dealings and registration
TRANSCRIPT
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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