TRANSFER

Sharifah ZubaidahOctober 9, 2008

Introduction:

• A transfer is a type of dealing where the registered proprietor transfers the title (and thus ownership) of the land (or interest in

land e.g. lease, tenancy or charge) to another party by way of executing Form 14 and presenting it for registration at the land

office.

What We Will Cover:

• 1) What Can Be Transferred• 2) The Prohibition Against Transferring A

Part Only of Alienated Land• 3) Need for Instrument of Transfer• 4) Restriction on Transfer of ‘Estate Land’• 5) Transfer of Leases, Charges and TER• 6) The Position of Stakeholder Extinguished

Upon Execution of Transfer

What Can Be Transferred?

• See s.214(1) • (It mentions 5 things that can be transferred)

Need for An Instrument of Transfer

• See s.215(1) (F.14A)• Effect of Transfer?• See section 215(2)• Note however that the execution of F14A

itself does not vest any title until the instrument is properly registered at the land office. (See - s.304(1))

How Will the Transferee Hold the Registered Title?

• See s. 215(3) NLC

Prohibition On Transfer of Only Part of Alienated Land

• Scenario:• Aziz owns 100 acres of land held under one

document of title.• Aziz plans to sell only 50 acres of the land

to Borhan.• Aziz seeks to register the transfer of only 50

acres at the land office.• The transfer is rejected.

Why Was the Transfer Rejected?

• See s.214(1) again.• Punca Klasik S/B v All Persons In

Occupation of Wooden House…[1996] 5 MLJ 92 (HC):

• “Section 214 NLC prohibits totally the transfer of a part of any alienated land or a part of an undivided share in that land.”

Rationale for Prohibition

• See Punca Klasik ‘s case where Justice Abdul Malik gave the rationale – there can only be one title to one piece of land.

• If the registered proprietor wishes to transfer a part only of that land, he must apply for subdivision first and get a separate title. Then transfer the separate title to the transferee.

Peter Lai Kee Chin & Anor. v. Collector of Stamp Duties [1973] 2 MLJ 33

• The proprietor wished to make a gift of a one-half interest in his land to his wife.

• As it was not possible to transfer a part only of the land, he executed a transfer of the whole land to himself and his wife in equal undivided shares.

• This procedure was accepted by the registrar.• Note: The above procedure can only be

resorted to if the proprietor wishes to retain a portion of land to himself.

Md. Kamis b Yakob v Ismail b. Abdullah [1995] 2 CLJ 238

• The plaintiff entered into a sale and purchase agreement with Bakar whereby Bakar agreed to sell tha land to the Plaintiff.

• Under the SPA however, Bakar was not the landowner but is a person who has a right to part of the land belonging to the deceased.

Held:

• A person who has no ownership of the land has no right to transfer land under the SPA.

Transfer of Estate Land

• See section 214A

Transfer of Leases and Charges

• Section 218

Transfer of Tenancies

• Section 220

Transfer Without Monetary Consideration

• Gratituous transfers are allowed under the NLC on the following terms:

• a) On terms of ‘love and affection’ (parent-child)

• b) Gift (e.g. husband-wife)

Transfer by Operation of Law

• a) Death• b) Bankruptcy• c) Order for Sale/ Foreclosure

• See discussion in pp.189-191 of your textbook (Ainul, et.al.)

Position of Stakeholder

• Where a solicitor is stakeholder in a SPA (the purchaser’s bank will forward the loan amount which forms the balance purchase price to the purchaser’s solicitor as stakeholder pending registration of the transfer), the solicitor is no longer regarded as stakeholder on the signing of the transfer form by the parties and the certainty that the transfer could be registered free from encumbrances.