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The Torrens System was named after Sir Robert Torrens. He introduced the system in South Australia in 1858 with the legislation of the Real Property Act (South Australia) 1858.
The Torrens System was named after Sir Robert Torrens. He introduced the system in South Australia in 1858 with the legislation of the Real Property Act (South Australia) 1858.
- Under this system, ´chain documents´ such as sale purchase agreement could be used as a mean for securing registration but was not effective to the land until its registration.
- Caveats may be lodged in the register to protect unregistered interests in the land
- Surveying of land was an important matter.
- The introduction of Torrens title or the system of titles and interests by registration into Malaysia gave way to the passing of:
- National Land Code (Penang and Malacca Titles) Act 1963
- National Land Code 1965
- Sarawak Land Code (Cap 81)
- In Sabah, a different land tenure system was provided for, namely, a non-Torrens system of registration of titles, which culminated in the passing of the Land Ordinance (Cap 68)
- The process spread over a period of more than 80 years
The Strait Settlements- Pulau Pinang, Singapore, Melaka
Federated Malay States - Perak, Selangor, Negeri Sembilan, Pahang
Unfederated Malay States - Perlis, Kedah, Kelantan, Terengganu, Johor
- In the late 19th century, all the Federated and Unfederated Malay States, and Malacca recognized the early Malayan customary land tenure of landholding.
- Example : any person who carried out the task of clearing waste land was entitled to occupy it provided he cultivated it and handed over one tenth of the produce to the State.
- Whereas Penang was, with the passing of the First Charter of Justice in 1807, wholly subjected to English land law.
- This system is known as the Registration of Deeds.
- Land ownership was based on written or oral grant from the government. The system necessitated the presence of a chain of documents
- Registration of land dealings was not made compulsory
- The Federated Malay States, that first enacted laws introducing Torrens title for use in a Malayan setting.
the General Land Regulations 1879 of Perak
the General Land Regulations 1882 of Selangor
the General Land Regulations 1887 of Negeri Sembilan
the General Land Regulations II of 1889 of Pahang. - The Unfederated Malay States, land tenure took the form of early Malay customary tenure.
-The northern peninsular states follows Thai law
-By the late 19th and early 20th centuries Torrens legislation were introduced into these states. It was repealed and re-enacted with amendments from time to time then finally replaced by the National Land Code 1965
-The aim was to introduce a uniform system of land law and registration of titles in the whole of Peninsular Malaysia - In Penang and Melaka, the Charter of Justice 1826 extended to these states the application of English land law subject to local circumstances and customs.
- The National Land Code (Penang and Melacca Title) Act 1963 provides the framework of conversion of the deeds system.
- The Naning custom are preserved under the code - In Sarawak, the system of land tenure from the early third of the 20th century was based on the Torrens system.
- This system of title registration has since been continued under the present Sarawak Land Code (Cap 81)
- As for Sabah, the system of land tenure was not based on the Torrens registration system.
- This different system of land registration has since been continued under the present Sabah Ordinance (Cap 68).
- There is no provision in the Sabah Land Ordinance conferring indefeasibly of title to or interests in land, which is one of the cardinal features of the Torrens system.
STRUCTURE OF MALAYSIAN LAND LAW
It can be seen that there are four main separate pieces of legislation governing land matters in Malaysia
- National Land Code (Penang and Malacca Titles Act) 1963
- National Land Code 1965
- Sarawak Land Code (Cap 81)
- Sabah Land Ordinance (Cap 68)
The operation of the four main pieces of legislation follows the Torrens system of title registration in Malaysia and supplemented by various subsidiary legislation passed by the respective States (except Sabah Land Ordinance).
Also make provisions for a system relating to registration of dealings in land but also for the substantive law governing such dealings and interests in land.
Land is a State matter and vested under the Ruler or Governor of the State
However, Federal Government may, make laws with respect to land matters in a State if such laws are enacted to ensure and policy in respect of land matters in two or more uniformity of laws States
Such powers of the Federal Govemment are, however, not exercisable with regard to the States of Sarawak and Sabah.
Article 76 (4) of Federal Constitution “Parliament may, for the purpose only of ensuring uniformity of law and policy, make laws with respect to land tenure, the relations of landlord and tenant, registration of titles and deeds relating to land, transfer of land, mortgages, leases and charges in respect of land, easements and other rights and interests in land, compulsory acquisition of land, rating and valuation of land, and local government”
National Land Code and the Sarawak Land Code (Cap 81): all lands alienated by the State are held in all cases under Torrens title.
National Land Code (Penang and Malacca Titles) Act 1963: English deeds system in Penang and Malacca were converted to Torrens title.
Sabah Land Ordinance (Cap 68): all lands alienated by the State are held under non-Torrens title.
The National Land Code (NLC) came into enforcement in all states in Peninsular Malaysia on 1st January 1965.
Sabah and Sarawak have their own land law respectively.
As NLC prevailed as the land law in Peninsular Malaysia, provisions in the NLC 1965 cannot be applied if they contradict:
-Customary tenure
-Malay Reservation Land or Malay holdings
-Mining Land
-Sultanate Land
-Wakaf of Baitulmal Land
BASIC LAND LAW CONCEPTS AND TERMINOLOGY
Ownership and Possession
Ownership: a title to a subject matter, whether movable or immovable.
i. The right to exclusive use and enjoyment of the subject matter
ii. The right to alienate
iii. The right to possess; and
iv. The right to transmit upon death
Possession: something which is of a lesser interest than ownership.
A person who is the registered proprietor of a piece of land has the ownership of or a legal title to the land whereas a person who takes a lease of the land would only have immediate possession.
However, during the duration of the lease or tenancy, the owner of the land has the reversionary interest in the land.
In respect of land, ownership denotes the right to the exclusive but not absolute enjoyment thereof. This is in view of the various conditions imposed by the State in respect of its use and enjoyment.
Title and Interest
- Title to land in Malaysia: a document such as the issue or register document of title.
- Interest in land: something which is less than proprietorship or ownership.
- In the context of the NLC, interest in land would be taken to mean a registered lease, charge or easement as well as a
- statutory lien or a tenancy exempt from registration created in respect thereof.
- Thus, a purchaser of land would be said to have the title to the land upon the land being registered in his name in the register and issue documents of title to the land.
- Any person taking a lease or a charge of the land of a registered proprietor acquires only an interest in and not a title to the land.
Legal and Equitable Interests
- Legal interests: interests which have been validly and formally created in accordance with the requirements of a registered charge, lease or easement following the provisions of NLC.
- They are also known as registered interests.
- Equitable interests: unregistered interest in land.
- In the case of a legal or registered interest, once it is so created, it can be enforced against the whole world in that it is binding on third parties who will take subject to that interest.
- In the case of an equitable interest, it is liable to be defeated by the registration of any interest created in the absence of fraud.
Real and Personal Property
- Real property: refer to immovable property such as land buildings and everything which is part of a piece of land or affixed to it.
- Personal property: refer to movable property such as goods and chattels.
- There are circumstances which personal property would be regarded as real property
Disposal and Dealings
- Disposal: the granting of certain kinds of rights, whether proprietary or otherwise by the State in respect of any land generally and in favour of individuals or bodies, whether private or public.
- Disposal can be by way of alienation, by the issue of a temporary occupation licence or a permit and by the grant of a lease of reserved land.
- Dealings: any transaction undertaken between individuals or bodies, whether private or public, effected with respect to alienated land but does not include any caveat or prohibitory
- order.
- Disposal denotes a transaction between the State and individuals or bodies whilst dealings denote transactions between such individuals or bodies themselves.
Restriction in Interest and Conditions
- Restriction in interest: any limitation imposed by the State on the powers of a registered proprietor to deal with his land by way of a transfer or the creation of a lease, charge, easement, tenancy or statutory lien over his land as well as his powers to subdivide, partition or amalgamate his land.
- Conditions: the imposition by the State of obligations relating to the use of land for agricultural, building and industrial purposes.
- Conditions may also be imposed by the State to regulate the use of land held under a permit or temporary occupation licence or by way of a lease of reserved land
