PRIVATE CAVEATLand Law Part II

INTRODUCTIONReferred as general/personal caveat entered on RDT by Registrar upon application.

Protecting the Status Quo - Damodaran v Vasudeva

A Procedure to freeze the position of the claimant until dispute settled - Miller v Minister of Mines

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Effects of PCSection 322(2) & (3)

Binding the said land / a particular interest in land.

Preventing dealings from happening including certificate of sale on land.

Preventing LHC

Preventing endorsement of Tenancy exempt granted by Registered proprietor.

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ExceptionsSection 322(5)(a)&(b) - PC shall not prohibit the Registration/Endorsement of any instrument where:

Application for endorsement was made by person/body at whose instance the caveat was entered;

Theres consent by caveator in writing to the registration of instrument.

No instrument effecting the land can be registered while it is in force. Entry of caveat does not make claim/right better/worse. - Macon Engineers S.B

PC does not have effect in altering the ownership of land. MErely functions as notice of a claim/ priority of claim. No restriction as to the numbers of caveats may be entered. Priority is according to the order of endorsement. - Eng Mee Yong v Letchumanan

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Procedures - s.324Filing Form 19B stating expressly whether caveat is to bind land/ only a particular interest in land.

If to bind particular interest in land, caveator must attach plan of the affected area.

Application be supported by Statutory affirmed by caveator & the prescribed fees.

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Registrar’s DutiesSection 322(1)(a) - Upon application by person in s.323, a private caveat may be entered. Purely administrative in capacity.

If the application all being fulfilled, Registrar may enter it;

Form 19B completed, executed & attested,

Accompanied by a Statutory Declaration made by caveator,

Prescribed fees payable to Land Office.

Endorsement be made by Registrar provided in s.324 by specifying date & time of entry.

Registrar have no discretion to reject application if all requirements are fulfilled - Nanyang Development S.B v How Swee Poh

S.324 - PC will take effect upon endorsement on the RDT.

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who can apply?S. 323(1)(a)(b) & (c) : Has ‘caveatable interest’

• Person claiming title/registrable interest in • Person claiming to be beneficially entitled under any trust

affecting land/interest • Guardian/next friend claiming to be entitled under trust which

affects the land.

Must also be parties who are capable of affecting dealing with land/interest with the land pursuant to: • S.43 - Capacity of person who is allowed to deal w alienated land • S.205(2) - Persons capable dealing with land • S.433A - Provision is relevant to non-citizens

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Caveat cannot be retained & can be removed by the Registrar (s.326)/ by court (s.327)

To be caveatable, claim must represent claim that can lead in making a substantive entry on the register, either because;

• interest will become registrable/ • it is for equitable relief by way of specific performance enabling registration.

If claim not represent transaction potential of registration, then claim is not caveatable.

A personal claim that is enforeceable upon the owner & not land cannot be caveated.

• in personam interest - purely personal & cannot bind the land by court relief. • in rem/in personam & ad rem interest binds land without the neet to resort

to the court assistance - Bachan Singh v Mahinder Kaur

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EM buxton & Anor v Packaging Specialists SB. • Caveator agreed to but the caveated land but had defaulted which result in

forfeiture of deposit. • Caveator refused to continue as 56% of the land was subject to land acquisition

notice. • Caveator denied the right of vendor to forfeit the deposit & sought recovery. • Propreitor wanted the caveat to be removed on grounds that the caveator has no

caveatable interest. • Caveator claimed although his interest was unsecured debt, it had arisen out of a

land transactiion which should be caveatable. • Cout held: Since the caveator does not claim under S.Perf it shows that he has no

interest in buying the land and thus cannot be said that his interest is capable of being registered.

• Respondent caveator only has claim in personal against the applicant. Bcs caveat is not a proper claim in protecting the claim as it is not capable of being registered under Torrens System.

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S.323(1)(a) - Referring 2 distinct circumstances giving rise to caveatable interets

• 1st Limb - ‘any person…alienated land’ • Involving situation where claimant has no unregistrable

interest. However has possibility in substantive entry that is to be entered in the RDT.

• Unregistered but registrable interest • 2nd Limb - ‘any right to such title/interest’

• Claimant has unregistrable interest.Claim in its present form not capable of causing substantive entry in the RDT

• Unregistered & unregistrable Interest.

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Caveatable Interest - Exists if there’s right to title/registrable interest in land.

Holder of such right - acquire immediate right/ right which rise upon completion of the registration of dealing.

Krishna Kumar v UMBC - Propreitor charged his land for funds however defaulted. The 3p then agree to provide additional security, subject to consent of 1st chargee. But consent was refused on basis that 2nd chargee delayed in sending the docs to 1st chargee. 2nd chargee then caveated land.

Goh Hee Sing v Will Raja & Anor - Held that no caveat can be entered on basis that caveator did not have caveatable/registrable interests.

• since the permission from State Authority is important and it has not yet been recive the purchaser has no valid contract and thus has no registrable/ caveatable interest.

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1st Limb

Miller v Minister of Mines • It is clear that a personal claim enforceable only

against the registered propreitor but not to the land cannot be caveated.

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2nd Limb

s.323(1)(b) - If become beneficiary to the trust, then receive something from the land, the person involved may enter into Private Caveat.

• Beneficiary must show existence of trust affecting the land & that claimant is beneficially entitled

• If B, is a minor, the caveat may be entered by his guardian/next friend. • Can be given by Registrar • Can enter into Trust Caveat if require him to prevent dealings on the

trust property.

Khoo Teng Seong v Khoo Teng Peng - The executor wished to sell the land to a company. Beneficiary wish to stop S&P as it was sold under the market value. Court hedl that tehre is no beneficiary as the land was solely given to B.

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C.I - Express trust

Caveating own landExpressly provided to be available to persons specified in S.323(1)

Generally : Registered propreitor is prohibited from caveating his own land UNLESS can show existence of an interest to that arising beyond his legal propreitorship. ( A serious q to be tried)

2 Views ;

1. EU Finance Bhd

2. Hiap Yiak Trading SB & Ors v Hong Soon Seng SB14

eu finance bhdCannot seek caveat upon own’s land because; • A Registered P is a person who relies on his status as a

registered p must necessarily be a person who already posses title/interest in land.

• & not merely person claiming title/interest. • Must be a matter of logic be excluded s.323(1) • Registered P must establish some se of circumstances which

gives rise to a distinct interest in the land distinguishable from which he holds as registered proprietor.

• Syarofah Mastura’s case - In order to sustain, the person involved whill have to show that there’s a pendinf issue to be tried on.

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Hiap Yiak Trading SB

Contrary view as case decided before, where a Registered P may caveat his own land provided that he seek the discretion of the Registrar to enter into RC.

Boonsom Boonyayit

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QuestionCan specific portion of lanf be lodge w pc to protect his interest?

• Since the caveator has it’s own portion, he may be still caveat the whole land.

• But must specify that the portion of the land is subjected to any restrictions available.

N. Vangedasalam v Mahadevan & Anor - The appellant in this case had claimed an interest in a portion in a piece of land and brought an action for specific performance against the registered proprietor so that the portion in question could be transferred to him. He had also entered a caveat against the land. When the registered owner of the land died, his personal representatives applied to the court to have the caveat removed and the trial judge allowed the application.

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QuestionAppeal - Held that a person claiming interest in specific portion of land may caveat whole land. But must states expressly the the caveat is only to cover the particular interest of the land.

Amendment s.322(1) - That cannot caveat the whole land. (After the amendment but before the 2001 amendment)

Settled in Chor Phaik Har’s case - Even it is true that the claimant may not caveat the whole land but the wording does not say anything about the validity of caveat over whole land. Those effect is limited to protect claim to a registrable interest in a portion/undivided share. And therefore, it can be caveat upon whole land.

• Amendment 1985 does not say about whole land and thus the whole land can be bind.

• Amendment 2001 - Allows caveat whole land but must write/attach the plan of land affected/

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Duration of PC

s.328(1) - Remain in force 6 years after that the caveat lapse and cease to have effect.

If extend, application must be made within 6 years - Goh Keng How v Raja Zainal Abidin bin Raja Hussin

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Removal of pcRemoval can be made before and after lifespan (6 years lapse)

If before, can be made removal by:

1. s.325 - Caveator (Form16G+reasons) • Inform the Registered proprietor

2. 2.326 - Registrar • Applicable to registered interests • Apply to Registrar Form 19H But 19C given to the caveator. • App be made before the registration of a dealing by caveator/party w consent

of caveator - S.322(5)

3. s.327 - Court • Applicable for aggrieved party to apply to court • Taken by person who has no standing under s.325 or under s.326

• Usually the one applied, has the BOP. However in this part, it differs from the originality.

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Removal of pcUnregistered Interest holder does not have the right to apply removal of pc - Tan See Hock v Development & Commercial Bank

Because he was not recognised under the Torrens System.

Compensation be made to any person who suffers damage/loss

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