95272982 Restraint on Dealings

8/12/2019 95272982 Restraint on Dealings

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Restraint on DealingsDr. Nuarrual Hilal Haji Md. DahlanCollege of Law, Government and

International StudiesUniversiti Utara Malaysia


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Dealings

Transfer

Charge

Lien Easement

Lease


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Example

Bakar owns a land in Sintok.

The land is worth RM 10,000.00

Bakar sells his land to Umar at the price ofRM 15,000.00.

Here, Bakar transfers his land to Umar.

Now, the new proprietor/owner to theland is Umar.

This is a type of dealing under the NLC.


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Example



Bakar leases his land to Umar for a duration of 5

years.

The lease is effected via a lease agreement.

BakarLessor, UmarLessee.

Umar has to pay monthly lease payment toBakar at RM 500.00 per month for 5 years.

The lease is a type of dealing under NLC.


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Restraint on Dealings

By the word, we can understand that thedealings (transfer, charge, lease,easement) effected by the parties are

restrained.


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Types of Restraint on Dealings

Caveat

Court orderslis penden, injunction,prohibitory orders

Purpose: to serve as a notice to the worldat large about the existing claim that isbeing disputed and to discourage and

restrain others from dealing with the landwhile preserving the status quo of theparties and their interests.


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ExamplePrivate Caveat



Bakar sells his land to Umar at the price of RM15,000.00.

Bakar enters into an agreement of sale with Umar.

Umar has to pay 10% deposit once the agreement issigned. 10% = RM 1,500.00.

The balance of RM 13,500.00 has to be paid by Umar to

Bakar in 3 months. To protect Umars interest during this 3 months, Umar

created a private caveat against the land in question.


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The purpose of this caveat is to protect Umarsinterest in the land (he has already paid RM

1,500 as deposit and intends to get the land). So, a caveat is registered in the land office.

The Land administrator/land registrar willendorse the issue document of title that aprivate caveat, lodged by Umar has beencreated.

Thus, Bakar cannot sell to other person duringthis 3 months period.

Umar has a caveatable interests in the land.

The application form of caveat is provided in thelast part of the NLC. Find and see.


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Caveat

A statutory injunction. Note the wordstatutory.

Provisions in the NLC.

Types of Caveatprivate caveat, registrarcaveat, lien-holder caveat, trust caveat.


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Registrars Caveat

Applied by interested parties to preventfraud and any improper dealings in theland.

To protect the interest of the Federal orState Authority, minors, persons ofunsound mind and owner who is not in

the country.


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ExampleRegistrars Caveat

Bakar (a minor) owns a land in Sintok. The land is worth RM 100,000.00

Osman is the trustee to Bakar land, created via a will byBakars father Ali.

Ali died 10 years ago. Osman is a greedy person. He wishes to sell Bakars land

to Talha for RM 500,000. This money will go directly toOsmans hand, not Bakar.

Osman tries to persuade Bakar to sell the land.

However, Umar being Bakars uncle, knew Osmans badintention.

Umar applies a Registrars Caveat at the land office toprotect Bakars interest in the land from being sold to

Talha, by Osman.


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ExampleTrust Caveat

Majlis Agama Islam Kedah (MAIK) owns a landin Sintok.

The land is worth RM 10 million. This land is a wakaf landfor the benefit of

Muslims in Kedah. MAIK, is a trustee to the wakaf land (pursuant

to the Kedah Administration of Islamic LawEnactment).

MAIK can apply a trust caveat against the wakafland in Jitra Land Office, if MAIK can prove thatsomebody may sell or deal with the landdishonestly.


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ExampleLien Holder Caveat

Bakar gives a loan RM 100,000 to Umar.

In return Umar gives the issue document of titleto Bakar as a lien.

Umar has to repay the loan to Bakar ininstallment for 10 years.

To protect Bakars interest, Bakar can create alien-holder caveat against Umars land.

So during the subsistence of the loanrepayment, Umar cannot deal with the land (foreg sell the land to others).


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ExampleProhibitory Order

Bakar gives a loan RM 100,000 to Umar.

Umar has to repay the loan to Bakar in installment for 10years.

However, Umar defaulted on the loan repayment.

Bakar took a legal action against Umar and obtained ajudgment.

Bakarjudgment creditor, Umarjudgment debtor.

To protect Bakars interest, Bakar can apply to the Court

for a Prohibitory Order against some of Umars land. Bakar also can sell off Umars land which are subject to

that Prohibitory Order to settle Umars oustanding loanstill not repaid to Bakar.

95272982 Restraint on Dealings

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