world. The Torrens
System operates on the principle of “title by registration” rather than “registration
of title.” A buyer can only receive a title if it is first registered, rather than buying
a piece of land and then register it later. Government is the keeper of all land
and title records. Register (Land title) serves as a certificate, an indefeasible
evidence to the ownership and all other interests on the land.In the registry,
each piece of land is identified by a unique number and title. Each title has a
description of the exact dimensions of the land and its boundaries. A title shows
the names of the registered owners and any legal interests that have been

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 applied against the title and which consequently affect ownership. Also, the
registry is open to and may be fully searched by the general public.

Explain the two main principles of the Torrens System.

a. The mirror principle.
b. The curtain principle.

Mirror principle Curtain principle

Under this principle, the land registration
is a reflection of the material facts of
the proprietor’s title in the land. This is because it
denotes the necessary and accurate information
Under this
related to the land by having good title. Since the
good title is a reflection of the land, it also reflects
on both the Register Document of Title and Issue
principle, the
Document of Title. By virtue of this good title, they
will obtain all the relevant particulars of the land
as well as any encumbrances created over the
land registration
is a reflection
land. This means that very dealing (transfer,
charge, lease etc) of the land is shown on the
register and viewable by anyone

of the material
facts of the
proprietor’s title
in the land. This
is because it
denotes the
necessary and
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accurate
information
related to the
land by having
good title. Since
the good title is a
reflection of the
land, it also
reflects on both
the Register
Document of
Title and Issue
Document of
Title. By virtue
of this
good title, they
will obtain all the
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relevant
particulars of the
land as well as
any
encumbrances
created over the
land
Under this
principle, the
land registration
is a reflection
of the material
facts of the
proprietor’s title
in the land. This
is because it
denotes the
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necessary and
accurate
information
related to the
land by having
good title. Since
the good title is a
reflection of the
land, it also
reflects on both
the Register
Document of
Title and Issue
Document of
Title. By virtue
of this
good title, they
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will obtain all the
relevant
particulars of the
land as well as
any
encumbrances
created over the
land
Under this
principle, the
land registration
is a reflection
of the material
facts of the
proprietor’s title
in the land. This
is because it
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denotes the
necessary and
accurate
information
related to the
land by having
good title. Since
the good title is a
reflection of the
land, it also
reflects on both
the Register
Document of
Title and Issue
Document of
Title. By virtue
of this
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good title, they
will obtain all the
relevant
particulars of the
land as well as
any
encumbrances
created over the
land
Under this
principle, the
land registration
is a reflection
of the material
facts of the
proprietor’s title
in the land. This
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is because it
denotes the
necessary and
accurate
information
related to the
land by having
good title. Since
the good title is a
reflection of the
land, it also
reflects on both
the Register
Document of
Title and Issue
Document of
Title. By virtue
9

Mirror principle contains all pertinent facts of the
title of the registered owner of the land. Every
dealing (transfer, charge, lease etc) of the land is
shown on the register and viewable by anyone.
The register acts like a mirror
of this
good title, they
will obtain all the
relevant
particulars of the
land as well as
any
encumbrances
created over the
land
This principle simply means that one should not look
behind or beyond the register, as the certificate of
title contains all information about the title.
This means that ownership need not be proved by
long complicated documents that the owner has.
All the necessary information regarding ownership is
stated on the certificate of title. Simply put, in curtain
principle, the certificate of title serves as the main
proof of ownership. It is sufficient for the purchaser
to examine the certificate of title to obtain any
information needed.
Title contains all information
Transactions can fully rely on the facts in the title

2. There are two copies of document of titles, a copy is kept at the register at
the Land Office or Office of Lands and Mines and a copy is issued to the
registered proprietor.
a) Explain what is meant by ‘the registered proprietor’.

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 The ‘registered proprietor’ means the registered owner who has
registered the name on the title of the property..The registered
proprietor has the ownership on the property which he had registered.
If the registered proprietor registers the land title in freehold interest,
he has the highest right on the property in perpetuity. He has the right
to transfer, sell, lease, rent, occupy or do other activities on the
property as long as subject to the land law. If the registered proprietor
registers the land title in leasehold interest, the right on the property is
limited to a specific term, which the maximum years are 99 years.
Besides, the right of the registered proprietor to own the land is
subject to some obligation which is imposed by the State Authority.
For example, the registered proprietor should pay quit rent at 31st
May of every year and assessment rate twice a year. Otherwise, the
State Authority may forfeit the ownership of the proprietor on the
property.

b) Why should there be two copies of document of titles?

c) Give instances where the details in the two copies may be different.
d) How can you ascertain the latest details on the title?
e) What should you do if the details are different?

4. Indefeasibility of title
a. What is the meaning of “indefeasibility of title”?
Indefeasibility of title means that the registered title of property determines
who has the priority interest or ownership of such property. This means that
once an interest such as ownership is registered in the title deed, it is good
against the whole world. The State guarantees interest. The combination of
the Mirror and the Curtain Principle under Torrens System gives an
indefeasible title to the registered owner. This situation is confirmed by
s.340(1) NLC which contains the provision for indefeasibility of title.

b. Give the name of the case which supports ‘immediate indefeasibility of

title’.
Adorna Properties Sdn Bhd v. Boonsom Boonyanit [2001] 1 AMR 665
c. Give the name of the case which supports ‘deferred indefeasibility of
title’.
Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1
d. In your opinion, what can be the effect of the ‘indefeasibility of title’
principle.
Bona field. A purchaser in bona field for valuable consideration could obtain
good title to a property even though the instrument of transfer was a forged
instrument. The dispute was about the competing claims on the same piece of
land between two parties, namely the original registered owner of the land and
a chargee bank (who was a subsequent holder of interest in the land) – both
were affected by the fraud of a third party. In any case, even if the respondent
had succeeded in establishing forgery, if the appellant was a bona
fide purchaser for value and thus came within the proviso to section 340(3),

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 with the result that they could obtain good title to a property even though the
instrument of transfer was a forged instrument

Sources of land law

3. The National Land Code is only applicable for Peninsular Malaysia, whilst Sabah and
Sarawak have their own land laws. What are the names of the land laws for Sabah and
Sarawak?
Sabah : Sabah Land Ordinance (Cap 68)
Sarawak : Sarawak Land Code (Cap 81)

4. Why are there separate land laws for Peninsular Malaysia, Sabah and
Sarawak?

The culture and religious faiths of Sabah and Sarawak are different from
Peninsular Malaysia. The States of Sabah and Sarawak combined are bigger
than Peninsular Malaysia. Sabah and Sarawak are rich in natural resources like
forests, rivers and petroleum. Sabah and Sarawak wanted to maintain greater
independence and control over the matters and resources in their States and
their way of life when they joined Malaysia. This is why there separate land laws
for Peninsular Malaysia, Sabah and Sarawak.

5. Discuss the implications of the Kiah v Som case.

Discussion point: Where is National Land Code relevant in this table?

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 Source: (Fisher, 2011)

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PAST YEARS QUESTIONS

QUESTION 1

1) Give the facts and judgment of Boonsom Boonyanit v Adorna Properties Sdn Bhd
[1997] 2MLJ 62 beginning from the hearing at the High Court until Federal Court.
(10 marks)
Facts :
In the Adorna Properties case, the issue was over the sale of two lots of land in Tanjung
Bungah, Penang, belonging to Boonsom Boonyanit, a Thai national. An imposter claiming to
be Sun Yok Eng @ Boonsom Boonyanit had affirmed a statutory declaration on June 18,
1988 that she had lost the original title to the land. The imposter then managed to obtain a
certified copy of the title from the Land Office. On April 6, 1989, the imposter affirmed a
second statutory declaration declaring that the names Mrs Boonsom Boonyanit and Sun Yok
Eng @ Boonsom Boonyanit on the title to the land were one and the same person, that is,
Mrs Boonsom Boonyanit (imposter) with a different Thai passport number. With the
declaration, the imposter managed to perfect the registration of the memorandum of transfer
in favour of Adorna Properties Sdn.Bhd. Boonyanit then sued for the return of the land.

Judgement :
High Court
According to Section 340 (3), Adorna Properties Sdn.Bhd was a bona fide purchaser for
value, with the result that they obtained indefeasibility of title to the lands notwithstanding the
forgery. High Court ruled in favour of Adorna.

The Court of Appeal

Boonsom Boonyanit was appealed in Court of Appeal.The Court of Appeal ruled in favour of
Boonyanit. According to Section 340(2) and Section 340(3), both of them are two separate
provisions. Therefore, provision in section 340(3) cannot be used for the situation of fraud
which should be covered in Section 340(2). Besides that, the balance of probabilities in
which the confirmation of the fraud exists shows the standard of proof, thus Boonsom win.

Federal Court
Adorna then appealed in Federal Court. Federal court comprising then Chief Justice Tun
Eusoff Chin, Chief Judge of Malaya Tan Sri Wan Adnan Ismail and Justice Abu Mansor Ali,
held that Adorna had obtained an indefeasible title notwithstanding the forgery because it
was a bona fide purchaser. The judgement is heavily criticised because the court just apply
Section 340(3) in this case, in actual they must be interrogated more towards the forgery
issue of this case. Therefore, Boonsom Bunyanit lost her property; Adorna sold the land over
to Diamaward (M) Sdn.Bhd which is a subsidiary of Hunza Properties Berhad for
RM13,220,000 on 7th December 2004. Lastly, the land has been developed into Infinity
Beachfront Condominium.

Hint:
Give brief facts only. You must explain the judgments of the High Court (favouring
Adorna Properties), CoA (favouring Boonsom) and Federal Court (favouring Adorna
Properties).

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2) Discuss the implication of the above mentioned case in the context of section 340 of
the National Land Code 1965.
(15 marks)
****
Boonsom’s son Kobchai Sosothikul made an application on July 16, 2002, to the Federal
Court for negligence and breach of statutory duty. However, the application was
dismissed because it was time barred in which legal suit was brought 36 months later
than what was allowed under the Law. Federal Court held that Bench in the Adorna case
had interpreted wrongly a proviso in the Section 340 of the National Land Code (NLC)
1965, and applied it to Section 340(2) of the NLC, which led to the erroneous
conclusion.
Section 340(2)(b) of the NLC reads that the title or interest of any person shall not be
indefeasible (not liable to being annulled or undone), in any case of fraud or
misrepresentation; or where the registration was obtained by forgery; or where a title or
interest was unlawfully acquired by the person in the purported exercise of any power
conferrred by any written law. On the other words, if it can be shown that the title was
obtained by forgery or misrepresentation, then his claim can be defeated. Therefore,
Federal Court gave recognition to the concept of immediate indefeasibility under NLC.
However, Adorna Properties Sdn.Bhd v Boonsom Bunyanit include Torrens System. As
far as Torrens System is concerned, ‘register is everything’. There are two principle in
Torrens System such as Mirror Principle in which the information inside the Issue
Document of Title (IDT) are same as Register Document of Title (RDT) which keep
inside the Registry Office or Land Office. As for the Curtain Principle, it stated that it is
unnecessary to access what beyond the title document or any person do
not need to know what beyond in this title document when they intended to proceed with
the land administration. This principle also applied in this case, in which the name of
Adorna Properties Sdn.Bhd registered in the title document although the registration was
obtained by forgery. Therefore, any person do not need to know what beyond in this title
document when they intended to proceed with any types of dealings towards that lot of
land.

Hint:
Make a link between s340 (indefeasibility of title concept, exception to the concept,
exception to the exception) with Boonsom Boonyanit, i.e. indefeasibility of title is not
guaranteed as supported by s.340(3). Immediate vs. deferred indefeasibility.

QUESTION 2

Land law in Malaysia is generally based on the Torrens System introduced by the British.
This law is implemented via the National Land Code 1965 and is enforced all throughout the
country except for Sabah and Sarawak.

1. Explain the two main principles of the Torrens System.

(4 marks)

b) Briefly discuss the advantages and disadvantages of the Torrens System.

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 (6 marks)

c) In Teh Bee lwn K. Maruthamuthu [1977] MLJ 7, Hakim Ali Ag. C.J stated that “Under
the Torrens system, the register is everything.” Discuss the above mentioned statement in
the context of ‘indefeasibility of title’ guaranteed by the National Land Code 1965.

(15 marks)

Hint:

(a) and (b) are fairly straightforward. For (c), all parts of Sec.340 need to be discussed
and liked to the statement.

http://estmanagement.blogspot.com/2008/10/soalan-tutorial-law.html
https://www.studocu.com/my/document/universiti-kebangsaan-malaysia/land-law-
i/land-law-notes-torrens-system-qas/5749447

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