LAW 3110 - Lecture 3 - Evolution of Malaysian Land Law - 2019 - AJM
LAW 3110 - Lecture 3 - Evolution of Malaysian Land Law - 2019 - AJM
LAW 3110 - Lecture 3 - Evolution of Malaysian Land Law - 2019 - AJM
ADMINISTRATION SYSTEM
Lecture 3
September 2019
Ainul Jaria Maidin
10/13/2019 1
Outline of Lecture
10/13/2019 2
Malay Customary Tenure
Before coming of the British, early Malay inhabitants used land for
subsistence agriculture in two modes of cultivation:
‘HUMA/
LADANG’
‘SAWAH/
BENDANG’
10/13/2019 3
OLD MALAY LAWS
99 Laws of Perak
Perak Digest
Malacca Digest
10/13/2019 4
MALAY CUSTOMARY DEALINGS
10/13/2019 5
Sahrip v Mitchell (1870)
“It is well-known that by the old Malay law or
custom of Malacca, while the sovereign was
the owner of the soil, every man had
nevertheless the right to occupy all forest and
waste land subject to the payment to the
sovereign of 1/10 of the produce of the land
so taken.”
10/13/2019 6
Judicial Recognition of Islamic Law
•Ramah v Laton
•Muslim law is not foreign law but local law and the law of the land. The
court must take judicial notice of it and must propound the law.
•According to the court, the question regarding to harta syarikat or harta
sepencarian was not a question which related to foreign law, but was once
of the local law
10/13/2019 7
Did land belong to the Sultan/Raja under Malay
custom?
10/13/2019 8
Objection to Maxwell’s Theory
10/13/2019 9
References:
10/13/2019 10
Land Administration System
Coordinated system of land administration into which land tenure system
in Peninsular Malaysia has developed into at present was once merely an
administrative record maintained mainly for purposes of collection of
revenue by the state as landlord of the holdings of its tenantry.
10/13/2019 11
History of the Torrens System in Malaysia
KING
B C
Deed
A D
of Conveyance
10/13/2019 12
Tracing Chain of Title
A prospective purchaser of land
must trace the chain of title by
doing RETROSPECTIVE
INVESTIGATION OF TITLE.
If there was fraud or forgery in the
execution of the deed, the transfer
between the parties will be invalid
and of no effect.
Will cause ‘break in the chain of
title’.
10/13/2019 13
Defects of Deeds System?
10/13/2019 14
General Law – Old Law
Under the traditional system of transferring land, the history of
the property must be examined to ensure that the seller can
convey good title to the purchaser
When property is sold, a deed is filed and recorded with the land
office
The deed contains:
• the names of the seller and the buyer
• the ownership relationship of the sellers and buyers, if more than
one seller or one buyer is involved (for example, joint tenants or
tenants in common)
• the legal description of the property being transferred.
This information is summarised from each deed and recorded in a
document called an abstract of title
10/13/2019 15
General Law – Chain of Title
10/13/2019 16
General Law - Uncertainty
10/13/2019 17
Torrens System
The Torrens system is a system of ‘land registration’
A system whereby the title to land and interests in
land depends upon registration, and not upon the
instrument inter-partes.
Operates in every state and territory in Australia and
other Common Law countries such as Canada and
New Zealand
Sir Robert Torrens (3rd Premier of SA) is credited with
the creation of the of this simplified system of
transferring land
In December 1857 he passed the Real Property Act
1858 for the transfer of real property under the
system which became known as Torrens title.
Sir Robert Torrens
10/13/2019 18
Dr juris Ulrich Hübbe?
German Lawyer who had conducted real property
transactions in Germany
Part of a group who assisted Torrens in formulating
the new title system
Torrens never acknowledged Hübbe’s assistance
He referred to the success of the system in
Merchant shipping and the many centuries of
success of land title registration in Germany
without referring to Hübbe or that the system was
modelled on it
Torrens fought it through parliament
Torrens visited Victoria and assisted in bringing in
the new system in that colony.
Ulrich Hübbe
10/13/2019 19
Simplicity of Torrens System
10/13/2019 20
The Torrens System
Property is transferred by registration of title instead of by deeds
A purchaser is merely required to undertake a search of one
record - the title as registered
The Torrens system did away with the complexity of the old
English land law which was based on medieval concepts and
made conveyancing cumbersome, time consuming and expensive
No document (eg a transfer or a mortgage) or other interest in
property (eg caveat) is effective unless and until it is recorded at
the centralised registry
Once the purchasers name is recorded on the title register the
purchaser becomes owner of the property to the exclusion of all
others, by the very fact of registration
Purchaser obtains ‘title by registration’
10/13/2019 21
Unchallengeable
10/13/2019 22
Residual influence from English System
Courts have applied the English system rules to the Torrens system
Common law and equity principles relating to property still apply
Problematic juxtaposition:
• Torrens system originated in Germany, a Civil law country and was meant to
operate in that system
• Australia is a Common Law country which inherited a system of feudal tenures
• Mismatch …
10/13/2019 23
Registered Title
‘Registered Title’ refers to land held under the Torrens system
administrated under the Transfer of Land Act 1958.
Each parcel of land has its own Certificate of Title numbered by
Volume and Folio
The Certificates of Title (original) are stored in the Register Book
which is maintained by the Registrar of Titles
10/13/2019 24
10/13/2019 25
Electronic Title
The Register Book is in the process of being computerised and automated.
Every property transaction in Victoria now involves conversion of paper
title (original held by the Registrar of Titles at the Land Titles Office) to
‘electronic’ title
Purchasers get to keep the paper title as a souvenir
Indefeasibility of title with guarantee from the State (compensation
payable) is a key aspect of the Torrens system
Fraud: Does electronic registration allow those committing fraud to
offend on a wider scale - question the security and stability of the
register?
Accuracy needs to be ensured
Provision needs to be made for the failings of technology
Already there are problems. The process of conversion will inevitably
create some errors. I have had personal experience of this!
10/13/2019 26
FEATURES & PRINCIPLES OF TORRENS
SYSTEM
features Principles
10/13/2019 27
Mirror Principle
The register book is like a mirror of the land.
All details regarding the land are recorded in the Register
Book.
- name of the proprietor,
-survey plan of the land,
-category of land use,
-conditions and restrictions on the land, etc.
-- encumbrances on the land, etc.
Authority: s.340 NLC
10/13/2019 28
Curtain Principle -s.89 NLC
10/13/2019 29
Gibbs v Messer (1891)
10/13/2019 30
Assurance Principle
10/13/2019 31
English System in the Straits
Settlements
With the passing of the First and Second Charters of Justice, the Deeds
system was introduced for awhile in Penang and Malacca.
Later, several ordinances incorporated the Torrens system up to the
passing of the National Land Code (Penang and Malacca Titles) 1963.
10/13/2019 32
Introduction of Torrens System in
Malaysia
10/13/2019 33
10/13/2019 34
Most commonwealth nations adopted
Torrens system
10/13/2019 35
Torrens title is a system of land title where a register of land
holdings maintained by the state guarantees an indefeasible title to
those included in the register.
10/13/2019 36
Characteristics of Torrens System
Torrens System National Land Code 1965
37
Characteristics of Torrens System
Torrens System National Land Code 1965
8. S. 46 - Reversion to state
38
Indefeasibility of Title
39
Indefeasibility of Title
40
History of Torrens Statutes in FMS
10/13/2019 41
Federal Constitution & NLC 1965
Under Federal Constitution, land matters fall under State list - State Legislative
Assembly may legislate on land matters.
Why
10/13/2019 42
10/13/2019 43
Article 76(4) Federal Constitution allows Parliament to
make laws in respect of land matters ‘FOR THE PURPOSE
ONLY OF ENSURING UNIFORMITY OF LAW AND POLICY’.
10/13/2019 44
East Union (Malaya) SB. v Govt of State of
Johor & Govt. of Malaysia [1981] 1 MLJ 151
Concerned a challenge on the power of Parliament to
enact section 100 of the NLC providing the State
Authority with the power to forfeit land for non-payment
of rent.
Federal Court held that section 100 was not ultra-vires
the constitution as Parliament had power to enact the
NLC based on ARTICLE 76(4) Federal Constitution.
10/13/2019 45
Background of NLC 1965
10/13/2019 49
Malay Customary Tenure Lands
10/13/2019 50
Application of Principles of Equity
PRINCIPLES OF Equity can be applied
PRINCIPLES OF Equity CANNOT BE APPLIED
S. 6 Civil Law Act 1956: Wilkins & Ors. v Kannamal & Anor.
“Nothing in this Part shall be taken [1951] MLJ 99
to introduce into Malaysia or any
of the States comprised therein
any part of the law of England “The Torrens law is a system of
relating to tenure and conveyance conveyancing; it does not abrogate
or assurance or succession to any the principles of equity; it alters
immoveable property or any right the application of particular rules
or interest therein.” of equity but only so far as
necessary to achieve its own
special objects.”
10/13/2019 51
LAND ADMINISTRATION
REGULATED BY
NATIONAL LAND CODE 1965
10/13/2019 52
10/13/2019 53
• An Act to amend and consolidate the laws relating to land and land tenure, the
registration of title to land and of dealings therewith and the collection of revenue
therefrom within the States of Johore, Kedah, Kelantan, Malacca, Negeri Sembilan,
Pahang, Penang, Perak, Perlis, Selangor, Terengganu and the Federal Territory of Kuala
Lumpur, and for purposes connected therewith.
• Enacted by Dewan Rakyat
• Passed 10 August 1965
• Enacted by Dewan Negara
• Passed 16 August 1965
• Royal assent 18 September 1965
• Effective 1 January 1966
• Legislative history
• Introduced in the Dewan Rakyat - National Land Code Bill 1965 by Abdul Rahman Ya'kub,
Minister of Lands and Mines
• First reading 26 May 1965
• Second reading 9 August 1965
• Third reading 10 August 1965
10/13/2019 54
Savings – S 4 NLC
• (1) Nothing in this Act shall affect the past operation of, or anything done under, any previous
land law or, so far as they relate to land, the provisions of any other law passed before the
commencement of this Act: Provided that any right, liberty, privilege, obligation or liability
existing at the commencement of this Act by virtue of any such law shall, except as
hereinafter expressly provided, be subject to the provisions of this Act. (2) Except in so far as
it is expressly provided to the contrary, nothing in this Act shall affect the provisions of-
• (a) any law for the time being in force relating to customary tenure;
• (b) any law for the time being in force relating to Malay reservations or Malay holdings;
• (c) any law for the time being in force relating to mining;
• (d) any law for the time being in force relating to sultanate lands;
• (e) any law for the time being in force relating to wakaf or bait-ul-mal;
• (f) the Trengganu Settlement Enactment, 1356;
• (g) the Padi Cultivators (Control of Rent and Security of Tenure) Ordinance, 1955;
• (h) the Kelantan Land Settlement Ordinance, 1955;
• (i) the Land (Group Settlement Areas) Act, 1960;
• (j) (ia) the Perlis Land Settlement Enactment 1966; or
• (k) any law for the time being in force relating to exemptions from the payment of land
revenue;
• and, in the absence of express provision to the contrary, if any provision of this Act is
inconsistent with any provision of any such law, the latter provision shall prevail, and the
former provision shall, to the extent of the inconsistency, be void.
10/13/2019 55
Registration & Powers of Disposal of Land by
Indefeasibility of State Authority State Authority
Title & interests
Restraint on
Dealings Definition of Land
Classification
LAND Categorisation of
ADMINISTRATION Land Use
Dealings LAW – under NLC
Power to impose
Restrictions
Right to Forfeit in interest
Land
Land Development
Subdivision
Partition, Amalgamation 56
CONCEPT OF LAND OWNERSHIP
10/13/2019 57
RIGHTS & POWERS OF STATE AUTHORITY
10/13/2019 58
POWERS OF DISPOSAL- NLC 1965 -Sec. 42
10/13/2019 59
RIGHTS OF STATE AUTHORITY
vs RIGHTS OF OWNER
Owner’s right: Sec 44(1)(a) – airspace
- stratum/ spatium
- support
Rights to restrict the extent and nature of enjoyment of land
Right of forfeiture
Right of Compulsory Acquisition
10/13/2019 60
STATE AUTHORITY’S RIGHTS
10/13/2019 61
DEALINGS & CREATION UNDER NLC 1965
10/13/2019 62