Equity

S3- apply U.K common law, rules of equity and certain statutes when there is no written law made for it

S6-prohibited the application of law of England relating to the tenure or conveyance or assurance of or succession to any immovable property

Whether equity is recognised in Malaysia land law we shall look at each kind of equity that has been discussed in land cases

Forfeiture

1. UMBC v Pemungut Hasil Cukai(s134, s418)

NLC is a complete and comprehensive code, cannot import English rule unless the Code expressly provided

The sections for forfeiture are provided under NLC, so there are express provision, should not import English equitable principle

No contract in this case, so not fall under s206(3)

Answer: no equitable principle for forfeiture

Bare trustee and beneficiary ownership

Bare trustee concept is a situation where the vendor only holds a title but has no longer has interest in the land, the beneficial ownership has passed to the purchaser and he becomes an equitable owner

2. Borneo Housing Mortgage Finance v Time Engineering

P want to seek a declaration that a charge is void due to the charger has no chargeable interest over the land after the land has sold to P

Concept of bare trust is applied in Malaysia

When a bare trust concept arises? When the subject matter of the agreement is on completion, upon receipt by the vendor the full purchase price and the vendor has given the purchaser a duly executed, valid and registrable transfer of the land in due form

Bare trust concept end when the transfer has been completed, ie it has been registered

In this case, the bare trust concept did not apply to the parties, as when the charge was created, the full purchase price has not yet paid, so the vendor is not a bare trustee at that time

3. Wong Siew Chong

Followed Borneo Housing where because the vendor has not yet given the purchaser a duly executed, valid and registrable transfer of the land in due form, so not yet become a bare trustee

Answer: bare trustee concept is recognized in the court and the other cases in old days like Macon Engineers Snd Bhd v Goh Hooi Yin and Chin Choy can be said to have been overruled

Equity of redemption

4. Malaysian United V Tan Lay Soon

The lower court said that since a mortgage can be redeem, a charge can also be discharged

The higher court held it to be per incuriam as this judgement of the court seems to import the concept of mortgage with its incident of equity of redemption into the Code

In NLC, there is also charge and no mortgage. Charge and mortgage are totally different concept where in a charge the title of the land need not be transferred but the chargee is only entitled to the custody of the issue document of title

There is nothing to be redeem as the right and interest are still in the hand of the charger. To discharge a charge the conditions are provided under the provisions of the charge itself

Answer: there is no equity of redemption in Malaysia as there is no mortgage under NLC which can be redeem. Only charge is recognized under NLC, but charge is not redeemable but dischargable

Equitable charge or equitable mortgage

Can a charge or ‘mortage’ that are not registered under NLC be enforced?

5. Chuah Eng Kong v Malayan United

There is an agreement to assign unto the lender all rights, title and interest in the land. Apparently this agreement is not registered as it is not a charge. The nature is like a mortgage under English law

The court recognized such an equitable mortgage and allowed the borrower to have second right to redeem.

The court in view that as long as the NLC did not expressly or by necessary implication preclude the application, rule of equity can be applied

Answer: recognized equitable charge or equitable mortgage based on the contract. It is the contractual obligation that binds the parties to do their part but not NLC to enforce the charge or mortgage

6. Hj Abdul Rahman v Mohamed Hassan

Not recognized the charge that is not registered as equitable charge

But this case is decided based on an enactment in the old days which has been replaced and it was said that the section in that enactment is a stringent one

Doctrine of constructive notice

An equitable principle where the party ought to have noticed and deemed to have knowledge that a reasonable man would have

7. Keng Soon Finance v MK Retnam

The charge was entered between an unlicensed developer and a finance company

Later the unlicensed developer claimed that charge invalid and defeasible on the ground that it is unlicensed and the finance company should have constructive notice on it

The court considered the doctrine of constructive notice in this case where the case was remitted to Supreme Court

Answer: the court seems to recognize the doctrine of constructive notice, however, in Eng Mee Yong v Letchumanan the court has given a view that I am quite convinced; that, private caveat should be utilized to substitute the doctrine of constructive notice to ensure the conclusiveness and certainty of registration

Doctrine of irrevocable license

8. Devi v Francis

The court decided the case based on the doctrine of equitable estoppel and recognized that the tenancy is a kind of irrevocable license until the vendor offered to sell the land to purchaser and the purchaser refused and then a one month notice can be given to revoke the tenancy

The court also held that land law in England and equity are different

Answer: doctrine of irrevocable license is recognized but not applied in Devi v Francis

Equitable remedy of rectification

9. Oh Hiam v Tham Kong

A land was transferred under mistake to D. The transferred was registered

Although the transferred was registered without fraud or misrepresention, the court is willing for the intervention of equity by a remedy in personam based on the transaction entered by the parties.

Torrens system is to provide simplicity and certitude in transfer of land but not to interfere or deprive the equity by a remedy in personam/ ability to exercise its jurisdiction in personam based on grounds of conscience

Answer: recognized equitable remedy of rectification based on the contract the parties entered/ claim based on the right of in personam

Equitable easement

10. Templeton v Low Yat Holdings

There is an agreement entered with the cl that the sale of land is subject to the right of way to owners of neighboring holdings. However, no easement was created under NLCthe court grant a mandatory injunction requiring D to construct a single metalled access road to afford access

Answer: recognized equitable easement and held that NLC does not affect the contractual operation of any transaction. The court in view that 206(3) allows a liberal application of equity whenever there is a basis for that

Adverse possession

Will be discussed in next topic, show that equitable principle of adverse possession cannot be applied as there is already a section provided under the code as ‘no adverse possession against the state

In short, equity can be applied when

1) no express prohibition

2) no necessary implication to preclude- ie there is already sections regarding the subject matter under the NLC

3) there is a contract that binds the party themselves to fulfill the contractual obligation, and so when one party breached, the other has a legal right to sue and claim

4) when there is a contract that binds the party but the party cannot seek relief based on the contract due to certain circumstances, and the equitable principle is applied. The equitable principle that applied is a equitable principle of general application

Powers of disposal of state authority-s42

State authority

Highest decision making body with regard to applications relating to land under NLC Ruler or Governer of the state (section 5) acted on the advice of the State Executive Council Not district officer or politicians

11. Lebbey Sdn Bhd v Chong Wooi Leong

D argued that although entered without consent or license, they had peaceful enjoyment and occupation without interference by the state authorities and district officer allows them to build house on land and there is promise by politician that they will get TOL

The court held that even the state government, minister or politician has no power to give promise that the power is vested on state authority

12. Sidek bin Haji Muhammad

Squatter has no right either in equity or in law and state director of Lands and Mines has no authority to bind the government to alienate State lands to settlers

S48- no title to state land shall be acquired by possession, unlawful occupation or occupation under license

S341

S425- illegal occupation of state land is an offence

Government of the state of negeri Sembilan v Yap Chong Lan

Although the collector gave assurance to the P that the application for land will be approved, Collector has no authority to purport or to commit the state authority

Another issue arises in this case is that whether the revocation of reserved land before alienation s64 is mandatory or directory.

The court held that revocation is mandatory but in this case because the effected area is minimal so the alienation is still valid. Besides, revocation can be done at any time retrospectively.

There is a different between squatter simpliciter and illegal occupier, for O89 of Rules of High Court, can be used in a case of squatter simpliciter

What is the significance of O89 and the difference?

13. Shaheen Bte Abu Bakar v PKNSthe App was said to be an illegal occupier under the consent of state government and not squatter simpliciter

So there has certain rights on the app and a squatter simpliciter that has not right in land or in law

[] actually we can differentiate the above cases, one is the issue whether some authorities that gave promise will give the right to the settler to get title of land

Another is the difference between a squatter and illegal occupier

How to differentiate squatter and illegal occupier when in some cases some were given consent and promise by district officer still consider as squatter?

Classification of land

Broad- s51(1) above shore-line as opposed foreshore and sea-bed

Narrow- town land, village land and country land

S42- power of disposal: alienation, reserve, grant lease on reserve land, TOL, permit to extract and remove rock material, permit to use air space

S42(2)- restriction

S46- reversion- become the property of state authority again:

Expiry of term, notice of forfeiture (non-payment, BOC), death of proprietor w/o successor or abandonment, surrender, reservation of reserved land has been revoked, holder of TOL has died, encroachment & retreat(s49)

TOL (s65)

A permission granted by SA to any person or body for the purpose of a specified activity on the land Restrict the types of activities that can be carried out as only lasts until the end of calendar year No permanent crops or buildings SA has no authority to grant a renewal of TOL for any subsequent year Can specify the purpose of TOL, used other than specified- breach condition One land can issue TOL to more than 1 person for different purpose Possessory right not proprietory right S68- cannot be transferred

14. Tindok Besar v Tinjar

The agreement was not to transfer the TOL but to permit the contractor to use the land and therefore not illegal as against the non-transferability

15. Govindaraju v Krishnan

To rent room on a TOL land was considered as dealings which does not amount to transfer

16. Julaika Bivi v Mydin

When the old TOL has been cancelled and a new TOL has been issued to a new holder, then the tenant under old TOL when refused to get out will become a trespasser

17. Paruvathy v Krishnan

A document signed to have equal shares of the land amount to transfer and therefore void for illegality

18. Papoo v Veriah

TOL may not be transmitted upon death of TOL holder

Alienation (s76)

Registry title (Registrar of Titles) s77(3)- town & village land, country land exceeding 4 hectare, any part of fore-shore & seabed

Land Office Title (LA)- country land not exceeding 4 hectares

S81- Item of land revenue payable on approval

S120- express condition and restriction in interest

Restriction in interest- not deal with land use, restriction on the right of the registered proprietor in respect of applying for subdivision, partition, amalgamation or the right to enter into dealings

19. Dr Ti Teow Siew v Pendaftar Geran-Geran Tanah Negeri Selangor

S78(3)- alienation of state land shall take effect upon registration

S105- every condition or restriction in interest commence to run from the date of alienation of the land

Reservation (s62)

For public purpose Public purpose- undefined? Not the type of Malays reserve land S64- if want to alienate, must first revoke

Forfeiture

Power of SA to take back alienated land due to non-payment (s100) or breach of condition (s127(1)(a))

LAROW(s388)

creation of the land office and the owner of the burdened land has no right to challenge the creation of LAROW

either public or private public- right given to any member of public to use a particular route as public passage

o can be created by dedication of the soil to public use by the ownero mere public user will not create a highway

private- for the benefit of SA or any individual to pass and re-pass a public terminalo others want to share, have to go through s394

s395(1) can come to an end when failed to comply with condition imposed LA should be satisfied that it is expedient for a private or public ROW to be created Right of way can be extinguished when it is inexpedient for it to continue exist

20. Lye Thean Soo v Syarikat Warsaw

P are sand minings and sand contractors and entered an agreement to mine, work and take away sands from their holdings and entry to their holdings was by way of an access road on a lot which for many years had been reserved for road and set aside as such and used for the public and D applied subdivision of that land

Public right of way can be created by dedication of the soil to public use by the owner and acceptance by public

21. Si Rusa Inn v The Collector of Land Revenue

There was an alternative access which have to travel a further 1-2 km

Application was rejected as reasonably did not mean conveniently, there must be something more than mere inconvenience or convenience

The deliberate use of word ‘expedient’ has to be considered properly

22. Liow Tow Thong v Pentadbir Tanah Alor Gajah

There are alternative ways, and applied for right of way for convenience

When there is an alternative way, LA must take into consideration when consider whether it is expedient to grant or not. Mere convenient to grant is a wrongful exercise of discretion

23. Mamat Yan v LA

Satisfied no other access to the said land thus grant LAROW

24. Tong Tiong Lim v Pentadbir Tanah Daerah

There exist a new excess of way and so it is no longer expedient for the right of way, thus it was extinguished

Extent of ownership and enjoyment of land

S44:

(a) air-space and land below

(b) right of support

(c) right to access to land abuts on the foreshore or river or public place

Air-space

(1) subject to NLC

(2) subject to written law

(3) reasonable and necessary

(4) lawful

25. Lacroix v The Queen

Stated that the owner of land has limited right in the air space over his property to the extend what he can possess or occupy for the use and enjoyment of his land

Air and space is not the subject matter of ownership, the reason he can use a little of air-space is because he built the buildings there that incorporates something to the surface of the land.

26. Bernstein of Leigh v Skyview

The right to airspace is only to the extend up to a height which is necessary for the full enjoyment of the land and for erections on the land

As long as not cause inconvenience or harm that interfere the full enjoyment of the land, then no interference of right

The limited use of air space is to balance the rights of an owner to enjoy the use of his land against the rights of general public to take advantage of all that science now offers in the use of air space

27. and Wilson v Richard Costain

There is a tower crane and when in operation the jib of the crane swings over P’s factory

The court grant injunction but the injunction postponed its operation until the work has completed

[]we can infer that no damage has been resulted so it cannot be said to have interfere the enjoyment of land however if in the long run it may cause inconvenience to P so injunction grant but postponed

28. Karuppannan v Balakrishnan

Right of support

a negative right- not to lose natural support from the adjacent land Natural state- no interference from human hands, only by acts of god For weakened state, no additional support unless apply for it Adjoining, separate owner- not do something on his land that can endanger the property and not to

withdraw support

What if there are multiple causes?

29. Madam Chah Siam v Chop Choy Kong Kongsi

The fish pond was in it weakened state, so although there is mining activity carried out by D, but there is no evidence to show D to be negligence in mining and cause the breach of the pond, the land was only entitled to the degree of support that it would in its natural state, thus there is no duty exist and the right of support has not been interfere

30. Guan Soon Tin Mining v Ampang Estate

Landslide occurred due to wet weather but the mining land adjoining P’s land was excavated by the predecessor and D only worked on the mining land and since no evidence shows that the landslide was due to mining operation and thus D was not liable for it.

Easement (s282)

Right or priviledge given to a registered proprietor of a piece of land(dominant) to utilize another piece of land(servient)

Right to enjoy another’s land arises based on the agreement between 2 or more parties A kind of acquired right which must be created via the grant of the right by the owner of servient

tenement No right to take anything from land, merely to use the land or require a particular made to use

Different from LAROW: LAROW- imposed right(no need consent), easement-acquired right(get consent)

4 characteristics from RE Ellenborough Park1) must be a dominant land and servient land2) easement be accommodate the dominant land- sufficient relationship between Dominant and Servient land3) Dominant land and servient land must be of different owner4) capable of forming a subject-matter of grant S284(1)- must be created by express grant, cannot acquired by prescription

31. Datin Siti Hajar v Murugesu

D built road across P land and claimed he has ROW

No easement created by long and uninterrupted use under NLC and easement can only made by express grant.

# in this case there is mentioned about the implied grant which is effected by the legal construction of the instrument

32. Tan Wee Choon v Ong Peck Seng

D claimed he has the equitable ROW across P’s land but there is no agreement between them and so no easement exist as easement will not be created by prescription

33. Tam Kam Cheong v Stephen Leong Koon Sang(significance of having dominant land and servient land of different owner)

The property is just one single unit held under one title so there cannot have easement created.

34. Wangsa Timber Industries v Adulfast Anthony Robert Ignatia Lee

Easement is embodied under NLC but not under Sabah Land Ordiance, so in this case R can acquire easement through the long usage in respect of the access road

Fixtures

Section 5- define land

S5(d)- all things attached to the earth or permanently fastened to anything attached to the earth, whether on or below the surface

Fixture- chattels which are so attached to land or to a building on land as to become in fact part of the building or land thereof

Movable property Loss character of chattels and pass on with the ownership of the land There are certain restriction to their removal

In determining whether it is a fixture, the general principle is found based on English principle

Holland v Hogson

1) degree of annexation- objective test- can be moved without injury or damage (conceptual and physical)- if has high degree of annexation, prima facie a fixture

An article which is affixed to land even slightly gives rise to a presumption that it is part of the land An article attached to the land by its own weight is not to be considered as part of the land but remains

as chattel

2) object or purpose of annexation- why it was affixed?

For better enjoyment to improve its usefulness and value- fixture Merely for a more complete enjoyment of the chattel itself- chattel Can be inferred from the circumstances

General rule- Unless otherwise provided in the contract, a purchaser or charge of the land has a right to all things if proved to be a fixtures, including things affixed to the land after the charge transaction

Exception

1) if there is express provision regarding the nature of fixture, eg the hire-purchase agreement stated that the ownership is still will the purchaser (doctrine of specific enumeration)- MBF Finance Bhd v Global Pacific Textiles Industries

2) custom- malay house built on stilt- Kiah bte Hanapiah v Som bte Hanapiah

3) common law exceptions –tenant or trade fixtures- for the purpose of trade or of domestic convenience can be removed within a reasonable time - BBMB Kewangan v Kueh Teck Swee

Goh Chong Hin v Consolidated Malay

Chargee wanted to sell a machinery in the land that has been charged to him. The issue is whether the machinery is a fixture or not.

Applied the test in Holland v Hogson and considered that as a fixture as had been annexed by bolts and nuts to concrete foundations sunk into the soil- first test prima facie established it as a fixture

Applied 2nd test- the purpose of enhancing the value and utility of the land for the purpose as a rubber estate

Then the onus is on the chargor to contend it was a chattel

Those which are stated in the charge itself are fixtures, those which are not stated in the charge will not exclude things that are fixtures from the charge (must have expressly stated)

It also affirmed that when there is custom proved, the presumption of intention of permanent annexation can be displaced

The Shell Co of the Federation of Malaya Ltd v Commissioner of the Federal Capital of Kuala Lumpur

The tank are buried 2 feet below ground level and covered with concrete and the circumstances can show how difficult the tanks to be removed

This show high degree of annexation and intended to be permanently there

Material Trading v DBS Finance

Overhead cranes were installed and intended should remain there permanently and the purpose was to improve the usefulness of warehouse

The court in this case also illustrated the situation where an article if it stands by its own weight, it still can be a fixtures; where it is a part of the architectural design for the buildings and are placed in order to complete the architectural design

Socfin Co v Chairman, Klang Town Council (the purpose of annexation is more significance than the degree of annexation)

The storage tanks stood freely on a reinforced concrete platform foundation, the object and purpose of having the holding(tanks are placed on the holding) is to have storage tanks for easy loading of the company’s oil on ships

Kiah bte Hanapiah v Som bte Hanapiah

Houses of the Malay type resting on stilts and not buried into the earth are movable property and there is settled custom in this country that houses of this type are regarded as personalty in which ownership may be separated from the ownership of the soil

Wiggins Teape v Bahagia Trading

Things that were attached to the land after concluding the charge agreement can be considered as a fixtures and will regarded as part of the land when pass to the chargee

BBMB Kewangan v Kueh Teck Swee

Tenant’s fixtures and trade fixtures are fixtures that are installed by tenant and can be removed by tenant

They are clearly to serve the business of a financial institution and for the enjoyment of the tenant other than the benefit of the premises and P was entitled to remove them

MBF Finance Bhd v Global Pacific Textiles Industries

The lease agreement itself expressly provided that dyeing machine must continue to be under the ownership of the lessor even though affixed to the ground, so chargee has no right over it

Indefeasible of title-s340

S340(2)-