Revision 2018 Land Law

B Juris External
Konsep prinsip ekuiti
• Prinsip
• Remedi
• Section 6 CLA 1956; cf with s 3 Civil Law Act1956
• Introduction will research why equitable principles ARE NOT
supposed to be used in Malaysian Land Law
• S. 3 says can? But does it truly say can? Read s 3 carefully. It sets out
the circumstances and particularly points out when equitable
principles may be used in Malaysia and the cut off date. At the same
time, s 3 also has limitations - read the proviso to section 3 (2).
Section 6
• What does section 6 say?
• What are the starting words of section 6?
• “Nothing in the part” EXPLAIN THE SIGNIFICANCE OF THESE WORDS
• And the whole of section 6 – what does it say? Land Law of Malaysia
– all kinds of transactions relating to land law are mentioned there
and the section does not just say equity
• But also that any part of the law of England shall not be used in any of
the transactions relating to land in Malaysia
Mengapakah prinsip ekuiti dilarang di hal-hal
tanah di Malaysia?
• Prinsip ekuiti – sejarah prinsip ekuiti perlu dibincangkan sedikit di sini
• Kedua – Sistem pindahak tanah di Malaysia adalah di bawah system
Torrens – sistem Torrens – adalah suatu system yang menyarankan
“certainty” and “Simplicity”.
• Apakah makna konsep ini? Terangkan dengan terperinci – certainty
and simplicity – curtain and mirror principles, the purpose of the TS
• And the previous deeds system that caused much complicated land
transactions.
But how then does the Land Code protect the
person who is yet unregistered?
• Registration takes time – so from the time a contract is signed, the
registration process may take any time from 3 months to a year even
depending on the number of transactions on the Presentation Book.
• Although under section 295(2) of the NLC the registration date is
taken from the date of the entry into the Presentation book, the
world at large is still not given the information regarding the true
status of the land.
• So how do we overcome this impasse?
• Section 206(3) NLC
System of caveats
• Section 323 – private caveat to show the world that an interest is
subsisting on the piece of land and therefore that serves to notify the
world at large.
Equitable Principles
• Concept of bare trust – Borneo Housing
• Definition of bare trust in the UK – detailed explanation of the
concept
• Borneo housing case – please discuss in detail what happened in
Borneo Housing – remember it is a Sabah case – but which aspect of
land law is similar with our NLC and that is the reason why we would
want to accept the Borneo housing case
• What are the 4 considerations that were categorically stated by the
court in the case – and only then could the concept of bare trust be
applied. Not the concept of bare trust as we know exists in the UK
Analysis
• Borneo Housing – is it in conflict with s 6? Is Borneo housing in
conflict with the Torrens system?
Doctrine of irrevocable licence
• Devi v Francis -facts, arguments, understanding of the ratio, and the
analysis
Relief against forfeiture – equitable principle
• UMBC v PHTKT – there was a clear set of provisions relating to
forfeiture in the NLC – what are the procedures to be followed by the
Land Administrator in carrying out the forfeiture
• And the land owner – what were the rights of appeal- the grounds of
appeal all was clearly set out in section 134(2) of the NLC
• So the crux of the matter was that if the LA had followed all the
procedures to the letter, then the client had not a right of appeal
because of the wording in section 134(2).
• In the above case, they tried to invoke the equitable relief against
forfeiture. And that led the court to issue the famous statement.
Equitable mortgage
• MUF v Tay Lay Soon – facts, mortgage and charge distinguished –
define mortgage – the principles attached to mortgage, the
mortgagee’s legal right and the principles attached to a charge – the
charge’s legal right to the land and the charger who remains as the
land owner throughout until the order for sale is successfully
conducted and the new owner is registered – s. 267 of the NLC
• Why the principles of equity of redemption cannot apply
• The principles of discharge of charge
• Haji Abdul Rahman – discuss the facts, and why the court decided as
it did – 1889 Selangor Registration of Titles Enactment
Question 2
• Identify the main issue – Indefeasibility of title and registered
interests
• Define the issue – concepts of indefeasibility? Why is indefeasibility
important – what does it have to do with the aims and objectives of
the TS
• What is the purpose of the aims and objectives of the TS with respect
to indefeasibility
• What are the provisions in the National Land Code with respect to
indefeasibility of title and registered interests?
Pendaftaran
• Registration is important for indefeasibility to kick off
• S. 340(1)
• S. 340(2) (a) (b) (c)
• S. 340(3) (a) (b)
• S. 340(3) proviso
Explain by cases
• Registration is important – once registered a person has
indefeasibility of title – Teh Bee v K Maruthamuthu – s. 89
• Once registered and indefeasible title, does it mean it cannot be
challenged? No
• Former registered proprietor or a current unregistered interest holder
are the parties who can challenge the title of the property
owner/charge
Section 340(2)(a)
• Fraud or misrepresentation – cases have to be considered.
• Must be actual fraud and not imputed fraud.
• TaI Lee Finance
• Contrast with Public Finance v Narayanasamy

• Assets Company
• Waimiha Sawmilling
• Loke Yew v Swettenham Rubber (misrepresentation)
• Pekan Nenas
• Hoo Kok CHong
• Datuk Jaginder Singh

• S. 340(2)(b) - forgery, insufficient, void instrument – where

registration was obtained
• Boonsom
• Elizabeth Chiew
• Tan Ying Hong
• Au Meng Nam
• OCBC v Pendaftar Hak Milik Negeri Johor
S 340(3)(a)(b)
• OCBC v PHMNJ
• Subsequent purchaser (still does not get a good title)
• UNTIL
• Proves the proviso
• Good faith and valuable consideration
s. 132 of the Sarawak Land Code
• Frazer v Walker
• Tan hee Juan
• Puran Singh v Kehar Singh
S 340(2)(c)
• Dr Ti Teow Siew
• Teh Bee
• Oh Hiam v Tham Kong
• M & J Frozen Food v Siland
Q3 - 2017
• Law governing fixtures
• S 5 of the NLC – definition of land
• To note that we do NOT have fixtures defined except indirectly in
section 5

• How do we determine if an item is a fixture or chattel?

• Two tests – what are the two tests?
• Holland v Hodgson
• Goh Chong Hin
• The Shell Company
• Esso
• Material Trading
• Socfin CO Ltd
EXCEPTIONS TO THE LAW OF FIXTURES
• Re Tiambi
• Kiah bt Hanapiah
• Wiggins Teape
• Gebrueder
Chargee
• When the charge has to deal with land – what is land? The fixtures
• What about property on hire purchase? Who has the title
• What about property brought on to the land after the charge was
created?
• Doctrine of enumeration
Unregistered lessee
• S 206(3) NLC
• Entry of private caveat – s 323
• Lease is a registrable interest – characteristics of a lease
• Contract law – the right to specific performance – characteristics of
when a court will grant specific performance
• Tenancy – which the court may then allow them to revert to a
registered lease – Margaret Chua’s case
• Exclusive possession of the land – Woo Yew Chee
• Effect to bind third parties