Conveyancing Conveyancing Law and Law and

Practice Practice Practice Practice

LAD5093 LAD5093
DR. ZULKIFLI HASAN DR. ZULKIFLI HASAN
CONTENTS CONTENTS
Sale and Purchase Sale and Purchase
Scale Fees Scale Fees
Caveat Caveat
Charge Charge Charge Charge
Specific Relief Specific Relief
Lease and Tenancy Lease and Tenancy
Introduction Introduction
Conveyancing Conveyancing 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 solicitors Role 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 Teck Teck 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 Legislation Key Legislation
NLC 1965 NLC 1965
CA 1950 CA 1950
Land Acquisition Act 1960 Land Acquisition Act 1960
Strata Titles Act 1985 Strata Titles Act 1985
Housing Developers ( Housing Developers (Control&Licensing Control&Licensing) Act 1966 ) Act 1966
RPGT 1976 RPGT 1976
Stamp Act 1949 Stamp Act 1949
Solicitors Remuneration Order 1991 Solicitors Remuneration Order 1991
Specific Relief Act 1950 Specific Relief Act 1950
Overview of Property Law in Malaysia Overview 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; or held in perpetuity; or (a) Freehold (a) Freehold held in perpetuity; or held 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
Bumiputeras Bumiputeras 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. Eg Eg. 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
multi multi--storey; or storey; or
(c) Strata Title (c) Strata Title issued under the Strata Titles Act. issued under the Strata Titles Act.
Issued for multi Issued 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 Transactions S&P Transactions
The The conveyancer conveyancer 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 advice To give appropriate advice To give appropriate advice To give appropriate advice
To establish whether the purchaser intends to To establish whether the purchaser intends to
purchase the prop form the developer or sub purchase the prop form the developer or sub--
sale transaction. sale transaction.
Buying with Cash or Loan Buying 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 Process Overview Of The Sale Process
Offer to Purchase Offer to Purchase
Payment of first 10% of purchase price Payment 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 sub applicable), MOT (if sub--divided title issued) divided title issued)
For non For 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 Authority consent from the State Authority
Accepting the banks LO and signing the loan documents Accepting the banks LO and signing the loan documents
Payment of the balance PP either by cash or loan Payment 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 Developer Property from the Developer
S&P shall be in accordance with Housing S&P shall be in accordance with Housing
Developers ( Developers (Control&Licensing Control&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 eg eg. 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 months Defect 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.
Sub Sub- -Sale Transaction Sale 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 btn btn 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 Considered Preliminary Issue to be Considered
Property with an individual issue document of Property with an individual issue document of
title landed or strata title landed or strata
Property without title, has yet to be issued. Property without title, has yet to be issued.
Leasehold or freehold Leasehold 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 purchasers Individual purchaser or multiple purchasers
Foreigners Foreigners
Preliminary Searches Preliminary Searches
Land title Land title
Bankruptcy search Bankruptcy search
Other searches Other 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 Search Land Title Search
To ascertain: To ascertain:--
The existing proprietor of the prop The existing proprietor of the prop
Property is encumbered or not Property is encumbered or not
Any restriction in interest Any restriction in interest
Any type of caveat Any type of caveat
Land acquisition Land acquisition
Freehold or leasehold Freehold or leasehold
If leasehold, expiry date of the lease If leasehold, expiry date of the lease
Chargee Chargee of the prop of the prop
Bankruptcy and Winding Bankruptcy and Winding- -up Search up Search
Search on the vendor Search 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.e www.e--services.com.my services.com.my
www.myeg.com.my www.myeg.com.my
www.rilek.com.my www.rilek.com.my
CCM Search CCM 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 Title Drafting the S&P Property with Title
Parties to the Agreement Parties to the Agreement
Recitals Recitals
Deposit sum Deposit sum
Condition precedent Condition precedent
Mode of payment Mode of payment
Time Period Time Period
Drafting of the S&P without title Drafting of the S&P without title
Essential preliminaries Essential preliminaries
Recital Recital
CP CP
Mode of Payment Mode of Payment
Documentation and execution of documents Documentation and execution of documents
RPGT RPGT
Redemption of the prop Redemption of the prop
Lodgment of private caveat by purchaser Lodgment of private caveat by purchaser
Non Non--perfection of the deed of assignment perfection of the deed of assignment
Cont Cont
Documentation and execution of documents Documentation and execution of documents
affecting the transfer affecting the transfer
Procedure for redemption form the existing Procedure for redemption form the existing
chargee chargee..
Release of monies of balance PP Release of monies of balance PP Release of monies of balance PP Release of monies of balance PP
RPGT RPGT
Supervening Events Supervening Events
Vacant possession Vacant possession
Miscellaneous clauses Miscellaneous clauses
Particulars in S&P Particulars in S&P
1. 1. Parties to the agreement and date Parties to the agreement and date
2. 2. Recitals: Recitals:--
Representation by the vendor as to title Representation by the vendor as to title
Whether property encumbered ( Whether property encumbered (eg eg. 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 property authority is required for transfer of property
3. 3. Operative Part of Agreement Operative Part of Agreement--
Operative Part of the S&P Operative Part of the S&P
1. 1. Consideration clause Consideration clause
2. 2. Purchase Price of property Purchase Price of property
3. 3. Obligation of vendor Obligation of vendor
To apply for consent to transfer To apply for consent to transfer
To deliver vacant possession To deliver vacant possession
To pay Real Property Gains Tax To pay Real Property Gains Tax To pay Real Property Gains Tax To pay Real Property Gains Tax
4. 4. Obligations of the purchaser Obligations of the purchaser--
To pay the purchase price To pay the purchase price
To bear costs of stamp duty and registration fee for To bear costs of stamp duty and registration fee for
transfer transfer
5. 5. Execution of Transfer contemporaneously with the Execution of Transfer contemporaneously with the
S&P S&P
6. 6. Deadline for payment of balance of purchase price Deadline for payment of balance of purchase price
Cont. Cont.
7. 7. Grace Period for payment of balance of purchase price Grace 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 price of 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 purchaser termination 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 RPGT be set aside for payment of vendors RPGT be set aside for payment of vendors RPGT be set aside for payment of vendors RPGT
12. 12. Purchaser obtaining finance Purchaser obtaining finance
13. 13. Apportionment of outgoings at date of Apportionment of outgoings at date of VP VP
14. 14. Compulsory acquisition by government Compulsory acquisition by government
15. 15. Costs to be borne by each party Costs to be borne by each party
16. 16. Time of the essence Time of the essence
17. 17. Notices Notices
18. 18. Successors in Title Successors in Title
Scale Fees Scale 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 prohibited Discounts prohibited
Disbursement: cost actually incurred Disbursement: 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 Orders Solicitors Remuneration Orders
Solicitorss Solicitorss 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 documents 1. fees payable on the registration of documents
2. stamp duties or fees 2. stamp duties or fees
3. auctioneers, 3. auctioneers, valuers valuers. .
4. travelling and accommodation 4. travelling and accommodation
5. miscellaneous not exceeding RM50. 5. miscellaneous not exceeding RM50.
Fees for Sale and Transfer Fees for Sale and Transfer
11
st st
schedule schedule
11
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RM150k=1% minimum RM300 RM150k=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 documents security documents
11
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RM150k= 1% min RM300 RM150k= 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 Duty Stamp Duty
Stamp Act 1949=is levied by the Stamp Act 1949=is levied by the govt govt 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:
11
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RM100k= 1% RM100k= 1%
RM100,001 RM100,001--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.
RPGT RPGT
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. once 1. once--in in--a a--lifetime lifetime
2. disposal by way of a gift 2. disposal by way of a gift btn btn parent parent--child, child,
spouse, etc. spouse, etc.
Rate of RPGT Rate of RPGT
Disposal in 1 Disposal in 1
st st
year= 10% year= 10%
Disposal in 2 Disposal in 2
nd nd
year=10% year=10%
Disposal in 3 Disposal in 3
rd rd
year=5% year=5%
Disposal in 4 Disposal in 4
th th
year= 5% year= 5% Disposal in 4 Disposal in 4
th th
year= 5% year= 5%
Disposal in 5 Disposal in 5
th th
year=5% year=5%
Disposal in 6 Disposal in 6
th th
year= 0% year= 0%
Caveat Caveat
Caveat is endorsed on the Issue Document of Caveat is endorsed on the Issue Document of
title title
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 land Prohibits any further dealing on the said land
Caveat Caveat
Private caveat: S 323 Private 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 19A security 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 Caveat Registrar 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 Caveat How 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 Kuan Kuan Tan v Tan v Gambut Gambut Dev Dev Sdn Sdn Bhd Bhd
The The caveator caveator must satisfy the court that he had must satisfy the court that he had The The caveator caveator must satisfy the court that he had must satisfy the court that he had
caveatable caveatable interest in the land interest in the land
Mexaland Mexaland Dev Dev Sdn Sdn Bhd Bhd & Ors v Score Option & Ors v Score Option Sdn Sdn
Bhd Bhd & Ors & Ors
Merely relying on the Joint Merely relying on the Joint--venture agreement venture agreement
did not confer a did not confer a caveatable caveatable interest. interest.
Conditions to extend the Caveat Conditions to extend the Caveat
1. Sufficient grounds for caveat 1. Sufficient grounds for caveat-- The onus of proof is on The onus of proof is on
the the caveator caveator. ( . (Kump Kump Sua Sua Betong Betong Sdn Sdn Bhd Bhd v v Dataran Dataran Segar Segar
Sdn Sdn Bhd Bhd))
A. The applicant must satisfy that he has a A. The applicant must satisfy that he has a caveatable caveatable
interest in the land. interest in the land.
B. the evidence B. the evidence
C. to show on the balance of convenience C. to show on the balance of convenience
Urethane Systems Urethane Systems Sdn Sdn Bhd Bhd v v Quek Quek Yak Kang Yak Kang
No No caveatable caveatable interest as the claim was based on monetary interest as the claim was based on monetary
loss. loss.
Peng Peng DanaHarta DanaHarta Nasional Nasional Bhd Bhd v Astron ltd v Astron ltd- - Monetary loss Monetary loss--
not not caveatable caveatable interest. interest.
Withdrawal of a private caveat Withdrawal of a private caveat
S 327 S 327
1. by the 1. by the caveator caveator: s 325: Form 19G : s 325: Form 19G
2. by the Registrar: s 326: Form 19C 2. 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 Caveat Removal 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 Caveat Removal of Caveat
By the Registrar: S 326 of the NLC By the Registrar: S 326 of the NLC
Procedure: Form 19H and pay the prescribed fee Procedure: 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 19C removal 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 Caveat Removal of the Caveat
By the Court: S 327 of the NLC By the Court: S 327 of the NLC
The only parties are The only parties are caveatee caveatee and and caveator caveator the the
aggrieved parties. aggrieved parties.
Luggage Distributors M Luggage Distributors M Sdn Sdn Bhd Bhd v Tan v Tan Hor Hor Teng Teng & & Luggage Distributors M Luggage Distributors M Sdn Sdn Bhd Bhd v Tan v Tan Hor Hor Teng Teng & &
Anor Anor
If grounds are insufficient, the caveat must be If grounds are insufficient, the caveat must be
removed. removed.
Charge Charge
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 chargee chargee has the right to apply for an order has the right to apply for an order The The chargee chargee 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 Charge Entering 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 16A Form 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 chargee chargee..
Chargee Chargee to apply for order for sale to apply for order for sale
The The chargee chargee has the right to sell the property in the event has the right to sell the property in the event
the the chargor chargor 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 chargee chargee;;
The The chargor chargor must be served a notice in Form 16D must be served a notice in Form 16D--
Upon the expiry of the such notice, the Upon the expiry of the such notice, the chargee chargee would would
have the right to apply for an order for sale of the land have the right to apply for an order for sale of the land
S 255: Payable on demand S 255: Payable on demand-- Form 16E Form 16E-- 1 month still not 1 month still not
paid paid-- order for sale without F 16D. order for sale without F 16D.
Specific Relief Specific 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 agreement 1. repudiation or rescission of the agreement
2. the payment of liquidated damages 2. 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.
Palmerston Palmerston Holdings Holdings Sdn Sdn Bhd Bhd v Chong v Chong Siew Siew Eng (2007) 7 Eng (2007) 7
CLJ 56 CLJ 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 Claims The 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:
( (i i) 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 SPA b) The SPA- -housing accommodation built in a residential area. housing accommodation built in a residential area. b) The SPA b) 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
unless unless
( (i i) 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 Lease Tenancy 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: lease S 5 of the NLC: lease-- registered lease or sublease registered lease or sublease S 5 of the NLC: lease S 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 subtenancy subtenancy for a term not exceeding 3 for a term not exceeding 3
yrs yrs-- s 223 s 223
2. tenancy or 2. tenancy or subtenancy subtenancy not exceeding 1 yr not exceeding 1 yr--
previous land law. previous land law.
Differences Differences btn btn a Tenancy and a Lease a Tenancy and a Lease
Lease: Lease:
must be registered under s 222 (1) of the NLC must be registered under s 222 (1) of the NLC
Exceeding 3 years Exceeding 3 years
Where any sub Where any sub--lease relates to a part only of any lease relates to a part only of any
alienated land alienated land-- not exceed 30 yrs. not exceed 30 yrs. alienated land alienated land-- not exceed 30 yrs. not exceed 30 yrs.
Tenancy: Tenancy:
Less than 3 years, s 213 Less than 3 years, s 213
Subtenancy Subtenancy must not exceed 3 yrs and/or the must not exceed 3 yrs and/or the
tenancy period tenancy period
Tenancy Agreement Tenancy Agreement
S 223 (2): may be created verbally or in writing S 223 (2): may be created verbally or in writing
Identify the landlord and tenant correctly Identify the landlord and tenant correctly
The verify that the landlord is the actual proprietor The verify that the landlord is the actual proprietor
All proprietors, to execute the Tenancy Agreement All 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 period Extension of tenancy period
Identify use of premise Identify use of premise
Termination of the agreement Termination of the agreement
Fees for Tenancy Fees for Tenancy
Monthly rent: for the 1 Monthly rent: for the 1
st st
RM10k= 25% RM10k= 25%
minimum RM300 minimum 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 Tenancy Stamp Duty on Tenancy
Below RM2400= exempted. Below RM2400= exempted.
Rent x 1 yr= A, A Rent x 1 yr= A, A--RM2400=B, B RM2400=B, B250=C 250=C
Landmark Cases Landmark Cases
Adorna Adorna Properties Properties Sdn Sdn Bhd Bhd v v Bonsoom Bonsoom Boonyanit Boonyanit
Tan Ying Hong v Tan Sian San & Ors Tan Ying Hong v Tan Sian San & Ors
Dr M Dr M Mahadevan Mahadevan Mahalingam Mahalingam v S v S Lourdenadin Lourdenadin & &
Another case Another case
Leong Lai Leong Lai Kuen Kuen v v Sentul Sentul Murni Murni Sdn Sdn Bhd Bhd Leong Lai Leong Lai Kuen Kuen v v Sentul Sentul Murni Murni Sdn Sdn Bhd Bhd
Kump Kump Sua Sua Betong Betong Sdn Sdn Bhd Bhd v v Dataran Dataran Segar Segar Sdn Sdn Bhd. Bhd.
Linggi Linggi Plantations Ltd v Plantations Ltd v Jagathesan Jagathesan
Adorna Adorna Properties Properties Sdn Sdn Bhd Bhd v v Bonsoom Bonsoom
Boonyanit Boonyanit (2001) 1 MLJ 241 (2001) 1 MLJ 241
FC, FC, Eusoff Eusoff Chin, Wan Chin, Wan Adnan Adnan, Abu , Abu Mansor Mansor 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 Adorna Adorna case. ( case. (Tun Tun Zaki Zaki, , Alauddin Alauddin
Mohd Mohd Sheriff, Sheriff, Arifin Arifin Zakaria Zakaria, , Zulkifli Zulkifli Ahmad Ahmad
Makinudin Makinudin, James , James Foong Foong). ).
Adorna Adorna is no longer good law and in fact wrong, is no longer good law and in fact wrong, Adorna Adorna 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 Adorna Adorna case had case had miscontrued miscontrued
s340 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 Mahadevan Mahadevan Mahalingam Mahalingam v S v S Lourdenadin Lourdenadin
& Another case & Another case [1988] 1 CLJ (Rep) 168 [1988] 1 CLJ (Rep) 168
SC, ( SC, (Abd Abd Hamid Hamid Omar, Omar, Hashim Hashim Yeop Yeop Sani Sani and and
Syed Syed Agil Agil Barakbah Barakbah))
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 Kuen Kuen v v Sentul Sentul Murni Murni Sdn Sdn Bhd Bhd
(2004) 5 CLJ 25 (2004) 5 CLJ 25
HC (James HC (James Foong Foong))
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.
Kump Kump Sua Sua Betong Betong Sdn Sdn Bhd Bhd v v Dataran Dataran Segar Segar
Sdn Sdn Bhd Bhd (1992) 1 MLJ 263 (1992) 1 MLJ 263
SC ( SC (Jemuri Jemuri Serjan Serjan, 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 caveator caveator has has
to show to the R when his private caveat is to show to the R when his private caveat is
challenged. challenged.
Linggi Linggi Plantations Ltd v Plantations Ltd v Jagathesan Jagathesan (1972) 1 MLJ 89 (1972) 1 MLJ 89
PC (Lord PC (Lord Hailsham Hailsham, Lord , Lord Hodson Hodson, Lord Cross) , Lord Cross)
Wtr Wtr 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 noncompletion noncompletion 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
therefrom therefrom 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 pre genuine 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.