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30 May 2012
JAMALUDIN YAAKOB
Protects Purchasers
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Learning Outcomes
At the end of the discussion students should be able to discuss the courts attitude when interpreting the clauses in Regulation H or G of the Housing Development (Control & Licensing) Act 1966 in order to protect the interests of purchasers.
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Introduction The Malaysian land law is based on the Torrens System where the registration is everything (see Teh Bee v. Maruthamuthu & Papoo v Veeriah). In the case of sale and purchase of land, the purchaser only becomes the new owner when his name is registered on the document of title. Thus, he is not willing to pay the full price until his name is registered in the title.
Likewise, the vendor too is not willing to transfer the purchasers name until he pays the vendor the full price.
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Introduction Conveyancing is in fact a legal mechanism that provides for the systematic procedure for the smooth transfer of title of the land and payment of price in sale and purchase of immovable property.
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Governing Laws Contract Act 1950 HD (C & l) Act 1966 Specific Relief Act Statute of Frauds Strata Title Act 1985
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Instances of Transfer 1) Simple transfer of land/property Under will, law of inheritance, gift, love and affection between close relatives, etc.- no consideration 2) Simple sale and purchase That does not involve loan from bank 3) Sale and purchase of property Purchaser gets loan from bank.
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Instances of Transfer
4) Complex sale and purchase of property Purchaser intends to carry out development project and requires planning permission and other approvals. 6) Development agreement Registered proprietor enters into development agreement or joint venture agreement with developer.
Instances of Transfer 8) Sale and purchase of houses under Sell and Build or Build and Sell Schedule G or H, under HD (C & L) Act 1966. 9) Mergers When two or companies merged into one. 10) Sale by official assignee/receiver/liquidator
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Stages in Conveyancing Identification of property Self initiative, advertisement, friends, e-bays or property agent
Appointment of solicitor
Search
Option/booking proforma
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Conveyancing lawyer representing purchaser Identification of property stage Appointment of solicitor stage Vendor promises to keep property for purchaser to make decision
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The exercise to purchase under the option is subject to signing of a written contract
Within a specified period the parties enter into a written contract 10% on signing of S & P Agreement 90% within a specified period Instalment or Progress payment Payment to stakeholder
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Stages in Conveyancing Bank Loan Purchaser apply for bank loan to pay the 90% balance Vendor execute Form 14A
Transfer of Title
Stakeholder
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Stages
S&P Agreement
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Appointment of solicitor
Booking Proforma Search S & P Agreement Housing Loan
Repayment of loan
Completion Final Payment Delivery/Taking Possession Transfer of title
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Payments
Termination
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Protection for Purchasers The sale and purchase of houses by developers in Malaysia by-and-large is based on sell and build method.
Protection for Purchasers Schedule H favours Purchasers Date of Contract Termination due to Delay Liquidated Damages Contract Out
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Favours Purchasers City Investment v. Koperasi Serbaguna [1988] Sentul Raya v. Hariram [2008] Expo Holding v. Saujana Triangle [2009)
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Contract Out Lee Poh Choo v. SEA Housing [1982] 1 MLJ 324 CONTRAST: Tan Chee Wah v. Sri Damansara [2006] 6 MLJ 752
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Termination Kang Yoon Mook Xavier v. Insun Development [1995] 2 MLJ 91 CONTRAST
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Liquidated Damages Neoh Khoon Lye v. Transit Intan [2002] 6 MLJ 8 CONTRAST: Insun Development v. AzaliBakar [2010] 1 MLJ 597 Phoenix Heights Estate v. Lee Kay Guan [1982] 2 MLJ 86 (PC)
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