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UDL3622 LAND LAW II Topic 1

Land Law II (Multimedia University)

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UDL3622 LAND LAW II NOTES

TOPIC 1 DEALINGS AND REGISTRATION OF DEALINGS

Dealings
Teh Bee v K Maruthamuthu: Under the Torrens System the register is everything.
A Division IV
s 205(1): Dealings capable of being effected under NLC Parts Fourteen to Seventeen

Parts Dealings Sections

Fourteen Transfers 214 to 220
Fifteen Leases and Tenancies 221 to 240
Sixteen Charges and Liens 241 to 281
Seventeen Easements 282 to 291

Sivalingam a/l Yakambaram Pillai vTharumalingama/l Ponnusamy P D

in 1980 and D had undertook to transfer the purchased parts to P. D had failed to carry out the
undertakings despite repeated requests by P. P averred that they were the beneficial owners
of the land. Held:-
s 205(3): prohibits dealing of agriculture land that would in effect partition the land into less
than two-fifths of a hectare.
s 205(4): subsection (3) does not apply to agriculture land smaller than two-fifths of a hectare.
s 205(5): subsections (3) and (4) shall not invalidate any instrument effecting any dealing
executed before commencement of this subsection, i.e. 30 May 1986.
T
206:
(i) must be made in the requisite form of the First Schedule (s 207);
(ii) must contain the appropriate particulars of the parties and of the land (ss 208 and 209).
(iii) Must be signed by the parties whose signature must be attested by the persons
specified in the Fifth Schedule (ss 210 and 211).
The parties had not executed any instrument of transfer in accordance with the provisions of
the Division IV of the National Land Code before 30 May 1985. It is clear therefore, P could not
avail themselves of the saving provision of s 205(5).
Che Dah v Commissioner of Land Titles (Penang and Malacca) Penang P
of land in trust for life in favour of P. When Torrens system was implemented in Penang, the
P A P P
‘ P P
sought, inter alia, an order for the transfer to be registered. Held: On a proper reading of the

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een that there is no

discretion given to the registrar to register any instrument which is outside the scope and
purview of section 292. A remainderman who is not the registered proprietor could not
execute any instrument that would fall into any class enumerated in s 292. P ought to have
herself registered as the proprietress of the land first before the transfer can be registered.
Action dismissed.
Hong Leong Bank Bhd v Goh Sin Khai:D absolutely assigned to P all rights and interest in a piece
of property pursuant to a deed of assignment. The individual title for the property was
subsequently issued. P sought declarations that the issuance of individual title does not affect
the validity of the absolute assignment and the absolute assignment constituted an equitable
mortgage of the property.
Held: Declarations granted. An absolute assignment creates a mortgage and not a charge
simply because the assignment serves to transfer to the assignee the legal right in the chose
in action pursuant to s 4(3) of the Civil Law Act 1956. The issuance of an individual title does
not convert the existing equitable mortgage into an equitable charge. A mortgage is not
capable of being registered under s 292(1) of the NLC. The Registrar has no discretion to
register any instrument that is outside the scope of purview of this section (approved Che Dah).
Hence, only the developer may affect a transfer of the property under Part 14 of Division IV of
the Code since the bare legal title still vests in the developer.The assignor or mortgagor has a
right to require a transfer of that legal title from the developer once title has been issue. This
right is the chose in action that has been absolutely assigned or transferred to the assignee or
mortgagee. The mortgagee then when exercising the power of sale assigns or transfers not the
legal title to the subsequent purchaser but the chose in action that enables the purchaser to
require the developer to transfer the legal title or estate to him directly.
Hassan Kadir v Mohamed Moidu Mohamed D
P P D
passed away. D refused to transfer the said portion to P. P lodged a private caveat on the land
but it was rejected. P sought for specific performance. Held: The deed of sale executed was
NOT an instrument of dealing within the provisions of s 205 of the NLC read with s 5 and ss 206
to 211 thereof. The prohibition in s 205(3) of the Code does not apply to the deed of sale.
A constructive trust came into existence upon the execution of the deed of sale. D must hold
the said portion subject to the constructive trust in favour of P pursuant to the terms of the
deed of sale. Since a private caveat would not be appropriate because of its limited lifespan,
‘ T
P

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Registration of Instruments of Dealings

Necessity of having dealings registered
Certain dealings in alienated land or interest therein is required under NLC to be registered.
s 292(1): Dealings capable of being registered transfers, leases, charges, and easements
s 206(2): Dealings which do not require, for purposes of their creation, nor are they capable
of, registration tenancies and liens
s 206(1): No instrument shall operate until it has been registered under Part Eighteen
s 206(3): Nothing in subsection (1) shall affect the contractual operation of any transaction
relating to alienated land or any interest therein.
Purposes: Fast, economic and with certainty

Persons/bodies in whose favour dealings are capable of being effected

s 205(2): Persons in whose favour such dealings are capable of being effected same as
disposal under s 43 subject to s 433B (foreigners)
s 205(3): Agriculture land prohibited of dealings on portion of less than two-fifths of a hectare
Hassan Kadir v Mohamed Moidu Mohamed: (refer to p 2)
Tan EanLeng v Pentadbir Tanah Daerah, Kuala Muda, SungeiPatani: P purchased an agriculture
land in 1979. The registration of transfer was rejected by the Land Administrator in 1986 under
s 205(3) of the NLC. P applied by way of a motion to set aside the decision of the Land
Administrator. Held: Subsection (5) of section 205 validates the dealing. In any event, even if
there is any ambiguity or uncertainty in the wording of subsection (5) it should be construed
in favour of the applicant. The registrar was wrong in refusing to register the instrument of
transfer as presented to him.

Procedures
1. Preliminary
• Land search private (s 384) or official (s 385) ensure dealing with the rightful proprietor
do not trust anyone
• Ensure that both parties are of major age and sound mind
➢ Natural person identify card or passport foreigners need consent from State
A B
➢ Body corporate company search at Companies Commission of Malaysia
composition of shareholders refer to s 433A for foreign company need consent
from State Authority
• Bankruptcy search on vendor and purchaser at Department of Insolvency if bankrupt,
need consent from Director General of Insolvency

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2. Execution of Instrument
• Ensure the right form has been used
Refer to s 207: Instrument (forms) First Schedule; Forms can be varied provided that the
variation is not in a matter of substance

Forms Sections Form Titles

14A 215, 217, 218 Transfer of Land, Share or Lease
14B 218 Transfer of Charge
15A 221 Lease of Land
15B 222 Sub-Lease of Land
15C 239 Surrender of Lease
16A 242 Charge (To secure payment of a principle sum)
16B 242 Charge (To secure payment of a periodic sum)
16C 247 Postponement of a Charge
16F 259 Certificate of Sale by Court
16I 265 Certificate of Sale by Land Administrator
Forms Sections Form Titles
17A 286 Grant of Easement
17B 286 Grant of Cross-Easement (In Respect of a Part-Wall)
17C 289 Release of Easement

s 208: Instruments shall contain description of both parties full name and address
[NOTE: s 436A include number of identity card to prevent fraud]
[NOTE: If foreign address, there must also include a local mailing address]
s 209: Instruments shall contain proper description of land affected

s 210(1): Every instrument effecting any dealing shall be executed by each of the parties.
s 210(2): Natural person sign or thumbprint
s 210(3): Corporation execution as authorised by its constitution
Proviso: Seal of corporation + a statement signed by secretary and a director conclusive to
have been duly executed by that corporation
s 210(4): Signing does not include making a mark (e.g. personal seal)

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s 211: Attestation (Form 13B) Natural person Fifth Schedule (p 447)

para 3: Land Administrator only
para 4: Attestation by LA not required if acting under a power of attorney on behalf of a body
corporate
[NOTE: Attestation is not mere witnessing but also explaining the process to the clients so that
they understand what is going on.]
[NOTE: Tenth Schedule (p 452) contains the details on forms and procedure.]
s 309(1)(a): Documents to accompany instruments executed under power of attorney
s 212: No instrument shall be capable of effecting dealings with respect to more lands than
one unless it involves the same parties and the register documents of title to the lands are in
the same Registry or Land Office

3. Presentation of instruments for registration

s 292(2): Instrument may be presented either by lodging it at the Registry or Land Office, or by
pre-paid post
s 292(4): Death will not render instrument invalid
[NOTE: Document must be dated. Date must be before death and the client must be in the
country, otherwise the validity can be challenged.]
s 293(1): Fees to accompany instruments so presented
s 293(2): Must pay within three months, otherwise penalty of fine

s 294(1): (a) Single original of instrument, or (b) for lease, sub-lease or charged, certified copy
of instrument duly stamped
s 294(2): In addition for s 294(1)(b) (a) a copy of memorial of registration; (b) duplicate of
lease, sub-lease or charge; or (c) duplicate of charge
s 294(3): Supporting document for power of attorney or certificate of management
corporation

NOTE: Impounding an instrument of dealing

• s 51 of Stamp Act: if not duly stamped
• s 53(2) of Stamp Act: pay the deficient amount of stamp duty

s 295: Entry of instruments in Presentation Book

s437: Presentation Book Form 34A

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4. Registration
s 304(1): The registration of any instrument shall be effected by the Registrar according to this
section
• Memorial (Form 13A) made on instrument of dealing
• Memorial names of parties, date etc.
• Sign and seal by the Registrar

NOTE:
1. For tenancies and liens T
exempted from registration.
2. F F

Mohamad bin Buyong v PemungutHasil Tanah, Gombak: A transfer form 14A was submitted to
the Land Office by App. The form was signed by one third party claiming to be the attorney of
R2. The Form 14A was accompanied by an office copy of a document purporting to be a power
of attorney but not the original issue document of title. The photostat copy of the document
shows, however, that it was not signed by R2. Despite the non-production of the original issue
document of title, the presentation was recorded in the presentation book of the land office.
Subsequently the land office received a letter from R2 stating that she never at any time gave
a power of attorney to that third party. The Collector considered the matter and decided to
reject the instrument in accordance with section 298 of the National Land Code. The issue was
whether by making an entry in the presentation book amounts to registration and thereby App
acquired indefeasible title over the land.
Held: Registration is the making of a prescribed memorial of the dealing in the register
document of title under the hand and seal of the registering authority. Section 304(2) provides
‘
s 304(4): Memorial of registration is conclusive evidence of registration

Duties of Registrar
1. Effecting Registration
s 297: Registrar to determine fitness for registration, and register if fit and accompanied by
necessary documents
s 298: Rejection or suspension for unfitness, or absence of certain documents
s 299: Procedure in absence of other documents
s 300: Instrument is treated according to the sequence of presentation
s 301: When an instrument is fit for registration

Island & Peninsular Development Bhd v Legal Adviser, Kedah: The duty of the registrar on receipt
of the instrument of transfer is to determine its fitness for the purpose of registration. (Section

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297). If he considers it fit and is accompanied by the necessary documents required by section
294 he registers it. If however the instrument is not fit for registration he rejects it forthwith.
If the unfitness consists solely of a formal defect or clerical error or is not accompanied by
other necessary documents he has to suspend registration for a period not exceeding fourteen
days to enable the defect or error to be rectified or the documents to be produced. He has to
give notice to the person or body concerned specifying the period of suspension and the
reasons therefor. At the expiry of such period he shall either register the instrument, if the
defect or error has been remedied, or otherwise reject it. (Section 298). His powers in this
regard are limited under section 303 where, inter alia, he is not concerned whether any
transfer constitutes a breach of an agreement or the like. In other words, as long as the
instrument of transfer is in order and fit for registration according to the requirements of the
Code, his duty is to register it.
s 302: Registrar may make enquiries
L ‘
Templeton v Leviathan Pty Ltd: Where it has come to the knowledge of the Registrar that the
person dealing with the land is not competent at law or in equity to deal with it in the manner
proposed, it is his duty to refuse to register. If the Registrar merely suspects that the dealing
may be improper, but knows no facts to justify him in concluding that it is so, he has no duty
or right to ask for information or make inquiries in order to ascertain the true facts. His power
is limited to refuse registration to those cases in which the facts within his knowledge appear
to him to show that the proposed dealing is improper.

2. Correct errors in entries made on register

s 380(1): Registrar may make correction on the document in error
s 382: Registrar shall endorse the reason for the correction, deletion or cancellation
Island & Peninsular Development Bhd v Legal Adviser, Kedah: (refer to p 6) The developer
mistakenly registered the wrong lot number of houses for the purchasers although they all
occupied the houses they intended to purchase. The developer applied for the correction of
the mistakes in the documents of title under s 380 of the National Land Code. The Registrar of
Titles refused to do so. Held: The intention of Parliament is to confine the error or omission in
s 380(1)(a), i.e. occurring after registration, to one made by the Registry of Land Titles and not
to extend to that made by the parties in the instrument of transfer presented for registration.
Mohamad bin Buyong v PemungutHasil Tanah, Gombak: (refer to p 6) (citing Island &
Peninsular) section 380(1)(a) is confined to an error or omission made by the Registry of Land
Titles and does not extend to error or omission made by the parties concerned. Section
380(1)(b) should at least be construed as wide enough to include any entry howsoever wrongly
‘ T
administrative or clerical mistake on the part of the Registrar or his staff but the paragraph is
wide enough to include other circumstances in which such error may have been brought about.
Although the court should not construe section 380 so as to confer an unqualified power on
the Registrar to correct or cancel an entry in the register which would strike at the very roots
of indefeasibility of titles, the court should adopt a common sense attitude.

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Hassan bin Seman v Jusoh bin AwangChik A ‘

father. The memorial was entered to the effect that the whole land was registered under the
‘ . The District Officer, despite his finding that the relevant memorial was a
technical mistake, took no step to cause its rectification. He was merely content to express this
finding and did nothing else. Held: There was neither evidence, nor even a suggestion that the
discrepancy between the memorandum of transfer and its memorial on the register was a
fraud, it must therefore be a genuine mistake which can be corrected by the Registrar of Title
NLC. The court has power to order
correction of error under s 417.

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