BY CHRISTOPHER CHAN
A TITLE is defined as a person’s right of ownership of property. In a sense it is a birth certificate to a property much like what it is to a human being.
To fully comprehend and appreciate what I am talking about here, we would have to go back in time and take a walk down memory lane tapping into our rich source of history in relation to titles.
Historical perspective
Prior to the arrival of the British, land tenure in Peninsular Malaysia was based on customary land tenure. Under customary system of land holding, any person who carried out the task of clearing waste land was entitled to occupy it provided he cultivated it and gave one-tenth of the produce to the State.
In Sabah & Sarawak, similar customary land ownership systems were also in existence. When the British arrived on our shores, English laws of property and conveyancing were introduced where privately executed deeds were the basis of title to land. Deeds are basically a written document signed and sealed as proof and record of an agreement.
Under the British system of deeds, this essentially represented a chain of title deeds all of which had to be in place to enable a property to be transferred. Problems arose when one document in a stack went missing. This may frustrate a transfer of a property from one person to another.
Torrens system
Later when British influence and rule spread to the rest of Peninsular Malaysia, the new Torrens system of land registration was introduced. This system had only recently been ‘discovered’ in Australia and was the beginning to be found superior to the existing English system as it enabled a simple, cheap and effective system of land tenure and registration.
The Torrens title system provided a secure and reliable land title system.
The Torrens title system – named after South Australian Sir Robert Richard Torrens, who was largely credited with designing and implementing it – is a method of recording and registering land ownership and interests.
Established in South Australia in 1858, the then revolutionary and efficient land titling system was adopted throughout Australia and New Zealand, and subsequently spread across the world. Countries now using the system include, among others, England and Wales, Ireland, Malaysia, Singapore, Iran, Canada and Madagascar.
The distinct advantages of the Torrens system as compared to the English system are as follows:
The land titles Register accurately and completely reflects the current ownership and interests about a person's land.
Because the land titles Register contains all the information about the person's land, it means that ownership and other interests do not have to be proved by long complicated documents, such as the English system.
Torrens created a central registry where all transfers of land are recorded in the register, thereby producing a single title with a unique number that also records easements, mortgages and discharges of mortgage.
The main object of the Torrens Title System is to make the register conclusive. Once your name is registered on the Torrens Title register, you become the owner of the property to the exclusion of all others. You therefore obtain ‘title by registration', which is a pivotal concept under the Torrens system.
National Land Code 1965: The land registration system in all states in Peninsula Malaysia is administered by the State land Offices & coordinated by the Department of Land & Mines.
Central to the Torrens system is the concept of 'indefeasibility of title’. Based on this concept, once an interest is registered, it is good against the whole world. The State guarantees the interest. No one can then go and claim your interest in the title.
This applies provided that the title deed to your property has been issued and has been registered into your name. For circumstances where your title to your property has yet to be issued by the authorities, you are then not accorded with this ‘indefeasibility of title’ for the time being. In this instance, your rights to the property are contractual rights as provided for in the agreement executed between you and the other party.
The main land law in Peninsular Malaysia today is the National Land Code (NLC) 1965 which came into force on 1 Jan 1966. The concept of ‘indefeasibility of title is deeply embedded in the NLC. Sabah and Sarawak have their own sets of laws: Sabah Land Ordinance 1930 and Sarawak Land Code 1958.
(This is the first part in a series of articles).
>> Christopher Chan is a registered estate agent and an associate director with Hartamas Real Estate (Malaysia) Sdn Bhd. He has been in the real estate industry for 22 years. He can be contacted at +6012-2323 837 / christopherchan@hartamas.com.
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