dealings and registration

DEALINGS AND REGISTRATION

Prepared by:

Puan Hamsiah Omar

Introduction

The NLC 1965 require certain matter to be

Registered :-

(a) dealings in alienated land

(b) Interest in alienated land

What are dealings?

There are four (4) types of dealings of any

alienated land recognized by the Code:- Transfers; Leases and tenancies; Charges and liens ; and Easements.

However not all the above dealings require

to be registered.

Dealings that require registration are:-

Transfers; Leases Charges and easements

Dealings that do not require registrations are:

Tenancies; and Liens.

What is “interest in alienated land”?

Includes:- a lease and sublease of alienated land; A charge of alienated land; and An easement.

The above interests are required to be registered by the NLC to become effective. Once registered, the party or person who accepts the lease, sublease, charge or easement will have a registered interest over the alienated land.

Transfer

Who are the parties to transfer

All persons or bodies in sec. 43

Transferor – party who transfer the land;

Transferee- party who accepts the transfer.

What may be transferred – sec. 214(1)

The whole, but not a part only, of any alienated land;

The whole, but not a part only of any undivided share, or any alienated land;

Any lease; Any charge; Tenancy exempt from registration

Limitation in Transfer

a. sec. 214(2) – power to transfer are subject to:-

Any other written law; Restriction in interest; Consent from lessee or chargee;

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b. sec. 214(3) – prohibits transfer of lease or a charge to 2 or more persons or bodies as trustees or representatives.

Section 214A – control of transfer of estate land

What is estate land ? – sec 214A(1) “agricultural land” Under one title or more Which area is more than 40 hectares Land constituting the area are

contiguous/joining (the 40 hectares must be adjoining)

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Estate land cannot be transferred or disposed

of to 2 or more persons unless consent/

approval is obtained from the Estate Land

Board.

Case: Kumpulan Sua betong.

Illustration – Transfer of alienated land

Ali is a registered proprietor of a piece of land

has agreed to transfer his land to Siti. Ali would

like to know his duty and obligation to make the

transfer effective.

General rule on transfer

a. sec. 206(1)(a) – every dealing shall be effected in a proper instrument (forms)

b. Sec. 215(1) – the relevant instrument for transfer of any alienated land is Form 14A

c. Sec. 206(1)(b) – no instrument shall be effective to operate as a transfer of a title until it is registered.

d. Sec. 215(2) – upon registration, the title of trnsferor (Ali) in the land shall pass and vest in the transferee (Siti)

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e. sec. 304(1) – registration of any instrument shall be effected by the Registrar.

f. sec. 304(2) – the Registrar shall register the transfer by making a memorial on the RDT, signs and seals on the instrument.

Case: Jasbir Kaur

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g. sec. 215(3) – upon registration, the transferee (Siti) shall take over.

Lease, charge or other registered interest existing at the time of registration of transfer, if any;

Tenancy exempt from registration, if any and endorsed;

Whatever matters appear in the register document of title.

LEASE

A person who lease the land is called a lessor

while the person who accepts the lease is

called the lessee.

Lease is one of the dealings which is capable

of being registered.

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By virtue of sec. 5 - “lease” simply means “ a

registered lease or sublease of an alienated

land”

Thus, lease must be registered to be effective.

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Once registered. A lease creates a legal interest in the land

- enforceable against third party

- enjoys protection within the terms of

legislation

Lease under common law

Need not be registered Legal interest created upon signing of

agreement

Elements of a lease under CL

a. Lessee has an exclusive possession lessee can exclude all person

including the lessor. lessor will not deprive lessee of

enjoyment of the land

Erington v. Erington & Woods

Principles to establish:-i. Not only that exclusive possession had been

granted;ii. But also the intention to create the relationship of

landlord and tenant;iii. And thereby to create an interest in the land.Case Mohamed Mustaffa v. Kandasami

if there is no possession the transaction cannot be a lease

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b. Lease is of a definite period

c. Inconsideration of payment of rent.

Power to lease

Sec. 221(1) – proprietor of any alienated land can grant a lease

Wholly; or partly

Term of lease

Sec. 221(2) every lease must be for a term

exceeding 3 years.

Maximum term to grant lease – sec 221(3)

a. lease of the whole piece of land – 99 years.

b. Lease of part the land – 30 years.

Lease and its limitation.

a. Sec 225(1) may be subject to any other written law; restriction in interest.b. Sec 225(2)- lease cannot be granted to 2 or

more persons or bodies as trustees or representative.

c. Sec 226 – consent from lessee or chargee be obtained before leased can be created.

Instrument of lease – sec 221(4)

Every lease shall be in Form 15A

Effect of registration – sec 227(1)

a lease will have legal effect upon registration

Interest of lesse shall vest in him upon such registration

What if lease not registered?

General – sec 206(2) – no instrument of dealing shall operate to effect any interest unless it registered

Sec 206(3) – however the requirement in sec 206(1) shall not affect any contractual operation of any transaction of alienated land.

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Even though the instrument is not registered, the contract to lease entered between the lessor and lesser is still valid.

Thus, unregistered lease is void as a lease but the contract is valid as an agreement for a lease.

The contract is enforceble under the law of contract

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Margaret Chua v. Ho Swee Kiew Ong Heng Hwa Realty Sdn Bhd

Tenancy Exempt From Registration(TXR)

Sec 213(1)

Types of Tenancy

a. Periodic Tenancy

b. Tenancy will

c. Tenancy at sufferance

d. Tenancy by estoppel

e. Tenancy coupled with Equity

Endorsement

Sec 213 (3)

What if the tenant fails to endorse his tenancy against the title?

Than Kok Leong v. Low Kim Hai Hotel Ambassador

How endorsement made?

Sec 316 – application for endorsement

Sec 317 - procedure

Cancellation of endorsement – sec 318

The Registrar may cancel any endorsement By court order; Upon expiry of the tenancy;

The Registrar shall endorsement against the cancelled endorsement note of the date of cancellation and the reason thereof.

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