Note 2 Principles & Characteristics of National Land Code Dr.Nora 280213

LAND ADMINISTRATION (RMK 357 ) SEMESTER 2, ACADEMIC SESSION 2012/2013

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Topic: Principle & Characteristic of

National Land CodeDr.Norazmawati Md.Sani @ Abd.Rahim (Dr.Nora)

E08/102B04-6533161

[email protected] http://drnorazmawati.blogspot.com

28 February 2013

CONTENT

1. Torrens System in Malaysia2. Principle of Torrens System3. Basic Characteristic of National Land Code

19654. Torrens System vs. National Land Code 5. Definition of Land6. Fixtures7. Conclusions

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PRINCIPLE & CHARACTERISTIC OF NLC

TORRENS SYSTEM IN MALAYSIA

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Def; A system of registration of titles to land (as distinct from registration of deeds) introduced into South

Australia by the Real Property (or Torrens) Act (act 15 of 1857-58), drafted by Sir Robert Torrens (1814-84).

PRINCIPLE & CHARACTERISTIC OF NLC TORRENS SYSTEM IN MALAYSIA

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Its essential feature is the guaranty by the government of properly registered titles to improve efficiency & effectiveness of

land administration.

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Torrens's System made registration as important element to prove a fact related to authority & interest on land.


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The fact including owner's name, details on land, wide area, location, survey plan & his border plan.


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Principle of Torrens System

The Mirror Principle Record title reflect all facts on title register owner & all details of land.

The Curtain Principle Those facts in record title was valid.

Buyer could be safe depends on information in the record.

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*Sec.48No adverse possession

against the State.

Rules of

Equity.

*Sec.46Reversion to the State Authority.

* Indefeasibility of title.

Strata Title.

*Caveat.

*Sec.284(1)Necessity

for express grant.

*System are not exclusive

& not open.

BASIC CHARACTERISTIC

OF NLC 1965

Sec.48NLC No adverse possession against the State.

No. title to state land shall be acquired by possession, unlawful occupation /

occupation under any licence for any period whatsoever.

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against the State.

Rules of

Equity.



*Indefeasibility of title.

Strata Title.

*Caveat.


for express grant.


& not open.


OF NLC 1965

SEC.46NLC REVERSION TO THE STATE AUTHORITY

1(a) Upon the expiry of the term (if any) specified in the document of title thereto;

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1(b)Upon the publication in the Gazette of a notice under Sec.130 (that is to say, a notice published on the making of an order of forfeiture by the Collector on the grounds of non-payment of rent/breach of condition);

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1(c)In the circumstances mentioned in Sec.351&352 (which relate respectively to

the death of a proprietor without successors, & the abandonment of title by proprietors)

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1(d)Upon the surrender thereof in accordance with the provisions of Part 12.

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Sec.46(2)NLC Without prejudice to the provisions of any other written law for the

time being in force, reserved land shall cease to be reserved upon the taking effect in respect thereof of any revocation under

Sec.64.

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Sec.46(3)NLC Leases of reserved land,& licences & permits issued under this Act, shall terminate at the expiry of the term for which they were granted/issued/on the occurrence

before that time of any event specified in that behalf in the lease,licence/permit/in any rule

made by State Authority under Sec.14;&licence/permit issued under this Act shall also terminate on the death/dissolution,

except as provided in Sec.416, before that time of the person/body for the time being entitled to

the benefit thererof.

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against the State.

Rules of

Equity.




Strata Title.

*Caveat.


for express grant.


& not open.


OF NLC 1965

INDEFEASIBILITY OF TITLEIs guarantee but not definitive.

Example;Fraud case.Wrong delegation.Void instrument.Void ownership in law.

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against the State.

Rules of

Equity.



Strata Title.

*Caveat. *Caveat.


for express grant.


& not open.


OF NLC 1965

WHAT IS CAVEAT?

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Def; a warning/caution; admonition.

WHAT IS CAVEAT?

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A legal notice to a court/public officer to suspend a certain proceeding until

the notifier is given a hearing:Example; a caveat filed against the

probate of a will.

TYPE OF CAVEATS

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REGISTRAR’S CAVEAT

Sec.319(1)NLC Nature & Effect of Registrar’s Caveats

A caveat under this section shall be known as a“Registrar’s Caveats” &a) May be entered by the Registrar on the register

document of title to any land in any of the circumstances specified in Sec.320.

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CAVEAT


Sec.320(1)NLC Circumstances in which Registrar’s caveats may be

enteredSubject to subsection (2), a Registrar’s caveat may be entered in respect

of any land wherever such appears to the Registrar to be necessary/

desirable;

a) For the prevention of fraud/improper dealing;

b) For protecting the interest of;i. The Federation/the State Authority,ii. Any person who is in his opinion under the disability of minority,

mental disorder/unsoundness of mind,/is shown to his satisfaction to be absent from the Federation;/

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Sec.320(1)NLC Circumstances in which Registrar’s caveats may be enteredba) for securing that the land will be available

to satisfy the whole/part of any debt due to the Federation/the State Authority, whether such debt is secured/unsecured & whether /not judgement thereon has been obtained;/

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Sec.320(1)NLC Circumstances in which Registrar’s caveats may be enteredc)By reason of some error appearing to him

to have been made in the register/issue document of title to the land/any other instrument relating thereto.

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PRIVATE CAVEAT Sec.322(1)NLC Nature & Effect of Private

caveatsA caveat under this section shall be known as a“private caveat” &a)May be entered by the Registrar on the register

document of title to any land at the instance of any of the persons/bodies specified in Sec.323.

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CAVEAT

PRIVATE CAVEAT

Sec.322(2)NLC The effect of any private caveat expressed to bind the land itself/an undivided share in the land shall, subject to subsection (4) &(5), to be prohibit so long as it continues in force the registration, endorsement/entry on the register document of title thereto of;

a)Any instrument of dealing executed by/on behalf of the proprietor thereof, & any certificate of sale relating thereto;

b)Any claim of the benefit of any tenancy exempt from registration granted by the said proprietor; &

c)Any lien-holder’s caveat in respect thereof;

Provided that where the claim is in respect of a part of the land, the caveat binds the whole land & where the claim is in respect of an undivided share in the land, the caveat binds the whole of the undivided share in the land.

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LIEN-HOLDER’S CAVEAT

Sec.330(1)NLC Creation & effect of lien-holder’s caveatsAny person/body with whom the issue document of title to any land,/any duplicate lease, has been deposited as security for a loan may, as provided in Sec.281, apply to the Registrar under this section for the entry of a lien-holder’s caveat in respect of the land/lease in question.

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TRUST CAVEATS Sec.332(1)NLC Nature & effect of trust caveatsA caveat under this section shall be known as a“trust caveat” & may be entered by the Registrar in respect of any land/interest which (pursuant to Sec.344/any corresponding provision of any previous land law) is expressed to be held by any persons/bodies as trustees.

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against the State. Rules

of Equity.



Strata Title.

*Caveat.


for express grant.


for express grant.


& not open.


OF NLC 1965

Sec.284(1)NLC Necessity for express grant.

No right in the nature of an easement shall be capable of being acquired by prescription (that is to say, by any assumption of a grant from long & uninterrupted user).

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MEANING OF EASEMENT Sec.282(1)NLC In this Act “easement” means any

right granted by 1 proprietor to another, in his capacity as such & for the beneficial enjoyment of

his land, in accordance with the following provisions of this Chapter.

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MEANING OF EASEMENT

Sec.282(3)NLC The land for the benefit of which any easement is granted is in this Act referred to

as “the dominant land”& the land of the proprietor by whom it is granted as “the servient land”.

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Baker Abel

SEC.283(1)NLC RIGHTS ABLE TO BE GRANTED AS EASEMENTS

(a)Any right to do something in, over/upon the servient land;

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Baker

Abel

SEC.283(1)NLC RIGHTS ABLE TO BE GRANTED AS EASEMENTS

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Baker

Abel

(b)Any right to do something should not be so done.

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Baker

Abel

Sec.283(2)NLC The said rights do not include;a)Any right to take anything from the servient land; orb)Any right to the exclusive possession of any part

thereof;

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against the State.

Rules of

Equity.



Strata Title.

*Caveat.


for express grant.


& not open.


& not open.


OF NLC 1965

System are not exclusive & not open.

Case Kiah Binte Hanapiah vs Som Binte HanapiahRecognize Malay Wooden house.Stilts House as a moveable property.

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Torrens System vs NLCTEH BEE V K MARUTHAMUTHU [1977] 2

MLJ 7

2 Years paid rent annual.

Form 5A. 17 Nov 1966=RM4,327.50 in 3

month. Appeal an exemption to State

Authority. 16 Jan 1967=Due date to pay

premium. Oct 1967 paid=Late for 10 month.

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Year 1952

April 1968

1966

TOLBBAA

CASE 1CASE 1

CATCHWORDS:Land Law – Claim by registered proprietor for possession of land – Registered title conclusive evidence – Indefeasibility of title – NLC, Sec.42, 78(3) 81, 89&178.

HEADNOTES:The appellant claimed possession of a piece of land of which she was the registered proprietress. The claim was based on trespass. The respondent resisted the claim, the principal ground being that the qualified title registered in the name of the appellant was null & void. The trial Magistrate entered judgment in favour of the appellant. On appeal, Ajaib Singh J. held that when the appellant was registered as proprietress the approval of alienation of the land to her had already lapsed & therefore it was ultra vires of the State Authority to alienate the land to her. The appellant appealed.

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TEH BEE V K MARUTHAMUTHU [1977] 2 MLJ 7

Held, allowing the appeal: (1) the fact that the appellant was registered as

proprietress necessarily raised the inference that the State Authority on payment of the premium had given fresh approval for the alienation of the land to her;

(2) the fact that the register document of title was in the name of the appellant was conclusive evidence that the title to the land was vested in the appellant;

(3) under the Torrens System the register is everything & 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.

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Editorial NoteIn this case the Federal Court did not touch on some of the important matters which Ajaib Singh J. discussed in his decision. Ajaib Singh J. in his judgment brought out the irregularities practised in some land registries. The publication of his judgment with the Federal Court decision might help to rectify those irregularities by way of some administrative directives by those in authority. These irregularities appear to be carried on in blatant disregard to the provisions of the Land Code relating to the approval of land titles. In his judgment the learned judge also discussed the position of a holder of a T.O.L. after its cancellation or expiration.

Federal CourtAmir Ismail for the appellant.AKJ D’Cruz for the respondent. 44


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Major issue which need decide by court is effect of Sec.81(2)NLC; As soon as may be after any sums have become due

in respect of any land by virtue of subsection (1), the collector shall, by notice in Form 5A,require the intended proprietor to pay them to him within the time specified in that behalf in the notice; & if any such sum is not so paid within the specified time, the approval of the State Authority to the alienation shall thereupon lapse.

Ajaib Singh J. emphasized that, when State Authority take an action without power in NLC, so the registration on a title is not valid & do not have any effect.

In this case Ajaib Singh J., has decided that State Authority already acted ‘ultra vires' on NLC thereby land alienation was null & void.

Torrens System vs NLC

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In appeal to Federal Court; 3 judge of Federal Court has decided that the land alienation shall not be questioned.

According court, fact that applicant has registered as an owner proves that State Authority had given permission when a sum is given to them.

Chief Judge states that Sec.81(2)NLC clearly do not intend to impose any limit/obstacle on State Authority power to write off land. He decide that a major reason why this appeal is permitted are because under Torrens System, record title is everything.

So the requirement of NLC are sacrifice by ‘indefeasibility rights’.


The Effects of both principle are Torrens's

System had given indefeasibility of title to registered owners .

Refer Teh Bee vs K Maruthamuthu's case (1977) 2 MLJ 7 FC.

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Pow Hing & Anor vs Malacca Title Registrar (1981) 1MLJ

155. Court have referred authority's method to

confiscate alienated land due to failure pay rent.

The main question is either NLC allocation is mandatory /directing.

CASE 2CASE 2

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Judge has decided that compliance of Sec.97(2),100 & 130(1) is mandatory. Sec.97(2) Notice of demand.

A note of the service of any such notice shall be endorsed, by/at the instance of the Collector, on the register document of title to the land to which the notice relates.

Sec.100 Forfeiture for non-payment of sum demanded. The Collector shall not during the period specified in any notice under

Sec.97 accept the tender by/on behalf of any person/body of a lesser amount than the sum thereby demanded;& if by the end of that period the whole of that sum has not been tendered to him, he shall thereupon by order declare the land forfeit to the State Authority,& the provisions of Part 8 shall have effect with respect thereto accordingly.

Sec.130(1) Forfeiture to take effect upon notification in the Gazette. As soon as may be after the making of an order under Sec.100/129

with respect to any land (that is to say, an order declaring the land forfeit to the State Authority for non-payment of rent/the breach of any condition ), the Land Administrator shall publish in the Gazette a notification of forfeiture in Form 8A;& upon such publication , the forfeiture shall take effect as mentioned in Sec.131.


Therefore authorities action in this case is they try to implement the clear legislation collision procedure & this regarded as fraud in law.

So, seizure is decided as void & need to be ignored.

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Hard part in earth surface - Law Dictionary.

All natural type – Economically.

Definition of Land (Sec.5NLC)

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The definition is clear influenced by English law; but too brief, then we impel referring to 'Common Law Principle ' especially on fixtures. Maxim Latinate

“cuius est solum, eius est usque ad coelum et ad inferos"; mean who own a surface is also owns

whether on/below the surface.

Definition of Land

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There are exception to the principles above, where landlords have the freedom limited, namely :- Certain mineral matters such as coal & kerosene is

government property. Gold, Perak & treasure is belonging to King. Gold & Perak found & earns from mine is belonging

to King. Airspace ownership above surface not exceeding

reasonable height in all situations.

Definition of Land

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Sometimes difficult to determine whether something can be a 'land‘/not. This related to fixture, that does not clearly defined.

Maxim Latinate 'quiquid plantatur solo, solo cedit'; which means; “Any thing placed/fixtures to land, thus it be part from it".

Definition of Land

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Sec. IV No.232 The Mejelle; Definition of Fixtures

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FixturesDef: any physical property that is permanently attached /fixed

to real property which once removed will cause permanent damage to the real property,

usually land.

Attachment degree/Connection.

Attachment purpose/connection

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Fixtures Determination Test

There are 2 tests which need cross before be able to decide either it is land/not.

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Attachment degree/connection

Thing situated on land/floor does not make fixture ; on the other hand it is call 'chattel'.

Law take view that if fix to the land its be land. But this perception can be denied by stating a proof that it not aimed to fixtures,

the thing as be part of land.

(Leigh v. Taylor [1902] AC 157, HL – Tapestry: not fixtures but chattels).

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Attachment purpose/connection

Something fixtures on the land if want shifted/come off defect occurs to something; thus it show that attachment/the installation

aimed to remain.

Example: (Holland vs. Hodgson (1872) LR 7 CP 328 - A pile of stones stacked up is not a

fixtures but as a dry wall).

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Attachment purpose/connection Another which need

attention was; either the installation

meaning to raise value of the

land/building.

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Thing which became from business part are exempted when he/she have owner /tenant relationship with trading building.

1. Petrol tank planted under the surface of earth.2. Palm oil tank are built on surface of earth.3. Machinery fabricated at factory floor.4. Printing machine placed in factory floor.

Exemption

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Thing which became no conditional home decor great harm in building/current land. This going to happen for tenancy/residential property lease.

1. Walled board house but having a floor cement.2. Seat in cinema, stone mannequin & seat/pottery in

gardens, kennel, curtain & portrait at wall as fixed ornament.

Exemption

CONCLUSIONS

Torrens System in Malaysia= A system of registration of titles to land.

Principle of Torrens System= Mirror & Curtain Principle.

Basic Characteristic of National Land Code 1965.

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against the State. Rules

of Equity.


* Indefeasibility of title.

Strata Title.

*Caveat.


for express grant.

*System are not exclusive & not open.

CONCLUSIONS

Torrens System vs. National Land Code= NLC are sacrifice by ‘indefeasibility rights’.

Definition of Land=Sec.5NLC.

Fixtures= permanently attached /fixed .63

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Note 2 Principles & Characteristics of National Land Code Dr.Nora 280213

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