Contributed by Ally Chong Wai Kuan
The public’s general view of a lawyer is divided into two, the court
room lawyer and the office lawyer. The office lawyer are generally called by
laymen as the “sale and purchase agreement solicitors” (“SPA’s solicitors”).
This paper attempts to make an effort to educate the public that office lawyers
are not the SPA’s solicitors, instead they are the officers of court who seek
to educate, advocate and promote the Torrens principle of conveyancing and to
ensure the “Torrens interest acquirer an
unchallengeable concept of indefeasibility statutory protection.
What is the rights of the Torrens interest intended acquirer ® , i.e. the Purchaser’s rights prior to registration?
[i] see Mac Donald, Mc Crimmon and Wallace, Real Property Law in Queenland (LBS Information Services 1998, SY Kok, The Torrens System and Equitable Principles),2011
[ii] Sir Robert Richard Torrens, (31 May 1814 – 31 August 1884) was the third Premier of South Australia and a pioneer and author of simplified system of transferring land.
[iii] Gibbs v Messer (1891) AC 248
[iv] Minnesota, Massachusetts, Colorado, Georgia, Hawaii, New York, North Carolina, Ohio, and Washington
[v] Tai Lee Finance Co. Sdn Bhd v. Official Assignee & Ors. [1983] 1 MLJ 81, Buxton & Anor. v. Supreme Finance (M) Bhd. [1992] 2 MLJ 481 ; M & J Frozen Sdn Bhd & Anor. v. Siland Sdn. Bhd. & Anor. [1994] 1 MLJ 294; Perwira Habib Bank (M) Bhd. v. Bank Bumiputra (M) Bhd. [1988] 3 MLJ 54
[vi] Should the title to the land/property fail to confer indefeasibility of title to the Torrens interest intended acquire, then by virtue of the Contract Act 1960, he/his is entitled to initiate a specific perform by filling of this case in the court of law.
[vii] AC 209. 1 FMSLR 290,
[viii] See Part Fourteen S214 of the National Land Code 1965
[ix] Orr v Smith 41919 NZLR 818 at pp 828-829
[x] Eng Mee Yong v Letchumanan (1979) 2 MLJ 212
[xi] (1982) 1 MLJ 38
[xii] [1977] 2 MLJ 7
The Introduction
The land law in West Malaysia is
governed by the National Land Code 1965.
This statutory Code is divided into twenty eight parts. Each part is
then divided into different Chapters.
The Torrens system of registration has been welcomed by the public at
large in Malaysia Torrens conveyancing system has made it to
the world at large to identify the proprietary
interest holder of the property.
Prior to the implementation of the Torrens registration system, the
land and property dealing in Malaysia
The Predicament
This process of Common law deed of system was tedious and time
consuming, more so if there is a break of chain in the middle of the searching
or tracing the deceased owner on his
unsettle administration of effect issue and/or beneficiary, [i]
It would also vest upon the lawful owner of the land/property to have a high
degree of control and management of all these deed to enable the lawful owner
to prove that he/his is the lawful owner of the land/property.
Though centuries, the deed system is not an ideal system of
conveyancing of a land /property, , the deed system require a total control and
monitor of all the conveyance of the land/property transactions and dealings.
The deed of conveyance itself does not conveyance deliver and grant of
the statutory right for the lawful owner to transfer the title to the
land/property to the interest intended holder, but merely assigning the
contractual rights to own the land/property.
The Solution
Offer
In order to do away the tedious trace of the ownership, Sir Robert Torrens [ii]
propound the idea of registration of title in South Australia
The system of registration is based on the mirror and curtain principle. As reflected by
the word “mirror” which furnishes a self explanatory definition, any interested
interest buyer will deal with the exact information derived from the
certificate of title, which is more commonly known as the Registered Document
of Title. Likewise, any interested interest buyer does not need to lift the
curtain to search for the history of the dealing in the land/property.
The Recognition
The honourable judge, Lord Watson
in Gibbs v Messer [iii]
held that “….The object is to save persons dealing with registered proprietors
from the trouble and expense of going behind the register, in order to
investigate the history of their author’s title, and to satisfy themselves of
its validity.
The Endorsement
The registration of land/property system had made a tremendous reform
for all the commonwealth counties in the globe at that time up to now. Even
some parts of the States in the United States of
America are endorsing the principle of Torrens
registration system [iv].
This land/property reform has been codified and implemented into the
land/property law in Malaysia ,
the National Land
Section 340 of
the National Land
“S 340(1) The title or interest of
any person or body for the time being registered as proprietor of any land, or
in whose name any lease, charge or easement is for the time being registered,
shall, subject to the following provisions of this section, be indefeasible.
(2)
The title or interest of any such person or body shall not be indefeasible
(a) in any case of fraud… to which the
person or body, or any agent of the
person or body, was a party or privy; or
person or body, was a party or privy; or
(b) where registration was obtained by forgery,…;
(3) Where the title or interest of any person or body is
defeasible by reason of any of the circumstances specified in subsection (2) –
(a) it shall be liable to be set aside in the
hands of any person or body to whom it
may subsequently be transferred; and
may subsequently be transferred; and
(b) any
interest subsequently granted thereout shall be liable to be set aside in
the hands of any person or body in whom it is for the time being vested.
the hands of any person or body in whom it is for the time being vested.
The Surety
Certificate
The Torrens system of registration
even offers the surety certificate. The evidentiary provision is provided in
section 89 of National Land Code 1965.
Section 89 Conclusiveness of
register document of title
S89 every register document of title duly registered under this Chapter
shall, subject to the provision of this Act, be conclusive evidence –
(a) that title to the land described
therein vested in the person or body from the time
being named therein as proprietor.
being named therein as proprietor.
(b) of the conditions, restrictions in
interest and other provisions subject to which the
land is for the time being held by that person or body, so far as the same are
required by any provision of this Act to be specified or referred to in that
document Torrens system of registration not only formulated a mirror and curtain
principle, it assures and declares to the globe that Torrens system of registration
is also offering surety (indefensibility of title) to theTorrens registered proprietor.
land is for the time being held by that person or body, so far as the same are
required by any provision of this Act to be specified or referred to in that
document Torrens system of registration not only formulated a mirror and curtain
principle, it assures and declares to the globe that Torrens system of registration
is also offering surety (indefensibility of title) to the
What is the rights of the Torrens interest intended acquirer ® , i.e. the Purchaser’s rights prior to registration?
The Torrens registration system does
not recognize the rights interest in the land/property prior to the
registration. The Torrens registration system state, it is the act of
registration that vest and divest the interest of the Torrens land/property to
the Torrens intended interest acquirer [v].
The question arise as to what is the Torrens interest intended acquirer
have in hand prior to the registration?
Yes, it is a contract of promise to sell and transfer the land/property
from the Torrens registered proprietor to the Torrens interest intended acquirer, in the
laymen term the Purchaser. A contract of a sale and purchase of a land/property
transaction is merely an agreed contract between the Torrens registered
proprietor and the Torrens interest intended acquirer. The
Torrens registered proprietor promise to
transfer the Torrens title to land/property to the Torrens interest intended
acquire, and the Torrens interest intended acquire promise to take the title
with a lawful consideration [vi].
This contract of sale and purchase does not itself give rise to power
or any statutory authority for the Torrens registered proprietor to transfer
his/her land to the Torrens interest intended
acquire. What the Torrens registered
proprietor have then? He/she only have the power to sell his/her land/property
to the Torrens interest intended acquire,
he/she promises to sell the property to the purchaser.
In a Privy Council case, the
Judicial Committee in the case of Haji Abdul Rahman v. Mohamed Hassan, [1917] [vii]
held that an agreement, not in registrable form, to transfer back certain land
upon a certain contingency happening, while ‘valueless as a transfer or
burdening instrument,’ (p. 215) was good as a contract. The JC, held that (the
agreement) it was not an ‘attempt to transfer, but a conditional promise to
transfer.’ (p. 214).
In order for the Torrens registered proprietor to transfer the
land/property to the Torrens interest intended
acquire, a statutory prescribed instrument of transfer is required [viii].
This statutory creature is recognized by law to facilitate the registration of
the Transfer, not the sale and purchase agreement.
In a New Zealand
Back to the home land, Lord
Diplock in Eng Mee Yong & Ors V. Letchumanan [x]
held that “The Torrens system of land registration
and conveyancing as applied in Malaya by the
National Land Code, has as one of its principal objects to give certainty to
title to land and registrable interests in land”.
Further S78(3) of the
National Land Code provide “ the alienation of State land shall take effect
upon the registration of a register document of title ...” It is the act of
registration that confer indefeasibility of title, it is not the approval of
the alienation but the act of registration as propounded in Dr Ti Teow Siew & Ors V Pendaftar
Geran-Geran Tanah Negeri Selangor [xi].
Which means, what the office solicitors do is to ensure Torrens interest intended acquirer acquires the statutory indefeasibility title, which
mean no one in the word is able to challenge the title of the Torrens interest intended acquirer upon
registration of his/her interest in the land. In Teh Bee V K Maruthamuthu [xii] the
court held that under the Torrens System the registration is everything.
To ensure the Torrens interest intended
acquirer to enjoy the statutory indefeasibility of title, the solicitors who
are attending handling transact the land/property have to prudently exercise
his/duty as the solicitors of court to ensure all rule and regulation,
statutory requirements are complied with and adhered to. The statutory duty of
the solicitors include inter alia, to prepare the statutory prescribed form in
the manner and method as per the law, signatures of the Torrens registered
owner and Torrens interest intended acquire have to be witnessed according to
the law, prescribed registration fee is to make to the relevant land
office/land registry office, more importantly, to up hold the principle and
energy of Torrens system of
registration.
[i] see Mac Donald, Mc Crimmon and Wallace, Real Property Law in Queenland (LBS Information Services 1998, SY Kok, The Torrens System and Equitable Principles),2011
[ii] Sir Robert Richard Torrens, (31 May 1814 – 31 August 1884) was the third Premier of South Australia and a pioneer and author of simplified system of transferring land.
[iii] Gibbs v Messer (1891) AC 248
[iv] Minnesota, Massachusetts, Colorado, Georgia, Hawaii, New York, North Carolina, Ohio, and Washington
[v] Tai Lee Finance Co. Sdn Bhd v. Official Assignee & Ors. [1983] 1 MLJ 81, Buxton & Anor. v. Supreme Finance (M) Bhd. [1992] 2 MLJ 481 ; M & J Frozen Sdn Bhd & Anor. v. Siland Sdn. Bhd. & Anor. [1994] 1 MLJ 294; Perwira Habib Bank (M) Bhd. v. Bank Bumiputra (M) Bhd. [1988] 3 MLJ 54
[vi] Should the title to the land/property fail to confer indefeasibility of title to the Torrens interest intended acquire, then by virtue of the Contract Act 1960, he/his is entitled to initiate a specific perform by filling of this case in the court of law.
[vii] AC 209. 1 FMSLR 290,
[viii] See Part Fourteen S214 of the National Land Code 1965
[ix] Orr v Smith 41919 NZLR 818 at pp 828-829
[x] Eng Mee Yong v Letchumanan (1979) 2 MLJ 212
[xi] (1982) 1 MLJ 38
[xii] [1977] 2 MLJ 7