INTRODUCTION TO TORRENS SYSTEM

(i) Introduction to Torrens system

• Torrens system was modeled from the system
based on the Merchant Shipping Act 1854
and Admiralty Rules to overcome the existing
problems posed by the Deed system.
• Principle: a system of land title where a
register of land holdings maintained by the
state guarantees indefeasibility title to those
included in the register.
• A system to place the land on the register.
• The register is everything and any dealing must be
registered in order to gain recognition.
• Sir Robert Torrens introduced this system of land
registration in the colony of South Australia as the
Real Property Act 1857.
• WE Maxwell left Australia in 1882 to study Torrens
system and returned to Malaya in the following
year. He introduced the Torrens system in Malaya
when he was appointed as the British Resident for
the State of Selangor.
• Teh Bee v Maruthamutu [1977] 2 MLJ 7
• “ Under the Torrens system the register is everything and
it would be wrong to allow an investigation as to the right
of the person to appear upon the register when he holds
the certificate of title”
• Gibbs v Messer (1891) AC 248
Lord Watson
“ The object (of the Torrens legislation) is to save persons
dealing with registered proprietor from the trouble and
expense of going behind the register, in order to investigate
the history of their author’s title and to satisfy themselves of
its validity…”
 (ii) Main Characteristics of Torrens
system
(a) Confers indefeasibility title upon registration
- Can be defeated where there is:
• Fraud, Forgery, Misrepresentation, Mistake, Void
instrument
(b) Any dealings must be registered with relevant land
registry in order to confer title/interest to the new
proprietor.
- The Torrens system is based on the land as the basis of
record and not based on an individual proprietor. It
advocates registration as the important step in acquiring
title.
• 1. Mirrorprinciple
• 2. Curtain principle
• 3.Insurance principle
 1. MIRROR PRINCIPLE
• The register (certificate of Title) reflects (Mirrors) accurately and completely the
current facts about a person’s title.
• Under the TS, the register reflects all the facts material to the registered owner’s
title in the land
• These material facts are:
(a) The name of the proprietor for the time being
(b) Particulars of the land, its area & location
(c) Survey plan & boundary limits
• The register reveal all the necessary particulars relating to the land that would
interest a potential purchaser or chargee.
• All the necessary information related to the land - Contain in register document
of title (RDT) and issue document of title (IDT).
 2. CURTAIN PRINCIPLE
• In any transaction between the registered owner
and any potential purchaser, the latter will be
concerned only with the register.
• The potential purchaser can safely rely on the
register and need not look behind it. It is
sufficient if the Purchaser examines the Register
Document of title (RDT) in order to obtain
particulars related to the land. In other words,
one does not need to go behind the RDT as it
contains all the information about the title.
 3. INSURANCE PRINCIPLE
• Provides for compensation of loss if there are
errors made by the Registrar of Titles.
• However, the system that has been
developed for the Malaysian land law has
only adopted the two principles ie, the
mirror and curtain principles.
• National Land Code 1965
• NLC was enacted to achieve uniformity of law and
administration of land matters especially in accordance with
the Torrens system.
• The Chick Mission (headed by Sir Louis Chick) carried out a
study about the weaknesses of law and administration in
land matters.
• A Commission of Experts was set up to closely study the
Chick Mission report and resulted in the drafting the NLC
1965.
• The Reid Constitutional Commission (1956-1957 report), in
order to meet the intention of the government to provide a
uniform set of land law in Malaysia.
 Basic features of National Land Code
1965
(a) Indefeasibility of title upon registration – section 340 NLC, it
provides that indefeasible title is obtained upon registration.
(b) Adverse possession (Adverse possession was used as a means of
encouraging people to bring unused or uninhabited land into
productive use) against state (sec.48 NLC) and individual
proprietor (sec 341 NLC) is no longer possible.
(c) The rules of equity are recognized and applicable for the
protection of unregistered interest (sec 206(3) NLC).
(d) Possessory rights will not be granted irrespective of duration of
possession eg TOL (21 years conferred no possessory rights
whatsoever - Teh Bee v K. Maruthamuthu)
• Teh Bee v K . Maruthamuthu [1977] 2 MLJ 7
• Held: the TOL holder under TOL obtains no
legal or equitable rights over the land he
occupies by virtue of licence other than to
occupy the land temporarily from year to
year if he can have his licence renewed
annually, but there is no obligation on the
part of the Authorities to grant a renewal of a
TOL for any subsequent year.
(e) Reversion of land to the state
Alienated land can revert to the State under various circumstances,
eg:
- state lease, non-cultivation, non-payment of rent, breach of
conditions, registered owner dies without successors, registered
owner has abandoned or surrendered the land to the State
(f) Strata titles recognised.
- For the first time, the Code provides for the issue of strata or
subsidiary titles in the case of sub-divided buildings such as office
complexes and condominium housing
- These provisions in the 1965 Code were subsequently repealed and
replaced with Strata Titles Act 1985
(g) Four caveats are recognised
- to protect the interest of non-registered registrable interest (or
caveatable interest) in the land
- Registrar’s caveat, Private Caveat, Lien-Holder’s caveat, Trust
caveat.
- The PC is aimed at protecting the interests of any person who
claims to have any title or any registrable interest in the land of
the registered proprietor.
- RC – to prevent fraud and improper dealings by the proprietor
- LHC- protecting the interest of the creditor of the proprietor with
whom the IDT has been deposited as security for a loan granted to
the proprietor
• (h) Provision for granting easement (sec 282(1)
NLC).
• Section 282(1) of the NLC defines easement as
An easement(E) is a right granted by a proprietor
of the servient land(SL) to the proprietor of the
dominant land(DL) for the beneficial enjoyment
of the latter’s land.
• The land for the benefit of which the easement
is granted is called ‘the dominant land’ and the
land of the proprietor by whom the easement is
granted is called the ‘servient ‘ land.
 EASEMENT
• Section 284 (1)
– Right of easement must be made with express
grant
– This means that the owners of the dominant and
servient lands must sign the instrument of
dealing to create an easement and register it at
the land office.
– Not allowed for the right of easement by way of
prescription- presumption of easement from long
and uninterrupted user (long user).