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LIEN + JUAL Janji - land law
summary of the topic for lien and jual janji
Course
Law (LAW224)
999+ Documents
Students shared 4410 documents in this course
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Universiti Teknologi MARA
Academic year: 2016/2017
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LIEN
Laws:
- Definition of lien: Section 281(1) of NLC – lien as the act of any proprietor depositing his title or duplicate lease to another person as security for a loan.
- 2 types of lien which are statutory lien and equitable lien.
- 4 elements of statutory lien: - Registered proprietor where the right to create lien only belongs to the proprietor. The court as per the case of Peter P’Chient v Ramasamy Chetty decided that the right to deposit the title as a security for a loan is only restricted to the proprietor. However, this was prior 2008. After 2008, 3rd party can create a lien with the instruction, consent and authorization of the proprietor. This is explained in the case of Hong Leong Bank Bhd v Staghorn Sdn Bhd whereby the court held that Section 281(1) does not specify who the borrower may be nor does it restrict the loan advanced only to the proprietor. Therefore, the loan may be a loan advanced to a 3rd party. - Deposit of IDT which is the act of the borrower handling over the subject matter of lien to the lender. The act of keeping the IDT by the lender will give rise to a lien. A lien holder cannot part with the IDT. The only prove that a person is a lien holder is the possession of the IDT itself. However, once the lien holder made the entry of Lien Holder Caveat, he may part ways with the IDT. Section 281(4) briefly allowed the lien holder to part with IDT upon written request made by proprietor or lessee but it only restricted to produce the IDT or lease at any Registry or Land Office. This can be further elaborated as in the case of Sitambaram Chetty v Ramanathan Chetty, whereby Loh Chin Thye, the registered proprietor created a lien by depositing the IDT in favour of the Defendant. The defendant protected his interest by lodging a caveat. The defendant then gave up the IDT on the request of Loh Chin Thye but at the same time executed a charge over the land in favour of the plaintiff. The registrar refused to register the charge because of the caveat. The plaintiff then applied to remove the caveat which was then removed from the RDT. The court in this case decided that the defendant had lost his rights as a lien holder the moment the parted with the IDT and the caveat was removed from the RDT. In contrast , the case of Manickawasagam Chetty v TJC Gregor explains that a lien holder will not lost his lien over the land by the fact that he was no longer in physical possession of the title since his caveat remained on the RDT.
- The intention to create lien must not necessarily be expressly documented. It can be in way of oral or conduct. The deposit of the IDT must be with the intention to create a lien. It is generally an advancement of loan. - Once all the first 3 elements are fulfilled, the lender will become an **equitable lien holder and therefore cannot parted ways with the IDT.
- To become a statutory lien holder, there must be the entry of LHC** pursuant to Section 330(1). The effect of the lodgment of LHC is just the same as the effect of a private caveat whereby it will restraint all dealings with the land. However, failure to caveat timeously, for the reason alone, will not cause the prior uncaveated lien to lose priority against later caveated interest.
- A case to illustrate the extension of time is the case of Ismail bin Hj Embong v Lau Kong Han whereby the plaintiff and the defendant entered into a jual janji transaction and when the period for the repayment expired, the defendant extended the period provided that the plaintiff paid him $40 monthly. It was held that although the time for exercise for the option to repurchase had expired, time was not the essence of the contract. As even if time was originally of the essence of the contract, it had been allowed to pass and the conduct of the parties clearly showed that it was no longer so.
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LIEN + JUAL Janji - land law
Course: Law (LAW224)
999+ Documents
Students shared 4410 documents in this course
University: Universiti Teknologi MARA
Was this document helpful?
LIEN
Laws:
1. Definition of lien:
Section 281(1) of NLC – lien as the act of any proprietor depositing his title or
duplicate lease to another person as security for a loan.
2. 2 types of lien which are statutory lien and equitable lien.
3. 4 elements of statutory lien:
- Registered proprietor where the right to create lien only belongs to the
proprietor. The court as per the case of Peter P’Chient v Ramasamy Chetty
decided that the right to deposit the title as a security for a loan is only restricted
to the proprietor. However, this was prior 2008. After 2008, 3rd party can create a
lien with the instruction, consent and authorization of the proprietor. This is
explained in the case of Hong Leong Bank Bhd v Staghorn Sdn Bhd whereby the
court held that Section 281(1) does not specify who the borrower may be nor
does it restrict the loan advanced only to the proprietor. Therefore, the loan may
be a loan advanced to a 3rd party.
-Deposit of IDT which is the act of the borrower handling over the subject matter
of lien to the lender. The act of keeping the IDT by the lender will give rise to a
lien. A lien holder cannot part with the IDT. The only prove that a person is a lien
holder is the possession of the IDT itself. However, once the lien holder made the
entry of Lien Holder Caveat, he may part ways with the IDT. Section 281(4)
briefly allowed the lien holder to part with IDT upon written request made by
proprietor or lessee but it only restricted to produce the IDT or lease at any
Registry or Land Office. This can be further elaborated as in the case of
Sitambaram Chetty v Ramanathan Chetty, whereby Loh Chin Thye, the
registered proprietor created a lien by depositing the IDT in favour of the
Defendant. The defendant protected his interest by lodging a caveat. The
defendant then gave up the IDT on the request of Loh Chin Thye but at the same
time executed a charge over the land in favour of the plaintiff. The registrar
refused to register the charge because of the caveat. The plaintiff then applied to
remove the caveat which was then removed from the RDT. The court in this case
decided that the defendant had lost his rights as a lien holder the moment the
parted with the IDT and the caveat was removed from the RDT. In contrast, the
case of Manickawasagam Chetty v TJC Gregor explains that a lien holder will not
lost his lien over the land by the fact that he was no longer in physical possession
of the title since his caveat remained on the RDT.
