LEASES &

TENANCIES
LAND LAW II

DISTINGUISHING LEASES FROM

TENANCIES
LEASE

TENANCY
1. A letting of land for a 1. A letting of land for a
term exceeding 3 years,
s 221(2)

term of less than 3

years, s 213

2. Registrable interest, s 2. Not registrable, s 223

227

CHARACTERISTICS
The right to exclusive possession
- What is the position of one with the right to
occupy, but not the right to exclusive possession?

CHARACTERISTICS
Intention to create a lease/tenancy
The label given by the parties to the relationship
is not conclusive
Kandasami v Mustafa [1983] 2 MLJ 85

CHARACTERISTICS
For a definite period, capable of being ascertained
- Otherwise void for uncertainty
Siew Soon Wah v Yong Tong Hong [1973] 1 MLJ
133

s 221(3)

CHARACTERISTICS
In consideration of payment/rental

CHARACTERISTICS
Woo Yew Cheev Yong Yong Hoo [1979] 1 MLJ 131
FC
- The factors are relevant but none is conclusive.
- It depends on the nature and quality of the
occupancy.

TYPES OF LEASES/TENANCIES
Lease for a fixed term
1. Maximum 99 years for the whole of the land
Siew Soon Wah v Yong Tong Hong [1973] 1 MLJ
133 no lease in perpetuity

2. Maximum 30 years for a part of the land

TYPES OF LEASES/TENANCIES
Tenancy for a fixed term
1. Up to 3 years
2. Periodic tenancy weekly, monthly, yearly

TYPES OF LEASES/TENANCIES
Tenancy at will
- Holds over after expiry with the lessor/landlords
permission
- Can be terminated by either party at any time
- May convert to periodic tenancy when the
landlord accepts rent

TYPES OF LEASES/TENANCIES
Tenancy at sufferance
- Holds over after expiry without the
lessor/landlords permission
- Lessor/landlord may repossess

TYPES OF LEASES/TENANCIES
Tenancy by estoppel
- The lessor/landlord has no title/interest in land
but purports to grant a lease/tenancy
- S 116 Evidence Act 1950 - The lessee/tenant is
estopped during continuance of a tenancy/lease
to deny that the lessor/landlord had no title at the
beginning of the lease/tenancy

TYPES OF LEASES/TENANCIES
Tenancy coupled with equity
- Where the tenant had, under some expectation or
upon promise made by the landlord, expended
money on the land
- The landlord could not act contrary to that
expectation/promise

TYPES OF LEASES/TENANCIES
Inwards v Baker
- If the land owner requested, or indeed allowed,
another person to expend money on the land under
an expectation created or encouraged by the land
owner that he would be able to stay there, that
raised an equity in the license such as to entitle him
to stay. He had a licence coupled with equity.

TYPES OF LEASES/TENANCIES
Read Mok Deng Chee v Yap See Hoi [1981] 2 MLJ 321
and consider the questions below Was the expenditure incurred on the basis of an
expectation created by the land owner?
How did the equity devolve in favour of a third party?
S 213(3) tenancy not binding on subsequent purchaser
unless it has been protected with an indorsement

TYPES OF LEASES/TENANCIES
Cf Cheo Lean How v Fock Fong Looi
House built by CY on state land held under TOL
by TS, without objection from TS.
CY sold the house to Rs father.
TS became the RP of the land.
TS transferred the land to his wife.

TYPES OF LEASES/TENANCIES
Cheo Lean How v Fock Fong Looi
TSs wife, A, served notice to quit on R.
Held:
R did not prove equity either in favour of CY or the
father or R against TS or A.

TYPES OF LEASES/TENANCIES
Cheo Lean How v Fock Fong Looi
Held:
Not convinced that because the house had been
built without objection from TS, there was an
expectation created in favour of the original owner
of the house.
* The house was not built by R.

TYPES OF LEASES/TENANCIES
Read Cheng Hang Guan v Perumahan Farlim
(Penang)

THE CREATION OF A
LEASE/TENANCY
To whom?
- ss 43, 433B
- S 225(2)

THE CREATION OF A
LEASE/TENANCY
Requirements
- If subject to a charge, to seek chargees consent,
s 226

THE CREATION OF A
LEASE/TENANCY
LEASE
By oral or written agreement
Legal effect upon registration of instrument in
Form 15A or Form 15 B

THE CREATION OF A
LEASE/TENANCY
TENANCY
Orally or by written instrument in any form
whatsoever, s 223(2)
May be protected by an indorsement on the RDT,
s 213(3)

EFFECT OF NON-REGISTRATION
OF LEASES
Void as a lease
But may be good and valid as an agreement for a
lease, s 206(3)

EFFECT OF NON-REGISTRATION
OF LEASES
Read
Margaret Chua v Ho Swee Kiew
Siew Soon Wah v Yong Tong Hong PC

EFFECT OF NON-REGISTRATION
OF LEASES
When SP will be granted

EFFECT OF NON-REGISTRATION
OF LEASES

Effect of entry under an unregistered lease

A tenancy at will is created
Regarded as a periodic tenant
Conduct & intention of the parties may give rise
to an equity, which may be given effect by the
court by granting the tenant a fixed term lease

EFFECT OF NON-REGISTRATION
OF LEASES
Lee Ah Low v Cheong Lep Keen & Anor FC
- The same rule applies to entry under a void lease

EFFECT OF NON-REGISTRATION
OF LEASES
A claim subsequent to the unregistered lease
- Will not be adversely affected, not bound by the
agreement for the lease
- Except where the claimant is a volunteer

EFFECT OF NON-REGISTRATION
OF LEASES
Unregistered lessee who takes possession and
treated as periodic tenant vs new RP of the land
- Whether the tenancy has been protected by an
indorsement on the RDT
- If yes, the tenancy (not the agreement for lease),
is binding the new RP

EFFECT OF NON-REGISTRATION
OF LEASES
Ong Heng Hwa Realty Sdn Bhd v Teoh Chai Siok
Agreement between the former landlords and D
was for 40 years. Ps, the current RP, served on D
notice to quit but D refused.
Ps: the agreement was void for want of
registration & they were not a party to the
agreement.

EFFECT OF NON-REGISTRATION
OF LEASES
Ong Heng Hwa Realty Sdn Bhd v Teoh Chai Siok
Held:
Ps had notice of the tenancy agreement due to the
fact that D continued paying rents until receipt of
notice to quit. Thus Ps were bound by the
previous tenancy agreement between the former
landlord and D.

EFFECT OF NON-REGISTRATION
OF LEASES
Ong Heng Hwa Realty Sdn Bhd v Teoh Chai Siok
* the agreement was made in 1955, governed by
the Kedah Land Enactment which provided that the
title of a tenant in possession under unregistered
lease/agreement for letting for a period less than 1
year, is unaffected by the registration of a
subsequent purchaser.

EFFECT OF NON-REGISTRATION
OF LEASES
Ong Heng Hwa Realty Sdn Bhd v Teoh Chai Siok
* Without registration, D had only a periodic
tenancy and s 213(3): a tenancy does not bind a
subsequent purchaser unless it has been protected
by indorsement before the registration of the
transfer.

EFFECT OF NON-REGISTRATION
OF LEASES
Unregistered lessee who takes possession and
treated as periodic tenant vs new RP of the land
SP may be available against RP only
- If RP has actual or constructive notice of the
agreement

Indorsement of Tenancy
S 213(3)
Than Kok Leong v Low Kim Hai
D was former RPs tenant. When P became the RP
and served notice to quit on D.
D refused and claimed that there was a verbal
agreement between D and former RP for a lease
of 3 years.

Indorsement of Tenancy
Than Kok Leong v Low Kim Hai
Held:
The court accepted that there was such
agreement but the agreement came under s
213(3). Without an indorsement, the agreement
was not binding on P.

Indorsement of Tenancy
Hotel Ambassador Sdn Bhd v Seapower Sdn Bhd SC
As started hotel business pursuant to a lease between As
and RPs.
The agreement provided for renewal but the option was
never exercised or endorsed.
As continued occupying the property.
The property was charged and foreclosure action was
taken.

Indorsement of Tenancy
Hotel Ambassador Sdn Bhd v Seapower Sdn Bhd
SC
Rs bought the property at public auction.
Held:
As never exercised right to renewal. Upon the
expiry of the term As continued occupation on
what must be a monthly tenancy.

Indorsement of Tenancy
Hotel Ambassador Sdn Bhd v Seapower Sdn Bhd
SC
Held:
The tenancy was not protected by indorsement
and thus would not bind Rs, s 267(2).

Rights and Obligations of Parties

Expressly provided by agreement, or implied by law
S 229(1) lease may include the provisions in 6th Schedule
2 types of implied agreements:
1. Which must be implied into every lease/sublease, s 230
2. Which are to be implied only in the absence of any
express provision to the contrary, ss 231 & 232

Rights and Obligations of Parties

Option to renew lease/tenancy may be included
Option - an offer from the RP which cannot be retracted
if the terms and conditions of the offer are satisfied.
cf a right of pre-emption/right of first refusal up to the
lessor/landlord whether to make the offer for renewal
See Hotel Ambassador Sdn Bhd v Seapower Sdn Bhd
above

Rights and Obligations of Parties

Voo Min En & Ors v Leong Chung Fatt [1982] 2
MLJ 241
The lease agreement between R and A included
an option to renew, subject to conditions including
that R (the lessee) had to give written request for
renewal at least 3 months before the expiry of the
lease.

Rights and Obligations of Parties

Voo Min En & Ors v Leong Chung Fatt [1982] 2 MLJ 241
Held:
R had never made any written request for renewal.
It is an offer by lessor/landlord which cannot be withdrawn.
It is a privilege, the terms and conditions of which shall be
duly and strictly complied with. Otherwise, the option is
lost.

Rights and Obligations of Parties

Read Luggage Distributors (M) Sdn Bhd v Tan Hor Teng
[1995] MLJ 719
Wisma Sime Darby Sdn Bhd v Wilson Parking (M)
Sdn Bhd [1996] 2 MLJ 81

Termination of Lease/Tenancy
The term of the lease has expired, s 240
The Registrar may cancel the registration of the
lease/sub-lease, s 240(1)
Tenancy endorsement made on the RDT may be
cancelled, s 240(2)

Termination of Lease/Tenancy
Surrender, s 239
With the agreement, s 239(1)
Surrender of lease/sub-lease by Form 15C, the
interest shall determine as from the date of
registration of Form 15C, s 239(2)

Termination of Lease/Tenancy
Surrender, s 239
Surrender of tenancy may be done verbally or by
a written instrument in any form whatsoever, s
239(3)
The RP may cancel the endorsement if the
tenancy was protected by an endorsement, s
239(3)

Termination of Lease/Tenancy
Surrender, s 239
The consent of chargees is required, s 239(4)
Lease/sub-lease, consent signified by the
chargees joining in the instrument of surrender, s
239(4)(a)
Tenancy, consent signified in writing signed by
chargees/lawful agent

Termination of Lease/Tenancy

Service of a valid notice to quit

Sufficient notice
Duly served on lessee/tenant
If lessee/tenant continues occupation after expiry
of notice, the lessor/landlord may recover
possession by an order of the court, see s 7 Specific
Relief Act 1950 no self help

Termination of Lease/Tenancy
Forfeiture, s 234
Breach of any provision, or the lessee/tenant has been
adjudicated a bankrupt or if a company has gone into
liquidation
S 234(2) effected by re-entry (ss 7 & 8 SRA only through a
court order) or by a court action
Only after the service of a written notice on the lessee/tenant
specifying the breach & to remedy the breach, s 235