Private Caveat in Malaysia

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  • Topic: Real property law, Torrens title, Land tenure
  • Pages : 12 (4492 words )
  • Download(s) : 46
  • Published : December 15, 2012
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PRIVATE CAVEAT
Introduction
The Peninsular Malaysian land administration system is based on the Torrens system; a system of acquisition of title and interests in land by way of registration of instruments of dealings. It is a legacy of the British colonial masters that provided the people with security in dealing with land. The first legislation based on the Torrens system was passed in 1870 in South Australia and it reached the shores of Peninsular Malaysia in the 1920s. The system was, and is, a great improvement in facilitating the transfer of title and interests in land compared to the deeds system initially developed by the British colonialists in introducing land administration system in all its colonies.

The introduction of the Torrens system of registration of dealings in Peninsular Malaysia is a result of the International Bank of Reconstruction and Development‘s effort in consolidating the various land laws prevailing in the country. The system was embodied in the National Land Code 1965 which came into effect on the 1st January 1966. From this date a uniform system for administration on matters relating to land tenure was created for the twelve States in Peninsular Malaysia.

What is Caveat
The word caveat means beware, and the lodging of a caveat over a property is a way telling anyone who wants to deal with the property to be aware of the fact that someone else's interest already has priority. In other words, a caveat is a written warning to anyone who checks the Certificate of Title of the property that the person who lodged the caveat has an interest in it. The Registrar of Titles cannot deal with the property without first notifying the caveator.

The purpose of the caveat therefore is to generally forbid the registration of any dealing with the land in question so as to preserve the estate or interest protected under the caveat. Caveats are generally referred to as stopper documents. 'Caveat emptor' is a Latin phrase, which translates to 'let the buyer beware'. The person lodging the Caveat is called the Caveator and the person who owns the land, the registered proprietor, is called the Caveatee. Caveats are registered on Original Certificates of Title only - they do not appear on the duplicate Certificates of Title. Therefore, it is important that anyone dealing with land must view a current Register Search of that particular Certificate of Title and not rely on the duplicate Certificate of Title.

In the National Land Code 1965, there are four types of Caveat been described perfectly under the Code, namely; Registrar’s Caveats; Private Caveats; Lien-holder’s Caveats and Trust Caveats. Private Caveat

However, in the concept of Private Caveat, is governed under the provision of sub-ss 322 to 329 of the Code. A private caveat is lodged when a person or body claims to have an interest in a land belonging to a 3rd party. Hence, the lodgement of a caveat is intended to inform the world at large of the existence of a person or body’s interest on the land. Besides being a notice to the world at large, a lodgement of a caveat would also prohibit any dealing with the land until and unless such a caveat has been removed. Hence, the actual purpose of having to lodge a private caveat is to maintain the status quo of the land in order that new proprietors or new interest is not created on the land and the interest of parties whilst the validity of the 3rd parties interest on the land is determined by the court of law. this principle was addressed in the case of Registrar of Titles, Johore v Temenggong Securities Ltd by Lord Diplock.

A right over a land cannot be claimed merely through the lodgement of a caveat as the lodgement of a caveat does not vest immediately any legal interest on the land. In the fact the lodgement of a caveat does not vest any interest at all over the land and the reason being, the caveat is merely supposed to be a notice of a claim over the land and nothing more. Only the court...
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