Beruflich Dokumente
Kultur Dokumente
0 Intervivos Transfer
Definition:
- A transfer of property from transferor to transferee without any monetary compensation
or it is transferred to the transferee as a gift. The transferor will convey his property to the
transferee based on love and affection.
Sec.26(a) of the Contracts Act 1950: An agreement is valid if
- It is expressed in writing (form 14A)
- It is registered under the applicable law (for convey, under the NLC)
- It is made on the account of natural love and affection between parties standing in near
relation to each other
Re Tan Soh Sim (near relation):
- The court held that adoption under Chinese custom does not give a rise to a relationship
falls within the meaning of standing in a near relation.
- It will only be considered as standing in near relation if the parties have a blood
relationship.
Queck Poh Guan (blood relation):
- The court held that intervivos transfer between mother and son based on love and
affection is valid.
Issue: Whether the transferor can transfer only half portion of the land to the transferee?
- Sec.214(1) NLC: Transfer can only be carried out in respect of the whole of undivided share
or the whole piece of land.
- Peter Lai Kee Chin: However, it was decided by the court that when the transfer is on the
half share of the land to his wife and the other portion to himself to make them both co-
owners of the property in undivided equal shares, it will not contravene Sec.214(1). In
practice, the proprietor will have to execute on the transferors part as well as on the
transferees part in Form 14A.
Procedure:
1. Pre-requisite inquiries
- Sec.384: Solicitor conduct land search/bankruptcy search
- Private search: go to the Land Office and check personally
- Tirai Kristal Sdn Bhd: The plaintiff conducted a private search and found out that it was a
scam, the court refused to grant for compensation.
- Official Search: Go to Land Office and apply for land search and then guaranteed by
Registrar.
2. Preparation
- No contract of sale needs to be drafted when there is no exchange of money.
- The relevant dealing document to effect a transfer is provided in Sec.215(1) NLC, the form
is form 14A.
- Sec.208(1)(a): Details of parties must be stated
- Sec.43: A party must be a natural person of the age of majority
- Sec.208(1)(b): If the land transfer is to more than one party it must be specified in form
14A.
- Sec.209: Description of the land must be filled by the transferor in form 14A.
- (a): Administrative area
- (b): Lot number
- (c): Title of the land
th
- 10 Schedule: How to prepare form 14A
5. Registration
- Sec.292(1): Transferor must present the document for registration at the Registry or Land
Office
- Sec.293(1): Document must be accompanied by a registration fee
- Sec.292(4): Death of any person of whom any instrument has been executed shall not
affect the validity of the instrument to be presented for registration.
- Once the transfer has been registered, the title may be collected from the Registry or Land
Office.
2.0 Transfer by Contract of Sale
A transfer is executed only after the terms and conditions of the sale have been agreed
upon.
- The transferor (registered proprietor) will part with his title upon payment of monetary
compensation (purchase price) made by the transferee.
- Two types of transfer by contract of sale:
i. Private treaty (sub-sale)
ii. Regulated contract of sale (governs by Housing Development Act).
Issue: Whether a contract of sell property is valid and enforceable where it is made orally?
- Sec.9 CA 1950: So far as the proposal or acceptance is made otherwise than in words, the
promise is said to be implied.
- Diamond Peak Sdn Bhd: An oral contract for the sale of immovable property is valid and
enforceable.
- Sandrifram Sdn Bhd: All the terms and conditions of sale had been agreed upon by the
parties. When the vendor discovered that the property is valued higher that the sale price,
he refused to execute the agreement on the ground that it was made orally. The court
granted the purchaser's application for specific performance of the sale agreement.
The registered proprietor is known as the transferor in the Form 14A and as a Vendor in a
sale and purchase agreement.
The acquirer of the land is known as the transferee in the From 14A and a Purchaser in the
sale and purchase agreement.
1. Pre-Contractual matters
(A) Duties of vendors solicitors.
- The RP will consult his solicitor as how the disposal of property by way of transfer can be
prepared and completed in order to get money from the transaction after negotiation with
the prospective buyer.
- VS should obtain the details of the vendor, property and the terms and conditions of the
contract and clarify whether the parties have concluded an agreement during the
negotiation.
- VS must also ascertain the vendors status in relation to the land;
- The capacity of the vendor will determine as to whether he will need to make any
application for consent from any relevant authority beforehand.
- If the vendor is registered as the holder of a Power of Attorney, he must be
subjected to the Deed of Power of Attorney executed between him and the donor.
Thus, his power to deal with the land is limited as granted to him under the Deed,
and exceeding the power will cause the contract to be void (Hj Saud v Hj Ahmad).
- Moreover, the material details of the land must also be ascertain
- If the land is subject to a restriction in interest, then the vendor cannot deal with
land unless he obtained consent from the relevant authority. Non-compliance will
render the transfer null and void.
- Other type of restriction is provided under Section 214A NLC, with regards to
estate land where it stated that in order to transfer any estate the proprietor must
obtain consent from the Estate Land Board.
- Rengamah Rengasamy: The contract to sell the land is conditional upon the
approval of the Estate Land Board.
- It is the vendors duty to apply for the consent from the relevant authority. Thus, it
is the duty of the VS to advise the vendor to make the necessary application to
facilitate the transfer.
- The VS must also inquire from the vendor whether his property is subjected to any
charge. This is to notify the purchase that the land is used as a security and is still
subject to a charge in favour of a charge (bank) and help the purchaser redeem the
property.
- Terms of SPA
- The VS must ascertain the important terms of the SPA such as the purchase price,
duration, and deposit in order to assist him in liaising with the purchasers solicitor.
3. Post Contract
- The purchasers solicitor must ensure that the SPA and Form 14A are completed and duly executed
and that the deposit has been paid.
- Once completed the documents must be attested in accordance with Sec.211(1), (2), (3)
whereby it must be witnessed by person specified under 5th schedule, NLC.
- Private caveat: To protect the purchasers interest over the land before the transfer is registered,
the purchasers solicitor should lodge a private caveat on behalf of the purchaser.
- In order to do so, the purchaser must show that he has a caveatable interest over the land
as required under Sec.323(1)(a).
- Ong Chat Pang: A purchaser has caveatable interest once he has signed the SPA and made
payment of deposit.
- Sec.323(2): An application in Form 19B must be made and attested in accordance with
Sec.211 and 5th Schedule, NLC.
- Sec.323(3): The applicant must state the nature of his claim verified by a Statutory
Declaration and accompanied by a prescribed fee.
- Form 19B and the Statutory Declaration must be registered at the relevant Land Office.