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SEMESTER I, 2013/2014

(i) Introduction to Torrens system


Torrens system was modeled from the system based on the Merchant Shipping Act 1854 and Admiralty Rules to overcome the existing problems posed by the Deed system. Principle: a system of land title where a register of land holdings maintained by the state guarantees indefeasibility title to those included in the register.

A system to place the land on the register The register is everything and any dealing must be registered in order to gain recognition. Sir Robert Torrens introduced this system of land registration in the colony of South Australia as the Real Property Act 1857. The system was based on the Merchant Shipping Act 1854 (dealt with dealings with ships)

Registration

Indefeasibility of title

The Bee v Maruthamutu [1977] 2 MLJ 7

Under the Torrens system the register is everything and it would be wrong to allow an investigation as to the right of the person to appear upon the register when he holds the certificate of title

Gibbs v Messer (1891) AC 248


Lord Watson The object (of the Torrens legislation) is to save persons dealing with registered proprietor from the trouble and expense of going behind the register, in order to investigate the history of their authors title and to satisfy themselves of its validity

(a) Confers indefeasibility title upon registration - Can be defeated where there is: Fraud, Forgery, Misrepresentation, Mistake, Void instrument (b) Any dealings must be registered in order to confer title/interest to the new proprietor - basis of record, not based on an individual proprietor

PRINCIPLES OF TORRENS SYSTEM

Mirror principle
The register reflects all the facts material to the registered owners title in the land These material facts are (a) The name of the proprietor for the time being (b) Particulars of the land, its area & location (c) Survey plan & boundary limits The register reveal all the necessary particulars relating to the land that would interest a potential purchaser or chargee Contain in register document of title (RDT) and issue document of title (IDT)

Curtain principle
In any transaction between the registered owner and any potential purchaser, the latter will be concerned only with the register The potential purchase can safely rely on the register and need not look behind it (may do so if he so wishes)

It is important to.

(a)Officially register all details regarding dealings with the land on the title to the land (b)Registration will give validity to the dealing by creating a legal estate or interest in the land (c)All dealings must be effected by prescribed forms

The law before the NLC 1965

(i) Straits Settlement (a) Penang English deed system (b) Malacca Before British : Malay customary tenure (+ Islamic land principles) Dutch grants English deed system

(ii) Federated Malay States (a)Before British came : Malay customary land tenure (+Islamic land law) (b)During British Residency system : Torrens system - General Land Regulations (Perak-1879, Selangor- 1882, N9- 1887, Pahang-1888) - Registration of Titles Regulations (Selangor1891, Perak & Pahang- 1897, N9-1898) - - Land Enactments of 1897 (enacted in all 4 states)

Uniform laws in FMS (a)F.M.S Land Enactment of 1911 (b)F.M.S Registration of Titles Enactment 1911 (the uniformity of laws were made in pursuant to the formation of the Federated Malay States Agreement of 1895)

(a) F.M.S Land Enactment of 1911 - Dealt with country lands less than 100acres in area on Mukim Register (lands formerly held under the Malay customary tenure) (b) F.M.S Registration of Titles Enactment - Dealt with registry lands (town lands and country lands exceeding 100 acres and estates) continued in force until amended by the Land Code 1928

(iii) Unfederated Malay States Before British occupation: Malay customary tenure (+ Islamic land principles and some influence from the Siamese Kelantan and Kedah) British Advisory system Land Enactment 1910 (Johor) Kedah Land Enactment 1906 (amended in 1912) & Concession Enactment 1909 Kelantan & Terengganu Land Enactment 1938

National Land Code 1965


NLC was enacted to achieve uniformity of law and administration of land matters especially in accordance with the Torrens system. Chick Mission (headed by Sir Louis Chick) was set up to study the weaknesses of law and administration in land matters. A report from Chick Mission was submitted to Commission of Experts.

Reid Constitutional Commission (1956-1957 report)

The present position...is not all satisfactory. In the Straits Settlements, the law is substantially similar to the law of England. In the old Federated Malay States the law is substantially uniform, subject to certain specialities in Negeri Sembilan. In the old Unfederated Malay States, the law is not uniform

(a) National Land Code 1965 - Modelled after 1928 Land Code - Passed by virtue of article 76(4) of the Federal Constitution for the purposes of ensuring uniformity of law and policy on land matters (b) National Land Code (Penang & Malacca Titles) Act 1963 - To bring about a change over from English deed system to Torrens system

Basic features of National Land Code 1965


(a) Indefeasibility of title upon registration (b) Adverse possession against state and individual proprietor is no longer possible (c) The rules of equity are recognized and applicable for the protection of unregistered interest. (d) Possessory rights will not be granted irrespective of duration of possession - TOL

(e) Reversion of land to the state - state lease, non-cultivation, non-payment of rest, breach of conditions, registered owner dies without successors, registered owner has abandoned or surrendered the land to the State (f) Strata titles recognised - issue of strata or subsidiary titles of sub-divided buildings such as office complexes and condominium housing - Repealed and replaced with Strata Titles Act 1985

(g) Four caveats are recognised - to protect the interest of non-registered registrable interest (or caveatable interest) in the land - Registrars caveat, Private Caveat, Lien-Holders caveat, Trust caveat
(h) Provision for granting easement

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