Discuss about the Critical Analysis of National Land Code.
There are various ways followed across the globe in acquiring land or property by an individual. Such one way is by Torrens ways where the registration of the land to its owner is given more importance over anything else. The historical beginning of the system started after the Island was taken under the control of the British Colonial government which later made the uniform civil code in the land which had no prior history of equal rights of land ownership or use. The form that was used was primitive where the utility was given more importance over the ownership. The Sahajji Islamic cult had a strong influence in deciding g the fate of the land owners where the Sultans were the supreme authority This changed once British colonized and brought in a uniform law code for the nation in 1911. This was a big reform considering the previous ways of using or acquiring lands by individuals which often had conflict and dispute of ownership as the island was uninhabited in many parts and the settlement came in after British colonized it. The National Land Code of 1965 made it more simplified and guarded the regional cultural practices as well with exceptions in few cases which were kept as it is since the days of Empirical Islamic traditional rule in some places.
Historical Background leading to Torrents System
Today around the Globe approximately 26 nations adhere to Torrens System of Land Administration, Malaysia being one of them. This form of land administration is used to describe the registration components of the land administration. The Torrens Land Management System is to have an interest being generated which is under the law. Thus this form gives land holdings, with some exceptions of no legal effect until formally registered. This system gives the description of the owner and certifies title entitlement along with restrictions. This has a map and surveyed plan that notes the boundaries of the land and allotment where electronic catalog systems are in use. Notably, the system deals with registration, equitable holding recognized by the law and possession of the landowner under specifics of the law. This gives the land ownership to only one person rather than other contemptuous ones who may have interest on the piece of land
In 1858, this system was first introduced in Australia for the need of the dispute between lawyers and other informal practices of landholding of that period. The current interpretation of the law in Malaysia comes from the Straits Settlement, Federated Malay state, and un-federated Malay states. In 1872 when the East India Company of the then British Empire landed on the island it was totally uninhabited. Therefore, there was no law of the land that was to determine the ownership which from the British side was immaterial as whether it was ceded or newly settled territory. Thus post-settlement there was an influx of population, so the English Parliament introduced English Common Law, and Equity which was later introduced in Penang, Malacca, Singapore and in 1855 the English Deed System was introduced as well. The land laws followed those days were local laws of the land, and Dutch grant was existent in the urban areas. So there was no common practice but the old traditional law of Malacca where the people who cleared the land and undertook any land with personal effort were there where a tenth of the revenue generated from those places was to be given as tax to the occupying Dutch.
Here the nature of ownership was not absolute but based on proprietary rights like land ownership but the utility of the land which suggests no absolute ownership.
The methods used were the acquisition of land virgin or forested to be used for agriculture, and a tenth was to be given to the local ruler. So if the owner did not utilize a piece of land without any reasonable cause, it was automatically forfeited by the ruler. The utility was important over owning a piece of land, so when the owner or utilize of the land decided to sell his piece of land, it would mean that the purchaser is supposed to pay the expenses incurred by the landowner for the development of it. In Malaya, it was called "puling belanja” or return of expenses. The owner could borrow money by showing the land owned as security with a collateral agreement to give back the borrowed money within a stipulated time else by law the land would automatically get transferred to the lender. However, such indigenous laws were abolished when in 1891 the land was declared under the Crown or English control.
However, Pahang was ruled by a Sultan or absolute ruler who was in control of all legislation in the state which he decided from time to time until 1937 Civil Law enactment was passed to have a common law and charter of justice in the Federated Malay State. Under the unified state, the first of Torrens resolution was passed called Selangor Registration of Titles regulation of 1891 in Malaysia. Under the Anglo-Siamese Treaty British gained control in 1909 of the entire state. The land system laws already prevailed as per the local customs of Islamic laws before the first introduction of Torrens laws. The General Land Regulation was slowly enacted in all states followed by the Registration of Title Regulation which was devised by English lawmakers of the then Malaya Federation. Hence, with a lot of good effort a law of land system was fully integrated by 1911 with FMS Land Enactment and FMS Registration of Title Enactment.
The Torrens System brought in the law that all land is under the ruler who could give or take land from people with due registration process under prescribed forms with the then authorities. The owners were given full ownership, and the traditional practice of acquiring virgin or forest land was abolished. Recording systems with forms were introduced. The Uniform Land laws were distinguished into two categories where the Land Enactment dealt with the country land of fewer than 100 acres. The Title enactment dealt with lands exceeding 100 acres. This system was amended in 1926 that came into force in 1928 which came to be cited as Land Code of 1928. So the land ownership got more clarity, adverse possession against the individual owners were stopped, and the revenue style for land was kept unaltered where one-tenth of the value of the land was to be paid, and specific cultivation rules were enforced.
Features of Torrens Title practiced in Malaysia
The National Land Code were enacted as drafted in 1928 post the nation's independence which was granted in 1965 and enacted from 1st of January 1966. This law was equally enforced in all states of independent Malaysia except in Sabah and Sarawak. This law in the land is used to enact the amendments and consolidate the laws about land and land tenure. The deal is a collection of revenue from the states to run the national business and get the connection among the various states via a common law. The desire for such law in the land was to consolidate on the uniform land system which would bring the titles of land under the state control via a singular law. Thus now it has given the government the tools needed to ensure the uniformity of law for land and related matters. The land tenure, registration of it, transfer, lease and charges in respect to land and its use related issues has been solved.
The currently applied form is the amended as on 1st of January 2006 which is in the application. The National Legislative Council decided to enact the law in federal level to get the Land Acquisition Act and Strata Titles Act. There are subsidiary legislations dependent on state assembly made rules and also do have the Malay Reservation System in place. The Act empowered the state to have ownership of all land under its jurisdiction and made the mining of rocks and minerals as a national property where states have limited access rights. The states regulations are owned by the governor of the state who also leads the state assembly.
The Act of 1965 makes it clear that Land is a state matter, and they are supposed to make rules for the state-owned land. Nevertheless, the Parliament of the nation has the right to pass laws to bring in uniformity between the state laws as per the National Land code's Article 74. The law gives the features like a registered document of title (RDT) which is available and retained by the Registry and land office. This information is available to the public for greater transparency in the system. The registered proprietor keeps the Issue Document of Title for the land (IDT) as an evidence of ownership. There is the Registry which follows two principles. The Mirror and Curtain principles, namely. In the Mirror the register gives the descriptions of the proprietor's details, nature of the land and particulars of that person who may have shown interest in the land. The Curtain principle makes the potential buyer to see the register he/she is interested in without any counter checking.
Hence, the NLC facilitates the unlawful possession of a land, may it be against the state or registered owner. Thus it's an instrument of right that protects the registered user's interests at all times. The state, however, reserves the rights to get the alienated lands under the state control in various circumstances. If the state gave the land, it has to be returned after the expiry of the term, under Section 130 the land can be rebuked due to non-payment of rent and breach of condition imposed during lease giving. Further, if the landowner dies without any legal heir or if the land is surrendered back by the owner to the state. These are the exceptions that the law provides to the users without registration for those lands under the state control. Nevertheless, the NLC is not concerned with those deals which are noncompliant with its requirements. The English made Civil Law Act of 1956 makes exemptions where the English principles of equitable principles relating to land tenure where English laws are not applicable in the Malaysian soil of made conveyances, assurances or succession of property like issues out of the equation.
Furthermore, the NLC demands registration for its application of its codes, would not affect the Contractual operations of any alienated land and its transactions. So the registration won't be bothering the dealing happening within the land if taken under a contractual agreement. Thus it's a balance between the user and owner which the NLC helps to comply with.
Concept of Indefeasibility in Malaysian NLC
Indefeasibility is the right of a registered owner in the Nation of Malaysia the right of owning their piece of land with a recognized border which needs registration under the NLC act. The guarantee to the land owners is their Indefeasibility of title where the interest is guaranteed under the provisions of law. This gives the person the ownership of the land by the state that can be used to revoke any lease agreement dispute or other person's claim on the land if the owner can prove the registration given by the state Without registration the state has the right to do as per their will if the land doesn't have the ownership registration. So the purchase document is not enough till it's registered under the law of the Code of 1965. The National Law Code (NLC) needs registration to handle cases which can be dealt with under its preview. This registration may be used by the owner to lease his land, transfer or charge for its use. For unregistered interests, the caveats are to protect unregistered interest.
The concept of indefeasibility is the central norm for any applied Torrens system with land registration provisions. This keeps the system simple, certified and in the books of the registration making the fundamental rights of the land owners more strength. The system has two steps which are immediate and deferred depending on the case scenario. This is a process of owning title for indefeasibility to be immediate a purchaser has to get the registration with documents to get such strong hold on the land, which may be a forged document used to get the permission, but it doesn't matter till the registration process is completed. The deferred one is such that the registration is done with forged papers or instruments. The change of name of registered owner needs to pay a transfer charge to get the indefeasibility which the registration document would show. This makes the process simple as it gives the bank to go through the register of registration for a certain loan in contrast to the bond of registered land is supposed to pay even if the deferred indefeasibility by the process of registration is given during the tenure. This makes the issue simple and easy for the banks to handle loans for such cases.
This indefeasibility is attained by the person when they receive the certainty of title which is applied by the registration process. Such registration can only be challenged via the NLC of 1965, where its importance and validity lies. This means that the claimant of the land is the one who is shown in the registers via curtain or mirror processes making the registering owner aware of any previous claims or have proceeded with the sale or transfer without prior notice. If there be any need, it has to be reflected in the register which the new owner should be aware of and comply with as per the Code. Hence this makes the title of registration more important than anything else for the owner in the legal stand as per the NLC of 1965.
Hence, the cardinal rule as followed by the laws of the land suggests that the registration of the land in the name of a person guarantees his belonging and ownership on the piece of land. It is by the prima facie indications unnecessary to find out how the name came on the registration, which may be via acquiring, by family ties or got as a gift till his name is registered with the government under the NLC. However, NLC is only for the properties with registration in government books, and the rest is not under its jurisprudence
The land transactions in the state have got a new dimension under the preview of the law. The clause of Indefeasibility cannot be overruled which is the most important component of the Torrens system followed in the nation. The intervention of legislation, in this case, is needed. However, as on date, the Torrens way of land ownership determination had been working fine with the people and the establishment where the registration of the land with surveyed boundaries is all that one need to be titled as the owner of the land. Nevertheless, fraud and misappropriate dealings has to be stopped in the process as the lands were inhabited and were taken by people who claimed it for use or utility. The NLC laws have made the process simplified for the government and the law to judge the real owner with registration details.
Agc-blog.agc.gov.my. (2012). S 340 National Land Code 1965 (NLC) |. [online] Available at: https://agc-blog.agc.gov.my/agc-blog/?p=1383 [Accessed 6 Sep. 2016].
Arter, F. (1960). A review of the torrens system and some aspects of title survey. Australian Surveyor, 18(2), pp.108-118.
Awang, A. and Ariff, S. (2013). Adat land laws in Malaysia. [online] Csdila.unimelb.edu.au. Available at: https://www.csdila.unimelb.edu.au/projects/tehran/Presentations/pdf/4-Adat%20land.pdf [Accessed 6 Sep. 2016].
Aziz, S. and Hanif, S. (2014). LAND ADMINISTRATION in MALAYSIA. [online] Aseanvaluer.org. Available at: https://aseanvaluer.org/wp-content/uploads/2015/02/Land-Administration-in-Malaysia.pdf [Accessed 6 Sep. 2016].
Faolex.fao.org. (2016). National Land Code (Amendment) Act 2008. [online] Available at: https://faolex.fao.org/docs/texts/mal91850.doc [Accessed 6 Sep. 2016].
Fght.utm.my. (2012). National land code (Penang and Malacca titles) Act 1963. [online] Available at: https://fght.utm.my/tlchoon/files/2015/09/NATIONAL-LAND-CODE-PENANG-AND-MELACCA-TITLES-ACT-ACT-518.pdf [Accessed 6 Sep. 2016].
Hutchison, T. (1958). XXXVIII. Robert Torrens and Classical Economics. Economic History Rev, 11(2), pp.316-321.
Jp-land.com. (2016). A Brief History of Malaysia Land Law | Learn & Understand More. [online] Available at: https://jp-land.com/a-brief-history-of-malaysian-land-law/ [Accessed 6 Sep. 2016].
Jupem.gov.my. (2016). Official Portal Ministry of Natural Resources and Environment (NRE). [online] Available at: https://www.jupem.gov.my/index.php?en&action=main&setcolor(); [Accessed 6 Sep. 2016].
Kptg.gov.my. (2016). National Land Code (Act 56 of 1965). [online] Available at: https://www.kptg.gov.my/sites/default/files/article/NLC1956DIGITAL-VER1.pdf [Accessed 6 Sep. 2016].
Maicsa.org.my. (2012). Excerpt from the National Land Code (Act 56 of 1965). [online] Available at: https://www.maicsa.org.my/download/technical/technical_announcements_150615_2_2.pdf [Accessed 6 Sep. 2016].
Maidin, A. (2011). Principles of Malaysian land law. [online] Cat.lib.unimelb.edu.au. Available at: https://cat.lib.unimelb.edu.au/record=b4271438~S30 [Accessed 6 Sep. 2016].
Massie, E., Brown, R. and Cannon, A. (1914). Report of the Committee on the Torrens System and Registration of Title to Land. The Virginia Law Register, 20(7), p.481.
O'Connor, P. (2003). Double Indemnity - Title Insurance & the Torrens System. QUT Law Review, 3(1).
Persekutuan, J. and Putrajaya, K. (2011). Review of the National Land Code 1965. [online] Ptgns.ns.gov.my. Available at: https://ptgns.ns.gov.my/NLC%20Review%20Consultation%20Paper.pdf [Accessed 6 Sep. 2016].
Ruffin, R. (2005). Debunking a Myth: Torrens on Comparative Advantage. History of Political Economy, 37(4), pp.711-722.
Sood, T. (2016). The Malaysian Bar - Basics of Indefeasibility under the National Land Code. [online] Malaysianbar.org.my. Available at: https://www.malaysianbar.org.my/property_law/basics_of_indefeasibility_under_the_national_land_code.html [Accessed 6 Sep. 2016].
Taylor, G. (2008). Is the Torrens System German?. The Journal of Legal History, 29(2), pp.253-285.
Xavier, G. (2012). Indefeasibility of Title in Malaysia—The Revivification of Deferred Indefeasibility under the Torrens System— Focus on Fraudulently Obtained and Forged Titles. [online] Repository.um.edu.my. Available at: https://repository.um.edu.my/22524/1/9.%20Indefeasibility%20of%20Title%20in%20Malaysia.pdf [Accessed 6 Sep. 2016].