Land Law

Lecture 3

NOOR AISYAH ASYIKIN fspu uitm shah alam

The Torrens System

When the Torrens system was first introduced in the Federated Malay States, there was already then prevailing a system of land law based on Malay custom and Islamic law. This has recently been affirmed by the Supreme Court of Malaysia in the case of Tengku Jaafar & Anor. v. The State of Pahang (1987) in which the Lord President held that the land law in Pahang before the introduction of the Torrens system was Islamic law of the Shafii School.

The Torrens System

In the early stages of the introduction of the Torrens system, the General Land Regulations were enacted in all the four states, Perak in 1879, Selangor in 1882, Negeri Sembilan in 1887 and Pahang in 1888. This was soon followed by the Registration of Titles Regulations in Selangor (1891), Perak and Pahang (1897) and Negeri Sembilan (1898), and the Land Enactments of 1897, enacted in all the four sates.

The Torrens System

By 1911, these several and separate State legislations finally gave way to two uniform laws for the four states, the. F.M.S. Land Enactment of 1911 and the F.M.S. Registration of Titles Enactment, 1911. Thus, uniformity of law and land administration was finally achieved within six years of the formation of the Federated Malay States, pursuant to the Agreement of 1895.

The Torrens System

Amongst the principal characteristics of the Torrens system first introduced into the Malay States which could be regarded as constituting a radical departure from the rules of Malay customary tenure were: 1. All lands vest in the Ruler, who has the power to alienate land to his subjects either in perpetuity or for a fixed term of up 99 years;

The Torrens System

2. All dealings in land must be in the prescribed form and must be duly registered with the relevant authorities; failure to do so would render the dealings null and void, as was clearly demonstrated by the Privy Council in the jual janji case of Haji Abdul Rahman & Anor. v. Mohamed Hassan (1917). Owners of land are given indefeasibility of title, which could be questioned only under special circumstances.

3.

The Torrens System

4. The traditional method of acquisition of virgin land or waste land as permitted under the Malay customary tenure was abolished, as could be seen in the case of Sidek & 46 J Ors, v. The Government of Perak (1982) 5. Forms of dealings which were recognized under the law were transfers, leases exceeding three years, charges and liens; and 6. Two forms of caveats were recognized, namely private caveats and registrar's caveats.

The Torrens System

The uniform laws of 1911 mentioned above perpetuated the division of land in the country into two distinct categories. The Land Enactment dealt with the registration of country lands less than 100 acres in area on a Mukim Register, i.e., lands formerly held under the Malay customary tenure.

The Torrens System

The Registration of Titles Enactment dealt with registry lands, i.e. town lands and country lands exceeding 100 acres and estates. These two parallel legislation in the Federated Malay States continued in force until it was amended by the Land Code of 1926, which came into force on 1st January 1928 and came to be cited as the Land Code 1928 (Cap. 138 of Revised Laws).

The Torrens System

The Land Code 1928 effected further changes in the law, whilst maintaining the two categories of land and the basic Torrens principles mentioned above. The following changes were however introduced: 1. The principle of indefeasibility of title was more clearly defined, with specific statutory exceptions being spelt out.

The Torrens System

2. Adverse possession against individual owners of land is now no longer possible; adverse possession against the State had been disallowed since the first Torrens legislation in the respective States; 3. Customary tenure under Adat Perpatih is preserved

The Torrens System

4. The strictness regarding compliance with statutory form and registration as indicated in the Haji Abdul Rahman case has been abandoned, as could be seen from the decision of Federal Court in Mahadevan s/o Mahalingam v. Manilal & Sons (M) Sdn. Bhd. 5. Specific types of cultivation were enforced.

The Torrens System

Whilst uniformity of law and consistent land administration procedures were attained in the four Federated Malay States, the position in the other five Unfederated Malay States still lagged behind in near disarray. Thus, Johor had its Land Enactment of 1910, Kedah had its Land Enactment of 1906, amended in 1912 and the Concession Enactment of 1909, Kelantan and Terengganu had their own respective Land Enactments of 1938

The Torrens System

Twin Principle of Torrens system
Essentially under the Torrens system the register reflects all the facts material to the registered owner's title in the land. These material facts refer to the name of the proprietor for the time being, the land which has been alienated, its area and location, its survey plan and its boundary limits.' The Torrens system has thus endowed the register with the attributes of a mirror of sorts that can reveal all the necessary particulars relating to the land that would interest a potential purchaser or chargee. Hence the label of "the mirror principle" as given by Das.

The Torrens System

Twin Principle of Torrens system
Mirror Principle The register document of title reveals all facts material to the registered proprietor. All information and particulars about the land appear on the register such as it title number, type of title, size, location, conditions to which the land is subject to, the present registered proprietor and all past transaction history. One should not look elsewhere to know about the land. He could find all material facts about the land looking at the register.

The Torrens System

Twin Principle of Torrens system
A second attribute of the Torrens system is that the register becomes a "curtain". In any transaction between the registered owner and any potential purchaser, the latter will be concerned only with the register and nothing else. The purchaser can safely rely on the information revealed in the register, and he need not, nor may he, look behind it.

The Torrens System

Twin Principle of Torrens system
Curtain Principle
With the register one should not look for more information than what appear on the register. This mean that the person who is registered as the proprietor of the land or any interest in land such as lease, charge and easement shall be guaranteed that his title or interest in protected against adverse claim. The title or interest is indefeasible it cannot be challenged. One should not concern with the history of the land.

The Torrens System

Twin Principle of Torrens system
The cumulative effect of these principles is that the Torrens system has conferred an indefeasibility of title to the registered owner. In Teh Bee v. K. Maruthamuthu (1977) the Federal Court held that, "under the Torrens system, the register is everything. To allow an investigation as to the right of the person who holds the title would be wrong because to do so would defeat the purpose and object of registration.

The Torrens System

Twin Principle of Torrens system
Advantages of Torrens to Individual i. Completeness ii. Security iii. Cheap iv. Simplicity v. Reliable vi. Expeditious vii. Less possibility of loss viii. Less possibility of fraud ix. Confidence x. Source of credit facilities xi. Reduction on litigation xii. Defects cured

The Torrens System

Twin Principle of Torrens system
Advantages of Torrens to State i. ii. iii. iv. v. vi. vii. Proper records Facilitate land administration Increased revenue Complete data Feasibility studies Facilitate amendments to land law Facilitate land reform

The Torrens System

Basic Features of NLC 1965
1. Adverse possession no longer possible

The National Land Code 1965 maintains the rule contained in the earlier 1928 Code that adverse possession is no longer possible as against the State as well as against any individual landowner.

The Torrens System

Basic Features of NLC 1965
2. No possessory right however long

The case of Teh Bee v. K. Maruthamuthu (supra) revealed that the temporary occupation licence holder's possession of the land for some 21 years conferred no possessory rights whatsoever.

The Torrens System

Basic Features of NLC 1965
Despite the licensee's efforts in cultivating and developing the land all those years, and despite the irregularity in the alienation procedures adopted by the State authority, the alienation of the land by the State authority to another person has been held by the Federal Court to be beyond question.

The Torrens System

Basic Features of NLC 1965
3. The rules of equity still apply

A Iong line of authorities, from as early as the preCode era in Wilkins v Kannamal until Mahadevan s/o Mahalingam v. Manilal & Sons (M) Sdn. Bhd. and beyond have established beyond doubt that equity is here to stay, existing side by side with the Torrens system, despite the court's vehement insistence that "under the Torrens system the register is everything".15

The Torrens System

Basic Features of NLC 1965
4. Reversion to the State under several circumstances Alienated land can revert to the State under various circumstances. Thus, land alienated for a fixed term of years i.e. a State lease, would revert to the State upon expiry of the stipulated term.

The Torrens System

Basic Features of NLC 1965
Likewise, land could be forfeited by the State for noncultivation, for non-payment of rent or for breach of some other conditions, whether express or implied, or in cases where the registered owner dies without leaving any successors, or where the registered owner has abandoned or surrendered the land back to the State.

The Torrens System

Basic Features of NLC 1965
5. Indefeasibility Indefeasibility of title is guaranteed under the Code pursuant to sections 89 and 340 but it is not absolute. This is so because whilst section 89 states that every register document of title duly registered under Chapter 3 of Part Five the Code shall be "conclusive evidence" that title to the land is vested in the person for the time being named therein as proprietor and section 340 states that the title of any such person for the time being registered as

The Torrens System

Basic Features of NLC 1965
5. Indefeasibility

proprietor "shall be indefeasible", the supremacy of such title is still subject to the following: certain statutory exceptions as spelt out in section 340(2); exceptions in equity; exceptions under Malay custom or adat.

The Torrens System

Basic Features of NLC 1965
On the issue as to whether indefeasibility under the Code is immediate or deferred, the Federal Court held, in Adorna Properties Sdn Blul v. Boonsom Boonyanit @ Sun Yok Eng that bona fide purchasers for value "obtained immediate indefeasibility notwithstanding that they acquired their titles under a forged document. The Federal Court agreed with the trial Judge that, on the facts of the case even if the instrument of transfer was forged, the bona tide purchaser "obtained an indefeasible title to the said lands".

The Torrens System

Basic Features of NLC 1965
6. Strata titles recognised

For the first time, the Code provides for the issue of strata or subsidiary titles in the case of sub-divided buildings such as office complexes and condominium housings. These provisions in the 1965 Code were subsequently repealed when replaced by the Strata Titles Act 1985, which came into force on 1st June 1985.

The Torrens System

Basic Features of NLC 1965
7. Four types of caveats

The Code provides for four distinct types of caveats, i.e. the Registrar's caveats, private caveats, lienholder's caveats and trust caveats. The caveat system is another peculiar attribute of the Torrens system, serving to protect the interest of persons who have non-registered registrable interests (or caveatable interests) in the land of the registered owner.

The Torrens System

Basic Features of NLC 1965
8. Easement

Until the late 80s, the law of easements follow strictly the cardinal rule of the Torrens system that "the register is everything", complying strictly with the requirement of section 284 - that easement can be created only by express grant.26 In 1989, the rigidity of this law came to an end in Alfred Templeton v. Low Yat Holdings,21 when the court held that equity also applies (just like all other dealings) to easements.

The Torrens System

Basic Features of NLC 1965
A non-exclusive system

The Malaysian Torrens system is essentially nonexclusive in nature and continues to be open-ended. Nine decades of its development since the first Torrens law was introduced in Selangor in 1891 showed that the Torrens system had admitted the rules of equity at one end, whilst at the other end Malay custom and Islamic law have been admitted to temper the rigidity of its application.

The Torrens System

Basic Features of NLC 1965
It is due to this non-exclusive nature and its openendedness that the system has worked so well in Malaysia all these years. In Kiah v. Som2* the court recognised a Malay wooden house built on stilts as moveable property, notwithstanding the-rule under the Torrens system as well as under the English law of property anything that is attached to land becomes part of the land, quic quid plantatur solo solo cedit.

The Torrens System

Basic Features of NLC 1965
In Roberts v. Ummi Kalthom29 the court had to consider whether a house purchased with monies pooled together by thejspouses during the subsistence of their marriage and subsequently registered in the wife's name was either:

a) a joint matrimonial property or harta sepencarian as it is known under Malay custom; or b) the wife's personal property by virtue of a gift made by the husband to the wife in accordance with the Islamic law of hibah.

The Torrens System

Basic Features of NLC 1965
On the evidence adduced, the court was satisfied that the house was harta sepencarian in which both parties have rights thereto, thus displacing the cardinal rule of the Torrens system that "the register is everything". Whilst the court was not satisfied, on the evidence adduced by the wife, that the house had been conveyed as a gift according to Islamic law (as hibali), the court was prepared to hold that if it was so proven the Islamic law of hibah would have operated as another exception to the Torrens rule that the register is everything.

The Torrens System

Basic Features of NLC 1965
In conclusion, inclusive of statutes, the Malaysian Torrens system can be said to be grounded on the harmonious blending of four distinctive sources of law, and in their chronological order. These are as follows: (i) Customary law, followed by (ii) Islamic law, (iii) English law - i.e. common law and equity (iv) modern statutes.

thank you