Main Page => Notes & Assignment
what is easement?
An easement is a right either to do something, or to use something, over another persons land.
what is the characteristic of easement?
Re Ellenborough Park [1956] laid out certain ground rules for establishing a new easement:
(a) there must be a dominant and a servient tenement;
(b)the easement must accommodate the dominant tenement;
(c)the dominant and servient tenements must be owned by different persons
(d)the easement must be capable of forming the subject matter of a grant
what is easement?
Section 282. Meaning of"easement".
(1) In this Act "easement" means any right granted by one proprietor to another, in his capacity as such and for the beneficial enjoyment of his land, in accordance with the following provisions of this Chapter
- The requirements of an easement laid down in Re Ellenborough Park was later followedby Tam Kam Cheong v Stephen Leong [1980] 1 MLJ36.
- Salleh Abbas FJ stressed that for a claim of easement to be established, every easement must possess these four characteristics
who can create easement?
- Lee ChuanTum
- Only the registered proprietor may create an easement, not the chargee or lessee.
what can be granted as easement?
- Section 283
- any right to do something in, over or upon the servient land; and
- any right that something should not be so done. Does not include
- any right to take anything from the servient land; or
- any right to the exclusive possession of any part there of
- Provided that nothing shall prevent the existence as an easement of any right involving the placing and maintaining in or upon the servient land of any installations or other works
how is an easement created?
- The only way to create an easement under the NLC is by way of an expressed grant
Datin Siti Hajar VS Murugasu
- The court laid down the principle:
- “It makes it incumbent for the granting of easement by expressed grant and as provided by section 286, such grant can only be made with the agreement of the proprietor of the servient tenement and effected by way of executing an instrument in Form 17A”.
can easement created by presciption?
- Section284(1)
- No right in the nature of an easement shall be capable of being acquired by prescription
- *Prescription is the establishment of a claim founded on the basis of a long or indefinite period of uninterrupted use or of long-standing custom
can easement created by acquiescence of the servient owner?
- Acquiescence is notsufficient
E W Talalla V Ng Yee Fong
=> Facts:
- A septic tank from D’s land encroached into P’s land for more than 20 years.
- P sought an order to remove the septic tank.
- D argued that P had acquiesced to the encroachment all this while, and is therefore estopped from making his claim.
=> Court:
- Acquiescence on the P’s part is not sufficient to create aneasement.
- There must be an expressed grant of easement in accordance with the NLC
Tan Wee Choon V Ong Peck Seng
- P bought a piece of land.
- There was a path used by D to access their land.
- P put up fence, D took the fence down.
- There was no registration of easement for right of way in favour of D.
- Court: The right claimed by D had not been registered. Therefore, there was no easement created
Therefore, an easement must ...
- Be created by expressed grant,and
- Mustbe registered in accordance with NLC
Before NLC ...
- There was no statutory provision dealing with easement.
- Courts followed English principles.
- Yong Joo Lin v Fong Poi Fong (1941) MLJRep 54.
- Court adopted English rules as to acquisition of easement by prescription.
After NLC ...
- Datin Siti Hajar v Murugasu
- The court laid down the principle:
- “It makes it incumbent for the granting of easement by expressed grant andas provided by section 286, such grant can only be made with the agreement of the proprietor of the servient tenement and effected by way of executing an instrumentin Form 17A”
However ...
- In Alfred Templeton V Low Yat[1989]
- The court invoked Section 206(3) as the statutory authority for the liberal application of equity by the courts whenever there is a basis for it.
Alfred Templeton V Low Yat[1989]
- Vendorsold the land to Purchaser.
- It was agreed that V shall retain the rightof way.
- P, however, fenced the land and V’sland becomeslandlocked.
- V claimed that he was entitled toequitable easement.
- Court held in favour of V.
- P knew that the land would not have been sold unless the right to way was maintained
application for easement
- Section 286:
- The grant of easement shall be affected by an instrument in Form 17A.
- In the case of cross-easements of support, by an instrument in Form 17B.
- The easement shall come into effect on the date of registration.
if easement is refused?
- If the servient owner refuses to grant easement, an application can be made for Land Administrator’s Right of Way (LAROW) under section 388
what is LAROW?
A right of way
- Created by the LandAdministrator
- Over alienated land
- To provide access between any land and a public terminal
- With or without concurrence from the proprietor.
- (it is a type of imposed right)
- (S 387: “public terminal” means the foreshore, river, railway station, publicroad)
Showing posts with label ETM 3406 Law Relating To Property. Show all posts
Showing posts with label ETM 3406 Law Relating To Property. Show all posts
ETM 3406 Law Relating To Property Assignment 30%
Main Page => Notes & Assignment
PRESIDENT COLLEGE
Diploma in Estate Management
Laws Relating to Property
ETM
3406
Individual Assignment Question (30 marks)
Answer all of the questions below.
1.
Explain in detail the meaning
of fixtures, the test used to determine what is fixtures and the right to
remove fixtures. Support your answers with revelant case laws. (English Common
Law and Malaysian cases ONLY)
2.
Discuss the history, rights and
present position of Customary Lands in Malacca. Support your answer with
relevant case laws.
Requirements
for your assignments.
1.
Each answer to the questions must
be written in this manner:
◦ Introduction
◦ Content & case laws
◦ Conclusion
◦ References (Website URL, Books, Magazine, Newspapers & other
sources)
2.
Font: Times New Roman
Size: 12
Spacing: 1.5
Paragraph: Justified
3.
Assignment must be printed
4.
Last date for submission: 25
November 2017
ETM 3406 Chapter 2 Land Transactions Part 1
Main Page => Notes & Assignment
CONTENTS
■ Sale and Purchase
■ Caveat
■ Charge
■ Lease and Tenancy
Introduction
■ Conveyancing 转易 is the act of transferring the legal title in a property from one person to another
■ To ensure that the purchaser secures the title with all the rights that run with the land.
Overview of Property Law in Malaysia
■ The land registration system: the State Land Offices and coordinated by the Department of Land and Mines.
■ Properties can be either:
(a) Freehold – held in perpetuity
(b) Leasehold – land owned by the state and leases are for a term of usually for 30, 60 or 99 years.
(c) Malay Reserved Land – the buying and any subsequent changing of ownership is restricted to Bumiputeras only.
Title
■ Freehold or leasehold properties are either issued with:
(a) Master Title –more than one unit of property is constructed. Eg. registered in the name of the developer. The developer may submit an application for subdivision of the master title.
(b) Individual Title – issued under the NLC for land, houses, commercial properties that are commonly not multi-storey; or
(c) Strata Title – issued under the Strata Titles Act. Issued for multi-storey buildings e.g. apartments, condominiums, commercial properties and now even for houses in gated and guarded communities.
S&P Transactions
■ The conveyancer to gather all the relevant facts and information before drafting the S&P agreement.
■ To give appropriate advice
■ To establish whether the purchaser intends to purchase the property form the developer or sub-sale transaction.
Buying with Cash or Loan
■ The cash purchaser:
1. To procure written confirmation from the D to ensure the property is free from encumbrances.
2. In the event that the property is charged, shall request from the D’s bank a redemption statement cum letter of undertaking before paying for the purchase price.
3. The purchaserpay the redemption sum directly to the developer’s bank and subsequently request the bank to acknowledge receipt of the payment via a letter of disclaimer.
■ The Loan Purchaser:
■ Who pays for the property with a bank loan.
■ It is subject to the bank’s own internal and credit assessment guidelines.
Overview Of The Sale Process
■ Offer to Purchase
■ Payment of first 10% of Purchase Price
■ Signing of the (SPA), Deed of Mutual Covenant (DMC) (if applicable), MOT (if sub-divided title issued)
■ For non-Malaysian, they are required to seek approval from Economic Planning Unit (“EPU”) (if applicable) and consent from the State Authority
■ Accepting the bank’s LO and signing the loan documents
■ Payment of the balance PP either by cash or loan
■ Delivery of Vacant Possession
■ (Within 24 month for Schedule G or 36 months for Schedule H)
Property from the Developer
■ S&P shall be in accordance with Housing Developers (Control&Licensing) Act 1966
■ If landed prop: Schedule G
■ If subdivided building eg. apartment or landed strata: Schedule H
■ Defect Liability Period: 24 months
■ Management Corp: Joint Management Body formed under the Building and Common Property (Maintenance and Management) Act 2007.
Sub-Sale Transaction
■ It is governed by the law of contract.
■ T&C of the S&P need to be negotiated between the parties.
■ The payment of purchase price is usually made within 3 months from date of SPA provided that no restriction of interest on the title.
Preliminary Issue to be Considered
■ Property with an individual issue document of title landed or strata
■ Property without title, has yet to be issued.
■ Leasehold or freehold
■ Subjected to any restrictions, liens, caveats, and charges.
■ Individual purchaser or multiple purchasers
■ Foreigners
Preliminary Searches
■ Land title
■ Bankruptcy search
■ Other searches
■ Bank Statement: if property is still under bank financing.
Land Title Search
■ To ascertain:
■ The existing proprietor of the property
■ Property is encumbered or not
■ Any restriction in interest
■ Any type of caveat
■ Land acquisition
■ Freehold or leasehold
■ If leasehold, expiry date of the lease
■ Chargee of the prop
Bankruptcy and Winding-up Search
■ Search on the vendor- if bankrupt, unable to sell. OA would stop into the vendor’s shoes.
■ Search on the company.
■ Register and Search at (cost at RM12):
■ www.e-services.com.my ■ www.myeg.com.my ■ www.rilek.com.my
Company Search
■ To ascertain who the directors and shareholders of the co.
■ Registered address and business address.
Drafting the S&P Property with Title
■ Parties to the Agreement
■ Recitals
■ Deposit sum
■ Condition precedent
■ Mode of payment
■ Time Period
Drafting of the S&P without title
■ Essential preliminaries
■ Recital (bacaan)
■ Mode of Payment
■ Documentation and execution of documents
■ RPGT
■ Redemption of the property
■ Lodgment of private caveat by purchaser
■ Non-perfection of the deed of assignment
■ Documentation and execution of documents affecting the transfer
■ Procedure for redemption 赎回 form the existing chargee.
■ Release of monies of balance purchase price
■ Supervening Events 超级事件
■ Vacant possession
■ Miscellaneous clauses
Stamp Duty
■ Stamp Act 1949=is levied by the govt on instruments of transfer.
■ Property transaction= ad valorem (according to the value)
■ MOT and DOA:
■ 1st RM100k=1%
■ RM100,001-RM500,000= 2%
■ Any amount excess of RM500k=3%
■ Charge: Loan sum=0.5% each copy=RM10.
RPGT
■ Gains from disposal of residential and commercial properties are taxed under the RPGT.
■ Objective: to control speculation in landed property and to curb any excessive rise in real prop.
■ It depends on the holding period of real properties.
■ Exemptions:
■transfer between husband and wife;
■transfer between parent and child; and
■transfer between grandparent and grandchild.
Caveat
■ Caveat is endorsed on the Issue Document of title
■ Notice to the world that the person entering the caveat has a claim to an interest in the land.
■ Prohibits any further dealing on the said land
Caveat
■ Private caveat: S 323 of NLC
■ Lien Holder’s Caveat: s 322, if there is an issued document of title which has been deposited as security for loan. Form 19A
■ Trust caveat: s 332, may be entered by the R upon application by the trustees. Form 19E (Perpetual unless it is cancelled by the R.)
■ Registrar Caveat: S 329 (1), liable (bertanggungjawab) to pay compensation if suffers damage or loss arising from the wrongful entry of the private caveat.
How to Lodge Caveat
■ S 323 and 324 of the NLC:
■ Form 19B which has to be attested.
■ Private Caveat will bind the land for a period of 6 yrs.
■ Wong Kuan Tan v Gambut Dev Sdn Bhd
■ The caveator must satisfy the court that he had caveatable interest in the land
■ Mexaland Dev Sdn Bhd & Ors v Score Option Sdn Bhd & Ors
■ Merely relying on the Joint-venture agreement did not confer a caveatable interest.
Conditions to extend the Caveat
■ 1. Sufficient grounds for caveat- The onus of proof is on the caveator.
■ Kumpulan Sua Betong Sdn Bhd v Dataran Segar Sdn Bhd
■ A. The applicant must satisfy that he has a ‘caveatable interest’ in the land.
■ B. the evidence
■ C. to show on the balance of convenience
■ Urethane Systems Sdn Bhd v Quek Yak Kang
■ No caveatable interest as the claim was based on monetary loss. ■
Withdrawal of a private caveat
■ S 327
■ 1. by the caveator: s 325: Form 19G
■ 2. by the Registrar: s 326: Form 19C
■ 3. by an order given by the court.
Removal of Caveat
■ S 325: by giving notice in form 19G and paying the prescribed fee.
Removal of Caveat
■ By the Registrar: S 326 of the NLC
■ Procedure: Form 19H and pay the prescribed fee
■ Upon receiving, the Registrar will serve a notice of intended removal in Form 19C
■ To extend Private Caveat: s326C for an extension order to the court.
Removal of the Caveat
■ By the Court: S 327 of the NLC
■ The only parties are caveatee and caveator “the aggrieved parties”.
■ Luggage Distributors M Sdn Bhd v Tan Hor Teng & Anor
■ If grounds are insufficient, the caveat must be removed.
Charge
■ Security over the land.
■ Must be registered in the land office in order to be valid, enforceable and binding.
■ The chargee has the right to apply for an order to foreclose the land.
Entering a Charge
■ S 241 NLC, a charge may be entered on the whole but not a part only or the whole but not a part only of any undivided share or any lease.
■ Form 16A- to secure the repayment of a debt.
■ For a company to register: File in the form 34 of the Companies Act 1965 within 30 days of the creation of charge pursuant to S 108.
■ The registration of charge will create indefeasible interest for the chargee.
Chargee to apply for order for sale
■ The chargee has the right to sell the property in the event the chargor is unable to repay the debt.
■ S 254 (1):
■ Breach for at least 1 month or such alternative period as specified in the chargee;
■ The chargor must be served a notice in Form 16D
■ Upon the expiry of the such notice, the chargee would have the right to apply for an order for sale of the land
■ S 255: Payable on demand- Form 16E- 1 month still not paid- order for sale without F 16D.
The Tribunal for Home buyer Claims
■ Easier, cheaper and faster means of dispute resolution.
■ a) Aclaim is filed no later than 12 months from the date of:
■ (i) issue of the Certificate of Compliance of the property; or
■ (ii) the expiry date of the defect liability period as set out in the SPA.
■ b) The SPA-housing accommodation built in a residential area.
■ c) Each claim does not exceed RM50,000 per cause of action unless
■ (i) the claimant agrees to forgo the balance of the claim; or
■ (ii) the acquiescence of the developer is obtained in writing for the matter to be heard at the Tribunal.
■ d) SPA is signed before 1 December 2002 can also be considered provided the claims fulfill the criteria stated above;
Tenancy and Lease
■ Lease: the lessee holds an estate in the land during the term of the lease. An interest or estate in land confers the lessee with ownership of the leasehold estate during the term of the lease.
■ S 5 of the NLC: lease- registered lease or sublease of alienated land.
■ S 213 tenancy exempt form registration=
■ 1. tenancy or subtenancy for a term not exceeding 3 years- s 223
■ 2. tenancy or subtenancy not exceeding 1 year- previous land law .
Differences between a Tenancy and a Lease
■ Lease:
■ must be registered under s 222 (1) of the NLC
■ Exceeding 3 years
■ Where any sub-lease relates to a part only of any alienated landnot exceed 30 yrs.
■ Tenancy:
■ Less than 3 years, s 213
■ Subtenancy must not exceed 3 yrs and/or the tenancy period
Differences between a Tenancy and a Lease
■ Lease:
■ must be registered under s 222 (1) of the NLC
■ Exceeding 3 years
■ Where any sub-lease relates to a part only of any alienated landnot exceed 30 yrs.
■ Tenancy:
■ Less than 3 years, s 213
■ Subtenancy must not exceed 3 yrs and/or the tenancy period
Tenancy Agreement
■ S 223 (2): may be created verbally or in writing
■ Identify the landlord and tenant correctly
■ The verify that the landlord is the actual proprietor
■ All proprietors, to execute the Tenancy Agreement
■ Inquire :
1. deposit sum
2. utilities deposit
3. the sewerage deposit.
■ Duration: not exceed 3 years.
■ Extension of tenancy period
■ Identify use of premise
■ Termination of the agreement
Adorna Properties Sdn Bhd v Bonsoom Boonyanit (2001)
■ FC, Eusoff Chin, Wan Adnan, Abu Mansor Ali.
■ A purchaser in good faith and for valuable consideration is excluded from the application of the substantive provision of s 340 (3).
■ Such registered proprietor obtains immediate indefeasible title to the lands.
■ Even if the instrument of transfer was forged, the respondent nevertheless obtained an indefeasible title.
Tan Ying Hong v Tan Sian San &Ors
■ FC revisited the Adorna case. (Tun Zaki, Alauddin Mohd Sheriff, Arifin Zakaria, Zulkifli Ahmad Makinudin, James Foong).
■ Adorna is no longer good law and in fact wrong, uncertain, unjust or outmoded or obsolete.
■ The bench in the Adorna case had miscontrued s340 and applied s 340(2) which led to erroneous conclusion.
■ The court restored protection to original landowners from losing their properties to forgers.
Kump Sua Betong Sdn Bhd v Dataran Segar Sdn Bhd (1992) 1
■ SC (Jemuri Serjan, Gunn Chit Tuan, Charles).
■ An appeal from a judgment of the HC claiming the removal of a private caveat.
■ The HC granted the application to remove the caveat.
■ The SC allowed the appeal and the order is set aside.
■ The SC laid down the principals that a caveator has to show to the R when his private caveat is challenged.
Linggi Plantations Ltd v Jagathesan (1972)
■ PC (Lord Hailsham, Lord Hodson, Lord Cross)
■ Whetherr a vendor was entitled to forfeit a deposit paid on a contract following its noncompletion by the purchaser.
■ The terms of an agreement are to discover therefrom the intention of the parties.
■ When the ct decided on the issues of liquidated damages, rules of equity provide that the sum provided in the contract should in substance be genuine pre-estimate of the damages likely to be suffered and not a penalty
CONTENTS
■ Sale and Purchase
■ Caveat
■ Charge
■ Lease and Tenancy
Introduction
■ Conveyancing 转易 is the act of transferring the legal title in a property from one person to another
■ To ensure that the purchaser secures the title with all the rights that run with the land.
Overview of Property Law in Malaysia
■ The land registration system: the State Land Offices and coordinated by the Department of Land and Mines.
■ Properties can be either:
(a) Freehold – held in perpetuity
(b) Leasehold – land owned by the state and leases are for a term of usually for 30, 60 or 99 years.
(c) Malay Reserved Land – the buying and any subsequent changing of ownership is restricted to Bumiputeras only.
Title
■ Freehold or leasehold properties are either issued with:
(a) Master Title –more than one unit of property is constructed. Eg. registered in the name of the developer. The developer may submit an application for subdivision of the master title.
(b) Individual Title – issued under the NLC for land, houses, commercial properties that are commonly not multi-storey; or
(c) Strata Title – issued under the Strata Titles Act. Issued for multi-storey buildings e.g. apartments, condominiums, commercial properties and now even for houses in gated and guarded communities.
S&P Transactions
■ The conveyancer to gather all the relevant facts and information before drafting the S&P agreement.
■ To give appropriate advice
■ To establish whether the purchaser intends to purchase the property form the developer or sub-sale transaction.
Buying with Cash or Loan
■ The cash purchaser:
1. To procure written confirmation from the D to ensure the property is free from encumbrances.
2. In the event that the property is charged, shall request from the D’s bank a redemption statement cum letter of undertaking before paying for the purchase price.
3. The purchaserpay the redemption sum directly to the developer’s bank and subsequently request the bank to acknowledge receipt of the payment via a letter of disclaimer.
■ The Loan Purchaser:
■ Who pays for the property with a bank loan.
■ It is subject to the bank’s own internal and credit assessment guidelines.
Overview Of The Sale Process
■ Offer to Purchase
■ Payment of first 10% of Purchase Price
■ Signing of the (SPA), Deed of Mutual Covenant (DMC) (if applicable), MOT (if sub-divided title issued)
■ For non-Malaysian, they are required to seek approval from Economic Planning Unit (“EPU”) (if applicable) and consent from the State Authority
■ Accepting the bank’s LO and signing the loan documents
■ Payment of the balance PP either by cash or loan
■ Delivery of Vacant Possession
■ (Within 24 month for Schedule G or 36 months for Schedule H)
Property from the Developer
■ S&P shall be in accordance with Housing Developers (Control&Licensing) Act 1966
■ If landed prop: Schedule G
■ If subdivided building eg. apartment or landed strata: Schedule H
■ Defect Liability Period: 24 months
■ Management Corp: Joint Management Body formed under the Building and Common Property (Maintenance and Management) Act 2007.
Sub-Sale Transaction
■ It is governed by the law of contract.
■ T&C of the S&P need to be negotiated between the parties.
■ The payment of purchase price is usually made within 3 months from date of SPA provided that no restriction of interest on the title.
Preliminary Issue to be Considered
■ Property with an individual issue document of title landed or strata
■ Property without title, has yet to be issued.
■ Leasehold or freehold
■ Subjected to any restrictions, liens, caveats, and charges.
■ Individual purchaser or multiple purchasers
■ Foreigners
Preliminary Searches
■ Land title
■ Bankruptcy search
■ Other searches
■ Bank Statement: if property is still under bank financing.
Land Title Search
■ To ascertain:
■ The existing proprietor of the property
■ Property is encumbered or not
■ Any restriction in interest
■ Any type of caveat
■ Land acquisition
■ Freehold or leasehold
■ If leasehold, expiry date of the lease
■ Chargee of the prop
Bankruptcy and Winding-up Search
■ Search on the vendor- if bankrupt, unable to sell. OA would stop into the vendor’s shoes.
■ Search on the company.
■ Register and Search at (cost at RM12):
■ www.e-services.com.my ■ www.myeg.com.my ■ www.rilek.com.my
Company Search
■ To ascertain who the directors and shareholders of the co.
■ Registered address and business address.
Drafting the S&P Property with Title
■ Parties to the Agreement
■ Recitals
■ Deposit sum
■ Condition precedent
■ Mode of payment
■ Time Period
Drafting of the S&P without title
■ Essential preliminaries
■ Recital (bacaan)
■ Mode of Payment
■ Documentation and execution of documents
■ RPGT
■ Redemption of the property
■ Lodgment of private caveat by purchaser
■ Non-perfection of the deed of assignment
■ Documentation and execution of documents affecting the transfer
■ Procedure for redemption 赎回 form the existing chargee.
■ Release of monies of balance purchase price
■ Supervening Events 超级事件
■ Vacant possession
■ Miscellaneous clauses
Stamp Duty
■ Stamp Act 1949=is levied by the govt on instruments of transfer.
■ Property transaction= ad valorem (according to the value)
■ MOT and DOA:
■ 1st RM100k=1%
■ RM100,001-RM500,000= 2%
■ Any amount excess of RM500k=3%
■ Charge: Loan sum=0.5% each copy=RM10.
RPGT
■ Gains from disposal of residential and commercial properties are taxed under the RPGT.
■ Objective: to control speculation in landed property and to curb any excessive rise in real prop.
■ It depends on the holding period of real properties.
■ Exemptions:
■transfer between husband and wife;
■transfer between parent and child; and
■transfer between grandparent and grandchild.
Caveat
■ Caveat is endorsed on the Issue Document of title
■ Notice to the world that the person entering the caveat has a claim to an interest in the land.
■ Prohibits any further dealing on the said land
Caveat
■ Private caveat: S 323 of NLC
■ Lien Holder’s Caveat: s 322, if there is an issued document of title which has been deposited as security for loan. Form 19A
■ Trust caveat: s 332, may be entered by the R upon application by the trustees. Form 19E (Perpetual unless it is cancelled by the R.)
■ Registrar Caveat: S 329 (1), liable (bertanggungjawab) to pay compensation if suffers damage or loss arising from the wrongful entry of the private caveat.
How to Lodge Caveat
■ S 323 and 324 of the NLC:
■ Form 19B which has to be attested.
■ Private Caveat will bind the land for a period of 6 yrs.
■ Wong Kuan Tan v Gambut Dev Sdn Bhd
■ The caveator must satisfy the court that he had caveatable interest in the land
■ Mexaland Dev Sdn Bhd & Ors v Score Option Sdn Bhd & Ors
■ Merely relying on the Joint-venture agreement did not confer a caveatable interest.
Conditions to extend the Caveat
■ 1. Sufficient grounds for caveat- The onus of proof is on the caveator.
■ Kumpulan Sua Betong Sdn Bhd v Dataran Segar Sdn Bhd
■ A. The applicant must satisfy that he has a ‘caveatable interest’ in the land.
■ B. the evidence
■ C. to show on the balance of convenience
■ Urethane Systems Sdn Bhd v Quek Yak Kang
■ No caveatable interest as the claim was based on monetary loss. ■
Withdrawal of a private caveat
■ S 327
■ 1. by the caveator: s 325: Form 19G
■ 2. by the Registrar: s 326: Form 19C
■ 3. by an order given by the court.
Removal of Caveat
■ S 325: by giving notice in form 19G and paying the prescribed fee.
Removal of Caveat
■ By the Registrar: S 326 of the NLC
■ Procedure: Form 19H and pay the prescribed fee
■ Upon receiving, the Registrar will serve a notice of intended removal in Form 19C
■ To extend Private Caveat: s326C for an extension order to the court.
Removal of the Caveat
■ By the Court: S 327 of the NLC
■ The only parties are caveatee and caveator “the aggrieved parties”.
■ Luggage Distributors M Sdn Bhd v Tan Hor Teng & Anor
■ If grounds are insufficient, the caveat must be removed.
Charge
■ Security over the land.
■ Must be registered in the land office in order to be valid, enforceable and binding.
■ The chargee has the right to apply for an order to foreclose the land.
Entering a Charge
■ S 241 NLC, a charge may be entered on the whole but not a part only or the whole but not a part only of any undivided share or any lease.
■ Form 16A- to secure the repayment of a debt.
■ For a company to register: File in the form 34 of the Companies Act 1965 within 30 days of the creation of charge pursuant to S 108.
■ The registration of charge will create indefeasible interest for the chargee.
Chargee to apply for order for sale
■ The chargee has the right to sell the property in the event the chargor is unable to repay the debt.
■ S 254 (1):
■ Breach for at least 1 month or such alternative period as specified in the chargee;
■ The chargor must be served a notice in Form 16D
■ Upon the expiry of the such notice, the chargee would have the right to apply for an order for sale of the land
■ S 255: Payable on demand- Form 16E- 1 month still not paid- order for sale without F 16D.
The Tribunal for Home buyer Claims
■ Easier, cheaper and faster means of dispute resolution.
■ a) Aclaim is filed no later than 12 months from the date of:
■ (i) issue of the Certificate of Compliance of the property; or
■ (ii) the expiry date of the defect liability period as set out in the SPA.
■ b) The SPA-housing accommodation built in a residential area.
■ c) Each claim does not exceed RM50,000 per cause of action unless
■ (i) the claimant agrees to forgo the balance of the claim; or
■ (ii) the acquiescence of the developer is obtained in writing for the matter to be heard at the Tribunal.
■ d) SPA is signed before 1 December 2002 can also be considered provided the claims fulfill the criteria stated above;
Tenancy and Lease
■ Lease: the lessee holds an estate in the land during the term of the lease. An interest or estate in land confers the lessee with ownership of the leasehold estate during the term of the lease.
■ S 5 of the NLC: lease- registered lease or sublease of alienated land.
■ S 213 tenancy exempt form registration=
■ 1. tenancy or subtenancy for a term not exceeding 3 years- s 223
■ 2. tenancy or subtenancy not exceeding 1 year- previous land law .
Differences between a Tenancy and a Lease
■ Lease:
■ must be registered under s 222 (1) of the NLC
■ Exceeding 3 years
■ Where any sub-lease relates to a part only of any alienated landnot exceed 30 yrs.
■ Tenancy:
■ Less than 3 years, s 213
■ Subtenancy must not exceed 3 yrs and/or the tenancy period
Differences between a Tenancy and a Lease
■ Lease:
■ must be registered under s 222 (1) of the NLC
■ Exceeding 3 years
■ Where any sub-lease relates to a part only of any alienated landnot exceed 30 yrs.
■ Tenancy:
■ Less than 3 years, s 213
■ Subtenancy must not exceed 3 yrs and/or the tenancy period
Tenancy Agreement
■ S 223 (2): may be created verbally or in writing
■ Identify the landlord and tenant correctly
■ The verify that the landlord is the actual proprietor
■ All proprietors, to execute the Tenancy Agreement
■ Inquire :
1. deposit sum
2. utilities deposit
3. the sewerage deposit.
■ Duration: not exceed 3 years.
■ Extension of tenancy period
■ Identify use of premise
■ Termination of the agreement
Case Study
Adorna Properties Sdn Bhd v Bonsoom Boonyanit (2001)
■ FC, Eusoff Chin, Wan Adnan, Abu Mansor Ali.
■ A purchaser in good faith and for valuable consideration is excluded from the application of the substantive provision of s 340 (3).
■ Such registered proprietor obtains immediate indefeasible title to the lands.
■ Even if the instrument of transfer was forged, the respondent nevertheless obtained an indefeasible title.
Tan Ying Hong v Tan Sian San &Ors
■ FC revisited the Adorna case. (Tun Zaki, Alauddin Mohd Sheriff, Arifin Zakaria, Zulkifli Ahmad Makinudin, James Foong).
■ Adorna is no longer good law and in fact wrong, uncertain, unjust or outmoded or obsolete.
■ The bench in the Adorna case had miscontrued s340 and applied s 340(2) which led to erroneous conclusion.
■ The court restored protection to original landowners from losing their properties to forgers.
Kump Sua Betong Sdn Bhd v Dataran Segar Sdn Bhd (1992) 1
■ SC (Jemuri Serjan, Gunn Chit Tuan, Charles).
■ An appeal from a judgment of the HC claiming the removal of a private caveat.
■ The HC granted the application to remove the caveat.
■ The SC allowed the appeal and the order is set aside.
■ The SC laid down the principals that a caveator has to show to the R when his private caveat is challenged.
Linggi Plantations Ltd v Jagathesan (1972)
■ PC (Lord Hailsham, Lord Hodson, Lord Cross)
■ Whetherr a vendor was entitled to forfeit a deposit paid on a contract following its noncompletion by the purchaser.
■ The terms of an agreement are to discover therefrom the intention of the parties.
■ When the ct decided on the issues of liquidated damages, rules of equity provide that the sum provided in the contract should in substance be genuine pre-estimate of the damages likely to be suffered and not a penalty
Continue ... Land Transactions Part 2
ETM 3406 Chapter 1 Nature And Classification
Main Page => Notes & Assignment
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
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