Published on February 18, 2014
THE NATIONAL LAND CODE 1965
Application of the 1965 National Land Code • Enforced in all states except Sabah and Sarawak • Besides the NLC, other legislation relating to land law passed at the federal level include: • Land Acquisition Act • Strata Titles Act • There are also legislations enacted at the state level i.e. the various Malay Reservation Enactments. • Various subsidiary legislation e.g. the various State Land Rules
State Authority • Land is vested in the State Authority • S 40 NLC: There is and shall be vested solely in the State Authority the entire property in(a) all State land within the territories of the State; (b) all minerals and rock material within or upon any land in the State the rights to which have not been specifically disposed of by the State Authority. • Who is the State Authority? S 5 NLC: Ruler/Governor of the State
Constitutional Issues • Land is a State matter, only the State legislature may make laws with respect to land. Land comes under the State list -- Article 74 FC, Ninth Schedule • Exception: Power of the Parliament to make laws under the State list for the purpose of uniformity – Article 76 (4) • E.g. the National Land Code • East Union (M) Sdn Bhd v Government of Johor (1981) 1 MLJ 151.
Features of the National Land Code 1965 • Register Document of Title (RDT) – The Register • Retained at the Registry or Land Office • Available to the public • Issue Document of Title (IDT) • Kept by the registered proprietor • Evidence of his ownership • Registry Title & Land Office Title • Final title & qualified title • Strata Title
1. Conclusiveness of the Register Register Document of Title (RDT/The Register) • Two principles: • The mirror principle • The curtain principle • The register is everything – Teh Bee v K Maruthamuthu
• The Mirror Principle • The register reflects all the facts and interests of the land such as the name of proprietor, land descriptions, area of the land and particulars of the persons that have registered interests on the land. • S 340 NLC: The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.
• The Curtain Principle • A potential land buyer may only need to look at the register to get the information on the land that he is interested in without counter checking with other documents. • S 89 NLC: Every register document of title duly registered under this Chapter shall, subject to the provisions of this Act, be conclusive evidence…
• The register is everything – Teh Bee v K Maruthamuthu • Creelman v Hudson Bay Insurance Co And to enable an investigation to take place as to the right of the person to appear upon the register which he holds the certificate which is the evidence of his title, would be to defeat the very purpose and object of the statute of registration.
2. Indefeasibility • Indefeasibility of title and interest is guaranteed. • S 92(1) NLC: The alienation of State land to any person or body under final title shall confer on that person or body a title to the land which shall be indefeasible. • S 340 NLC: The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible. • However, there are exceptions.
3. Registration • The importance of registration • Title/interest by registration • S 206(1)(b) NLC: no instrument effecting any such dealing shall operate to transfer the title to any alienated land or, as the case may be, to create, transfer or otherwise affect any interest therein, until it has been registered… • E.g. A purchaser does not acquire legal title until the transfer to him is registered. • Dealings recognised under the NLC must be registered or endorsed. • Transfers, charges and leases • Tenancies exempt from registration, statutory liens • Caveats
4. Caveat system • To protect an unregistered interest. • 4 types of caveats: • Registrar’s caveat, • private caveat, • lien-holder’s caveat, • trust caveat.
5. No adverse possession • No adverse possession against the State nor against the registered proprietor of any land. • Title to State land can only be acquired by the process of alienation and no other. • S 48 NLC: No title to State land shall be acquired by possession, unlawful occupation or occupation under any licence for any period whatsoever. • S 341 NLC: Adverse possession of land for any length of time whatsoever shall not constitute a bar to the bringing of any action for the recovery thereof by the proprietor… • Sidek & Ors v The State of Perak  1 MLJ 313
6. Reversion to the State • Alienated land will revert to the State under several circumstances. • S 46(1) NLC (a) upon the expiry of the term (if any) specified in the document of title thereto; (b) upon the publication in the Gazette of a notice under section 130 (that is to say, a notice published on the making of an order of forfeiture by the Land Administrator on the grounds of non-payment of rent or breach of condition); (c) in the circumstances mentioned in sections 351 and 352 (which relate respectively to the death of a proprietor without successors, and the abandonment of title by proprietors); and (d) upon the surrender thereof in accordance with the provisions of Part Twelve…
6. Equity • Failure to register or non-compliance with the requirements of NLC • E.g. Unregistered charge, failure to enter a lien-holder’s caveat. • NLC is not concerned with dealings which do not comply with its requirements. No remedies under NLC.
• Can we apply equity? • S 6 Civil Law Act 1956 excludes the application in Malaysia of English land tenure (including English equitable principles relating to land tenure – e.g. mortgagor’s equity of redemption). • S 6 CLA: Nothing in this Part shall be taken to introduce into Malaysia or any of the States comprised therein any part of the law of England relating to the tenure or conveyance or assurance of or succession to any immovable property or any estate, right or interest therein.
• However, there is nothing in NLC that prohibits the application of general equitable principles. • Therefore, general equitable principles apply by virtue of S 3 CLA to the extent that they are not inconsistent with NLC. • Another provision is S 206(3) NLC where it states that provisions of the NLC which require that dealings be registered shall not ‘affect the contractual operation of any transaction relating to alienated land or any interest therein.’ • Mahadevan v Manilal & Sons  1 MLJ 266
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