summary of the article: Wong, David, “Effect of unregistered purported lease under the
NLC” (1973) 1 M.L.J xxxvi-xliv



General view

There are some issues that I can divulge from this article. Generally speaking, the writer lucidly discussed about the early authorities, the 1911 Enactment (Federated Malay States), Selangor Registration of Titles Regulation 1891 and Federated Malay States Land Code of 1920. Nevertheless, he also touched about the issue of “departure from the past” (Federated Malays States Code of 1920) and “lease in possession under a void lease”. He also can see the magnitude of the problems in the issue of “purported lease as an agreement for a lease”, effect as agreement and also lessees’ alternative remedies.

Commentary

Selangor Registration of Titles Regulation 1891 (s.4) and the Registration of Titles Enactment 1911 had nullified any purported dealings outside the statutory system. Prior to these Regulations, there was no clear law governing the formalities of dealings with the land in Malay States. In some cases, English conveyance forms were used.
Woodward J.C, categorically observed that even if the sub-lessee had, as the alleged, spent money on the improvement of the land, no equitable relief would be extended to him, for he had brought hardships upon himself by “accepting as his title a worthless document contrary to the express provisions of the law”
The document in question could not be treated as a contract to assign an after-acquired property, while admitting that a contrary view might have been well founded in equity under English law. Moreover, it would appear that once, A for example, was tainted with entry under avoid lease, he was only the culprit to be blamed for his own foolishness and nothing would the law do even if merely to secure him his occupation of the land under a short periodic tenancy.
In the Federated Malay States (FMS), the 1911 Enactment remained in force until replaced by the FMS Land Code of 1926. Besides that, under English law, a tenant possession and paying rent under a lease which is void because of formal defect is treated as a yearly tenant who is entitled to a six-month notice quit.
Furthermore, it seems to have been a misconception of the early judges in failing to rely that a periodic tenancy arising by implication of law is founded on the conduct of the parties, like, possession, payment and acceptance of rent.
However, an unregistered purported lease should still be regarded as null and void even to the extent of denying the conduct of the parties there under any effect whatsoever (Harnam Singh vs. Ho Seng [1933] F.M.S.L.R.). If an instrument clearly purported to be a present demise but was void for being unregistered, it could not operate as a contract. Under English Law, where an agreement for a lease is capable of specific performance, the purported lease is regarded as having taken effect in equity as if the lease had been duly granted in the first place.


Conclusion


In such a case, the question as to whether a contract for land dealing could create an equitable interest in land is directly pertinent to the question whether or not a caveat may be lodged to protect a claim under the contract. Prior to the present NLC, local decisions were in consistent as to whether a claim under a contract for land dealing could be protected by a caveat (Tee Chin Fong vs. Ernest Jeff [1963] MLJ 118). In Sim Cho Phong vs. Jit Seng Tong Association [2000] MLJU 363 (other case that I refer than this article), it was held that, a lease for more than one year must be registered. If such a lease is not registered, it is void under the Sarawak Land Code. A lease can create an interest on that particular land. Actually, starting from this point, a lessee must register his interest under NLC in order to get any refuge or benefit, and if we look at deeply to the section 5 of the NLC, clearly stated as registered lease. Land ownership is protected by the NLC and guaranteed by the Federal Constitution. Under the NLC, if a person is registered as owner of a piece of land, his title (or interest) is “indefeasible.” (Other article that I refer: A primer on land ownership by Salleh Buang, 11/05/2002 NST)