REAL PROPERTY: LIMITATION OF ACTIONS

Transcription

1 REAL PROPERTY: LIMITATION OF ACTIONS ISBN Author: Nasser Hamid Binding: Softcover/Extent: 580 pp Publication Price: MYR The law is stated as of December 31, 2005 Chapter 1 LIMITATION Limitation Rationale... 1 Concept of Limitation... 4 The Law of Limitation... 4 Statute of Limitations... 7 Policy of the Limitation Acts... 8 Limitation Interpretation of Statutes - Intention of the Legislature Statutory Interpretation Retrospective Effect of Legislation Statutes of Limitation & Causes of Action Enforcing the Limitation Period Limitation - Burden of Proof Shifting of Onus Limitation is a Question of Evidence Computation of Time Time Bars Limitation A Defence and not a Cause of Action Action to Pursue Rights - Inaction Whether Reasonable Liability & Limitation Period Defence of Limitation Waiver Pleadings & Limitation Failure to Plead Defence of Limitation - Pleadings & Causes of Action Pleadings Laches Acquiescence The Defence of Laches Postponement of Limitation Enlarging of Time Acknowledgment The Person Liable or Accountable Therefor Acknowledgment - Fresh Accrual of Action Fraud or Mistake - Postponement of Limitation Period Discoverability Principle Equitable Tolling Chapter 2

2 THE LIMITATION ACT 1953 (ACT 254) (REVISED 1981) Introduction Repeal Application of Limitation Act 1953 (Act 254) Specific Provisions on Limitation in other Statutes to override General Provisions in Limitation Act Limitation Act Prevalence over Rules of the High Court Limitation Act Action Meaning of Suit Limitation and Government Limitation Act 1953 Estoppel Public Authority Proceedings Against Limitation Period imposed by Public Authorities Protection Act Public Authorities - Appeals Cause of Action Accrual of Cause of Action Accrual of Cause of Action - Infringement or threat of infringement of the rights of Plaintiff Fraud & Negligence Accrual of Cause of Action Consequential Orders & Limitation Chapter 3 REAL PROPERTY - LAW & RIGHTS OF PARTIES Real Property Meaning of Legislation and Land Law Sabah & Sarawak The National Land Code 1965 ( Act 56 of 1965) National Land Code 1965 (Act 56) and the National Land Code (Penang & Malacca Titles) Act Adverse Possession 104 National Land Code (Penang & Malacca Titles) Act 1963 and Adverse Possession National Land Code (Penang & Malacca Titles) Act 1963 and Limitation Attributes of Adverse Possession Adverse Possession - Current Position Adverse Possession Sabah Adverse Possession Sarawak Dealing Meaning of The Torrens System Equity and the Torrens System Equity & the National Land Code Torrens System - Equity in Action -

3 Remedy of Rectification Indefeasibility Deferred Indefeasibility Indefeasible Title Operation of Law Rights of Parties Rights & Interest of Parties in Land Actions based on Contract - Breach of Contract General Rules & Exceptions Evidence of Ownership of Land Relationship of Parties Vendor & Purchaser Proprietor Contract for the Sale of Land and the Rights of Parties Rights of Purchaser Bona Fide Purchaser for Value Lease Trust - Sale of Land by Beneficiary Jual Janji Transaction Recovery of Land & Limitation - General Principles Adjudicating Claims Application of Statute Law, Common Law & Equity National Land Code - Appeals against Decisions of State Director, Registrar or Land Administrator Appropriate Circumstances to Apply Section 417 of the National Land Code 1965 (Act 56) Statutory Right of Appeal Appeal Procedure provided by the National Land Code 1965 (Act 56) Declarations v Appeals Chapter 4 ACTIONS TO RECOVER LAND & LIMITATION Introduction Actions to Recover Land Enforcing Rights Existence of Rights Proprietary Rights and Injunctions Application for Recovery of Land Mode of Commencement of Action Aggrieved Person Claim for Recovery of Land by Proprietor Right of Action to Recover Land Acknowledgment of Title Proprietary Claim - Claim to Property taken into Custody by Liquidator Operation of Limitation Act only where there is a Cause of Action

4 Cause of Action Meaning of Clear and Unequivocal Threat to Plaintiff s Right Accrual of Cause of Action Accrual of a Right to Sue - Accrual of a Cause or Right of Action - Meaning of Possession and the Accrual of Cause of Action Purchaser s Cause of Action for Recovery of Land - Vendors Failure or Default in Executing a Memorandum of Transfer Accrual of Cause of Action - Two Possible Dates Accrual of Cause of Action Ignorance Minor Declaratory Relief Order for Sale Trespass Trespass and Encroachment - Inapplicability of the Defence of Limitation Remedy of Mandatory Injunction Late Delivery - Claim for Liquidated and Ascertained Damages Easement Floor Area Shortfall Date of Accrual of Action Strata Titles Specific Performance Timeous Claim Equitable Remedy Application for Specific performance of a Joint Venture Contract Action for Specific Performance of a Covenant in a Conveyance Chapter 5 CAVEATS Introduction Caveats & Limitation Pursuing Rights and Enforcing a Caveat Claim to Title or Interest in Property Approach of Courts Aggrieved Party and Locus Standi Caveating a Portion of Land Extension of Caveat Caveat - Application to Set Aside Order Granting Extension of Plaintiff s Caveat until Final Disposal of Suit Accrual of Cause of Action Removal of Caveat Chapter 6

5 LAND ACQUISITION Introduction Rights of Landowner under the Land Acquisition Act Reference of Matter to Court Failure by State Authority to Develop the Acquired Land for a Public Purpose Act Default or Complaint - Public Authorities Protection Act 1948 (Revised 1978) (Act 198) Limitation Limitation and Invalid Exercise of Power Invalid Acquisition Inapplicability of Limitation Period Fraud in Acquiring Land & Limitation Application for Certiorari to Quash Declaration, Acquisition and Award for Land Acquisition Chapter 7 TRUST PROPERTY Land & Trust Property National Land Code and the Recognition of Trust as Dealing Power of Executor in dealing with Assets of Estate Trust Meaning of Accrual of Cause of Action In respect of any fraud to which the trustee was a party or privy Interpretation of Action to recover trust property or in respect of any trust Fraud - Standard of Proof Trust Property Conspiracy by Trustee & Gratuitous Agent Joint Hindu Family Transfer of Land to Coparcener Whether transfer Void Claim by Minor for Trust Property No Requirement to Rely on Section 24 for Extension of Limitation Period Limitation of actions claiming the Personal Estate of a Deceased Person Claim to share or interest in estate of deceased Action in respect of a claim to Personal Estate Chapter 8 SABAH LAND & LIMITATION Sabah Land Law Application of English Law & the Sabah Land Ordinance Statute of Frauds The National Land Code, the Sabah Land Ordinance

6 (Sabah Cap 68) and the Sarawak Land Code (Cap 81) Sabah Land Rules Rights of Parties to Land & Categories of Land Use Native Customary Rights in Sabah Interests in Land in Sabah - Rights of Parties West Malaysian Cases Analogical Support Indefeasibility Adverse Possession Adverse Possession is provided for under Item 112 of the Schedule to the Limitation Ordinance Adverse Possession Section 6(2) ) of Sabah Limitation Ordinance Whether of Retrospective Effect Land Applications - Rights of Parties to Land Appeal Time - Appeal against decision of Director of Lands and Surveys Director of Lands and Survey s Discretion - Jurisdiction of Court Limitation of Actions in Sabah Land & Limitation in Sabah Interpretation of Sabah Limitation Ordinance Extension or Postponement of Limitation Period Where the acknowledgment was made after the limitation period it would be of no consequence Estoppel Pleadings & Limitation Reply to Statement of Defence & Limitation Infringement of Condition in Title Forefiture Rescission of Contract for Sale of Land Limitation Period Rights of Parties - Innocent Purchaser for Valuable Consideration Trust Trust for a Specific Purpose Trust Constructive Trustee Forgery & Limitation Forgery Accrual of Cause of Action Alienation of Land Forgery Effect of Power of Attorney - Forgery & Limitation Forged Conveyance Effect on Bona Fide Purchaser for Value Chapter 9 SARAWAK LAND & LIMITATION The Sarawak Land Code Sarawak Land Code Interpretation of Interpretation of Sarawak Land Code Indian Legislation & Cases

7 Land - Rights of Parties General Powers granted by Statute and Qualifications Native Land Native Land & Rights Acquire Section 8 of Sarawak Land Code - Meaning of Power of Attorney Granting Rights over Native Land to Non Native Validity of Action to Nullify Power of Attorney Granting Rights over Native Land Limitation Period Registrar of Land Registration of Instruments of Dealings in Land - Powers & Functions Native Customary Rights Over Land Native Customary Rights & Limitation Non User & Loss of Rights Occupation Native Customary Rights & Limitation - Appeal against decision of Settlement Officer Limitation Ordinance (Cap 49 Sarawak) Interpretation of the Sarawak Limitation Ordinance (Cap 49) Applicability of West Malaysian Authorities The Sarawak Limitation Ordinance Retrospective Effect Suit and Action Sarawak Limitation Ordinance & the Government The Sarawak Limitation Ordinance & the Public Authorities Protection Act Articles in the Schedule to the Sarawak Limitation Ordinance Interpretation of Land Acquisition in Sarawak Land Acquisition in Sarawak - Material Date for the Determination of Compensation Payable to a Landowner Land Acquisition Date of Award for Purposes of Computation of Limitation Appeal against Decision of Superintendent of Lands & Surveys Indefeasibility & Exceptions Specific Performance & Indefeasibility Late Delivery - Limitation Action for Possession of Immovable Property Rescission of Contract for Housing Development Defence of Limitation Article 91 - Date of Accrual of Action Action for Recovery of Land Breach of Contract & Negligence of Solicitors Limitation Period Trust

8 Statute of Frauds Share of Estate Property Action to Recover Land Fraud Fraud and the Sarawak Land Code Fraudulent Concealment Transfer of Land - Allegation of Fraud in Procurement of Title to the Land Where No period of Limitation provided in the Schedule Memorandum of Transfer - Non Registration of Right of Way & Trespass Implied Right of Way Sarawak - Caveats & Limitation Introduction Caveats and Limitation Caveatable Interest and Pleadings Entitlement to Lodge Caveat Interpretation of Section Application for Extension of Caveat Locus Standi of Applicant Lapse of caveat Application for Removal of Caveat