DEALINGS AND REGISTRATION Prepared by: Puan Hamsiah Omar
IntroductionThe NLC 1965 require certain matter to beRegistered :-(d) dealings in alienated land(e) Interest in alienated land
What are dealings?There are four (4) types of dealings of anyalienated land recognized by the Code:- Transfers; Leases and tenancies; Charges and liens ; and Easements.However not all the above dealings requireto be registered.
Dealings that require registration are:- Transfers; Leases Charges and easements
Dealings that do not requireregistrations are: Tenancies; and Liens.
What is “interest in alienated land”?Includes:- a lease and sublease of alienated land; A charge of alienated land; and An easement.The above interests are required to be registered by the NLC tobecome effective. Once registered, the party or person whoaccepts the lease, sublease, charge or easement will have aregistered interest over the alienated land.
Transfer Who are the parties to transfer All persons or bodies in sec. 43 Transferor – party who transfer the land; Transferee- party who accepts the transfer.
What may be transferred – sec. 214(1) The whole, but not a part only, of any alienated land; The whole, but not a part only of any undivided share, or any alienated land; Any lease; Any charge; Tenancy exempt from registration
Limitation in Transfera. sec. 214(2) – power to transfer are subject to:- Any other written law; Restriction in interest; Consent from lessee or chargee;
…continueb. sec. 214(3) – prohibits transfer of lease or a charge to 2 or more persons or bodies as trustees or representatives.
Section 214A – control of transfer ofestate landWhat is estate land ? – sec 214A(1) “agricultural land” Under one title or more Which area is more than 40 hectares Land constituting the area are contiguous/joining (the 40 hectares must be adjoining)
…continueEstate land cannot be transferred or disposedof to 2 or more persons unless consent/approval is obtained from the Estate LandBoard.Case: Kumpulan Sua betong.
Illustration – Transfer of alienated landAli is a registered proprietor of a piece of landhas agreed to transfer his land to Siti. Ali wouldlike to know his duty and obligation to make thetransfer effective.
General rule on transfera. sec. 206(1)(a) – every dealing shall be effected in a proper instrument (forms)b. Sec. 215(1) – the relevant instrument for transfer of any alienated land is Form 14Ac. Sec. 206(1)(b) – no instrument shall be effective to operate as a transfer of a title until it is registered.d. Sec. 215(2) – upon registration, the title of trnsferor (Ali) in the land shall pass and vest in the transferee (Siti)
…continuee. sec. 304(1) – registration of any instrument shall be effected by the Registrar.f. sec. 304(2) – the Registrar shall register the transfer by making a memorial on the RDT, signs and seals on the instrument.Case: Jasbir Kaur
..continueg. sec. 215(3) – upon registration, the transferee (Siti) shall take over. Lease, charge or other registered interest existing at the time of registration of transfer, if any; Tenancy exempt from registration, if any and endorsed; Whatever matters appear in the register document of title.
LEASEA person who lease the land is called a lessorwhile the person who accepts the lease iscalled the lessee.Lease is one of the dealings which is capableof being registered.
..continueBy virtue of sec. 5 - “lease” simply means “ aregistered lease or sublease of an alienatedland”Thus, lease must be registered to be effective.
…continue Once registered. A lease creates a legal interest in the land - enforceable against third party - enjoys protection within the terms of legislation
Lease under common law Need not be registered Legal interest created upon signing of agreement
Elements of a lease under CLa. Lessee has an exclusive possession lessee can exclude all person including the lessor. lessor will not deprive lessee of enjoyment of the land
Erington v. Erington & WoodsPrinciples to establish:-ii. Not only that exclusive possession had been granted;iii. But also the intention to create the relationship of landlord and tenant;iv. And thereby to create an interest in the land.Case Mohamed Mustaffa v. Kandasami if there is no possession the transaction cannot be a lease
… continue - elementb. Lease is of a definite periodc. Inconsideration of payment of rent.
Power to leaseSec. 221(1) – proprietor of any alienated land can grant a lease Wholly; or partly
Term of leaseSec. 221(2) every lease must be for a termexceeding 3 years.Maximum term to grant lease – sec 221(3)d. lease of the whole piece of land – 99 years.e. Lease of part the land – 30 years.
Lease and its limitation.a. Sec 225(1) may be subject to any other written law; restriction in interest.d. Sec 225(2)- lease cannot be granted to 2 or more persons or bodies as trustees or representative.e. Sec 226 – consent from lessee or chargee be obtained before leased can be created.
Instrument of lease – sec 221(4) Every lease shall be in Form 15A
Effect of registration – sec 227(1) a lease will have legal effect upon registration Interest of lesse shall vest in him upon such registration
What if lease not registered? General – sec 206(2) – no instrument of dealing shall operate to effect any interest unless it registered Sec 206(3) – however the requirement in sec 206(1) shall not affect any contractual operation of any transaction of alienated land.
…continue Even though the instrument is not registered, the contract to lease entered between the lessor and lesser is still valid. Thus, unregistered lease is void as a lease but the contract is valid as an agreement for a lease. The contract is enforceble under the law of contract
… continue Margaret Chua v. Ho Swee Kiew Ong Heng Hwa Realty Sdn Bhd
Cancellation of endorsement – sec 318The Registrar may cancel any endorsement By court order; Upon expiry of the tenancy;The Registrar shall endorsement against the cancelled endorsement note of the date of cancellation and the reason thereof.