Malaysian Torrens System set out in a concise and comprehensive form attempts to explain the fundamental concepts of land law applicable in Malaysia. It explains not only the provisions of the National Land Code 1965 but also relevant case law affecting the subject, viewed from the requirements of statue as well as the position under Malay customary law, Islamic law and English law (common law and equity). This book has been written principally to meet the needs of the undergraduate students pursuing a law degree in our local universities. Beyond that, the book might also benefit a large number of Malaysians with legal qualification who have not been exposed, during their studies, to the intricacies of the Malaysian Torrens system.
Land law in Malaysia is constantly changing. The National Land Code is a complex piece of legislation, and a year’s study is hardly sufficient for the student to acquire an adequate and competent grasp of the subject. To add to his difficulty, the university student is also required to obtain an adequate knowledge of the law relating to Malay reservations and compulsory land acquisitions. It is hoped that this modest attempt will be able to guide the students in obtaining a better understanding of the subject.
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
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