Mind Map - Land Law 2 - Indefeasibility PDF

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Summary

Transferor (true owner)Indefeasiblity (1/2) Paper Size : ADEFINITIONMuthammah a/p Govindan v Ma sri Bin M ohamed & Anor [2000]a title / an interest which is free of indefeasible title all advers e claims / encumbrances not noted in the registerthe effect of reg is tration defeat all prior un...

Description

the effect of registration

Bonaa Fid Fide haserr Bon e PPu urchase S.5 NLC - Purchaser (BFP) Land was transferred to the subsequently it was charge to the bank transferee by way of fraud Owe Then Kooi v Au Thiam Seng [1990] the interest obtained by the chargee was indefeasible

he is a bona fide purchaser for value without notice cannot merely be consideration for natural love & affection

the Resp. s husband fraudulently transferred the property of his deceased father to the respondent , his wife-without any consideration,

(1) Pays valuable consideration

Chu Choon Moi v Ngan Siew Tin [1986]

the Resp. s husband fraudulently transferred the property of his deceased father to the respondent , his wife-without any consideration

upon registration - the title/interest shall be indefeasible-immune from attack by adverse claim

S.340(2)

The title / interest shall be defeasible where it was obtained through

HELD

Mohamed Moidu Mohamed v Hasan Kadir [2001]

DEF. knew at the time he bought the said land the purchase price was below the market valuebut he wanted to take advantage of the low price

the sale was concluded without any proper investigation into the title & the person claiming to be owners of the property

S.340(3) NLC was inapplicable

DEF not a BFP even though valuable consideration was given

the act of registration cures the defect in the instrument Indefeasiblity (1/2) Paper Size : A3

affirmed decision in Au Meng Nam Mohammad Buyong v Pemungut Hasil Tanah Gombak & Ors [1982]

any imperfections to the title/interest other than fraud will be waived

parties to immediate indefeasibility are: pay consideration value obtains immediate indefeasibility of title /interest when Transferor (true owner)

Liew Yok Yin v AGS Harta Sdn Bhd (2006)

HELD

deferred indefeasibility 1965-2001

Forger

acts in good faith Bona Fide Purchaser For Value Consideration (BFP4V)

Immediate Transferee

(2 (2)) De Defe fe ferrred Ind Inde ef e asibi asibilililitt y happen when the indefeasible title is deferred to the innocent person

dealing with the person who has been registered as owner

if registration was obtained through fraud/ forgery /any other S.34 40 (2 (2) NLC reason under S.3

the title or interest will be defeasible under S.3 S.34 40 (3) NLC & cannot be transferred by the proprietor to anyone else

due to fraud /forgery/ S.34 40 (2) NLC misrepresentation etc.- S.3

unless the transferee (subsequent purchaser- SP) is a BFPV

SP - person who has no knowledge that the title is defeasible & purchases the land with valuable consideration

then, the title will become indefeasible only once it is transferred to a BFP4V

if the title/interest , though obtained through fraud/forgery/ etc has not been being challenged

the person whose name is registered on the RDT is treated as having an indefeasible title/interest which he can pass to others

parties to deferred indefeasibility are: immediate indefeasibility

deferred indefeasibility

2001-2010 June 2010

S.340(3) NLC only applies to SP the bank in this case was an immediate holder of the charges & not a subsequent holder the title to the property must be reverted back to the APP.

only when the title/interest is obtained through fraud - open to challenge

despite the fact that a void/ voidable instrument has been used to obtain registration

P os it i on in Malaysia

M&J Frozen Food Sdn Bhd & Anor v Siland Sdn Bhd [1994 ]

Adorna Properties Sdn Bhd v Boonson Boonyanit @ Sun Yok Eng[2001]

he is immediately guaranteed that his title / interest is free from any adverse claims

HELD

Tiagaraja Palaniandy v Moganadas Maniam & Anor (2011)

the shareholder (DEF2) are aware that PL . never transferred his half share in the land to DEF1

Subsection (b) – refers to any interest created over the land

(1 (1)) Im Imme me med d iat iate e Indefe Indefeasib asib asibililility ity

(b) proper investigation to be done before conclusion of a sale

the sale was completed 5 months & no any valuation done either

(b) any interest may be set aside in the hands of any person in whom it is vested

when a person s name is registered as the owner/interest holder on the RDT

a purchaser in good faith does not include a purchaser who is careless / who had been negligent

the title of the acquirer is liable to be set aside in the hands of the acquirer & all those whom he transfers the land except a bona fide purchaser for valuable consideration

defeasible title does not only rest with the owner but also to anyone dealing with the land and taking registered interest on it. Eg- lessee or chargee

(2) acts in good faith

Au Meng Nam & Anor v Ung Yak Chew & Ors [2007 ]

the existence of a sale & purchase agreement (SPA) & payment of the purchase price in full cannot be the only indicator to show whether a person is a BFP4V

Subramaniam v Sandrakasan [2005]

Types of Indefeasibility

(a) adequate in keeping with the property s value disregarded his obligations to investigate the alleged proprietors & the genuineness of the documents

(b) forgery / an insufficient / void instrument (c) unlawfully acquired by a person in exercise of his power of authority

IMPLIES THAT no successor to a defeasible proprietor can obtain an indefeasible title

where the title / interest is defeasible for any one of the reasons

if no valuable consideration (not BFP)

the purchaser must not have any knowledge – be it actual /constructive

(a) fraud / misrepresentation

(a) the title may be set aside to whomever it may subsequently be transferred S.340(3)

the Resp. could not be termed a BFP in good faith & for valuable consideration one who takes title/an interest to land without giving value /consideration treated as a volunteer

the title or interest is bad in law

S.340(1)

Criteria NLC 1965

because under certain circumstances – a registered title or interest may be set aside / defeated by a person who has a better claim

general principle in the concept of indefeasibility NOT ABSOLUTE

Muthammah a/p Govindan v Masri Bin Mohamed & Anor [2000]

Burden is on the transferee to prove that

Consideration made must be valuable (payment of money)

HELD: they could not be termed as BFPV – no consideration arose from the transfer

indefeasible title

DEFINITION

HELD

The meaning of purchaser also includes chargee/other interest holder

defeat all prior unregistered claims a title / an interest which is free of all adverse claims / encumbrances not noted in the register

regardless of whether the bank was a BFP4V

Tan Ying Hong v Tan Sian San & Ors [2010]

Transferor (true owner)

in some cases , the forger & IT can be the same person

Forger

Immediate Transferee - IT

The IT gets a defeasible title, despite the fact that the land was transferred to him in good faith & for value

Subsequent Purchaser -SP

SP , provided that he purchases in good faith & for value – get an indefeasible title - he obtains statutory protection under the proviso to S.340(3) NLC

The deferred indefeasibility helps draw a line between the true owner & SP...