Malaysian Torrens System

Preface
Preface to Second Impression
Abbreviations
Table of Cases
Table of Statutes

1. HISTORICAL BACKGROUND

Early history
• The Straits Settlements
• The Federated Malay States
• The Unfederated Malay States
The Torrens System
Towards a National Land Code

2. THE MALAYSIAN TORRENS SYSTEM

Twin principles of the Torrens System
Basic features of the National Land Code 1965
• Adverse possession no longer possible
• No possessory right however long
• The rules of equity still apply
• Reversion to the State under several circumstances
• Indefeasibility is guaranteed but not absolute
• Strata titles recognized
• Four types of caveats
• Easement by express grant only
A non-exclusive system
The procedural dilemma

3. PROPERTY IN THE LAND

The State Authority
Land as a legal concept
Alienation of land
Rights of the owner

4. DISPOSAL OF LAND

State’s general powers of disposal
Disposal by alienation
Disposal otherwise than by alienation
Temporary occupation licenses (TOL)
The nature of TOL
Rights of the TOL holder
• No right to get renewal
• TOL holder can sue in trespass
• Dual purpose TOL
• TOL nat capable to being inherited
• Right to grant tenancy
• No right of sale
• An ex-licensee is a trespasser
• The future of TOL

5. CLASSIFICATION AND USE OF LAND

Introduction
Implied conditions
Express conditions and restrictions in interest
Commencement of restriction in interest
Breach of conditions
Relief against forfeiture

6. CONTRACTS FOR THE SALE OF LAND

General principles
• Formality
• Oral and written terms
• Booking proforma
• Agreement “subject to contract”
• Vendor as bare trustee
• Sale by administrators
• Questions of language
• Death of the parties pending registration
• Duty of an executor
• Time of performance
• Deposit
• Instalments and progress payments
• Vendor’s default
• Purchaser’s default
• Sale subject to approval by relevant authority
• Sale by charger
Sale of land under customary law

7. DEBALINGS UNDER THE NLC

General principles
• Dealing
• Instrument of dealing
Transfers
• What may be transferred
• Formality
• Effect
Leases and tenancies
• Definition of a lease
• Formality
• Power to grant leases and tenancies
• Effect
‣ Duration uncertain
‣ Land subject to a charge
• Rights and liabilities
• Determination
Tenancies coupled with equity
Charges
• Definition of a charge
• Effect of a registered charge
• The unregistered equitable charge
• What can be charged
• Rights of the parties
• Default and remedies of the chargee
• Relief for the charger and third parties
• Powers of the Land Administrator
Easement
• Definition
• Essential characteristics
• Easement contrasted with other rights
‣ Natural rights
‣ Land Administrator’s right of way
‣ Licenses
‣ Restrictive covenants
‣ Profits a prendre
• Creation of easements under the common law
• Creation of easements under the Code
• Ancillary rights
• The scope of future easements
• Breach by servient owner
• Termination of easements

8. REGISTRATION OF DEALINGS

Introduction
The door to equity
Registration
• Definition
• Procedure
• Limitation on the Registrar’s powers
• Rejection or suspension
• Correction of errors
• Effect of registration
• Permanency of indefeasibility
• Statutory exceptions to indefeasibility
‣ Fraud
‣ Misrepresentation
‣ Forgery
‣ Insufficient or void instrument
‣ Unlawful acquisition
‣ Other statutory exceptions
Equitable exceptions to indefeasibility
Exceptions due to custom and Islamic law

9. HARTA SEPENCARIAN

Introduction
Early history
Post-Taylor era
The rule in Robert‘s case
Beyond Robert‘s case
Recent development in the law

10. MALAY RESERVATION

Introduction
Essential characteristics
• Restriction against alienation
• Restriction against dealing
• Built-in device
• Room for revocation
• Other general restrictions
• Sanctions for infringement
• Reference to the Ruler in Council
The law before Merdeka
The law since Merdeka
The future of Malay reservation

11. RESTRAINTS ON DEALINGS

Definition
The Caveat System
• Another exceptions to indefeasibility
• Nature of a caveat
• Functions of a caveat
• Types of caveats
Private caveats
• Caveatable interest
• Procedure
• Duration
• Extinguishment and second caveats
Registrar’s caveats
• Functions of Registrar’s caveats
• Nature and effect of Registrar’s caveats
• Entry of Registrar’s caveats
• Duration of Registrar’s caveats
Lien-holder’s caveats
• Creation and effect of liens
• Creation and effect of a lien-holder’s caveat
• Determination of a lien-holder’s caveat
Trust caveats
Power to amend caveat
Prohibitory Orders
• Creation and effect of a prohibitory order
• Duration of a prohibitory order

12. CO-PROPRIETORSHIP

Definition
Incidents of co-proprietorship
• Legal and beneficial ownership
• No right of survivorship
• Custody of issues document of title
• Right to possession and enjoyment
• Right to partition

13. LAND ACQUISITION

Constitutional position
Purpose of acquisition
Procedure
No pre-acquisition hearing
Measure of compensation
• Market value
• Post-acquisition damage
• The reinstatement basis
Challenging the acquisition proceedings
• Dissatisfaction with quantum
• Ultra vires the Constitution
• Breach of natural justice
• Non-compliance with section 9 of the Act
• Mala fide
• Delay
Recent amendments in the law

14. PROSPECTS FOR ISLAMISATION

Introduction
The concept of state land
Alienation and forfeiture
Indefeasibility of title
Temporary occupation licenses
Dealings
Co-existence of Torrens System and equity
Co-ownership
Easements
Caveats Recommendations for amendments of the Code
• The TOL system
• Squatters
• Pre-emption
• Forfeiture
• Charges and interest
• Agricultural tenancies

Bibliography
Index