LAND LAW 1 slides dealings part 1

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Dealings –Part 1 Areej Torla [email protected]
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Transcript of LAND LAW 1 slides dealings part 1

Dealings –Part 1Areej Torla [email protected]

Dealings under NLC

“Dealings” definition in section 5 Any transaction with respect to

alienated land Effected under the powers conferred

under Division IV Does not include any caveat or

prohibitory order.

Division IV:1. Transfer2. Lease and tenancy3. Charge and lien4. Easement

Instrument of dealing

Section 206(1) Every dealing shall be effected by

the relevant instrument prescribed for that purpose.

Must be properly registered.

Transfers

What can be transferred? Section 214 The whole, but not part only, of any

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

undivided share in any alienated land;

Any lease; any charge; any TER

Peter Lai Kee Chin [1973] 2 MLJ 33

A made a gift inter vivos of an undivided share in his land to his wife by executing a memorandum of transfer whereby he transferred the whole of his interest in the land to himself and his wife in undivided equal shares.

Court: This device is not an infringement of section 214(1)(a)

How to transfer

Form 14A (for transfer of land, undivided share and lease) S 215(1), S 217(1), S 218(1)

Form 14B (for transfer of charge) S 218(2)

TER may be transferred by word of mouth or by a written instrument in any form. (no registration needed). S 220(1)

Effect of transfer

Section 215 Title is passed to the transferee upon

registration Confers indefeasibe title or interest It is subject to existing

encumbrances and conditions or restrictions in interests, if any.

Does a TER bind the new owner? In TER, a tenant’s right shall be protected

and bind the new owner only if the tenancy is protected by endorsement.

Than Kok Leong v low Kim Hai [1983] 1 MLJ 187

Court: A TER does not bind a subsequent purchaser unless prior to the sale and transfer, an endorsement of the tenancy had been made under S 213(3).

Who can transfer land?

Only the registered proprietor Md Kamis Yaakob v Ismail Abdullah

[1995] 2 CLJ 238

Nemo dat quod non habet (no one gives what he does not have)

Limitations /Restrictions on power to transfer Transfer of agricultural land the

land shall not become less than 2/5 hectare (1/2 acre) S205(3)

Transfer of estate land next slide please!

Transfer of estate land

Section 214A “…no estate land is capable of being

transferred…unless approval of such transfer…has first been obtained from the Estate Land Board…”

Consent of Estate Land Board is needed in order to transfer estate land.

Case: Kumpulan Sua Betong

Effect of contravention: guilty of an offence

Section 214A (10A)(a)

What is “estate land”?

Section 5: Definition S 214A (11) and (12).

1. Agricultural land held under one or more than title, and

2. Area not less than 40 hectares, and3. The lands are contiguous

What is “Estate Land Board”?Section 214A(3)

The object of section 214A is to prevent and prohibit the fragmentation of estate land within the meaning of subsection (11) of section 214A at the material time.

Case: Erico Estates Sdn Bhd [1980] 1 LNS 19

Rengamah v Rengasamy v Tai Yoke Lai [1998] 1 CLJ 987 Issue: Whether the land is an estate

land. Plaintiff failed to establish that the

land is agricultural land. Court: the land was not an estate

land.

Leases & Tenancies

Definition: “Lease”

A conveyance by which the proprietor of land (lessor) grants to another person (lessee) an interest in the land less than a freehold and less than that to which the lessor himself is entitled.

LESSOR LESSEELEASE

Section 5 NLC: “Lease”: registered lease or sublease

of an alienated land Therefore, excludes a lease

agreement an equitable lease and a TER.

Characteristics of a lease1. Lessee enjoys a right of exclusive

possession2. Duration is specific and certain3. Lessor has an intention to create a

lease and not a license Intention can be determined by written

agreement or by conduct

Note: distinguish between a lease and a mere license.

Power to grant lease Section 221 What can be leased? The whole of alienated land Part of alienated land

Who can create a lease? The lessor, lessee or sub lessee

Duration of lease

Section 221 Must exceed three years Maximum term:

99 years (for whole of land) 30 years (for part of land)

If does not exceed 3 years Tenancy Exempt from Registration (TER)

Differences between leases & TERs

LEASE Section 221, 222 Duration: exceeding 3

years Proprietor, lessee, sub

lessee can create lease. Registration by Form

15A (lease) or Form 15B (sublease), and attach a plan and description (if lease of part of land)

TENANCY Section 223 Duration: not exceeding 3

years Proprietor, lessee, sub-

lessee, tenant can create TER

Created by word of mouth or written instrument in whatever form.

Exempted from registration but may make endorsement to protect the TER Section 213(3).

Effect of unregistered lease Margaret Chua [1961] MLJ 173 Although the agreement for a lease

for 25 years was void for lack of registration, but it was valid as an agreement for a lease enforceable in equity.

Effect of uncertain duration Effect of a tenancy “for as long as the tenant

likes”?

Before NLC: Karuppan Chetty v Suan Thiam [1916] 1 FMSLR

300 considered as a void agreement

After NLC: Siew Soon Wah v Yong Tong Hong [1971] The agreement is good as a lease agreement.

Section 206(3)