ConveyancingConveyancing Law and Law and

PracticePracticePracticePractice

LAD5093LAD5093

DR. ZULKIFLI HASANDR. ZULKIFLI HASAN

CONTENTSCONTENTS

Sale and PurchaseSale and Purchase

Scale FeesScale Fees

CaveatCaveat

ChargeCharge ChargeCharge

Specific ReliefSpecific Relief

Lease and TenancyLease and Tenancy

IntroductionIntroduction

ConveyancingConveyancing is the act of transferring the is the act of transferring the legal title in a property from one person to legal title in a property from one person to another.another.

To ensure that the purchaser secures the To ensure that the purchaser secures the To ensure that the purchaser secures the To ensure that the purchaser secures the title with all the rights that run with the title with all the rights that run with the land.land.

Role of solicitorsRole of solicitors The lawyer: assist the parties from the The lawyer: assist the parties from the point of negotiation until the title of the point of negotiation until the title of the property is transferred to the purchaser.property is transferred to the purchaser.

Solicitor for the P: P pays the PP and the Solicitor for the P: P pays the PP and the ownership of the prop is transferred.ownership of the prop is transferred.ownership of the prop is transferred.ownership of the prop is transferred.

Solicitor for the V: to ensure the vendor Solicitor for the V: to ensure the vendor receives the PP.receives the PP.

Yong & Co v Wee Hood Yong & Co v Wee Hood TeckTeck Dev Corp Dev Corp (1984) (1984) 2 MLJ 39.2 MLJ 39.

Liability in contract and in tort Liability in contract and in tort

Key LegislationKey Legislation

NLC 1965NLC 1965

CA 1950CA 1950

Land Acquisition Act 1960Land Acquisition Act 1960

Strata Titles Act 1985Strata Titles Act 1985

Housing Developers (Housing Developers (Control&LicensingControl&Licensing) Act 1966) Act 1966

RPGT 1976RPGT 1976

Stamp Act 1949Stamp Act 1949

Solicitors Remuneration Order 1991Solicitors Remuneration Order 1991

Specific Relief Act 1950Specific Relief Act 1950

Overview of Property Law in MalaysiaOverview of Property Law in Malaysia

The land registration system: the State Land The land registration system: the State Land Offices and coordinated by the Department of Offices and coordinated by the Department of Land and Mines. Land and Mines.

Properties can be either:Properties can be either:

(a) Freehold (a) Freehold held in perpetuity; orheld in perpetuity; or (a) Freehold (a) Freehold held in perpetuity; orheld in perpetuity; or

(b) Leasehold (b) Leasehold land owned by the state and leases land owned by the state and leases are for a term of usually for 30, 60 or 99 years. are for a term of usually for 30, 60 or 99 years.

(c) Malay Reserved Land (c) Malay Reserved Land the buying and any the buying and any subsequent changing of ownership is restricted to subsequent changing of ownership is restricted to BumiputerasBumiputeras only.only.

Title Title

Freehold or leasehold properties are either issued with:Freehold or leasehold properties are either issued with:

(a) Master Title (a) Master Title more than one unit of property is more than one unit of property is

constructed. constructed. EgEg. registered in the name of the . registered in the name of the

developer. The developer may submit an application developer. The developer may submit an application

for subdivision of the master title.for subdivision of the master title.

(b) Individual Title (b) Individual Title issued under the NLC for land, issued under the NLC for land, (b) Individual Title (b) Individual Title issued under the NLC for land, issued under the NLC for land,

houses, commercial properties that are commonly not houses, commercial properties that are commonly not

multimulti--storey; orstorey; or

(c) Strata Title (c) Strata Title issued under the Strata Titles Act. issued under the Strata Titles Act.

Issued for multiIssued for multi--storey buildings e.g. apartments, storey buildings e.g. apartments,

condominiums, commercial properties and now even condominiums, commercial properties and now even

for houses in gated and guarded communities.for houses in gated and guarded communities.

S&P TransactionsS&P Transactions

The The conveyancerconveyancer to gather all the relevant facts to gather all the relevant facts and information before drafting the S&P and information before drafting the S&P agreement.agreement.

To give appropriate adviceTo give appropriate advice To give appropriate adviceTo give appropriate advice

To establish whether the purchaser intends to To establish whether the purchaser intends to purchase the prop form the developer or subpurchase the prop form the developer or sub--sale transaction. sale transaction.

Buying with Cash or LoanBuying with Cash or Loan

The cash purchaser: The cash purchaser:

1. To procure written confirmation from the D to ensure the 1. To procure written confirmation from the D to ensure the

property is free from encumbrances.property is free from encumbrances.

2. In the event that the property is charged, shall request from 2. In the event that the property is charged, shall request from

the Ds bank a redemption statement cum letter of undertaking the Ds bank a redemption statement cum letter of undertaking

before paying for the purchase price. 3. The purchaser pay the before paying for the purchase price. 3. The purchaser pay the

redemption sum directly to the developers bank and redemption sum directly to the developers bank and redemption sum directly to the developers bank and redemption sum directly to the developers bank and

subsequently request the bank to acknowledge receipt of the subsequently request the bank to acknowledge receipt of the

payment via a letter of disclaimer.payment via a letter of disclaimer.

The Loan Purchaser:The Loan Purchaser:

Who pays for the property with a bank loan. Who pays for the property with a bank loan.

It is subject to the banks own internal and credit assessment It is subject to the banks own internal and credit assessment

guidelines.guidelines.

Overview Of The Sale ProcessOverview Of The Sale Process

Offer to PurchaseOffer to Purchase

Payment of first 10% of purchase pricePayment of first 10% of purchase price

Signing of the (SPA), Deed of Mutual Covenant (DMC) (if Signing of the (SPA), Deed of Mutual Covenant (DMC) (if

applicable), MOT (if subapplicable), MOT (if sub--divided title issued)divided title issued)

For nonFor non--Malaysian, they are required to seek approval Malaysian, they are required to seek approval

from Economic Planning Unit (EPU) (if applicable) and from Economic Planning Unit (EPU) (if applicable) and from Economic Planning Unit (EPU) (if applicable) and from Economic Planning Unit (EPU) (if applicable) and

consent from the State Authorityconsent from the State Authority

Accepting the banks LO and signing the loan documentsAccepting the banks LO and signing the loan documents

Payment of the balance PP either by cash or loanPayment of the balance PP either by cash or loan

Delivery of Vacant Possession Delivery of Vacant Possession

(Within 24 month for Schedule G or 36 months for (Within 24 month for Schedule G or 36 months for

Schedule H)Schedule H)

Property from the DeveloperProperty from the Developer

S&P shall be in accordance with Housing S&P shall be in accordance with Housing Developers (Developers (Control&LicensingControl&Licensing) Act 1966) Act 1966

If landed prop: Schedule G (24 months)If landed prop: Schedule G (24 months)

If subdivided building If subdivided building egeg. apartment or landed . apartment or landed strata: Schedule H (36 months)strata: Schedule H (36 months)strata: Schedule H (36 months)strata: Schedule H (36 months)

Defect Liability Period: 24 monthsDefect Liability Period: 24 months

Management Corp: Joint Management Body Management Corp: Joint Management Body formed under the Building and Common formed under the Building and Common Property (Maintenance and Management) Act Property (Maintenance and Management) Act 2007.2007.

SubSub--Sale TransactionSale Transaction

It is governed by the law of contract.It is governed by the law of contract.

T&C of the S&P need to be negotiated T&C of the S&P need to be negotiated btnbtn the the parties.parties.

The payment of purchase price is usually made The payment of purchase price is usually made within 3 months from date of SPA provided within 3 months from date of SPA provided that no restriction of interest on the title.that no restriction of interest on the title.

Preliminary Issue to be ConsideredPreliminary Issue to be Considered

Property with an individual issue document of Property with an individual issue document of title landed or stratatitle landed or strata

Property without title, has yet to be issued.Property without title, has yet to be issued.

Leasehold or freeholdLeasehold or freehold

Subjected to any restrictions, liens, caveats, and Subjected to any restrictions, liens, caveats, and Subjected to any restrictions, liens, caveats, and Subjected to any restrictions, liens, caveats, and charges.charges.

Individual purchaser or multiple purchasersIndividual purchaser or multiple purchasers

ForeignersForeigners

Preliminary SearchesPreliminary Searches

Land title Land title

Bankruptcy searchBankruptcy search

Other searchesOther searches

Bank Statement: if property is still under bank Bank Statement: if property is still under bank Bank Statement: if property is still under bank Bank Statement: if property is still under bank financing. Request from the vendor, the bank financing. Request from the vendor, the bank statement. statement.

Land Title SearchLand Title Search

To ascertain:To ascertain:--

The existing proprietor of the propThe existing proprietor of the prop

Property is encumbered or notProperty is encumbered or not

Any restriction in interestAny restriction in interest

Any type of caveatAny type of caveat

Land acquisitionLand acquisition

Freehold or leaseholdFreehold or leasehold

If leasehold, expiry date of the leaseIf leasehold, expiry date of the lease

ChargeeChargee of the prop of the prop

Bankruptcy and WindingBankruptcy and Winding--up Searchup Search

Search on the vendorSearch on the vendor-- if bankrupt, unable to if bankrupt, unable to sell. OA would stop into the vendors shoes.sell. OA would stop into the vendors shoes.

Search on the company.Search on the company.

Register and Search at (cost at RM12):Register and Search at (cost at RM12): Register and Search at (cost at RM12):Register and Search at (cost at RM12):

www.ewww.e--services.com.myservices.com.my

www.myeg.com.mywww.myeg.com.my

www.rilek.com.mywww.rilek.com.my

CCM SearchCCM Search

To ascertain who the directors and shareholders To ascertain who the directors and shareholders of the co.of the co.

Registered address and business address.Registered address and business address.

Drafting the S&P Property with TitleDrafting the S&P Property with Title

Parties to the AgreementParties to the Agreement

RecitalsRecitals

Deposit sumDeposit sum

Condition precedentCondition precedent

Mode of paymentMode of payment

Time PeriodTime Period

Drafting of the S&P without titleDrafting of the S&P without title

Essential preliminariesEssential preliminaries

RecitalRecital

CPCP

Mode of PaymentMode of Payment

Documentation and execution of documentsDocumentation and execution of documents

RPGTRPGT

Redemption of the propRedemption of the prop

Lodgment of private caveat by purchaserLodgment of private caveat by purchaser

NonNon--perfection of the deed of assignmentperfection of the deed of assignment

ContCont Documentation and execution of documents Documentation and execution of documents

affecting the transferaffecting the transfer

Procedure for redemption form the existing Procedure for redemption form the existing chargeechargee..

Release of monies of balance PPRelease of monies of balance PP Release of monies of balance PPRelease of monies of balance PP

RPGTRPGT

Supervening EventsSupervening Events

Vacant possessionVacant possession

Miscellaneous clausesMiscellaneous clauses

Particulars in S&PParticulars in S&P

1.1. Parties to the agreement and dateParties to the agreement and date2.2. Recitals:Recitals:-- Representation by the vendor as to titleRepresentation by the vendor as to title Whether property encumbered (Whether property encumbered (egeg. Charge . Charge

to financier)to financier)to financier)to financier) Whether there is restriction of interest on Whether there is restriction of interest on

title and whether consent from state title and whether consent from state authority is required for transfer of propertyauthority is required for transfer of property

3.3. Operative Part of AgreementOperative Part of Agreement--

Operative Part of the S&POperative Part of the S&P

1.1. Consideration clauseConsideration clause

2.2. Purchase Price of propertyPurchase Price of property

3.3. Obligation of vendorObligation of vendor

To apply for consent to transferTo apply for consent to transfer

To deliver vacant possessionTo deliver vacant possession

To pay Real Property Gains TaxTo pay Real Property Gains Tax To pay Real Property Gains TaxTo pay Real Property Gains Tax

4.4. Obligations of the purchaserObligations of the purchaser--

To pay the purchase priceTo pay the purchase price

To bear costs of stamp duty and registration fee for To bear costs of stamp duty and registration fee for transfertransfer

5.5. Execution of Transfer contemporaneously with the Execution of Transfer contemporaneously with the S&PS&P

6.6. Deadline for payment of balance of purchase priceDeadline for payment of balance of purchase price

Cont.Cont.7.7. Grace Period for payment of balance of purchase priceGrace Period for payment of balance of purchase price

8.8. Delivery of vacant possession upon payment of balance Delivery of vacant possession upon payment of balance of purchase priceof purchase price

9.9. Vendors right to forfeit 10% of purchase price upon Vendors right to forfeit 10% of purchase price upon termination of agreement by purchasertermination of agreement by purchaser

11.11. Real Property Gains Tax; sum from purchase price to Real Property Gains Tax; sum from purchase price to be set aside for payment of vendors RPGTbe set aside for payment of vendors RPGTbe set aside for payment of vendors RPGTbe set aside for payment of vendors RPGT

12.12. Purchaser obtaining financePurchaser obtaining finance

13.13. Apportionment of outgoings at date of Apportionment of outgoings at date of VPVP

14.14. Compulsory acquisition by governmentCompulsory acquisition by government

15.15. Costs to be borne by each partyCosts to be borne by each party

16.16. Time of the essenceTime of the essence

17.17. NoticesNotices

18.18. Successors in TitleSuccessors in Title

Scale FeesScale Fees

Fees??: The risks are passed to the solicitor.Fees??: The risks are passed to the solicitor.

Fixed Scale Fees:Fixed Scale Fees:

The Solicitors Remuneration Order 2005: Fees The Solicitors Remuneration Order 2005: Fees for S&P and transfer or assignment.for S&P and transfer or assignment.

Discounts prohibitedDiscounts prohibited

Disbursement: cost actually incurredDisbursement: cost actually incurred

Solicitor to act only one party only: either lender Solicitor to act only one party only: either lender or borrower or purchaser or borrower.or borrower or purchaser or borrower.

Solicitors Remuneration OrdersSolicitors Remuneration Orders

SolicitorssSolicitorss fee: fee:

1. the value of the house 1. the value of the house

2. the loan or financing amount. 2. the loan or financing amount.

The scale fees exclude the following:The scale fees exclude the following:--

1. fees payable on the registration of documents1. fees payable on the registration of documents

2. stamp duties or fees 2. stamp duties or fees

3. auctioneers, 3. auctioneers, valuersvaluers. .

4. travelling and accommodation 4. travelling and accommodation

5. miscellaneous not exceeding RM50.5. miscellaneous not exceeding RM50.

Fees for Sale and TransferFees for Sale and Transfer

11stst scheduleschedule

11stst RM150k=1% minimum RM300RM150k=1% minimum RM300

Next RM850k=0.7%Next RM850k=0.7%

Next RM2 M=0.6%Next RM2 M=0.6%

Next RM2 m= 0.5%Next RM2 m= 0.5%

Next RM2.5= 0.4%Next RM2.5= 0.4%

In excess of RM7.5 m= negotiable but shall not In excess of RM7.5 m= negotiable but shall not exceed 0.4% of such excess.exceed 0.4% of such excess.

Charges, debentures and other Charges, debentures and other

security documentssecurity documents

11stst RM150k= 1% min RM300RM150k= 1% min RM300

Next RM850k= 0.7%Next RM850k= 0.7%

Next RM2m= 0.6%Next RM2m= 0.6%

Next RM2m=0.5%Next RM2m=0.5%

Next Rm2.5m=0.4%Next Rm2.5m=0.4%

In excess of RM7.5 m= negotiable but not In excess of RM7.5 m= negotiable but not exceed 0.4%exceed 0.4%

Stamp DutyStamp Duty

Stamp Act 1949=is levied by the Stamp Act 1949=is levied by the govtgovt on on instruments of transfer. instruments of transfer.

Prop transaction= ad valorem (according to the Prop transaction= ad valorem (according to the value)value)

MOT and DOA: MOT and DOA: MOT and DOA: MOT and DOA:

11stst RM100k= 1%RM100k= 1%

RM100,001RM100,001--RM500,000= 2%RM500,000= 2%

Any amount excess of RM500k=3%Any amount excess of RM500k=3%

Charge: Loan sum=0.5% each copy=RM10.Charge: Loan sum=0.5% each copy=RM10.

RPGTRPGT

Gains from disposal of residential and commercial Gains from disposal of residential and commercial properties are taxed under the RPGT.properties are taxed under the RPGT.

Objective: to control speculation in landed Objective: to control speculation in landed property and to curb any excessive rise in real prop.property and to curb any excessive rise in real prop.

It depends on the holding period of real properties. It depends on the holding period of real properties. It depends on the holding period of real properties. It depends on the holding period of real properties.

Exemptions: Exemptions:

1. once1. once--inin--aa--lifetime lifetime

2. disposal by way of a gift 2. disposal by way of a gift btnbtn parentparent--child, child, spouse, etc.spouse, etc.

Rate of RPGTRate of RPGT

Disposal in 1Disposal in 1stst year= 10%year= 10%

Disposal in 2Disposal in 2ndnd year=10%year=10%

Disposal in 3Disposal in 3rdrd year=5%year=5%

Disposal in 4Disposal in 4thth year= 5%year= 5% Disposal in 4Disposal in 4thth year= 5%year= 5%

Disposal in 5Disposal in 5thth year=5%year=5%

Disposal in 6Disposal in 6thth year= 0% year= 0%

CaveatCaveat

Caveat is endorsed on the Issue Document of Caveat is endorsed on the Issue Document of titletitle

Notice to the world that the person entering the Notice to the world that the person entering the caveat has a claim to an interest in the land.caveat has a claim to an interest in the land.caveat has a claim to an interest in the land.caveat has a claim to an interest in the land.

Prohibits any further dealing on the said landProhibits any further dealing on the said land

CaveatCaveat Private caveat: S 323Private caveat: S 323

Lien Holders Caveat: s 322, if there is an issued Lien Holders Caveat: s 322, if there is an issued document of title which has been deposited as document of title which has been deposited as security for loan. Form 19Asecurity for loan. Form 19A

Trust caveat: s 332, may be entered by the R upon Trust caveat: s 332, may be entered by the R upon Trust caveat: s 332, may be entered by the R upon Trust caveat: s 332, may be entered by the R upon application by the trustees. Form 19E (Perpetual application by the trustees. Form 19E (Perpetual unless it is cancelled by the R.)unless it is cancelled by the R.)

Registrar CaveatRegistrar Caveat

S 329 (1): liable to pay compensation if suffers S 329 (1): liable to pay compensation if suffers damage or loss arising from the wrongful entry of damage or loss arising from the wrongful entry of the private caveat.the private caveat.

How to Lodge CaveatHow to Lodge Caveat

S 323 and 324 of the NLC: S 323 and 324 of the NLC:

Form 19B which has to be attested.Form 19B which has to be attested.

PC will bind the land for a period of 6 yrs.PC will bind the land for a period of 6 yrs.

Wong Wong KuanKuan Tan v Tan v GambutGambut Dev Dev SdnSdn BhdBhd

The The caveatorcaveator must satisfy the court that he had must satisfy the court that he had The The caveatorcaveator must satisfy the court that he had must satisfy the court that he had caveatablecaveatable interest in the landinterest in the land

MexalandMexaland Dev Dev SdnSdn BhdBhd & Ors v Score Option & Ors v Score Option SdnSdn

BhdBhd & Ors& Ors

Merely relying on the JointMerely relying on the Joint--venture agreement venture agreement did not confer a did not confer a caveatablecaveatable interest.interest.

Conditions to extend the CaveatConditions to extend the Caveat

1. Sufficient grounds for caveat1. Sufficient grounds for caveat-- The onus of proof is on The onus of proof is on

the the caveatorcaveator. (. (KumpKump SuaSua BetongBetong SdnSdn BhdBhd v v DataranDataran Segar Segar

SdnSdn BhdBhd))

A. The applicant must satisfy that he has a A. The applicant must satisfy that he has a caveatablecaveatable

interest in the land.interest in the land.

B. the evidenceB. the evidence

C. to show on the balance of convenienceC. to show on the balance of convenience

Urethane Systems Urethane Systems SdnSdn BhdBhd v v QuekQuek Yak KangYak Kang

No No caveatablecaveatable interest as the claim was based on monetary interest as the claim was based on monetary

loss. loss.

PengPeng DanaHartaDanaHarta NasionalNasional BhdBhd v Astron ltdv Astron ltd-- Monetary lossMonetary loss--

not not caveatablecaveatable interest.interest.

Withdrawal of a private caveatWithdrawal of a private caveat

S 327S 327

1. by the 1. by the caveatorcaveator: s 325: Form 19G: s 325: Form 19G

2. by the Registrar: s 326: Form 19C2. by the Registrar: s 326: Form 19C

3. by an order given by the court: 3. by an order given by the court: 3. by an order given by the court: 3. by an order given by the court:

Removal of CaveatRemoval of Caveat

S 325: by giving notice in form 19G and paying S 325: by giving notice in form 19G and paying the prescribed fee.the prescribed fee.

Removal of CaveatRemoval of Caveat

By the Registrar: S 326 of the NLCBy the Registrar: S 326 of the NLC

Procedure: Form 19H and pay the prescribed feeProcedure: Form 19H and pay the prescribed fee

Upon receiving, the R will serve a notice of intended Upon receiving, the R will serve a notice of intended

removal in Form 19Cremoval in Form 19C

To extend PC: s326C for an extension order to the To extend PC: s326C for an extension order to the To extend PC: s326C for an extension order to the To extend PC: s326C for an extension order to the

court.court.

Removal of the CaveatRemoval of the Caveat

By the Court: S 327 of the NLCBy the Court: S 327 of the NLC

The only parties are The only parties are caveateecaveatee and and caveatorcaveator the the aggrieved parties.aggrieved parties.

Luggage Distributors M Luggage Distributors M SdnSdn BhdBhd v Tan v Tan HorHor TengTeng & & Luggage Distributors M Luggage Distributors M SdnSdn BhdBhd v Tan v Tan HorHor TengTeng & &

AnorAnor

If grounds are insufficient, the caveat must be If grounds are insufficient, the caveat must be removed.removed.

ChargeCharge

Security over the land.Security over the land.

Must be registered in the land office in order to Must be registered in the land office in order to be valid, enforceable and binding.be valid, enforceable and binding.

The The chargeechargee has the right to apply for an order has the right to apply for an order The The chargeechargee has the right to apply for an order has the right to apply for an order to foreclose the land.to foreclose the land.

Entering a ChargeEntering a Charge

S 241 NLC, a charge may be entered on the S 241 NLC, a charge may be entered on the whole but not a part only or the whole but not a whole but not a part only or the whole but not a part only of any undivided share or any lease.part only of any undivided share or any lease.

Form 16AForm 16A-- to secure the repayment of a debt.to secure the repayment of a debt.

For a company to register: File in the form 34 of For a company to register: File in the form 34 of For a company to register: File in the form 34 of For a company to register: File in the form 34 of the Companies Act 1965 within 30 days of the the Companies Act 1965 within 30 days of the creation of charge pursuant to S 108.creation of charge pursuant to S 108.

The registration of charge will create The registration of charge will create indefeasible interest for the indefeasible interest for the chargeechargee..

ChargeeChargee to apply for order for saleto apply for order for sale

The The chargeechargee has the right to sell the property in the event has the right to sell the property in the event

the the chargorchargor is unable to repay the debt.is unable to repay the debt.

S 254 (1): S 254 (1):

Breach for at least 1 month or such alternative period as Breach for at least 1 month or such alternative period as

specified in the specified in the chargeechargee;;

The The chargorchargor must be served a notice in Form 16Dmust be served a notice in Form 16D--

Upon the expiry of the such notice, the Upon the expiry of the such notice, the chargeechargee would would

have the right to apply for an order for sale of the landhave the right to apply for an order for sale of the land

S 255: Payable on demandS 255: Payable on demand-- Form 16EForm 16E-- 1 month still not 1 month still not

paidpaid-- order for sale without F 16D.order for sale without F 16D.

Specific ReliefSpecific Relief If there is a breach of the T&C of a S&P:If there is a breach of the T&C of a S&P:--

1. repudiation or rescission of the agreement1. repudiation or rescission of the agreement

2. the payment of liquidated damages2. the payment of liquidated damages

3. to enforce a SP order.3. to enforce a SP order.

The law governing the remedy of SP is the Specific The law governing the remedy of SP is the Specific The law governing the remedy of SP is the Specific The law governing the remedy of SP is the Specific

Relief Act 1950.Relief Act 1950.

PalmerstonPalmerston Holdings Holdings SdnSdn BhdBhd v Chong v Chong SiewSiew Eng (2007) 7 Eng (2007) 7

CLJ 56CLJ 56

The Pt was not entitled for a decree of SP: S&P did not The Pt was not entitled for a decree of SP: S&P did not

specifically provide the said relief and the Pt was specifically provide the said relief and the Pt was

entitled to liquidated damages under the HDCLR 1966.entitled to liquidated damages under the HDCLR 1966.

The Tribunal for Homebuyer ClaimsThe Tribunal for Homebuyer Claims

Easier, cheaper and faster means of dispute resolution.Easier, cheaper and faster means of dispute resolution.

a) A claim is filed no later than 12 months from the date of:a) A claim is filed no later than 12 months from the date of:

((ii) issue of the Certificate of Compliance of the property; or) issue of the Certificate of Compliance of the property; or

(ii) the expiry date of the defect liability period as set out in the (ii) the expiry date of the defect liability period as set out in the

SPA.SPA.

b) The SPAb) The SPA--housing accommodation built in a residential area.housing accommodation built in a residential area. b) The SPAb) The SPA--housing accommodation built in a residential area.housing accommodation built in a residential area.

c) Each claim does not exceed RM50,000 per cause of action c) Each claim does not exceed RM50,000 per cause of action

unlessunless

((ii) the claimant agrees to forgo the balance of the claim; or) the claimant agrees to forgo the balance of the claim; or

(ii) the acquiescence of the developer is obtained in writing (ii) the acquiescence of the developer is obtained in writing

for the matter to be heard at the Tribunal.for the matter to be heard at the Tribunal.

d) SPA is signed before 1 December 2002 can also be d) SPA is signed before 1 December 2002 can also be

considered provided the claims fulfill the criteria stated above;considered provided the claims fulfill the criteria stated above;

Tenancy and LeaseTenancy and Lease

Lease: the lessee holds an estate in the land during Lease: the lessee holds an estate in the land during the term of the lease. An interest or estate in land the term of the lease. An interest or estate in land confers the lessee with ownership of the leasehold confers the lessee with ownership of the leasehold estate during the term of the lease. estate during the term of the lease.

S 5 of the NLC: leaseS 5 of the NLC: lease-- registered lease or sublease registered lease or sublease S 5 of the NLC: leaseS 5 of the NLC: lease-- registered lease or sublease registered lease or sublease of alienated land. of alienated land.

S 213 tenancy exempt form registration= S 213 tenancy exempt form registration=

1. tenancy or 1. tenancy or subtenancysubtenancy for a term not exceeding 3 for a term not exceeding 3 yrsyrs-- s 223 s 223

2. tenancy or 2. tenancy or subtenancysubtenancy not exceeding 1 yrnot exceeding 1 yr--previous land law.previous land law.

Differences Differences btnbtn a Tenancy and a Leasea Tenancy and a Lease

Lease:Lease:

must be registered under s 222 (1) of the NLCmust be registered under s 222 (1) of the NLC

Exceeding 3 yearsExceeding 3 years

Where any subWhere any sub--lease relates to a part only of any lease relates to a part only of any alienated landalienated land-- not exceed 30 yrs. not exceed 30 yrs. alienated landalienated land-- not exceed 30 yrs. not exceed 30 yrs.

Tenancy:Tenancy:

Less than 3 years, s 213Less than 3 years, s 213

SubtenancySubtenancy must not exceed 3 yrs and/or the must not exceed 3 yrs and/or the tenancy periodtenancy period

Tenancy AgreementTenancy Agreement

S 223 (2): may be created verbally or in writingS 223 (2): may be created verbally or in writing

Identify the landlord and tenant correctlyIdentify the landlord and tenant correctly

The verify that the landlord is the actual proprietorThe verify that the landlord is the actual proprietor

All proprietors, to execute the Tenancy AgreementAll proprietors, to execute the Tenancy Agreement

Inquire : 1. deposit sum 2. utilities deposit 3. the Inquire : 1. deposit sum 2. utilities deposit 3. the Inquire : 1. deposit sum 2. utilities deposit 3. the Inquire : 1. deposit sum 2. utilities deposit 3. the sewerage deposit.sewerage deposit.

Duration: not exceed 3 years.Duration: not exceed 3 years.

Extension of tenancy periodExtension of tenancy period

Identify use of premiseIdentify use of premise

Termination of the agreementTermination of the agreement

Fees for Tenancy Fees for Tenancy

Monthly rent: for the 1Monthly rent: for the 1stst RM10k= 25% RM10k= 25% minimum RM300minimum RM300

Next RM90k=10%Next RM90k=10%

In excess of RM1000,000= negotiable but shall In excess of RM1000,000= negotiable but shall In excess of RM1000,000= negotiable but shall In excess of RM1000,000= negotiable but shall not exceed 10%.not exceed 10%.

Stamp Duty on TenancyStamp Duty on Tenancy

Below RM2400= exempted.Below RM2400= exempted.

Rent x 1 yr= A, ARent x 1 yr= A, A--RM2400=B, BRM2400=B, B250=C250=C

Landmark CasesLandmark Cases

AdornaAdorna Properties Properties SdnSdn BhdBhd v v BonsoomBonsoom BoonyanitBoonyanit

Tan Ying Hong v Tan Sian San & OrsTan Ying Hong v Tan Sian San & Ors

Dr M Dr M MahadevanMahadevan MahalingamMahalingam v S v S LourdenadinLourdenadin & &

Another caseAnother case

Leong Lai Leong Lai KuenKuen v v SentulSentul MurniMurni SdnSdn BhdBhd Leong Lai Leong Lai KuenKuen v v SentulSentul MurniMurni SdnSdn BhdBhd

KumpKump SuaSua BetongBetong SdnSdn BhdBhd v v DataranDataran Segar Segar SdnSdn Bhd.Bhd.

LinggiLinggi Plantations Ltd v Plantations Ltd v JagathesanJagathesan

AdornaAdorna Properties Properties SdnSdn BhdBhd v v BonsoomBonsoomBoonyanitBoonyanit (2001) 1 MLJ 241(2001) 1 MLJ 241

FC, FC, EusoffEusoff Chin, Wan Chin, Wan AdnanAdnan, Abu , Abu MansorMansor Ali.Ali.

A purchaser in good faith and for valuable A purchaser in good faith and for valuable consideration is excluded from the application consideration is excluded from the application of the substantive provision of s 340 (3).of the substantive provision of s 340 (3).of the substantive provision of s 340 (3).of the substantive provision of s 340 (3).

Such registered proprietor obtains immediate Such registered proprietor obtains immediate indefeasible title to the lands. indefeasible title to the lands.

Even if the instrument of transfer was forged, Even if the instrument of transfer was forged, the respondent nevertheless obtained an the respondent nevertheless obtained an indefeasible title.indefeasible title.

Tan Ying Hong v Tan Sian San & Ors Tan Ying Hong v Tan Sian San & Ors [2010] 2 CLJ 269[2010] 2 CLJ 269

FC revisited the FC revisited the AdornaAdorna case. (case. (TunTun ZakiZaki, , AlauddinAlauddinMohdMohd Sheriff, Sheriff, ArifinArifin ZakariaZakaria, , ZulkifliZulkifli Ahmad Ahmad MakinudinMakinudin, James , James FoongFoong).).

AdornaAdorna is no longer good law and in fact wrong, is no longer good law and in fact wrong, AdornaAdorna is no longer good law and in fact wrong, is no longer good law and in fact wrong, uncertain, unjust or outmoded or obsolete.uncertain, unjust or outmoded or obsolete.

The bench in the The bench in the AdornaAdorna case had case had miscontruedmiscontrueds340 and applied s 340(2) which led to erroneous s340 and applied s 340(2) which led to erroneous conclusion.conclusion.

The court restored protection to original The court restored protection to original landowners from losing their properties to forgers.landowners from losing their properties to forgers.

Dr M Dr M MahadevanMahadevan MahalingamMahalingam v S v S LourdenadinLourdenadin& Another case & Another case [1988] 1 CLJ (Rep) 168[1988] 1 CLJ (Rep) 168

SC, (SC, (AbdAbd HamidHamid Omar, Omar, HashimHashim YeopYeop SaniSani and and SyedSyed AgilAgil BarakbahBarakbah))

The SC decided that the Ct has discretion to The SC decided that the Ct has discretion to grant Specific Performance. grant Specific Performance. grant Specific Performance. grant Specific Performance.

The applicant must first prove to the ct that The applicant must first prove to the ct that under the circumstances the case b4 the ct if fit under the circumstances the case b4 the ct if fit and proper for the granting of SP.and proper for the granting of SP.

Leong Kai Leong Kai KuenKuen v v SentulSentul MurniMurni SdnSdn BhdBhd(2004) 5 CLJ 25(2004) 5 CLJ 25

HC (James HC (James FoongFoong))

The ct decided that the pt had a right to claim The ct decided that the pt had a right to claim for damages specified under a rescinded for damages specified under a rescinded contract.contract.contract.contract.

The claim for damages was allowed only for The claim for damages was allowed only for reasonable compensation not exceeding the sum reasonable compensation not exceeding the sum claimed by the Pt, which was to be assessed by claimed by the Pt, which was to be assessed by the SAR.the SAR.

KumpKump SuaSua BetongBetong SdnSdn BhdBhd v v DataranDataran Segar Segar SdnSdn BhdBhd (1992) 1 MLJ 263(1992) 1 MLJ 263

SC (SC (JemuriJemuri SerjanSerjan, Gunn Chit Tuan, Charles)., Gunn Chit Tuan, Charles).

An appeal from a judgment of the HC claiming the An appeal from a judgment of the HC claiming the removal of a private caveat. removal of a private caveat.

The HC granted the application to remove the The HC granted the application to remove the The HC granted the application to remove the The HC granted the application to remove the caveat.caveat.

The SC allowed the appeal and the order is set The SC allowed the appeal and the order is set aside.aside.

The SC laid down the principals that a The SC laid down the principals that a caveatorcaveator has has to show to the R when his private caveat is to show to the R when his private caveat is challenged.challenged.

LinggiLinggi Plantations Ltd v Plantations Ltd v JagathesanJagathesan (1972) 1 MLJ 89(1972) 1 MLJ 89

PC (Lord PC (Lord HailshamHailsham, Lord , Lord HodsonHodson, Lord Cross), Lord Cross)

WtrWtr a vendor was entitled to forfeit a deposit paid a vendor was entitled to forfeit a deposit paid on a contract following its on a contract following its noncompletionnoncompletion by the by the purchaser.purchaser.

The terms of an agreement are to discover The terms of an agreement are to discover The terms of an agreement are to discover The terms of an agreement are to discover therefromtherefrom the intention of the parties.the intention of the parties.

When the ct decided on the issues of liquidated When the ct decided on the issues of liquidated damages, rules of equity provide that the sum damages, rules of equity provide that the sum provided in the contract should in substance be provided in the contract should in substance be genuine pregenuine pre--estimate of the damages likely to be estimate of the damages likely to be suffered and not a penalty.suffered and not a penalty.