Chapter 1 Introduction to the Thorrens System PDF

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Chapter 1 Introduction to the Thorrens System ● Main legislation governing land matters in Malaysia: a. b.

National Land Code 1965 Only apply to west Malaysia A consolidated act National Land Code (Penang and Malacca Titles) Act 1963

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Penang and Malacca are the direct Colony of the Queen, so subject to British deed system c. Sarawak Land Code (law govern Sarawak land) d. Sabah Land Ordinance (law govern Sabah land) ● In West Malaysia and Sarawak, all alienated lands are held under Torrens title. Sabah, alienated land are not held under Torrens title. ● With the exception of Sabah and Sarawak, Federal Government may makes law with regard to land matters in a state to ensure the uniformity of laws and policy in respect of land matters in two or more states. (art 76(4) Federal constitution 1957) ● East Union (Malaya) Sdn Bhd v Gov State of Johore & Gov of Malaysia, confirmed the right of government under Art 76(4). ● With the exception of Penang, Malacca, Sabah and Sarawak, all the states in M’sia have laws providing the reservation of land in favour of Malay. - Such law operate independently of NLC and will prevail over the latter in -

cases of inconsistencies (s4(2) NLC) This means, if the land is stated it is reserved, it will only be reserved for

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Malay. Non-Malay can apply to transfer the land, need to get consent or exception

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to be able to own the land. Once the land is transferred to Non-Malay, it is now able to transfer to nonMalay without any requirement. But if it is then transferred to a Malay, the land will become MR land again.

Aims and Objective of Torrens System ● To provide uniformity in dealings of land ● Provide for a system of title or interest by registration ● Provide for the law governing and interest in land ● Provide for simplicity and certainty title or interest.

➢ Lian Keow Sdn Bhd & Anor “The Torrens System as codified by NLC deals with registration of land and provides simplicity and certitude in transfer of land” ➢ Eng Mee Yong & Ors Lord Diplock: Torrens System of ladn registration and conveyancing has one of its principal objects to give certainty to title of land and registrable in land. Principles of Torrens System ● There were two main principles under this system namely the Mirror Principle and The Curtain Principle 1. Mirror principle -

Upon alienation, the State Authority issues 2 identical copies of document title (Register Document of Title (RDT) and Issue Document of

Title (IDT)). IDT is issued to the registered owner and RDT kept at the particulars that are required by a person intending to deal with the land. 2. Curtain principle -

The register acts as a ‘curtain’ and in any transaction between the registered owner and any third party wishing to deal in land, such as a potential purchaser or charge, the latter only need concern himself with the registered and nothing else.

(need to check the validity of transfer) ● As pointed in Gibbs v Messer, the object is to save persons dealing with the registered proprietors from trouble and expenses of going behind the registered in order to investigate the history of their author’s title and to satisfy themselves of its validity. ● Hon Ho Wah & Anor, it is true that under Torrens System, the register is everything. -

Upon registration, it confers an indefeasibility title or interest on the person or body in whose name the title or interest is registered. Indefeasibility can only be set aside in certain situations.

Features of the Torrens System ● Conclusiveness of the register (s89) however that owing to statutes which operate independently of NLC, certain matters do not appear on the register. ● Indefeasibility of registered title and interest

● No adverse possession. There can be no AP against the state (s48) nor against the registered proprietor of land or any person entitled to registered interest therein for any period whatsoever (s341). ● Machinery Caveat. For restraints of dealings. - Function of caveat is to give a person claiming a registrable interest in land an opportunity to protect his interest in land pending registration. -

The system of caveats seeks to do away with doctrine of notice applicable under the deed system. The doctrine of notice can lead to insecurity and uncertainty.

Differences in Malaysia Torrens Model as compared to Australia and New Zealand ● In Malaysia, though register is supposed to be conclusive, Neogh Soo Oh & Ors makes it clear that solicitor may not just rely on what appears on the register. ● Malaysia Torrens System provide a deferred indefeasibility as opposed to immediate indefeasibility in Aus and NZ. Frazer v Walker. Torrens System which is set up by landowners to compensate Innocent registered proprietors who have lost their land through mistake committed by Registrar of titles or any of his officers or through fraud....