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LAND LAW 1 slides dealings part 1

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  • AreejTorla areej@iium.edu.my
  •  “Dealings” definition in section 5  Any transaction with respect to alienated land  Effected under the powers conferred under Division IV  Does not include any caveat or prohibitory order.
  •  Division IV: 1. Transfer 2. Lease and tenancy 3. Charge and lien 4. Easement
  •  Section 206(1)  Every dealing shall be effected by the relevant instrument prescribed for that purpose.  Must be properly registered.
  •  Section 214  The whole, but not part only, of any alienated land;  The whole, but not part only, of any undivided share in any alienated land;  Any lease; any charge; anyTER
  •  A made a gift inter vivos of an undivided share in his land to his wife by executing a memorandum of transfer whereby he transferred the whole of his interest in the land to himself and his wife in undivided equal shares.  Court:This device is not an infringement of section 214(1)(a)
  •  Form 14A (for transfer of land, undivided share and lease) S 215(1), S 217(1), S 218(1)  Form 14B (for transfer of charge) S 218(2)  TER may be transferred by word of mouth or by a written instrument in any form. (no registration needed). S 220(1)
  •  Section 215  Title is passed to the transferee upon registration  Confers indefeasibe title or interest  It is subject to existing encumbrances and conditions or restrictions in interests, if any.
  •  InTER, a tenant’s right shall be protected and bind the new owner only if the tenancy is protected by endorsement.  Than Kok Leong v low Kim Hai [1983] 1 MLJ 187  Court: ATER does not bind a subsequent purchaser unless prior to the sale and transfer, an endorsement of the tenancy had been made under S 213(3).
  •  Only the registered proprietor  Md KamisYaakob v Ismail Abdullah [1995] 2 CLJ 238  Nemo dat quod non habet (no one gives what he does not have)
  •  Transfer of agricultural land  the land shall not become less than 2/5 hectare (1/2 acre) S205(3)  Transfer of estate land  next slide please!
  •  Section 214A  “…no estate land is capable of being transferred…unless approval of such transfer…has first been obtained from the Estate Land Board…”
  •  Consent of Estate Land Board is needed in order to transfer estate land.  Case: Kumpulan Sua Betong  Effect of contravention: guilty of an offence  Section 214A (10A)(a)
  •  Section 5: Definition S 214A (11) and (12). 1. Agricultural land held under one or more than title, and 2. Area not less than 40 hectares, and 3. The lands are contiguous  What is “Estate Land Board”? Section 214A(3)
  •  The object of section 214A is to prevent and prohibit the fragmentation of estate land within the meaning of subsection (11) of section 214A at the material time.  Case: Erico Estates Sdn Bhd [1980] 1 LNS 19
  •  Issue:Whether the land is an estate land.  Plaintiff failed to establish that the land is agricultural land.  Court: the land was not an estate land.
  •  A conveyance by which the proprietor of land (lessor) grants to another person (lessee) an interest in the land less than a freehold and less than that to which the lessor himself is entitled. LESSOR LESSEE LEASE
  •  Section 5 NLC:  “Lease”: registered lease or sublease of an alienated land  Therefore, excludes a lease agreement an equitable lease and aTER.
  • 1. Lessee enjoys a right of exclusive possession 2. Duration is specific and certain 3. Lessor has an intention to create a lease and not a license  Intention can be determined by written agreement or by conduct  Note: distinguish between a lease and a mere license.
  •  What can be leased?  The whole of alienated land  Part of alienated land  Who can create a lease?  The lessor, lessee or sub lessee
  •  Section 221  Must exceed three years  Maximum term:  99 years (for whole of land)  30 years (for part of land)  If does not exceed 3 years Tenancy Exempt from Registration (TER)
  • LEASE  Section 221, 222  Duration: exceeding 3 years  Proprietor, lessee, sub lessee can create lease.  Registration by Form 15A (lease) or Form 15B (sublease), and attach a plan and description (if lease of part of land) TENANCY  Section 223  Duration: not exceeding 3 years  Proprietor, lessee, sub- lessee, tenant can createTER  Created by word of mouth or written instrument in whatever form.  Exempted from registration but may make endorsement to protect theTER Section 213(3).
  •  Margaret Chua [1961] MLJ 173  Although the agreement for a lease for 25 years was void for lack of registration, but it was valid as an agreement for a lease enforceable in equity.
  •  Effect of a tenancy “for as long as the tenant likes”?  Before NLC:  Karuppan Chetty v SuanThiam [1916] 1 FMSLR 300   considered as a void agreement  After NLC:  Siew SoonWah vYongTong Hong [1971]  The agreement is good as a lease agreement. Section 206(3)
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