Test 2 LAND 1 - During MCO 2020 PDF

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During MCO 2020...

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Question 1(a) In May 2012, Manan was given a Temporary Occupation License for a piece of land. He made handicrafts, did vegetable farming and rear poultry on that land. He also built a house for him and his family. In January 2018, he let out a room in his house to Kassim, at a monthly rent of RM250.00. In February 2019, Manan entered into a sales and purchase agreement with Jamal, whereby Jamal agreed to buy his house for RM50,000. In December 2019, the State Authority refused to renew Manan’s license. Advise all the parties involved.

30 marks

The issue is whether Manan had breached any of the Temporary Occupation License’s conditions according to the National Land Code.

Section 67(1) of the National Lade Code 1965 stated that except in so far otherwise prescribed, every temporary license other than the one combined with a permit to extract and remove rock material shall be issued for a term expiring not later than the end of calendar year in which it commences and may be renewed annually.

Section 67(3) of the National Lad Code 1965 stated that subject to the condition under which a temporary occupation license is issued, the Land Administrator may n the application of a licensee renew such a license for a term of not more than one calendar year. Provided that there shall not be more than three renewals made in respect of a temporary occupation license unless a prior written approval of the State Authority has been obtained.

There are restrictions of the types of activities that can be carried out on the land. A TOL cannot be used for the planting of permanent crops, those which take more than one calendar year to yield produce. However, a TOL is a conditional in nature as the State Authority can specify the purpose of the license on the form 4A for TOL. Thus a TOL may be used for the purposes such as planting vegetables or plucking coconuts or rearing poultry.

The erection of any permanent building or structure, those that are taken to be fixtures and form part of the land, the removal of which would cause irreparable damage to the said land. In this case, Manan entered into a sales and purchase agreement with Jamal, whereby Jamal agreed to buy his house which goes against the provision for a TOL holder as it is not transferable.

The State Authority, as laid down under Section 67(3) of the NLC may renew the TOL not more than three renewals and as seen under Section 67(1), the TOL must be renew annually. From the facts above, it can be seen that Manan got the TOL in May 2012 and should expire on 31 December 2012. However, the renewal was rejected on December 2019, it already exceeded the duration allowed under the National Land Code as it is more than 3 renewals or 3 years of having the license.

In the case of Teh Bee v K Marimuthu1, Justice Ajaib Singh observed, thee is provision for the TOL to be renewed annually but there is no obligation on the part of authorities to grant a renewal of a TOL for any subsequent years.

1 [1977] 2 MLJ 7

In the case of Govindaraju v Krishnan2, the appellant, a TOL holder had rented out two rooms to the Respondent at a monthly rent of $30. When the appellant terminated the tenancy through lawful notice in writing, the respondent refused to deliver vacant possession arguing that the tenancy was illegal, void and of no effect because the appellant was only a TOL holder. Justice Ismail Khan, held that the letting of the rooms on a premise built on TOL land did not amount to a transfer of the TOL and was therefore permissible.

In the case of Hee Cheng v Krishnan3, an attempt to sell and purchase the defendant’s rights under the license under a contract as held to be unlawful, whereby if allowed it would defeat the purpose of Rule 41 in the former FMS Land Rules 1930 which provided that no license for the temporary occupation of state land shall be transferable.

Based on the provisions and decided cases, it is safe to say that the State Authority has the right to reject the application of the Tol renewal as Manan breached the condition of TOL holder by attempting to sell his house to Jamal and also by having the license for more than 3 years.

2 [1962] MLJ 334 3 [1955] MLJ 103

Question 1(b) Dayang has entered into an agreement to purchase a piece of land from Marina. After the transaction was completed, Dayang realized that the title was registered in the name of Dayana. Dayang seeks your advice whether the error can be corrected. Advise Dayang.

20 marks

The issue is whether the error of registering the name “Dayana” instead of “Dayang” on the title can be corrected.

Section 380(1)(a) of the National Land Code 1965 provided that where the Registrar is satisfied, that any document of title has been registered or issued in the wrong name, or contains any misdescription of and or boundaries, or other error or omission, or The registrar has the power to suspend the registration in order to rectify the error. It is to note that the power of the Registrar above is only confined to the errors or omission made by the registering authority and not others. Every instrument of dealing must be registered in order of time in which it is presented for registration. In this case, Dayang has entered into an agreement to purchase a piece of land from Marina. After the transaction was completed, Dayang realized that the title was registered in the name of Dayana.

In the case of Island & Peninsular Development Berhad & Anor v Legal Advisor Kedah & Ors4, the court held that the error or omission referred to in section 380(1)(a) is confined to

4 [1973] 2 MLJ 71

those made by the Registry of Land Titles and not to those made by the parties in the instrument of transfer.

Question 1(c) With reference to the National Land Code 1965, explain what constitutes a registration. 10 marks

As the Torrens System requires registration, all instruments of dealings must be duly registered. Failure to register any of the dealings however as stated in the Land Code, does not affect the contractual operation of any transactions. Under Section 304, the making of memorial shall consists of, a short description of the nature and effect of the instrument, a statement of its member in the presentation book. The reference under which it is to be filed and the time and date of the registration. To make the memorial on the instrument itself is by completing the Heading under Form 13A, as it is to be inserted in all forms of dealings, under his hand and seal. It also stated that every memorial of registration made shall be conclusive evidence of the registration to which it refers and the effective time and date thereof.

Section 206(1)(b) of the National Land Code 1965 stated that no 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 under Part Eighteen of the National Land Code.

Section 304(4) of the National Land Code 1965 mentioned that every memorial of registration made shall be conclusive evidence of the registration to which it refers and the effective time and date thereof.

In the case of Mohamad Bin Buyong v Pemungut Hasil Tanah Gombak 5, an entry of a transfer of the RDT was not signed. It constituted a ‘bare entry’. Since it was not signed by the Collector, there was no registration effected. The court held that, the making of a prescribed memorial of the dealing in the register document of title under the hand and seal of the registering authority.

5 [1982] 2 MLJ 53

Question 1 (d)

Question 1(d) Samad entered into an agreement with Jalil to lease his land for a period of 20 years with the option to renew. Jalil informed Samad that they should register the lease in the land office, but Samad kept giving excuses, stating that he was too busy to do so. Five years later, Samad decided to sell his land to Fazli. Fazli then gave Jalil a notice to vacate the premises, but Jalil refuse to do so, demanding that that he must be compensated. Jalil would like to know whether he has any rights under the law. Advise Jalil.

20 marks

The issue is whether Jalil has the right to be compensated for the termination of the lease by Samad.

Section 206(1)(b) of the National Land Code 1965 stated that no instrument of dealings shall operate to affect any interest unless it is registered.

Section 206(3) of the National Land Code 1965 provided an exception to Section 206(1) that the requirement shall not affect any contractual operation of any transaction of alienated land.

Section 221(4) of the National Land Code 1965 stated that in creating a lease, the registered proprietor and lessee are to execute Form 15A and the form must then be registered at the Land Office in order for it to be effective.

In this case, Samad entered into an agreement with Jalil to lease his land for a period of 20 years with the option to renew. Jalil informed Samad that they should register the lease in the land office, but Samad kept giving excuses, stating that he was too busy to do so. Five years later, Samad decided to sell his land to Fazli. Fazli then gave Jalil a notice to vacate the premises, but Jalil refuse to do so, demanding that that he must be compensated. Under the Section 206(3), the exception is where the lease is unregistered, it is merely an agreement for a lease which does not have the effect of vesting an interest in the lessee. The agreement indeed exists between Samad and Jalil when they agreed to a lease of the said land for 20 years. Even though it is unregistered as Samad kept giving excuses when Jalil informed him that they should register the said lease in the Land Office. It is still valid and enforceable as an agreement for a lessee through Common Law. Under Common Law, a lease need not to be registered as a legal interest is created upon signing the agreement. Elements of lease under the Common Law are there must be exclusive possession, the lease must be of a definite period and there must be a consideration of payment of rent.

In the case of Margaret Chua v Ho Swee Kiew & Ors6, a registered proprietor granted a lease over a shophouse for the term of 25 years, but never registered the lease at the Land Office. The proprietor later decided to sell the land and gave the lessee an option to purchase within three days. The lessee claimed for specific performance on the lease agreement and the high court allowed the claim. The proprietor appealed on the ground that the lease was not registered, thus the agreement could not be specifically enforced. The court held that there was a clear existence of a binding written contract which the proprietor was clearly in breach

6 (1961) MLJ 173

of, hence entitling the lessee to a remedy. Although the lease was not registered, the agreement is valid as an agreement for a lease and can be enforced in equity by decree of specific performance.

In the case of Wan Salimah Wan Jaafar v Mahmood Omar7, the lease agreement was as good as an agreement enforceable in equity. Since the parties intended for there to be a lease, equity must be invoked to carry out that intention effectively.

Therefore, based on the related provisions and decided cases, Jalil has the right to enforce the lease agreement between him and Samad under the Common Law and Equity.

7 [1998] 5 MLJ 162

Question 1(e) Nadeera and Aina are co-proprietors of a piece of land in Kuantan. They want to know the differences between subdivision and partition. Advise Nadeera and Aina.

20 marks

Subdivision is a process of separating alienated land held under a final title. Each land to be held by the same proprietor or co-proprietor. Upon completion of the subdivision, portions will be held under separate titles. The effect of subdivision is a new title will be issued for new portion and the existing title is no longer effective. Name of proprietor and co-proprietor will appear in all the titles and there is no termination of co-proprietorship.

Section 135(1) of the National Land Code provides that a person may apply for subdivision of he is the registered proprietor of the alienated land held under a final title and under a Registry or Land Office Title.

Section 136 of the National Land Code provides that a subdivision shall only be approved if following conditions are satisfied ; a subdivision would not contravene any other written law and if there is any requirement to be complied with by such law, have been complied.

In the case of Lee Chuan Tuan v Commissioner of Lands & Mines 8, the court held that, unless provided for by a power of attorney, a lessee, not being a registered proprietor, is not empowered to apply for the subdivision of the leased land.

8 [1973] 2 MLJ 188

Partition involves the dividing of land into portions and each co-proprietor has a separate title to that portion. The effects of partition is the existing title is no longer effective and the land will be divided into more than 1 portion. The co-proprietor will be terminated and each coproprietor will have his ow separate title.

Section 140(1) of the National Land Code stated that any two or more co-proprietors of alienated land held under a final title and under a Registry or Land Office may apply for partition of the land.

Section 141A and 142(1)(e) of the National Land Code stated that a co-proprietor holding the majority of shares in the land may apply for partition and is not required to obtain the consent of other co-proprietor.

In the case of Subramaniam v Inderjit Kaur9, direct assistance from the court is only available to minority shareholders. A majority shareholder of the land must first apply for partition to the Land Administrator and cannot apply directly to the court for partition.

9 [1997] 3 MLJ 366...