LAND LAW AND SURVEY REGULATION (SGHU 3313) · 2019-01-28 · The main types of dealing under...

LAND LAW AND SURVEY REGULATION (SGHU 3313)

WEEK 4-LAND DEALINGS

SR DR. TAN LIAT CHOON07-5530844

016-49755511

OUTLINE

• Registration Of Dealings

• Concept And Types Of Dealings

• Caveat And Prohibitory Order

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REGISTRATION OF DEALINGS

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The Necessity Of Having Dealings In Alienated Land

The provisions in National Land Code 1965 requirecertain dealings in alienated land or interest in it to beregistered. This is to ensure that the dealings can be donequickly, cheaply and with certainty. Dealings in alienatedland such as transfer, lease or charge of it are importantbecause they contribute to the development of the land.The same applies to dealings in interest in alienated landsuch as transfer or charge of a lease of alienated land.

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The term “alienated land” is defined in Section 5 as ‘anyland (including any parcel of a subdivided building) inrespect of which a registered title for the time beingsubsists, whether final or qualified, whether in perpetuityor for a term of years, and whether granted by the StateAuthority under National Land Code 1965 or in the exerciseof powers conferred by any previous land law, but does notinclude mining land’.

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The term “interest in alienated land” includes a lease and sub-lease of an alienated land, a charge of an alienated land or alease or a sub-lease, and an easement.

It is to be noted that under S206(3) National Land Code 1965,a dealing in alienated land or an interest in it can also be effectedwithout having it registered under the National Land Code 1965.But such a dealing does not have the effects under National LandCode 1965. For example, if an alienated land is not charged inaccordance with the National Land Code 1965, the chargee willnot have the remedies under it, such as sale.

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Type Of Dealings

The National Land Code 1965 provides 4 main types ofdealings. These are as follows:

a) Transfers (pindahmilik);

b) Leases and tenancies (pajakan dan sewaan);

c) Charges and liens (cagaran/gadaian dan lien); and

d) Easement (ismen)

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Types Of Dealings

The National Land Code 1965 does not require thegranting of tenancy for a period not exceeding 3 years to beregistered in the land titles. But any tenancy (even less than3 years) subject to the Padi Cultivators (Control of Rent andSecurity of Tenure) Act 1967 must be registered under thatAct.

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Types Of Dealings

Although registration is not required in respect of atenancy under S223(1) National Land Code 1965, to protecthis interest, the tenant can apply for an endorsement of hisclaim under S316 National Land Code 1965. S223(1) alsoprovides that a tenancy can be granted by the proprietor ofany alienated land, the lessee or sub-lessee for the timebeing of any alienated land, or by any person or body forthe time being holding any alienated land under such atenancy or sub-tenancy. As stated in S223(2), a tenancy orsub-tenancy can be granted either by word of mouth or bya written instrument in any form whatsoever.

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Types Of Dealings

A lien is not a registrable dealing. Under S282(1) National Land Code1965, it can be created in respect of any alienated land or any lease orsub-lease of alienated land. A lien is create when the proprietor of anyalienated land or the lease or the sub-lessee for the time being of anyalienated land deposits with another Issue Document of Title,duplicate lease or duplicate sub-lease respectively as security for aloan.

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Types Of Dealings

The person with whom the Issue Document of Title, duplicate leaseor duplicate sub-lease is deposited is known as the lien-holder and toprotect his interest he may apply for the entry of a lien-holder caveatunder S330(1) National Land Code 1965. By virtue of S343(6), a liencan also be created in respect of an undivided share in any alienatedland and the document that needs to be deposited is the copy of theIssue Document of Title.

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Types Of Dealings

The main types of dealing under National Land Code1965 which require registration are transfers, leases,charges and easements. Until registered, these dealings arenot effective.

For example, a transfer of land which is not registered isnot recognized by the National Land Code 1965 and theperson in whose favour the transfer is made cannot exercisethe powers as a proprietor under that law.

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Forms For Registrable Dealing

Every registrable dealings has to be made in an instrumentusing the respective forms as provided in the First Scheduleof National Land Code 1965. This is stated in S207 NationalLand Code 1965. The requirements of S212 and the TenthSchedule (in respect of the preparation and filling up of theform) need to be complied with.

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Forms For Registrable Dealing

The forms to be used are as follows:

a) Form 14A – transfer of land, share or lease;b) Form 14B – transfer of charge;c) Form 15A – lease of land;d) Form 15B – sub-lease of land;e) Form 15C – surrender of lease;f) Form 16A – charge – to secure payment of a principal sum;g) Form 16B – charge – to secure payment of a periodic sum;h) Form 16C – postponement of a charge;i) Form 16F – certificate of sale by Court;j) Form 16I – certificate of sale by Land Administrator;k) Form 16N – discharge of charge;l) Form 17A – grant of easement;m) Form 17B – grant of cross-easement in respect of a party wall; andn) Form 17C – release of easement.

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Persons/Bodies In Whose Favour Dealings Are Capable Of Being

Effected As provided in S205(2) National Land Code 1965,persons/bodies in whose favour dealings are capable ofbeing effected are those listed in S43 National Land Code1965. With respect to a dealing in favour of a person or acompany, the provisions in Part 33(A) of National Land Code1965 will also have to be complied with.

In the case of a dealing effected in favour of a company,Registrar of Title of Title/Land Administrator must check itsmemorandum of association to ascertain whether it canown an immoveable property or not.

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Registration Of Dealing

As mentioned earlier, the registration system embodied inthe National Land Code 1965 is based on the TorrensSystem that was first introduced in Australia. This system isprincipally based on the concepts of 'Mirror' and 'Curtain'where all information on land and type of title as well as alldealings conducted can be obtained in the relevant landtitle.

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This transparency principle allows for registration of titleand transactions executed quickly, quickly and cost-effective compared to the British system (System Deed)where back-to-back investigate for several years need to bemade before legal landowners can be determined anddealing is completed. As a result, every transaction donemust be registered and the National Land Code 1965 doesnot give recognition to any unregistered dealing as well asthe indefeasibility of dealing.

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The process of registration of dealing can be divided intoseveral specific level:

i. Process of filling of Instrument;

ii. Process of submission of instrument;

iii. Process of feasibility determination; and

iv. Process of registration.

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Process Of Filling Of Instrument The first stage in the registration process is the filling ofdealing instrument. In the National Land Code 1965, eachdealing is required to use the prescribed forms in addition tocertain methods.

During the filling of the form, the provisions under S43 andSchedule 10 of the National Land Code 1965 shall be complied.The completed instrument shall be signed by the landowner orthe relevant person and for cases involving the company andcorporation, the instrument shall be signed by an authorizedofficer under the constitution law of the corporation.

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Process Of Filling Of Instrument

All instruments executed by individuals must be attestedby the officers listed in the Fifth Schedule of the NationalLand Code 1965 and in the case of companies andcorporations, as may be provided in their respective laws.

The instruments which have been completed andexecuted by persons shall be signed or stamped in thepresence of officers designated under Fifth Schedule of theNational Land Code 1965. This process is called theattestation process.

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The main purpose of the attestation process is to identifythe parties involved, the validity of the signature or thefingerprint, the ability of the mind and the ability of theparties involved and the sincerity of the witnesses to beselected as well as the accuracy of the information givensuch as names, addresses and others.

For companies or corporations registered under theCompanies Act 1965, shall be in accordance with theprovisions of the law of corporation. The instrument issigned by the person authorized by a declaration fromanother superior officer specifying the signature has beenmade in his presence. 21


All instruments executed shall be adequately enclosed inaccordance with the Stamp Act 1949 by sending to DeputyCollector of Stamp Duty (DCSD) for the purpose of imposingstamp duty. It should be noted that DCSD posts can be heldeither by a District Officer or his assistant or a senior officerof the Inland Revenue Board Of Malaysia.

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The Official Stamp Collector is usually held by the DirectorGeneral of Inland Revenue Board Of Malaysia. They areappointed under S3 of the Stamp Act 1949 Act. When thedealing instrument is received, the Deputy Collector ofStamp Duty (DCSD) will inform the parties involved theamount of stamp duty imposed on the basis of the FirstSchedule of the Stamp Act 1949 and after being paid, DCSDmakes an entry according to S7 or S82 (b) of the applicableAct. Once the stamp duty is declared, the instrument isbrought to the Registrar/Land Office accordingly forregistration. The date of handing over of the instrument isthe effective date of the registration of the dealing.

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Process Of Submission Of Instrument

The second stage is the process of submission of thecompleted and stamped instrument to registration office.The date and time of submission is important as itdetermines the priority of an instrument on the otherinstrument if it involves the same land lot.

For a instrument delivered by post, the opening date andtime of the envelope is counted as the date of submission.The record of the time and date shall be recordedaccordingly by the Registrar in the instrument with a penciltemporarily.

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Process Of Feasibility Determination

Next is the stage of determining the feasibility or suitability ofthe instrument to be registered. At this point, the Registrarshould examine some of the predetermined features of thequalification such as:

i. Use of the correct form;ii. Eligibility of the parties involved;iii. The eligibility of accreditation officers; Registration fee as

prescribed;iv. Fee for late registration, if submitted more than 3 months

from the date of execution;v. Stamp duty has been explained, if applicable;vi. Quit rent is paid; andvii. Titles and other accompanying documents are included. 25

Process Of Feasibility Determination

The transcript of a transaction may be impoundedtemporarily if there are some requirements which are notfulfilled and the Registrar may request the executingauthority to correct it as soon as possible.

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Process Of Registration

Finally is the registration stage. If the Registrar is satisfiedwith the instrument submitted, he will register by memorialin the title by recording the submission volume number,type of dealing and the effective date.

If the Registrar is not satisfied with the suitability of theinstrument, he will reject and inform the parties involved.This stage is the final presentation by Land Administratorfor the registration of dealing. Any subsequent mistakesshould be referred to the Court.

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Non-Dealing Registration

Non-dealing registration is registration of entry of caveat,endorsement of rights, land acquisition, right of way, permitright by Tenaga National Berhad and so on.

There are many non-dealing land requiring records to bemade in title such as placement of rights, land of GroupSettlement Area, Malay reserve, change of address,correction under S380 of the National Land Code 1965,registration of power of attorney, subdivision of buildingand others.

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Prohibitory Of Dealing Registration

There are 4 types of caveats and prohibitory orders in theNational Land Code 1965 namely:

a) Private Caveatsb) Registrar’s Caveatsc) Lien Holder’s Caveatsd) Trust Caveats

For the purposes of caveat entry, the National Land Code1965 provides special forms for certain caveats. For privatecaveats (Form 19B), registrar's caveats (Form 19F), trust caveats(Form 19E) and lien holder’s caveats (Form 19D).

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Endorse Of Land Acquisition And Distribution Of Small inheritance

The land acquisition gazetted either under S4 or S8 ofthe Land Acquisition Act 1960 (APT) shall be endorsed intothe title.

The purpose of this endorsement is to inform the publicwho wish to deal with the relevant land lot aware as the lotmay be acquire by certain authorities for a developmentproject.

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For Land Administrator, this endorsement is importancebecause according to the National Land Code 1965, theLand Administrator is solely responsible for the officialSearch Certificate signed by him if the certificate is apply bythe public. Any negligence or omission such as forgettingmaking the transfer of land so far will enable the LandAdministrator to be fined for its mistake if the partyrequires a search certificate to suffer losses.

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In current land administration system, the inheritanceprocess is managed by two main parties, the High Court ofinheritance and the Inheritance Officers gazetted as LandAdministrators for small inheritance. Both parties uponcompletion of the inheritance distribution process willsubmit to the Land Administrator the certificate ofinheritance distribution and it is the responsibility of theLand Administrator to make an entry within the title.

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CONCEPT AND TYPES OF DEALINGS

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Dealings Capable Of Being Effected, And Persons Capable Of

Taking (S205) Alienated lands and interests shall be specified in PartsFourteen to Seventeen of the National Land Code 1965.

Persons or bodies that can make dealings are only thosewhom are under S43 of the National Land Code 1965.

There is no dealings for alienated land subject to thecategory of agriculture which is less than 2/5 hectares.

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Need For Proper Instrument Of Dealing Duly Registered (S206)

Every dealing shall be effected by an instrument complyingwith the requirements of S207 to S222 of the National LandCode 1965.

Except for other dealings affecting tenancies exempt fromregistration which may be effected, instead as mentioned inS213 (2) and the creation of liens, which may be created, insteadas mentioned in S281 of the National Land Code 1965.

Nothing in this section shall effect the contractual operationof any transaction relating to alienated land or any interest.

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Form Of Instruments Of Dealing (S207)

Every instrument affecting any dealing under theNational Land Code 1965 shall be used forms in the FirstSchedule.

The headings and schedules to be inserted in theinstruments of dealing also shown in Form 13A.

The provisions of S211 shall have effect with respect tothe inclusion of attestation clauses in instruments ofdealing.

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Instruments To Contain Description, Etc Of Parties (S208)

The instrument should contain the description:

i. Full name and address, and occupation or conjugal status ofevery person or body claiming;

ii. For those who have an address outside the Federation, anaddress within the Federation shall be presented;

i. To transfer the share in which the land is to be held for anyland to two or more person or to a bodies as co-proprietors.

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Instruments To Contain Proper Description Of Land Affected

(S209)

The instrument effecting any dealing shall also contain adescription of the affected land:

i. The administrative area in which the land is situated;

ii. Lot number of the land or Land Office Number for land heldunder qualified title; and

iii. Title number of the land.

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Execution Of Instruments Of Dealing (S210)

Every instrument effecting any dealing shall be executedin accordance with the provisions of this section by each ofthe parties and the parties conseting, or by a person actingon his behalf under a valid power of attorney any writtenlaw or the order of any Court.

The execution of any such instrument by a naturalperson shall consist of his signing or affixing his thumbprint.

The execution of any such instrument by a corporationshall be effected in such manner as is authorized by itsconstitution or any law for the time being in force.

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Attestation Of Instruments Of Dealing (S211)

Every execution by a natural person of any instrumenteffecting any dealing under the National Land Code 1965 shall beattested in accordance by one of the officers or other personsspecified in that behalf in the Fifth Schedule.

The above requirement shall not apply to the execution of anyinstruments by:

i. The State Director;ii. The Registrar;iii. Any Land Administrator;iv. Any Officer of the Court; orv. The official Administrator.

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Inclusion In One Instrument Of Dealing Affecting Different Lands

(S212)

For all the same types of dealing are carried out by thesame person or body in favour of the same person orbody.

The register documents of title to the lands are all kept inthe same Registry or Land Office.

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Transfer (Pindah Milik)

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Powers To Transfer And Its Restrictions

S214 National Land Code 1965 provides that thefollowing can be transferred:

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

b) The whole, but not part only, of any undivided share inalienated land;

c) Any lease of alienated land;

d) Any charge; and

e) Any tenancy exempt from registration.43


As provided in S214(2) National Land Code 1965, thepower to transfer is subject to the following:

a) Any prohibition or limitation imposed by National LandCode 1965 or by any other written law for the timebeing in force;

b) Any restriction in interest to which the land in questionis for the time being subject; and

c) In relation to leases, charges and tenancies exempt fromregistration, the provisions in the leases, charges ortenancies whether expressed or implied.

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S214(3) National Land Code 1965 prohibits the transferof a lease or a charge to two or more persons/bodiesotherwise than as trustees or representatives.

As provided in S214A National Land Code 1965, no estateland exceeding 40 hectares shall be transferred without theapproval of the Estate Land Board. Estate land is defined as‘any agricultural land held under one or more than onetitle, the area or the aggregate area of which is not lessthan 40 hectares and the alienated lands constituting sucharea are contiguous’.

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A part only of any alienated land cannot be transferredmeans that if Mr. Harun owns a piece of land and he wantsto sell ¼ of it to Mr. Ali, he cannot fill up ‘¼’ in the space‘share of land (if any)’ in Form 14A.

In that space, he has to fill up ‘whole’. Since Mr. Harun istransferring only ¼ of his land, he too has to execute thesame instrument as a transferee for the balance of ¾ sharewhich he is not selling to Mr. Ali.

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A part only of an undivided share in alienated landcannot be transferred means that if Mr. Husin owns ¾ shareof the land and he wants to sell to Mr. Yusof ½ of his share,he cannot fill up ‘½’ in space ‘share of land (if any)’ in Form14A.

In that space he has to write ‘¾’. Since Mr. Husin istransferring only ½ of his ¾ share, he has also to executethat instrument as a transferee for the balance of 3/8 sharewhich he is not selling to Mr. Yusof.

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S205(3) provides that with respect to an agricultural land, atransfer of it cannot be effected if the transfer result in thecreation of any undivided share representing an area of less thantwo-fifths of a hectares. However if the land is already less thantwo-fifths of a hectares or if the undivided share alreadyrepresents an area of less than two-fifths of a hectares, the landor the undivided share can be transferred only to one person.

But in the case of transfer of such undivided share to the co-proprietors, it can be transferred to one or more than one co-proprietors. It is to be noted that this prohibition does not effectany instrument made before 25 March 1985.

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Lease (Pajakan)

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Power To Lease And Its Restrictions (S221)

S221 National Land Code 1965 provides as follows:

a) The proprietor of any alienated land can grant a lease ofthe whole or any part of it;

b) Every lease granted must be for a term exceeding 3years;

c) In respect of a lease of the whole land, the maximumterm is 99 years;

d) In respect of a lease of part only, the maximum term is30 years; and

e) In respect of a lease of part only, a plan and descriptionsufficient to enable the part to be accurately identifiedshould be attached to the instrument. 50


As stated in S225 and S226 National Land Code 1965, thepower to grant a lease is subject to the following:

a) Any prohibition or limitation imposed by National LandCode 1965 or by any other written law for the timebeing in force;

b) Any restriction in interest to which the land in questionis for the time being subject;

c) The lease cannot be granted to two or more personsotherwise than as trustees or representatives; and

d) In a case where the land is subject to a charge, theconsent of the chargee must be obtained before theland can be leased.

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S222 National Land Code 1965 provides as follows:

a) The lessee/sub-lessee can grant a sub-lease of thewhole or any part of the land comprised in the lease orsub-lease;

b) Every sub-lease granted must be for a term exceeding 3years;

c) In respect of a sub-lease of part only of alienated land,the maximum term is 30 years; and

d) In respect of a sub-lease of part only of alienated land,a plan and description sufficient to enable the part tobe accurately identified should be attached to theinstrument.

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As stated in S225 and S226 National Land Code 1965, thepower to grant a sub-lease is subject to the following:

a) Any prohibition or limitation imposed by National Land Code1965 or by any other written law for the time being in force;

b) Any restriction in interest to which the land in question is forthe time being subject;

c) The provisions, expressed or implied, of the lease or sub-lease;

d) The sub-lease cannot be granted to two or more personsotherwise than as trustees or representatives; and

e) In a case where the lease or sub-lease is subject to a charge,the consent of the chargee of the lease must be obtainedbefore the land under the lease can be sub-leased and theconsent of the chargee of the sub-lease must be obtainedbefore the land under the sub-lease can be further sub-leased. 53

Tenancy (Sewaan)

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What Can Be Rented Alienated land to whole or part of the land.

Lease or sub-lease holders on whole or partial lease.

Rent holder by sub-lease.

Rental period does not exceed 3 years.

Rental does not need to be registered, to protect it canapply for an endorsement under S316 of the National LandCode 1965.

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Restriction On Tenancy

The prohibition or restriction imposed by the NationalLand Code 1965 or the written law in force at that time.

Any restriction in interest related to the land.

Tenancy cannot given to 2 persons or more except astrustee or representative.

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Charge (Cagaran/Gadaian)

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Power To Charge And Its Restrictions (S241)

S241 National Land Code 1965 provides as follow:

a) The whole of any alienated land but not part of it canbe charged;

b) The whole of an undivided share in alienated land butnot a part only can be charged;

c) Any lease of alienated land can be charged; and

d) The second and subsequent charges can be created.

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Power To Charge And Its Restrictions

As stated in S241(3) National Land Code 1965, the power tocharge is subject to the following:

a) Any prohibition or limitation imposed by the National LandCode 1965 or by other written law for the time being inforce;

b) Any restriction in interest to which the land is for the timebeing subject;

c) In the case of a charge of lease, the provisions, expressed orimplied in the lease;

d) In the case of a charge of sub-lease, the provisions,expressed or implied in the sub-lease; and

e) Land, lease or sub-lease cannot be charged to two or morepersons/bodies otherwise than as trustees orrepresentatives.

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Liens

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Creation And Effect Of Liens (S281)

Any proprietor or lessee for the time being may depositwith any other person or body, as security for a loan, hisissue document of title or duplicate lease whichever isappropriate.

To protect the interests of the lender, he will entry of alien holders' caveat and become entitled to a lien over theland or lease.

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Creation And Effect Of Liens (S281)

The holder of any lien is entitled to apply to the Court fora sale order of the land or lease.

A lien holders shall upon written request from theproprietor or the holder of a lease within a reasonableperiod of time, produce a the issue document of title orduplicate lease from the Registry or Land Office.

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Easement (Ismen)

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Meaning Of Easement (S282)

Easement means any right granted by one proprietor toanother, in his capacity as such and for the beneficialenjoyment of his land.

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Rights Able To Be Granted As Easement (S283)

Any right to do something in, over or upon the servientland.

Any right that something should not be so done.

The said rights do not include:

a) Any right to take anything from the servient land; or

b) Any right to the excusive possession of any part.

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Power To Grant Easement And Its Restrictions (S285)

S285 National Land Code 1965 provides that the power of aproprietor to grant an easement is subject to the following:

a) Any prohibition or limitation imposed by the National LandCode 1965 or by other written law for the time being inforce;

b) Any restriction in interest to which the land is for the timebeing subject;

c) Consent of the lessee, tenant or chargee is necessary if theland is subject to any lease, tenancy or charge; and

d) No cross-easements of support in respect of a party-wallmay be granted by adjacent proprietors except in respect ofa wall which stands on their common boundary and iscertified by the Director of Survey to be so.

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Power To Grant Easement And Its Restrictions (S285)

It is to be noted that an easement cannot be granted ifthe lands are held under titles of different registries. Forexample, a proprietor of an alienated land held under aLand Office title cannot grant an easement to theproprietor of an alienated land held under a Registry title.

This is because under S304(5) National Land Code 1965,the same officer has to make two memorials on theRegister Document of Titles of both lands (the dominantand servient).

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Form And Effect Of Grants (S286)

The grant of any easement shall be effected by an instrumentin Form 17A.

In the case of the grant by adjacent proprietors of cross-easement of support in respect of any party wall, by aninstrument in Form 17B.

Any such grant may so far as the interest of the grantorpermits be either in perpetuity or for any terms of years.

Any such grant may contain an agreement between theproprietors of the dominant and servient lands.

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Release Of Easement By Dominant Proprietor (S289)

Any easement granted may be released at any time bythe proprietor of the dominant land.

Any such release shall be effected by an instrument inForm 17C and the easement shall cease to exist on the dateon which the instrument is registered.

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Cancellation Of Easement By Registrar (S291)

That it has been extinguished as mentioned in S290.

That the term for which it was granted has expired.

That it has been abandoned.

That it is obsolete or impedes the reasonable use of theservient land and that its cancellation will not injure anyperson entitled to the benefit.

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CAVEAT AND PROHIBITORY ORDER

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Caveat

A caveat is an entry in the Register Document of Title toany land made by the Registrar of Title/Land Administratoron his own initiative (in the case of a Registrar’s caveat) orupon receiving an application for its entry from a certainperson or body (in the case of any other caveat). It has theeffect of preventing certain instruments of dealing frombeing registered by the Registrar of Title/LandAdministrator. The purpose of a caveat depends on its type.

The National Land Code 1965 provides four types ofcaveat. These are the Registrar’s Caveat, Private Caveat,Lien-holder’s Caveat and Trust Caveat.

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Caveat

The National Land Code 1965 provides four types of caveat:

i. Registrar’s Caveat,

ii. Private Caveat,

iii. Lien-holder’s Caveat; and

iv. Trust Caveat.

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Caveat

Caveat is an easy and cheap instrument provided by theNational Land Code 1965 to protect the interests of certainparties.

However, this caveat is only for temporary and not conclusive,it is a temporary deterrent pending for the court decision.

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Registrar’s Caveat

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Effects Of A Registrar’s Caveat (S319)

According to S319(1)(b) National Land Code 1965, aRegistrar’s Caveat entered in the Register Document of Title toany land prohibits the following:

a) The registration of any instrument of dealing in the RegisterDocument of Title to the land;

b) The endorsement of any claim to the benefit of tenancyexempt from registration in the Register Document of Title tothe land; and

c) The entry of any Lien-holder’s Caveat in the RegisterDocument of Title to the land.

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Effects Of A Registrar’s Caveat (S319)

The provision of S319(2) National Land Code 1965 statesthat the prohibition imposed by a Registrar’s Caveat shallapply to any such instrument notwithstanding that it waspresented for registration before the caveat was entered,and to say such claim or Lien-holder’s Caveatnotwithstanding that the application for its endorsement orentry was received before that time.

However, under S319(3) National Land Code 1965, theRegistrar of Title/Land Administrator may waive theprohibition where he is satisfied that to do so would not beinconsistent with the purpose of the caveat.

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Circumstances For Entering A Registrar’s Caveat (S320)

Under S320 National Land Code 1965, the Registrar ofTitle/Land Administrator may enter this caveat in theRegister Document of Title to any land for the followingreasons:

a) For the prevention of fraud or improper dealing; orb) For protecting the interest of:i. The Federation or the State Authority; orii. Any person who is in his opinion under the disability of

minority, mental disorder or unsoundness of mind, or isshown to his satisfaction to be absent from theFederation; or

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Circumstances For Entering A Registrar’s Caveat (S320)

c) For securing that the land will be available to satisfy thewhole or part of any debt due to the Federation or theState Authority, whether such debt is secured orunsecured and whether or not judgement has beenobtained; or

d) By reason of some error appearing to him to have madein the Register Document of Title or Issue Document ofTitle to the land or any other instrument relating.

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Registrar’s Caveat (S320)

Who can enter the Registrar’s Caveat:

a) Representative from Federal Government Department;

b) Representative from State Government Department;

c) Public Trustee; and

d) Trustee.

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Cancellation Of A Registrar’s Caveat (S321)

According to S321(3) National Land Code 1965, a Registrar’s Caveatshall continue to be in force until it is cancelled by the Registrar ofTitle/Land Administrator in the following circumstances:

a) On his own motion; orb) On an application in that behalf by the proprietor of the land

effected; orc) Pursuant to any order of the Court made under an appeal under

S418 National Land Code 1965 to cancel the caveat.d) The Registrar of Title/Land Administrator will only cancel the

caveat when he is satisfied that it is no longer required.e) According to S321(4)(a) National Land Code 1965, on cancelling

the caveat, the Registrar of Title/Land Administrator is required toinform the proprietor.

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Effects of the Registrar's Caveat The Registrar's caveat prevents the occurrence of thefollowing:

i. Registration of dealing instruments;ii. Entry of any Lien Holder’s Caveat but allow entry of Private

Caveat and Trustee; andiii. Endorsement of exempt tenancies (S316).

Entry of the Registrar's Caveat using Form 19F and notificationusing Form 19A.

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Cancellation of Registrar's Caveat

The enforcement of Registrar’s Caveat shall continue until it iscancelled by the Registrar on his own motion or upon receipt ofthe cancellation request from the landowner involved and theRegistrar is satisfied with the reason given by the landowner. Thecaveat can also be cancelled by Court orders via S417 and S418.

The cancellation of the caveat shall be recorded in thedocument of title together with the date and seal of theRegistrar. The cancellation of the caveat upon the Registrar'sinitiative should be notified to the landowner by using Form 19A.

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Private Caveat

84

Effects Of A Private Caveat (S322)

According to S322(2) of National Land Code 1965, aPrivate Caveat which is expressed to bind the alienated landitself or an undivided share in the land prohibits thefollowing:

a) The registration of any instrument of dealing executedby or on behalf of the proprietor of the land;

b) The registration of any certificate of sale in respect ofthe land;

c) The endorsement of any claim to the benefit of tenancyexempt from registration granted by the proprietor ofthe land; and

d) The entry of Lien-holder’s Caveat. 85


According to S322(3) National Land Code 1965, a PrivateCaveat which is expressed to bind an interest in any alienatedland (e.g. a lease or sub-lease) prohibits the following:

a) The registration of any dealing effecting that interest; andb) The registration of any certificate of sale effecting that

interest; andc) In the case of a lease or sub-lease, a Private Caveat prohibits

the following:i. The endorsement of any claim to the benefit of tenancy

exempt from registration effecting that interest; andii. The entry of any Lien-holder’s Caveat effecting that interest.

86


According to S322(4) National Land Code 1965, a PrivateCaveat prohibits only the registration, endorsement orentry if the instrument of dealing or application forendorsement or entry was presented or received after itsentry.

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According to S322(5), a Private Caveat shall not prohibitthe registration of an instrument and the endorsement of aclaim to the benefit of a tenancy exempt from registrationin the following circumstances:

a) The instrument was present or the application for anendorsement of a claim to the benefit of a tenancyexempt from registration was made by the person atwhose instance the caveat was entered;

b) The instrument or application was accompanied by aconsent in writing of the person at whose instance thecaveat was entered.

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Person Or Body Capable Of Applying For Entry Of A Private

Caveat (S323) Under S323(1), the following may apply for the entry of aprivate caveat in the Register Document of Title to any land:

a) Any person of body claiming title to, or any registrableinterest in, any alienated land or undivided share in anyalienated land or any right to such title or interest;

b) Any person or body claiming to be beneficially entitledunder any trust effecting the alienated land or interest;and

c) The guardian or next friend of any minor claiming to beentitled.

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Withdraw And Cancellation Of A Private Caveat (S325)

A Private Caveat may be cancelled under the followingcircumstances:

a) Upon an application for withdrawal by the person atwhose instance the caveat was entered;

b) In a situation as in S326(1) National Land Code 1965(Removal of private caveats by Registrar );

c) Upon an order of the High Court; ord) At the expiry of six years from the time it took effect.

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Lien-Holder’s Caveat

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Person Or Body Capable Of Applying For Entry Of A Lien-

holder’s Caveat (S330)Anyone with whom an Issue Document of Title to anyalienated land or a copy of the Issue Document of Titleissued under S343(1) National Land Code 1965 or aduplicate lease or a duplicate sub-lease has been depositedas a security for a loan may be for the entry of a Lien-holder’s Caveat in the Register Document of Title to theland [S330(1) National Land Code 1965].

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Effects Of A Lien-holder’s Caveat (S330)

According to S330(5) of National Land Code 1965, the effectsof a Lien-holder Caveat are similar to those of a Private Caveat.Therefore if a Lien-holder’s Caveat is expressed to bind thealienated land itself, it prohibits the following:

a) The registration of any instrument of dealing executed by oron behalf of the proprietor of the land;

b) The registration of any certificate of sale in respect of theland (except a certificate of sale);

c) The endorsement of any claim to the benefit of tenancyexempt from registration granted by the proprietor of theland; and

d) The entry of any Lien-holder’s Caveat in respect of the land.93


According to S330(5) National Land Code 1965, if a Lien-holder’s Caveat is expressed to bind a particular interest in anyalienated land (e.g. a lease or sub-lease), then it prohibits thefollowing:

a) The registration of any instrument of dealing effecting thatinterest;

b) The registration of any certificate of sale effecting thatinterest;

c) The endorsement of any claim to the benefit of tenancyexempt from registration effecting that interest; and

d) The entry of any Lien-holder’s Caveat effecting that interest.

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A lien-holder’s Caveat prohibits the registration,endorsement or entry only if the instrument or theapplication was presented or received after its for entry.

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According to S322(5) National Land Code 1965 which isapplicable by virtue of S330(5) National Land Code 1965, a Lien-holder’s Caveat shall not prohibit the registration of aninstrument and the endorsement of a claim to the benefit of atenancy exempt from registration in the following circumstances:

a) The instrument was present or the application for anendorsement of a claim to the benefit of a tenancy exemptfrom registration was made by the person at whose instancethe caveat was entered;

b) The instrument or application was accompanied by a consentin writing of the person or body (at whose instance thecaveat was entered).

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According to S331(2) National Land Code 1965, if a land or alease subject to a Lien-holder’s Caveat is sold pursuant toan order of High Court made by virtue of S282(1) NationalLand Code 1965, the certificate of sale presented by thepurchaser shall be deemed to have been presented withthe consent of the lien-holder, and as such the certificate ofsale is not effect by the Lien-holder’s Caveat.

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Withdraw And Cancellation Of A Lien-holder’s Caveat (S331)

A Lien-holder’s Caveat may be cancelled under thefollowing circumstances:

a) Upon an application for withdrawal by the caveator;b) It lapses upon the registration of a certificate of sale

issued as a result of sale made pursuant to an order ofHigh Court at the request of the lien-holder;

c) When the Registrar of Title/Land Administrator issatisfied that all the sums due under the lien have beenduly paid; or

d) Upon an order of the High Court;

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Trust Caveat

99

Person Or Body Capable Of Applying For Entry Of A Trust Caveat (S332)

The following person or body may apply for the entry ofa Trust Caveat in the Register Document of Title to any land[S332(1) and S333 National Land Code 1965]:

a) The trustees in a Register Document of Title in respectof any alienated land or interest;

b) The person or body who transfers the alienated or theinterest to the trustees; or

c) The person or body who applies under S344(2) NationalLand Code 1965 to the Registrar of Title/LandAdministrator to be registered ‘as trustee’ as the casemay be in respect of alienated land or the interest.

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Effects Of A Trust Caveat (S332)

According to S332(2) of National Land Code 1965, the effectof a Trust Caveat is as stated in the caveat itself, that is , in thememorial in respect of the caveat made in the RegisterDocument of Title. Its effect is to prohibits (either absolutely orsubject to certain conditions) the following:

a) The registration of any instrument of dealing directlyeffecting the trust property;

b) The endorsement of any claim to the benefit of tenancyexempt from registration in respect of the trust property;and

c) The entry of Lien-holder’s Caveat in respect of the trustproperty.

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Effects Of A Trust Caveat (S332)

As provided in the proviso to S332(2) of National Land Code1965, a Trust Caveat does not prohibit the registration orendorsement or entry if the instrument or application waspresented or received before the caveat takes effect.

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Cancellation Of Trust Caveat (S333)

As provided in S333(5) National Land Code 1965, a TrustCaveat shall continue to be in force until cancellation by theRegistrar of Title/Land Administrator on an application bythe trustees together with the persons or bodiesbeneficially entitled under the trust.

103

Prohibitory Order

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Meaning Of Prohibitory Order (S334)

According to S334 National Land Code 1965, a ‘prohibitoryorder’ means where alienated land or interest in it held by ajudgement-debtor is to be sold in execution proceedings, anorder made pursuant to the rules of court by a court ofcompetent jurisdiction prohibiting the judgement-debtorfrom effecting any dealing or from effecting such dealing asmay be specified in the order.

105

Effects Of A Prohibitory Order (S336)

According to S336(1) National Land Code 1965, aprohibitory order which is expressed to relate to thealienated land itself prohibits the following:

a) The registration of any instrument of dealing executedby or on behalf of the proprietor of the land;

b) The endorsement of any claim to the benefit of tenancyexempt from registration granted by the proprietor ofthe land; and

c) The entry of any Lien-holder’s Caveat in respect of theland.

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According to S336(2) National Land Code 1965, aprohibitory order which is expressed to relate to aparticular interest in any alienated land prohibits thefollowing:

a) The registration of any instrument of dealing effectingthat interest; and

b) F the interest is a lease or sub-lease, a prohibitory orderprohibits the following:

i. The endorsement of any claim to the benefit of tenancyexempt from registration effecting that interest; and

ii. The entry of any Lien-holder’s Caveat effecting thatinterest.

107


As stated in S336(1)(a) and S336(2)(a) of National LandCode 1965, a prohibitory order prohibits the registration,endorsement or entry only if the instrument or applicationwas presented or received after the entry of thatprohibitory order.

According to S337(2) National Land Code 1965, aprohibitory order shall not prohibit the registration of aninstrument of dealing executed by an officer of a court onbehalf of a judgement-debtor pursuant to an order madeupon the sale of alienated land or interest in it for thepurpose of satisfying the judgement debt.

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Cancellation Of Entry Of A Prohibitory Order (S338 & S339)

An entry of a prohibitory order is cancelled by the Registrar ofTitle/Land Administrator under the following circumstances:

a) At the expiry of six months from the date on which it wasmade by the court and the court does not issue an order toextend the period;

b) On receiving a copy of the order of withdrawal or the orderof cancellation or the order causing the prohibitory order tobe ineffective, made by the court;

c) On the registration of a transfer executed by an officer of thecourt on behalf of the judgement-debtor; or

d) On the registration of a certificate of sale issued undersections 259(3) and 265(4) of National Land Code 1965.

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Prohibition Or Limitation On Dealings

S301(c) National Land Code 1965 provides that one of theconditions for an instrument of dealing to be fit for registration isthat the dealing it effects should not be contrary to anyprohibition or limitation imposed by National Land Code 1965.The Registrar of Title/Land Administrator should be aware ofsuch prohibition or limitation.

The National Land Code 1965 prohibits, for example, thetransfer of land (where the building stands) by the managementcorporation of a subdivided building and a dealing in respect ofany land, share or interest by a personal representative until theland, share or interest has become registered in his namepursuant to S346 National Land Code 1965. The restriction ininterest in respect of a dealing in S433B in favour of a non-citizenor a foreign company is another example of such prohibition.

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Prohibition Or Limitation On Dealings Imposed By Any Other Written Laws

Some of the other written laws that prohibit or limitdealings are the laws relating to Malay reservations, NegeriSembilan and Malacca customary lands.

The Land (Group Settlement Areas) Act 1960 (S4)prohibits the transfer of a rural holding to more than oneperson.

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Restriction In Interest

S301(c) also provides that one of the conditions for aninstrument of dealing to be fit for registration is that thedealing it effects should not be contrary to the restriction ininterest to which the land is subject.

The restriction in interest which the Registrar ofTitle/Land Administrator should be concerned with shouldbe that pertaining to the powers of dealings only and notthe powers to subdivide or partition land, or to amalgamatelands. A restriction in interest relating to dealing could be inthe form to the effect that the land cannot be transferred,charged or leased without the permission of the StateAuthority. 112

Restriction In Interest

In determining the fitness of an instrument of dealing,the Registrar of Title/Land Administrator should seewhether a restriction in interest exists or not in the titleeffected by the dealing.

For example, the consent of the State Authority, MenteriBesar or the Land Administrator is required, the Registrar ofTitle/Land Administrator should see that such a consent hasbeen given before registering an instrument of dealing. Theletter (conveying the consent) submitted to the Registrar ofTitle/Land Administrator together with the instrument ofdealing should be filed properly.

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T H A N K YO U

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LAND LAW AND SURVEY REGULATION (SGHU 3313) · 2019-01-28 · The main types of dealing under...

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