Chapter 1 - Disposal of Land by State Authority Flashcards
DISPOSAL OF LAND BY STATE AUTHORITY
Overview
1) Powers of disposal
2) Alienation
3) Types of title
4) Restriction in the use of land
5) Equitable principles in Malaysia
DISPOSAL OF LAND BY STATE AUTHORITY
Powers of disposal
S.42 NLC
DISPOSAL OF LAND BY STATE AUTHORITY
Alienation - overview
1) Meaning of alienation
2) How alienation is effected
3) Effect of alienation
4) Mirror principles
5) Curtain principles
ALIENATION
Meaning of alienation
S.76
ALIENATION
How alienation is effected - the law
S.78(3)
ALIENATION
How alienation is effected - application
Teh Bee v K Maruthamuthu:
- Alienation shall take effect only upon registration.
ALIENATION
Effect of alienation
CRI
CRI
1) Cessation:
- The land cease to be State land.
2) Reversion:
- The land can only be reversed to the State in accordance with the law.
3) Indefeasible:
- Alienation shall confer the person an indefeasible title to the land.
ALIENATION
Mirror principles
- RDT & IDT reflects accurately the material facts about the person’s title.
- The label of “the mirror principle” was given by Das S.K. to reflect the nature of Torrens system that the register with the attributes of a mirror of sorts that can reveal all the necessary particulars relating to the land that would interest a potential purchaser or chargee.
ALIENATION
Curtain principles
- Intending purchaser or acquirer need not to look beyond register to find information about the land.
- register is the sole source of information for intending purchasers.
- save persons dealing with the registered proprietors from the trouble and expense of going behind the register in order to investigate the history of their authors’ title and to satisfy themselves of its validity.
- protect the purchaser as he/she can safely rely on the information revealed in the register, and need not to look behind it.
DISPOSAL OF LAND BY STATE AUTHORITY
Types of title - overview
1) Definition
2) Alienation according to types of title
TYPES OF TITLE
Definition
S.5:
- final title: all forms of title other than QT;
- qualified title: title issued in advance of survey.
ALIENATION ACCORDING TO TYPES OF TITLE
Alienation of qualified title
S.77(3)
1) Registry qualified title: Form 11A
2) Land Office qualified title: Form 11B
ALIENATION ACCORDING TO TYPES OF TITLE
Alienation of final title
S.77(3)
1) Registry final title:
- when appropriate: S.77
- Freehold: Grant, Form 5B
- Leasehold: Pajakan Negeri, Form 5C
2) Land Office final title:
- when appropriate: S.77
- Freehold: Geran Mukim, Form 5D
- Leasehold: Pajakan Mukim, Form 5E
DISPOSAL OF LAND BY STATE AUTHORITY
Restriction in the use of land - overview
1) General power upon alienation
2) Restriction in interest
3) Restriction in conditions
RESTRICTION IN THE USE OF LAND
General power upon alienation
S.120
RESTRICTION IN THE USE OF LAND
Restriction in interest - overview
1) Meaning
2) Commencement date
3) Effect of breach
RESTRICTION IN INTEREST
Meaning
S.2:
- restriction in rights to deal with the land & to sub-divide the land.
RESTRICTION IN INTEREST
Commencement date
Dr. Ti Teow Siew & Ors v Pendaftaran Geran Tanah Selangor:
- from the date of registration of the title.
RESTRICTION IN INTEREST
Effect of breach - transfer w/o sanction
Toh Huay Khay v Lim A Chang:
- transfer becomes unlawful;
- title of the transferee becomes defeasible for void instrument.
RESTRICTION IN INTEREST
Effect of breach - charge w/o sanction
UMBC v Syarikat Perumahan Luas:
- Registration of the charge becomes defeasible for void instrument.
RESTRICTION IN THE USE OF LAND
Restriction in conditions - overview
1) Meaning
2) Agriculture land
3) Commercial, residency & industrial land
4) Disposal & dealing involving foreigner
5) Effect of breach
RESTRICTION IN CONDITION
Meaning
- Obligation relating to the use of land for specific purposes;
- i.e. agricultural, building & industrial.
RESTRICTION IN CONDITION
Agriculture land
S.121
RESTRICTION IN CONDITION
Commercial, residency & industrial
S.122
RESTRICTION IN CONDITION
Disposal & dealing involving foreigner - the law
PART 33A NLC
- page 332 NLC onwards.
RESTRICTION IN CONDITION
Disposal & dealing involving foreigner - application
CIMB Investment Bank Bhd v Metroplex Holdings Sdn Bhd:
- disposal & dealing involving foreigner can be effected by virtue of S.433B;
- h/ever, this restriction to get approval from State Authority does not apply to effecting a charge.
- i.e it shall not be necessary for a non-citizen or a foreign company to obtain the prior approval of the State Authority for the registration and endorsement of the charge
RESTRICTION IN CONDITION
Breach of condition - when
S.125
RESTRICTION IN CONDITION
Breach of condition - effect
S.127
DISPOSAL OF LAND BY STATE AUTHORITY
English equitable principles - overview
1) General
2) Not applicable
3) Applicable
ENGLISH EQUITABLE PRINCIPLES
General
1) S.3 CLA - application of English law in Malaysia
2) S.6 CLA - application of English law relating to immoveable property in Malaysia.
ENGLISH EQUITABLE PRINCIPLES
Not applicable - effect of S.6
Datin Siti Hajar v Murugasu:
- effect of S.6 is to exclude the application of common law & equity relating to land tenure, transfer or transmission of immoveable property.
ENGLISH EQUITABLE PRINCIPLES
Not applicable - NLC is complete
UMBC v Pemungut Hasil Tanah Kota Tinggi:
- NLC is complete & comprehensive code;
- There is no room for importation of any English rules except as the Code provided.
ENGLISH EQUITABLE PRINCIPLES
Applicable - S.6 prohibits common law only
Devi v Francis:
- Land law of England is one thing & equity is another matter;
- S.6 prohibits only English common law.
ENGLISH EQUITABLE PRINCIPLES
Applicable - Torrens system does not exclude equity
Wilkins v Kannamal:
- Torrens system is a form of conveyancing system that does not exclude the rules of equity.
ENGLISH EQUITABLE PRINCIPLES
Applicable - S.6 does not exclude equity
Woo Yook Wan v Loo Pek Chee:
- S.6 does not exclude the operation of equity;
- A lease which is void at law for not having complied with formalities can be enforceable at equity.
