bsb511 lecture 3 (torrens system & nlc)

8/4/2019 BSB511 Lecture 3 (Torrens System & NLC)

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Land Law

Lecture 3

NOOR AISYAH ASYIKIN

fspu uitm shah alam


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The Torrens System

When the Torrens system was first introduced in theFederated Malay States, there was already thenprevailing a system of land law based on Malay custom

and Islamic law.

This has recently been affirmed by the Supreme Court ofMalaysia in the case of Tengku Jaafar & Anor. v. The

State of Pahang (1987)

in which the Lord President heldthat the land law in Pahang before the introduction of theTorrens system was Islamic law of the Shafii School.


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The Torrens System

In the early stages of the introduction of the Torrenssystem, the General Land Regulations were enacted in allthe four states, Perak in 1879, Selangor in 1882, Negeri

Sembilan in 1887 and Pahang in 1888. This was soonfollowed by the Registration of Titles Regulations inSelangor (1891), Perak and Pahang (1897) and NegeriSembilan (1898), and the Land Enactments of 1897,

enacted in all the four sates.


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The Torrens System

By 1911, these several and separate State legislationsfinally 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 oflaw and land administration was finally achieved within sixyears of the formation of the Federated Malay States,pursuant to the Agreement of 1895.


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The Torrens System

Amongst the principal characteristics of the Torrenssystem first introduced into the Malay States which couldbe 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 toalienate land to his subjects either in perpetuity or for

a fixed term of up 99 years;


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The Torrens System

2. All dealings in land must be in the prescribed form andmust be duly registered with the relevant authorities;failure to do so would render the dealings null and

void, as was clearly demonstrated by the PrivyCouncil in thejual janjicase of Haji Abdul Rahman &Anor. v. Mohamed Hassan (1917).

3. Owners of land are given indefeasibility of title, whichcould be questioned only under specialcircumstances.


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The Torrens System

4. The traditional method of acquisition of virgin land orwaste land as permitted under the Malay customarytenure 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 thelaw were transfers, leases exceeding three years,

charges and liens; and

6. Two forms of caveats were recognized, namely privatecaveats and registrar's caveats.


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The Torrens System

The uniform laws of 1911 mentioned above perpetuatedthe division of land in the country into two distinctcategories. The Land Enactment dealt with the

registration of country lands less than 100 acres in areaon a Mukim Register, i.e., lands formerly held under theMalay customary tenure.


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The Torrens System

The Registration of Titles Enactment dealt with registrylands, i.e. town lands and country lands exceeding 100acres and estates. These two parallel legislation in the

Federated Malay States continued in force until it wasamended by the Land Code of 1926, which came intoforce on 1st January 1928 and came to be cited as theLand Code 1928 (Cap. 138 of Revised Laws).


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The Torrens System

The Land Code 1928 effected further changes in thelaw, whilst maintaining the two categories of land andthe basic Torrens principles mentioned above. The

following changes were however introduced:

1. The principle of indefeasibility of title was moreclearly defined, with specific statutory exceptions

being spelt out.


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The Torrens System

2. Adverse possession against individual owners of land isnow no longer possible; adverse possession against theState had been disallowed since the first Torrens

legislation in the respective States;

3. Customary tenure under Adat Perpatihis preserved


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The Torrens System

4. The strictness regarding compliance with statutory formand registration as indicated in the Haji Abdul Rahmancase has been abandoned, as could be seen from the

decision of Federal Court in Mahadevan s/oMahalingamv. Manilal & Sons (M) Sdn. Bhd.

5. Specific types of cultivation were enforced.


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The Torrens System

Whilst uniformity of law and consistent landadministration procedures were attained in the fourFederated Malay States, the position in the other five

Unfederated Malay States still lagged behind in neardisarray.

Thus, Johor had its Land Enactment of 1910, Kedah

had its Land Enactment of 1906, amended in 1912 andthe Concession Enactment of 1909, Kelantan andTerengganu had their own respective Land Enactmentsof 1938


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The Torrens System

Essentially under the Torrens system the registerreflects all the facts material to the registered owner's

title in the land. These material facts refer to the nameof the proprietor for the time being, the land whichhas been alienated, its area and location, its surveyplan and its boundary limits.' The Torrens system has

thus endowed the register with the attributes of amirror of sorts that can reveal all the necessaryparticulars relating to the land that would interest apotential purchaser or chargee. Hence the label of"the mirror principle" as given by Das.

Twin Principle of Torrens system


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The Torrens System


Mirror PrincipleThe register document of title reveals all facts materialto the registered proprietor. All information andparticulars about the land appear on the register suchas it title number, type of title, size, location, conditionsto which the land is subject to, the present registered

proprietor and all past transaction history. One shouldnot look elsewhere to know about the land. He couldfind all material facts about the land looking at theregister.


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The Torrens System

A second attribute of the Torrens system is that theregister becomes a "curtain". In any transaction

between the registered owner and any potentialpurchaser, the latter will be concerned only with theregister and nothing else. The purchaser can safelyrely on the information revealed in the register, and

he need not, nor may he, look behind it.



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The Torrens System


Curtain Principle

With the register one should not look for moreinformation than what appear on the register. This meanthat the person who is registered as the proprietor ofthe land or any interest in land such as lease, charge

and easement shall be guaranteed that his title orinterest in protected against adverse claim. The title orinterest is indefeasible it cannot be challenged. Oneshould not concern with the history of the land.


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The Torrens System

The cumulative effect of these principles is that theTorrens 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 sowould defeat the purpose and object of registration.



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The Torrens System


Advantages of Torrens to Individuali. Completeness

ii. Securityiii. Cheapiv. Simplicityv. Reliablevi. Expeditious

vii. Less possibility of lossviii. Less possibility of fraudix. Confidencex. Source of credit facilitiesxi. Reduction on litigationxii. Defects cured


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The Torrens System


Advantages of Torrens to State

i. Proper recordsii. Facilitate land administrationiii. Increased revenueiv. Complete datav. Feasibility studies

vi. Facilitate amendments to land lawvii. Facilitate land reform


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The Torrens System

1. Adverse possession no longer possible

The National Land Code 1965 maintains the rulecontained in the earlier 1928 Code that adversepossession is no longer possible as against theState as well as against any individual landowner.

Basic Features of NLC 1965


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The Torrens System

2. No possessory right however long

The case of Teh Beev. K. Maruthamuthu (supra)revealed that the temporary occupation licenceholder's possession of the land for some 21 yearsconferred no possessory rights whatsoever.



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The Torrens System

Despite the licensee's efforts in cultivating anddeveloping the land all those years, and despite

the irregularity in the alienation proceduresadopted by the State authority, the alienation ofthe land by the State authority to another personhas been held by the Federal Court to be beyond

question.



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The Torrens System

3. The rules of equity still apply

A Iong line of authorities, from as early as the pre-Code era in Wilkinsv Kannamaluntil Mahadevan s/oMahalingamv. Manilal & Sons (M) Sdn. Bhd. andbeyond have established beyond doubt that equity is

here to stay, existing side by side with the Torrenssystem, despite the court's vehement insistence that"under the Torrens system the register iseverything".15



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The Torrens System

4. Reversion to the State under severalcircumstances

Alienated land can revert to the State under variouscircumstances. Thus, land alienated for a fixed termof years i.e. a State lease, would revert to the State

upon expiry of the stipulated term.



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The Torrens System

Likewise, land could be forfeited by the State for non-

cultivation, for non-payment of rent or for breach ofsome other conditions, whether express or implied, orin cases where the registered owner dies withoutleaving any successors, or where the registered

owner has abandoned or surrendered the land backto the State.



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The Torrens System

5. Indefeasibility

Indefeasibility of title is guaranteed under the Codepursuant to sections 89 and 340 but it is not absolute.This is so because whilst section 89 states that everyregister document of title duly registered underChapter 3 of Part Five the Code shall be "conclusiveevidence" that title to the land is vested in the personfor the time being named therein as proprietor andsection 340 states that the title of any such person forthe time being registered as



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The Torrens System

5. Indefeasibility

proprietor "shall be indefeasible", the supremacy ofsuch 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.



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The Torrens System

On the issue as to whether indefeasibility under theCode is immediate or deferred, the Federal Court

held, in Adorna Properties Sdn Blul v. BoonsomBoonyanit @ Sun Yok Eng thatbona fide purchasersfor value "obtained immediate indefeasibilitynotwithstanding that they acquired their titles under a

forged document. The Federal Court agreed with thetrial Judge that, on the facts of the case even if theinstrument of transfer was forged, the bona tidepurchaser "obtained an indefeasible title to the saidlands".



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The Torrens System

6. Strata titles recognised

For the first time, the Code provides for the issue ofstrata or subsidiary titles in the case of sub-dividedbuildings such as office complexes and condominiumhousings. These provisions in the 1965 Code were

subsequently repealed when replaced by the StrataTitles Act 1985, which came into force on 1st June1985.



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The Torrens System

7. Four types of caveats

The Code provides for four distinct types of caveats,i.e. the Registrar's caveats, private caveats, lien-holder's caveats and trust caveats. The caveatsystem is another peculiar attribute of the Torrens

system, serving to protect the interest of persons whohave non-registered registrable interests (orcaveatable interests) in the land of the registeredowner.



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The Torrens System

8. Easement

Until the late 80s, the law of easements follow strictlythe cardinal rule of the Torrens system that "theregister is everything", complying strictly with therequirement of section 284 - that easement can be

created only by express grant.26

In 1989, the rigidity ofthis law came to an end in Alfred Templetonv. LowYat Holdings,21when the court held that equity alsoapplies (just like all other dealings) to easements.



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The Torrens System

A non-exclusive system

The Malaysian Torrens system is essentially non-exclusive in nature and continues to be open-ended.Nine decades of its development since the first Torrenslaw was introduced in Selangor in 1891 showed that the

Torrens system had admitted the rules of equity at oneend, whilst at the other end Malay custom and Islamiclaw have been admitted to temper the rigidity of itsapplication.



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The Torrens System

It is due to this non-exclusive nature and its open-endedness that the system has worked so well in

Malaysia all these years.

In Kiahv. Som2*the court recognised a Malay woodenhouse built on stilts as moveable property,

notwithstanding the-rule under the Torrens system aswell as under the English law of property anything that isattached to land becomes part of the land, quic quidplantatur solo solo cedit.



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The Torrens System

In Robertsv. Ummi Kalthom29the court had to considerwhether a house purchased with monies pooled together

by thejspouses during the subsistence of their marriageand subsequently registered in the wife's name waseither:

a) a joint matrimonial property or harta sepencarianas it is known under Malay custom; orb) the wife's personal property by virtue of a gift

made by the husband to the wife in accordancewith the Islamic law of hibah.



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The Torrens System

On the evidence adduced, the court was satisfied thatthe house was harta sepencarianin which both parties

have rights thereto, thus displacing the cardinal rule ofthe 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 conveyedas a gift according to Islamic law (as hibali), the courtwas prepared to hold that if it was so proven the Islamiclaw of hibahwould have operated as another exceptionto the Torrens rule that the register is everything.



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The Torrens System

In conclusion, inclusive of statutes, the MalaysianTorrens 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.



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bsb511 lecture 3 (torrens system & nlc)

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