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PRIVATE CAVEATMeaning: S-A personal caveat entered by the Registrar upon application by a person or body who has a ‘caveatable interest’. A statutory injunction to protect a claim to an existing unregistered registerable in- terest in land. Basically, you have an interest, you haven’t register it bu...

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PRIVATE CAVEAT Meaning: 1. S.321-A personal caveat entered by the Registrar upon application by a person or body who has a ‘caveatable interest’. 2. A statutory injunction to protect a claim to an existing unregistered registerable interest in land. 3. Basically, you have an interest, you haven’t register it but you want to register and in the mean time you want to protect it you will enter a caveat first or someone else will beat you to it. Effect : 1. Preserves the status quo(ori position) of the land. 4. Suspends the process of registration until settlement of conflicting claims relating to the land under dispute. 5. Mainly, this particular land for you but you might have conflict with your brother but before someone else register it you want to freeze it and let the land be what it was before the conflict begin, this is what a private caveat does it protect your land and forms a freezing measure so that nothing happens to the original state of land before conflict begun- suspension on any activity on the land Nature of a Private Caveat : 1. Damodaran v Vasudeva :“a caveat is nothing more than a statutory injunction to keep the property in status quo until the court has had an opportunity of discovering what are the right of the parties.” -so while you are settling the dispute the land is frozen. 6. The lodgement or entry of a caveat is an interim procedure designed to give an opportunity to a person claiming under an unregistered instrument to regularise the position by registering the instrument.-not only protects from your sibling but others too . 7. It preserves the status quo of the contending parties by suspending the process of registration until conflicting claims to the title to or an interest in the land is resolved 8. Notice->prohibition ->status quo Main purpose of caveat? 1. To restrain the caveatee from dealing with the land in dispute pending the determination of the caveator’s interest in the land by a court of competent jurisdiction. 1. -Miller v Minister of Mines : To freeze the register so as to prohibit subsequent dealings with the land or an interest therein until the caveator has had an opportunity to establish his claims. 9. A notice to the world at large that the caveator has a claim to an alleged interest in the disputed land. 10.Prohibits subsequent dealings with the land or interest therein. 11.Preserves the status quo of the land pending resolution of the dispute by the court. Private Caveat does not create or enhance interest of caveator. 1. Does not have the effect of enhancing the caveator’s interest in the land-it doesn’t make things better for you it just puts smtg like a suspension-temporary in natureyou must be actively pursue – it does not create a legal interest in the land just a some form of suspension over interest in land 12.Damodaran v Vasudeva: no person can create rights in his own favour nor enlarge or add to his existing proprietary rights by means of a caveat.

13.Temenggong Securities Ltd. & Anor. V Registrar of Titles Johor & Ors : is to preserve the status quo pending the taking of timeous steps by the applicant to enforce his claim to an interest in the land by proceedings in the court. Who can apply for a Private Caveat? 1. s.323 that specifies 3 categories of persons: 1. a)any person or body claiming title to, or any registrable interest in, any alienated land -must prove that you have a possible interest in that land(1), or any right to such title or interest -you must be the rightful person to have the right in the first place (2) ; (Notice 2 limbs here.) 2. b)any person or body claiming to be beneficially entitled under any trust affecting such land or interest;-so if there is a trust created you have right on it 3. c)the guardian or next friend of any minor claiming to be entitled under any trust affecting such land.- acting on behalf 14.s.323(1)(a) interpreted liberally? 1. Macon Works & Trading S/B v Phang Hon Chin :the whole system of caveats is founded on the principle that they exist for the protection of alleged as well as proved interest- anybody can be entitled to para a, not necessarily must be written on a will-next of kin many people is also entitled-except when you have no recognition or legal ties to the deceased. 2. Interpretation of First Limb of s.323 (1)(a) – can be divided into 2: 1. ‘Person or body claiming title to land’ -Kumpulan Sua Bentong v Dataran Segar S/B :A prior registered proprietor challenging the title of a new registered proprietor is a body claiming title to the land -s.323(1)(a) and has a caveatable interest. : e.g OFS-new registered proprietor will be the chargee.when you look at the charge the tittle is held for you till you clear your debt but when you default in payment that gives the chargee the right to sell of which chargee holds the tittle -they are able to sell to someone else by imposing a caveat. 2. ‘Person and body claiming a registrable interest in land.-Standard Chartered Bank v Yap Sing Yoke :A chargee could enter a private caveat where the charge document had been signed but had yet to be registered 3. Krishna Kumar v UMBC :An unregistered 2nd chargee who had an instrument of charge in registrable form but had not obtained the consent of the first chargee had a ‘registrable interest’ in the land and could enter a private caveat to protect its interest.-bcs when there is a chargee and a subsequent charged-priority will be given to the first chargee so to get your rights you pose a private caveat. 3. Interpretation of Second Limb of s.323 (1)(a) 1. The second limb ‘person or body claiming ANY RIGHT to such title or interest’ may cover those who have signed contracts relating to land and have an equitable or ‘in personam’ right to have such contact enforced. 2. This would include a purchaser who has signed the SPA and has paid the deposit towards the purchase. 3. In Macon Engineers S/B v Goh Hooi Yin: a purchaser of land under an agreement has a right to the land or interest in the land and can thus lodge a private caveat. Effect of Restriction in Interest on IDT? 1. Goh Hee Sing v Will Raja & Anor : Where there is a restriction in interest on the title requiring the consent of the State Authority for the transfer of the land, the purchaser will not have any ‘caveatable interest’ until the consent of the State Authority has been obtained. -it is a form of restrictions on your rights

Does an intended purchaser at negotiations stage have a ‘caveatable interest’? 1. Million Group Credit S/B v Lee Shoo Khoon & Ors.: it was held that an intended purchaser at negotiation stage who has not yet concluded a contract does not have any caveatable interest. Who has covetable interests? Someone who has done more than negotiating 15.No concluded contract, no caveatable interest- Murugappa Chettiar v Lee Teck Moon: held that in the absence of an assertion of a concluded contract, it cannot be said that the caveator had a claim to the title to land- thus no interest that is capable of being protected by the entry of the caveat. So until S&P sign you got nothing Effect of a Private Caveat? (s.322(2) NLC) 1. No dealings : Prohibits registration of dealings/ Cert. of sale by court 16.No T.E.R : Prohibits endorsement of Tenancy Exempt 17.No Lienholder’s caveat : Prohibits entry of lien holder’s caveat-you don’t have contract you have no interests in the land -you got nothing 18.Eng Mee Yong & Ors. v Letchumanan :the effect of entry of a caveat expressed to bind the land itself is to prevent any registered disposition of the land except with the caveator’s consent until the caveat is removed. This is a very grave curtailment of the rights of the proprietor. It can be imposed at the instance of anyone who makes a claim to title to the land, however baseless that claim may turn out to be. A private caveat does not have the effect of altering the ownership of the land or interest. It merely functions as a notice of a claim and priority of a claim.just because you have a private caveat doesn't mean you are greater than othersit doesn’t mean you have an interests to the land-private caveat is imposed on registrable interest so it merely acts as a notice only. Meaning you will be considered first. 19.Wong Kim Poh v Saamah: So long as a caveat is in force, registration, endorsement or entry on the RDT of any instrument of dealing shall be prohibited. -effect you can’t do anything. Under the Torrens system where registration is everything, the prohibition in s.322(2) must be strictly complied with. The Registrar is statutorily obliged to refuse the registration because to do so would be a violation of an express provision of the NLC. You can’t do anything to the land even through a registrar. How to Enter a Private Caveat? 1. S.324 NLC: 1. a)Fill in the prescribed statutory Form 19B. 2. b)Accompanied by: 1. i) prescribed fee 2. ii) statutory declaration of applicant or solicitor to verify the claim. 3. c) Upon receipt of F.19B, Registrar will note on the application the time it was received. 4. d)Registrar will endorse on the RDT the words “private caveat’ together with a statement specifying 4 things: 1. i) Whether the caveat binds the land itself or a particular interest. 2. ii)Name of caveator. 3. iii) Time it is effective – time the application was received (s.324(2)(c)) 4. iv) The reference under which it is filed. 5. e)The Registrar will notify the proprietor in Form 19A or any other person vested with the interest caveated. Registrar’s duties in entering a Private Caveat ( s.324(1))

1. The entry of a private caveat is purely an administrative act of the Registrar. The Registrar cannot refuse to accept a caveat presented so long as it conforms to the form prescribed. 20.The Registrar cannot question the merits or validity of the caveat. No undertaking in damages in required as a precondition of the right to lodge a private caveat. Can a Registered Proprietor Caveat His Own Land? 1. Can, when the whole land is being contended in dispute . Form of protection. People challenging the validity of your ownership on the registered land.so during dispute you want to protect it. 21.In Eu Finance Bhd. v Siland S/B : said that the registered proprietor could not caveat his own land because a person who relies on his status registered proprietor must necessarily be a person already possessing title/interest in the land and not merely a person claiming title to or any interest in that land and must as a matter of logic have been excluded by the language of s.323(1) NLC.-you can’t caveat your own land just for the name sake its your land you must actually be the registered proprietor to caveat your own land. 22.However in Hiap Yiak Trading S/B & Ors V Hong Soon Seng S/B : is allowed the registered proprietor to caveat his own land. 23.A registered proprietor may seek the discretion of Registrar to enter a Registrars Caveat when he himself cannot register for private caveat.- When a land is being given to you as a gift and in the process of registration your proprietorship ,when you can’t enter a private caveat to secure your interest then you will ask registrar to impose a registrar’s caveat. What it does it freezes the land and nobody else can have any forms of dealings in that land that includes the things that are exempt from registration as well. 1. Boonsom Boonyanit v Adorna Properties : In this case, Mdm Boonsom sought entry of a Registrar’s Caveat where she complained that her title had been used with a forged transfer to obtain the registration of Adorna Prop. 2. Lim Ah Hun v Pendaftar Hakimilik Tanah Pulau Pinang & Anor: The Registrar, in this case had entered a RC on the land based on a letter sent by the 2nd Df. and a police report alleging a fraudulent transfer of the land. Caveating Part Only of Land 1. Yes. But misleading as per proviso to s.322:“Provided that where the claim is in respect a part of the land, the caveat binds the whole land…”- when you caveat part of a land you are securing only part of the land but if you do any activity it usually spread to all over the land. Does this mean that one may not caveat only a portion of land?-like there is 5 interests caveated on that land how to secure only 1/5 of the land? 3. N. Vangedasalam v Mahadevan & Anor: issue whether a person or body who has an interest or right on a specific portion part of a land lodge a private caveat to protect his interest over such portion. Appellant had claimed an interest in a portion in a piece of land and brought an action for specific performance against the registered proprietor so that the portion in question could be transferred to him. He had also entered a caveat against the land. When the registered owner of the land died, his personal representatives applied to court to have caveat removed and trial judge allowed application. On appeal to the Federal Court, the court in allowing the appeal held that a person who claims an interest in a specific portion of land may caveat the whole land. However, he must state expressly that the effect of his caveat is to cover only the particular interest claimed. You can specify the caveat the specific part of land.

24.In 1985, the amendment to S.322 (1) NLC brought about the additional proviso, which states that, “provided that such a caveat shall not be capable of being entered in respect of part of land.” -you are technically able to caveat the portion of land.misleading straighten out 1. Tan Heng Poh v Tan Boon Thong & Ors: the appellant was a beneficiary of onesixth share in the estate of his father who left a will bequeathing his properties to his six sons. Dispute arose between the beneficiaries and pending the resolution of the dispute, the appellant had entered a private caveat against all the eight parcels of land in the estate of the deceased. The respondents applied to remove the caveat and the trial judge allowed the application. Appellant appealed to the Supreme Court and in dismissing the appeal, Mohammed Azmi CJ said that by virtue of the amendment to S. 322(1) of the NLC a caveat cannot be entered by the Registrar against any land where the caveator’s interest is only in respect of a specific portion even if the application to enter the caveat expressly provides that the effect of the caveat is intended to be limited to a specific portion only. This amendment led to uncertainties and affected severally the conveyancing practices especially when dealing with sale and purchase and also loans relating to properties, which have yet to be subdivided.- principle :registrar cannot enter a caveat for specific portion of land. On the other hand you can enter a caveat and specify a portion of land. 2. This was finally settled by the Federal Court in Chor Phaik Har v Farlim Properties Sdn Bhd:referred to the decision of N. Vangedasalam v Mahadevan & Anor :“true it is that the proviso to s 322(1) prohibits the entry of a caveat over part of land, yet it says nothing about the validity of a caveat over the whole land but whose effect is limited to protect claim to a registerable interest in a portion or an undivided share thereof.” At present this controversy appears to be resolved since the proviso to s 322(1) NLC has been resolved.-you can enter caveat of whole land and specify the portion-registrar cannot caveat for specific part of land. 25.The amendment to the Land Code in Jun 2001 enabled a private caveat entered over the whole of the land but expressly specified to bind only a specific interest in the land to be permitted statutorily. Duration of a Private Caveats. 1. Azlan b. Maidin & Anor. V. PT Melaka Tengah & Anor:it was held that once a caveat has lapsed, the caveator will not be able to rely on any claim to a caveatable interest in the land anymore. 2. 328(1) : a private caveat lapses after 6 years.maximum -each caveat has different

duration 1. Goh Heng Kow v Raja Zainal Abidin : observed that the statutory life of a caveat is six years, and any decision of the court to extend the life of the caveat should not do so for a period greater than the statutory six years. In considering the extension of the caveat by the earlier court order, it was observed that the extension '... would throw the net wider by extending ... the private caveat which was scheduled to expire by statute (s 328 of Land Code) on 13 January 1995 to an indefinite term. Can a Private Caveat be Withdrawn? Yes, by the caveator by filling in Form 19G and a prescribed fee. ( s.325 NLC)-when they want to alter it Can a Private Caveat Be Removed(no longer any intention to impose a caveat)? Yes, under section 326 and 327 NLC. 1. Who can apply? 1. Caveator can remove it

2. A caveatee can apply to the Registrar for removal of the private caveat under s.326. Caveat will be removed after 2 months(within that 6 months when anybody else want to challenge the private caveat) unless the caveator obtains a court order to extend the duration of the caveat. 3. ‘Any other person or body aggrieved(a 3rd party-who is equally affected by it)by the existence of the private caveat’ may apply to the High Court under section 327 for an order to remove the caveat. 2. The purposes and procedures under s.326 and s.327 differ categorise of people. 1. Section 326 1. Who can apply? – “any person whose land or interest is bound by a private caveat”. This would mean:1) the registered proprietor 2) a registered chargee 3) registered lessee or sub-lessee. 2. Procedure under s.326: 1. Caveatee applies for removal of caveat by presenting Form 19H accompanied by prescribed fee. 2. Registrar will serve the caveator with a Notice of Intended Removal in Form 19C and endorse the RDT that F.19C has been served. 3. Under s.326(1B) the caveat will lapse after 2 months specified in the notice.(unless the caveator obtains a court order to extend the said caveat. 1. Extension of Private Caveat s.326 :It is the caveator who applies to the court for extension.He is to satisfy the court that there are sufcient grounds in fact and in law for continuing the caveat in forceEng Mee Yong’s case:The court will not usually test the validity of the claim/interest protected by the caveat but will consider whether or not the caveator had taken any other court action to determine his claim. (e.g. claim for specific performance of the agreement.) 3. What is the Effect of Removal of the Caveat -s.326?The caveator cannot enter another private caveat on the same grounds. -s.329(2) NLC. Cannot caveat on same grounds but can caveat over other grounds. 1. Hong Keow Tee & Anor. V Alkhared & Khoo Holdings S/B : by the provisions of this subsection, '... it is incumbent on any person on whose application the caveat is extended to serve the order of court on the Registrar of Titles, who on being duly served is enjoined not to remove the said caveat'. In this case, the caveators obtained a court order extending the time for removal but failed to serve it on the Registrar in time to prevent removal of the caveat.As a result they were unable to enter another caveat on the same ground. Where the only parties to an application under s 327 below are the caveatee and caveator, there is no difference between what the caveator must establish to obtain an extension of the caveat under s 326 and what he must establish to defeat the caveatee's application for removal of the caveat under s 327 2. Hock Hin Bros. S/B v Low Yat Holdings S/B : application for entry of a further caveat x prohibited by NLC as caveat was removed not pursuant to any order of court but pursuant to the administrative act of Registrar of Titles acting under s326(3) 4. Extension cases:Tan Lay Soon v Kam Mah Theatre S/B :The caveator in this case was a purchaser under a contract of sale and the caveatee, a chargee. Caveator applied for extension of the PC upon receiving Form 19C under s.326(2) NLC. Held:There was sufcient grounds for continuing

in force the caveats until the claim for specific performance is adjudicated by the court. 5. Luggage Distributors (M) S/B v Tan Hor Teng & Anor. :3 guidelines on whether a caveat should be extended under s.326(1B): 1. Whether the respondent has disclosed a caveatable interest? S.323(1) 2. If yes, then whether his afdavit in support of his application for extension discloses a serious question to be tried? Is it something of great substance 3. If yes, then whether the ba...