land law 1 slides dealings part 1
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Dealings –Part 1Areej Torla [email protected]
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.
Division IV:1. Transfer2. Lease and tenancy3. Charge and lien4. Easement
Instrument of dealing
Section 206(1) Every dealing shall be effected by
the relevant instrument prescribed for that purpose.
Must be properly registered.
Transfers
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
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)
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)
Effect of transfer
Section 215 Title is passed to the transferee upon
registration Confers indefeasibe title or interest It is subject to existing
encumbrances and conditions or restrictions in interests, if any.
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).
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)
Limitations /Restrictions on power to transfer Transfer of agricultural land the
land shall not become less than 2/5 hectare (1/2 acre) S205(3)
Transfer of estate land next slide please!
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…”
Consent of Estate Land Board is needed in order to transfer estate land.
Case: Kumpulan Sua Betong
Effect of contravention: guilty of an offence
Section 214A (10A)(a)
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, and3. The lands are contiguous
What is “Estate Land Board”?Section 214A(3)
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
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.
Leases & Tenancies
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 LESSEELEASE
Section 5 NLC: “Lease”: registered lease or sublease
of an alienated land Therefore, excludes a lease
agreement an equitable lease and a TER.
Characteristics of a lease1. Lessee enjoys a right of exclusive
possession2. Duration is specific and certain3. 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.
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
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)
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).
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.
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)