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Structure of Malaysian Land Law - Coggle Diagram
Structure of Malaysian Land Law
History
Before 1400, the concept used that the land belongs to the Rulers who had discretion to grant the title of possession
Sahrip v Mitchell & Anor [1879]:
Its well known that by the old Malay law while the sovereign was the owner of the soil, every man has rights to clear and occupy all forest and wasted land subject to payment to the sovereign.
If he abandoned the land for 3 years, his rights ceases and land is reverted back to the sovereign.
Tengku Haji Jaafar Ibni Almarhum Tengku Muda Ali & Anor v Government of Pahang [1987]:
Before British intervention, Sultan was an absolute ruler who exercises his powers, presumably after advice of his Ministers. After the British intervention, he remained as the rulers but the administer the state with advice of residents
Shaik Abdul Latif & Ors v Shaik Elias Bux [1915]:
The laws applicable to the Malays in the Malay States is the Islamic law. For customary land, it relates to land of the title has been endorsed with custoary land i.e. ancestral property,
Islamic law
Land belonged to God and the state is entrusted with duty of ensuring that the alienated land remain in cultivation for the
ummah
in general
Ramah v Laton [1927]:
Local courts will take judicial notice that Islamic law applied during that time
Customary law
Adat Perpateh:
Acestral land owned by descendants of the Minangkabau race in Negeri Sembilan
Matricial: only female lineage can inherit the land, acestral land belongs to the clan and not individuals and females are the guardians of the land
Munah v Isam [1936]:
Concerning rights to own ancestral land under the Adat Naning - person who owned such land had a defeasable interest upon the descendant of the clan paying the occupier an amount equivalent to the occupier's original purchase price
Adat Termenggong:
Recognises the patrilineal system
The Torrens System
State of the law:
Problems with uncertainty and complexity in ownership.
At common law, land owners need to show the earlier grant, title deeds/chain of titles. This can be easily challenged and hinder development (due to undetected interests on the land), purchasers don't have protection
Why:
to initiate a system of registration, coordinate land adminsitration. At first, it was just for administrative record - collection of revenue
Then developed into a new mode of conveyancing where the title to land depends on registration
(1) All dealings must be
officially registered
of the land:
Registration gives validity and creates legal interest:
Reflects important information of the registered owner's title - name, area and location, survey plan and limits
Registered proprietor takes free from any interest (like trusts) that may exist outside the register
Breskyar v Wall [1972]:
Its a system of title by registration and not registration of title
Teh Bee v Maruthamuthu [1977]:
Under the Torrens System, registration is everything. Upon registration, the person becomes owner of property tot he exclusion of others
Dr. Ti Teow Seow v Pendaftar Geran-Geran Tanah Negeri Selangor [1982]:
Registration is the cornerstone of the Torrens System. Registration gives and extinguishes a title under the National Land Code.
(2) Mirror Principle:
The registration reflects accurately and completely the material facts about a person's title tot he land (i.e. mirroring the actual ownership)
Assists the intended purchaser to identify the ownership or any interest in the land
Upon sales, new title will be issued identical to the old one but with new owner's name
(3) Curtain Principle:
There is no need for the intended purchaser to look beyond the register (i.e. to lift the curtain and see what is hiding behind)
Its sufficient for the intended purchase to examine the Register Document of Title to obtain necessary information to establish proper ownership
(4) The National Code [1965] ("NLC"):
To unify the law and administration of law in accordance with the Torrens System
NLC is a consolidation of the previous statutory instruments in land dealings like the Perak General Land Regulations 1879
Lim Chee Cheng & Ors v Pentadbir Tanah Daerah Seberang Perai Tengah, Bukit Mertajam [1999]:
NLC which was effective on 1st Jan 1966 was enacted to ensure uniformity of the law, policy on land matters. There are 2 main objectives:
(1) to establish a uniform clear cut system of land tenure and dealing
(2) to incorporate provisions requuired to adapt to social and economic change
Applicability of English Law
Applicability of English equitable principles
Application of UK common law, rules of equity and certain statutes:
(3) Save so far as other provision ahs been made or may hereafter be made by any written law in force in Malaysia, the Court shall -
(a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956
Immovable property:
Nothing in this Part shall be taken to introduce into Malaysia or any of the States shall compromise therein any part of the law of England relating to the tenure or conveyance or assurance of or succession to any immovable property or any estate, right or interest therein
Strict judicial view:
English law no longer applicable in Malaysia
UMBC v Pemungut Hasil Tanah Kota Tinggi [1984]:
NLC is a complete and comprehensive code of law governing the tenure of land... there is no room for the importation of any rules of English law in that field
Tan Wee Choon v Ong Pek Seng [1988]:
Made reference and relied on UMBC. The rights arising out of common law and equity are no longer applicable in light of passing of the CLA and NLC
Tan Khien Toong v Hoong Bee & Co [1987]:
Relied on UMBC. Equitable remedies are for all practical purposes no longer applicable in land matters.
Liberal judicial view
Devi v Francis:
Court accepted the English equitable principle of irrevocable licence and disallowed the termination of an agreement for a lease
The Motor Emporium v Arumugam [1933]:
Court applied the English rules of equity because the Court has an inherent jurisdiction to do justice between the parties
as long as
the equitable principles are not inconsistent with the framework of the Torrens System
Karuppiah Chettiar v Subramaniam [1971]:
An equitable estate in land was allowed and the court held that such equitable rights are recognised under the spirit of the Torrens System and is not opened to question