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The government has implemented a law that protects and benefits its landlord and the tenant of the land for a period of time so that both parties can have the benefits of the land and have it registered in the Register of Titles so that the alienated land is leased under a formal and written lease agreement. With that, the current legislation is ideal as it favors to both parties the landlord and the tenant.

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Bukit Kiara Resort Bhd v Dato Bandar Kuala Lumpur [2012] 2 MLJ 783

The plaintiff leased land ('the first lot') for 70 years from the defendant to develop and operate the Bukit Kiara Club. When alienating the first lot, the Land Authority had restricted its usage to equestrian and recreational activities only. Realising the need for additional land for the development of a polo field and grandstand, the plaintiff agreed with the defendant that the latter would apply for the land adjoining the first lot ('Lot 52314') for that purpose. The land office approved the defendant's application for Lot 52314 'as additional land to the first lot' and restricted its usage to equestrian, recreational and polo activities. A premium of RM4,221,154.99 chargeable on the alienated land was billed to the defendant but paid by the plaintiff. The plaintiff then set about developing Lot 52314 with an equestrian centre, polo field, grandstand, stables, horse track/trail, horse riding school, and indoor tennis and basketball courts, all of which cost an estimated RM22.5m. The plaintiff and defendant held several discussions and exchanged draft agreements for the lease of Lot 52314 but no agreement was formalised. Problems arose when the defendant informed the plaintiff that it intended to surrender Lot 52314 to the Federal Government for the development of a large scale public park and issued a notice to the plaintiff to quit and deliver up vacant possession of the property within 90 days. The plaintiff objected, saying there was a concluded oral agreement between the parties for the plaintiff to have a 70 year lease of Lot 52314. The defendant denied there was any such agreement as the parties had merely had negotiations for a lease and nothing had been formalised. The plaintiff filed the instant action for various reliefs, but ultimately prayed for only specific performance of one of the incomplete draft lease agreements that had been exchanged between the parties. The court held granting the claim with costs and ordering the parties to enter into a formal and written lease agreement for Lot 52314 that the actions of both parties prior to and after the alienation of Lot 52314 were consistent with there being an oral agreement or understanding between them that the subject Lot was to be leased to the plaintiff as additional land for the running of the resort.

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According to Section 221 of NLC a lease must exceed three years

Maximum term:
- 99 years (for whole of land)
- 30 years (for part of land)

If does not exceed 3 years
-Tenancy Exempt from Registration (TER)

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The lessor, lessee or sub lessee

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The whole of alienated land

Part of alienated land

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1. The lessee has the exclusive possession of the property.

2. The duration is precise and certain.

3. The lessor intends to create a lease rather than a licence.

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Section 206 of the NLC states that in the case of a lease or a sub-lease, a proper instrument of dealing, such as Form 15A or Form 15B, must be duly registered in order to give effect to the transfer or creation of the lessee's interest in any alienated land or part of alienated land.

Section 206 (1) (b) of the NLC stated that “no instrument effecting any such dealing shall operate to transfer the title to any alienated land or, as the case may be, to create, transfer or otherwise affect any interest therein, until it has been registered under Part Eighteen.”

According to the preceding section, an unregistered lease is void for non-registration. Despite the fact that a lease is void for non-registration, Section 206(3) of the NLC recognizes the law of equity and the right in personam, which entitles a lessee to sue for specific performance under the lease agreement.

When it comes to the law of equity and right in personam, the court will decide the case based on the terms of the parties' contract or agreement. As a result, lessees should register their leases in order to enforce their rights and interests on a specific piece of land under the NLC.

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Section 222 of the National Land Code on the other hand provides power to the lessee and sub-lessee to create sub-leases of the whole or any part of the land comprised in his lease or sub-lease. Just like every lease, every sub-lease granted pursuant to this Section 222 shall be for a term exceeding three years. However, Section 221 (3) (a) of the NLC states that “Where any sub-lease so granted relates to a part only of any alienated land, the term thereof shall not exceed thirty years.” The form needed to register a sub-lease is Form 15B as described in Section 222(4) of the NLC as follow stated “Every such sub-lease shall be granted by an instrument in Form 15B; and in any case where the sub-lease relates to a part only of the land comprised in the grantors’s lease or sub-lease, there shall be attached to the instrument a plan and description sufficient to enable the part to be accurately identified.”

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“Lease” is registered lease or sublease of an alienated land.

SECTION 221 OF NLC
Provides power to the proprietor to create a lease on the whole of alienated land or part of the alienated land. Every lease granted pursuant to this Section 221 shall be for a term exceeding three years.

Section 221 (3) of the NLC further states that “the maximum term for which any lease may be so granted shall be (a) ninety-nine years if it relates to the whole of any alienated land, and (b) thirty years if it relates a part only thereof”.

As mentioned earlier, there is a requirement under the NLC for the lease to be registered. The registration of the lease will result in the fact that the letting of the alienated land or part of the alienated land endorsed on the register document of title and therefore in the Register of Titles. The form needed to register the lease is Form 15A as described in Section 221(4) of the NLC as follow stated that “Every such lease shall be granted by an instrument in Form 15A; and in any case where the lease relates to a part only of any alienated land, there shall be attached to the instrument a plan and description sufficient to enable the part to be accurately identified.”

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The government should consider to simplify the procedure of transferring one land as they are way too many documents needed.

Furthermore, it takes around on average three months to complete a land transfer. if there's a need for state authority consent, it could take more than six months to complete which is a long time.

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BERJAYA TIMES SQUARE SDN BHD v TWINGEMS SDN BHD & ANOR [2012] 9 MLJ 510; [2012] MLJU 229; [2012] 1 LNS 166

The first defendant entered into a three-year fixed-term tenancy agreement with the plaintiff to rent space in the Square for a food and beverage outlet. However, after only 77 days of operating its business at the demised premises, the first defendant closed its business and sought the plaintiff’s agreement to a mutual termination of the tenancy agreement. The plaintiff did not agree and requested the first defendant to resume their business and also pay all outstanding rentals and payments that were due. The defendant, however, returned the keys to the premises to the plaintiff and abandoned the premises after moving all its belongings out. The plaintiff gave the defendant notice of its liability for unilaterally terminating the agreement and fixed a date for both parties to inspect the premises which the defendant did not respond. The plaintiff commenced the instant action to recover all amounts due under the tenancy agreement including amounts payable under the unexpired term of the tenancy. The defendants contended that they entered into the tenancy agreement in reliance upon the false promises and misrepresentations of the plaintiff’s agents or servants who had made out the premises to be a good location for the defendants’ business. However, as it turned out, most of the features promised by the plaintiff to complement the defendants’ business were not built or provided resulting in few people frequenting the area where the premises was located which the defendants suffered losses.

The court allowed the plaintiff’s claim and dismissing the counterclaim as the defendants did not call any witnesses to corroborate their allegation that the first defendant had entered into the tenancy agreement because of the misrepresentations made by the plaintiff’s agents or servants. Furthermore, misrepresentation was an afterthought as the defendants had merely proposed for early termination of the tenancy agreement and had never cited the alleged misrepresentations as being the core reason for the termination.

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Hiap Soon Hong Sdn Bhd v Leopad Assets Sdn Bhd [2021] 7 MLJ 797

The plaintiff owned a piece of land which it agreed to sell to the defendant for RM17m pursuant to a sale and purchase agreement. Upon paying the deposit, the defendant was given vacant possession of the land. The SPA was conditional upon the plaintiff’s fulfilment of certain conditions precedent within six months of the date of the agreement. The defendant is obligated to pay the remainder of the purchase when the CPs had been fulfilled. A little more than two years after the date of the SPA, the defendant notified the plaintiff that it was terminating the SPA as the plaintiff had not fulfilled the CPs and demanded for the refund of the deposit. In response, the plaintiff filed the instant suit for a declaration that it had fulfilled all the terms and conditions under the SPA, that the defendant’s termination of the SPA was unlawful, and that the plaintiff was entitled to forfeit the deposit on the defendant’s failure to pay the balance purchase price. In its counterclaim, the defendant sought a declaration that its termination of the SPA was lawful and valid. It also prayed for the refund of the deposit and for damages. The court held that the plaintiff had delivered all the documents required for the CP after the time for submission had lapsed. The defendant did not exercise its right or take steps to rescind the contract immediately upon the expiry of the stipulated time. The plaintiff was entitled to forfeit the deposit paid under the SPA. The defendant was not entitled to any damages under its counterclaim since it was the defendant who had unlawfully terminated the contract.

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DEFINITION
A lease is an agreement between the landlord (lessor) and the tenant (lessee) under which the tenant will have all of the rights to the property that the landlord (lessor) has granted, unless otherwise specified in the tenancy agreement.

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The transfer of agricultural land must not be less than half acre.

Estate land cannot be transferred unless the transfer has been approved by the Estate Land Board.

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Registered proprietor (see Md Kamis Yaakob v Ismail Abdullah [1995] 2 CLJ 238)

Nemo dat quod non habet (maxim = no one gives what he does not have)

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S.215 of The NLC

The title of the land is passed to the transferee upon the registration of the land.  Bestows Indefeasible title or interests.  It is subject to existing encumbrances and conditions or restrictions in interests, if any.

s 217(2), the share so transferred shall pass to and vest in the transferee upon the registration of the transfer.

Transfer of lease or charge:
s 219(2), any transferred lease or charge shall be enforceable by or against him as if he were a party if it continues vested in the transferee; and, unless the instrument of transfer provides, there shall be implied part on transferee and in favour of the transferor in an agreement.

s 217(3), at the time when any undivided share is transferred, s. 216 shall
apply, mutatis mutandis, as they apply on the transfer of land subject to a lease, charge, or tenancy.
the title or interest of any person for the time being
registered proprietor after registration is indefeasible.

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Form 14A (for transfer of land, undivided share, and lease) S215(1), S217(1), S218(1) of The NLC

Form 14B (Transfer of charge) S218(2) of The NLC

May be transferred by word of mouth or by a written instrument in any form. S220(1) of The NLC

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DEFINITION
Transfer.

According to Section 214 of the National Land Code.

A transferable land includes the whole, but not part only of any alienated land.

The whole, but not part only of any undivided share in any alienated land.

Any lease, any charge, any TER

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Malaysia does not have a legislation that deals specifically with landlords and tenants. If both landlord and tenant are not equal in footing in terms of bargaining power. Hence, their rights either as a landlord or a tenant may not be well protected. There is no specific law dealing with rent control and other related matters that lead to tenancy disputes. These include issues on security and rental deposit, quality and safety of the rented house, termination, eviction, and a mechanism for dispute settlement.

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S. 225 of The NLC explains on the general restrictions on powers conferred by this Chapter.

(1) The powers conferred by this Chapter shall be exercisable in any particular case subject to-

(a) any prohibition or limitation imposed by this Act or any other written law for the time being in force.

(b) any restriction in interest to which the land in question is for the time being subject; and

(c) so far as they are conferred on lessees, sub-lessees and tenants, the provisions, express or implied, of the lease, sub-lease or tenancy in question.

(2) Without prejudice to paragraph (a) of sub-section (1), no lease or tenancy may be granted to two or more persons or bodies otherwise than as trustees or representatives

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S223(1) of The NLC

Subject to the provisions of sections 225 and 226, tenancies (or subtenancies) for terms not exceeding three years may be granted as follows-

(a) by the proprietor of any alienated land, in respect of the whole or any part thereof.

(b) by any lessee or sub-lessee for the time being of any alienated land, in respect of the whole or any part of the land comprised in his lease or sub-lease.

(c) by any person for the time being holding any alienated land under such a tenancy of sub-tenancy, in respect of the whole or any part of the land so held.

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S213(2) of The NLC

As provided in sub-section (2) of section 206, the provisions of sub-section (1) of that section shall not apply to the creation of, or dealings affecting, tenancies exempt from registration, and accordingly-

(a) any such transaction shall be valid whether effected in writing or by word of mouth only.

(b) where any such transaction is effected in writing, the instrument in question need not comply with the requirements of sections 207 to 212, and shall neither require, nor be capable of, registration under this Act.

S223(2) of The NLC

As provided by sub-sections (1) and (2) of section 213, tenancies and sub-tenancies granted pursuant to this section shall constitute tenancies exempt from registration, and may be so granted either by word of mouth or by a written instrument in any form whatsoever

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S213(1) of The NLC stated that:
In this Act "tenancy exempt from registration" means-

(a) any tenancy or sub-tenancy for a term not exceeding three years granted pursuant to section 223; and

(b) any tenancy or sub-tenancy for a team not exceeding one year granted pursuant to the provisions of any previous land law

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Fixed Term Tenancy:
Has definite beginning date & ending date and may have an option to renew in the agreement

Periodic tenancy:
A tenancy for some period as determined by the term of the payment of rent. Can be yearly/monthly/weekly basis

Tenancy at Will:
Where a tenant occupies a property with the consent of the owner but there is no written agreement between the parties that specifies a definite payment of rent or the tenure of the rental

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The term “tenant” means the individual who is provided with a tenancy to a particular property. An individual can mean a natural person, corporation, or other such entity according to the relevant law.

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The term “landlord” denotes a person who legally owns or has a beneficial interest in the property. This term applies to residential properties, as well as to commercial properties

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DEFINITION

Tenancy is an act letting of land for a term not exceeding 3 years and is not a registrable interest.
A Tenancy cannot exceed 3 years and it is not registrable under National Land Code but tenant may be protected against subsequent dealings is by way of endorsement on the register document of title under section 316 National Land Code, tenancy also can be created by word of mouth or in writing.