This document discusses dealings under the National Land Code (NLC) of Malaysia, specifically focusing on transfers and leases of alienated land. It defines key terms like "dealings", outlines the relevant divisions and instruments needed to effect various types of dealings according to the NLC. For transfers, it discusses what can be transferred, how to transfer, and the effect of transfers. It also addresses special considerations for transferring estate land. The document then defines leases and tenancies, compares their characteristics, and discusses the power to grant leases and their duration and effects under the NLC.

1. Areej Torla
areej@iium.edu.my
DEALINGS –PART 1

2. 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.

3.  Division IV:
1. Transfer
2. Lease and tenancy
3. Charge and lien
4. Easement

4. Instrument of dealing
 Section 206(1)
 Every dealing shall be effected by the relevant
instrument prescribed for that purpose.
 Must be properly registered.

5. TRANSFERS

6. 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

7. 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)

8. 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)

9. Effect of transfer
 Section 215
 Title is passed to the transferee upon
registration
 Confers indefeasibility of title or interest
 It is subject to existing encumbrances and
conditions or restrictions in interests, if any.
 Transfer of agricultural land  the land shall
not become less than 2/5 hectare (1/2 acre)

10. 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).

11. 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)

12. 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…”

13.  Consent of Estate Land Board is needed in
order to transfer estate land.
 Case: Kumpulan Sua Betong
 (Note: this case was decided before the 2001 amendments where
consent was required for transfers to two or more persons)
 Effect of contravention: guilty of an offence
 Section 214A (10A)(a)

14. 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, and
3. The lands are contiguous
 What is “Estate Land Board”?
Section 214A(3)

15.  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

16. 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.

17. LEASES & TENANCIES

18. 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
LEASE
LESSEE

19.  Section 5 NLC:
 “Lease”: registered lease or sublease of an
alienated land
 Therefore, excludes a lease agreement an
equitable lease and a TER.

20. Characteristics of a lease
1. Lessee enjoys a right of exclusive possession
2. Duration is specific and certain
3. 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.

21. 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

22. 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)

23. 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).

24. 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.

25. 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)