Land Law 1 slides REGISTRATION OF DEALINGS

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Land Law 1 slides REGISTRATION OF DEALINGS

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Land Law 1 slides REGISTRATION OF DEALINGS

  1. 1. Areej Torla areej@iium.edu.my REGISTRATION OF DEALINGS
  2. 2. Introduction  Torrens system: a land administration system based on registration  Registration  the cornerstone of the Torrens system.  Title/interest by registration  To overcome the defects of the Deeds system.
  3. 3.  T. Damodaran v Choe Kuan Him [1972] 2 MLJ 267:  “The whole purpose of the system is to get away form the complicated system of rules which in England regulate dealings with land, particularly those relating to such matters as notice of encumbrances…”
  4. 4.  Teh Bee v K Maruthamuthu:  The New Zealand case of Fels v Knowles was quoted:  “Under the Torrens system, the register is everything”.  Frazer v Walker:  The court laid down the principle that the Torrens system was intended to provide immunity of the registered proprietor from adverse claims.
  5. 5. Types of dealings  Dealings capable of being registered: 1. Transfers 2. Leases 3. Charges 4. Easements   No title or interest in land will be created until the instruments affecting these dealings have been registered.
  6. 6.  Dealings not capable of registration: 1. Tenancies exempt from registration (TER) 2. Liens
  7. 7. Registration of dealings  Sections 205-207  S 205: Dealings capable of being effected.  S 206: Dealings must be effected by a proper instrument of dealing, must be registered.  No need to register TER and lien.  S 207: Instrument of dealing shall be in the forms in the First Schedule. (eg Form 14A for transfer, Form 16B for charge etc.)
  8. 8. Effect of unregistered dealings  S 206(3): shall not affect the contractual operation…  Unregistered charge: Mahadevan v Manilal  An agreement to secure a debt in favour of the creditor in respect of the debtor’s land creates an equitable charge giving rise to an equitable right in favour of the creditor, although no charge or lien within the provisions of the NLC…is created
  9. 9. How registration is effected  Instrument of dealing is presented to the     Registrar. He notes the time of presentation (S 292). He enters the particulars of the instrument in the Presentation Book. See whether certain requirements are complied with under S 301. Register the dealing in the manner stated under SS 304-308.
  10. 10. What constitutes the act of registration?  Section 304(2):  The Registrar shall register any instrument by making a memorial on the register document of title under his hand and seal.  Mohamad bin Buyong v Pemungut Hasil Tanah Gombak  “the making of a prescribed memorial of the dealing in the register document of title under the hand and seal of the registering authority”
  11. 11. Mohamad Buyong v PHT Gombak  In that case, an entry of a transfer on the RDT was not signed.  It constituted a “bare entry”.  Since it was not signed by the Collector, there was no registration effected.
  12. 12.  Making a memorial on the RDT. The memorial shall consist of (S 304(3)):     a short description of the nature and effect of the instrument, a statement of its number in the Presentation Book, the reference under which it is to be filed, the time and date of registration.  Making a memorial on the instrument itself completing the Heading under Form 13A (to be inserted in all forms of dealings) under his hand and seal.  Section 304 (4):  Every memorial of registration made…shall be conclusive evidence of the registration to which it refers and the effective time and date thereof.
  13. 13. Duties of Registrar when effecting registration  Section 300(1):  “The Registrar shall not register an instrument until every instrument presented prior thereto, and affecting the same land or interest, has been registered, rejected or withdrawn”.  In other words, the Registrar shall not enter a second registration until he has settled the earlier one.  Every instrument of dealing must be registered in the order of time in which it is presented for registration.
  14. 14. Is this provision mandatory of merely directory?  Mohammad bin Buyong  There were several transactions that were sought to be effected over the same land.  Issue: Whether LA can register the transfer while entry of an earlier transaction remained on the land?  Hashim Yeop Sani J:  “on the facts of this case, the words “shall not register” appearing in section 300(1)(a) of the Code are merely directory and not mandatory and it is also my view that the apparent failure on the part of the registrar to comply with this section does not invalidate the registration…”
  15. 15.  However, in Teo’s book  mandatory  Section 300(1) expressly lays down the principle that every instrument of dealing must be registered in the order of time in which it is presented for registration.  The view of Hashim Yeop Sani J in Mohammad Buyong should be confined to the facts of the case.
  16. 16. Duties of the Registrar  Matters for consideration:  S 297: registrar to determine whether fit for registration.  If fit for registration, Registrar may register it.  If not fit for registration, proceed to S 298 or 299:  suspend registration in order to rectify the error, or  reject the instrument my marking it with the word “Rejected” and return it with a note of the reasons for rejection.
  17. 17.  When is an instrument fit for registration?  When it fulfills the conditions under Section 301.  (eg attestation, not contrary to law, not contrary to any restriction in interest, stamped etc)  Nature of the Registrar’s duty  administrative S 302, S 303.
  18. 18. Correction of errors  Section 380  circumstances where the Registrar may make corrections on the document of title or instrument.  Registrar is required to maintain the “Correction Notebook” where he shall record details of all corrections made.  Registrar must endorse on the instrument the reason thereof and the date it was effected.  Corrections cannot be made by erasing any words or figures.
  19. 19. Island & Peninsular Dev. Bhd v Legal Adviser Kedah [1973] 2 MLJ 71  The error or omission referred to in Section 380(1)(a) is confined to those made by the Registry of Land Titles and not to those made by the parties in the instrument of transfer.  See also Mohammad bin Buyong
  20. 20. Effect of registration  Confers an indefeasible title or interest.  i.e. a title/interest which is free from all adverse claims or encumbrances not noted on the register.  Will be discussed in the next lecture on INDEFEASIBILITY

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