CONVEYANCING

Buying House From Developer

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JAMALUDIN YAAKOB

CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

CONTENT Learning Outcomes

Introduction Governing Laws Instances of Transfer Stages in Conveyancing

HD (C & L) Act 1966

S & P Agreement (Schedule H)

Protects Purchasers
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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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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JAMALUDIN YAAKOB

CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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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JAMALUDIN YAAKOB

CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

Governing Laws Contract Act 1950 HD (C & l) Act 1966 Specific Relief Act Statute of Frauds Strata Title Act 1985
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National Land Code 1965

Legal Profession Act Law of Trust
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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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.

7) Purchase of property by foreigners or foreign investors

That require approval from Foreign Investment Committee (FIC).
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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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

11) Sale by judgment creditor

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JAMALUDIN YAAKOB

CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

Stages in Conveyancing Subject to contract S&P Agreement Payments

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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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

Stages in Conveyancing Bank Loan Purchaser apply for bank loan to pay the 90% balance Vendor execute Form 14A

Transfer of Title
Stakeholder

Releases the final payment

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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

HD (C & L) Act 1966

Stages

S&P Agreement

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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

Stages Identification of property Release of Loan

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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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

HD (C & L) Act 1966

Schedule H Transfer of title Stakeholder Completion Dates (duration of completion) Time as essence of contract Delivery Liquidated Damages

Payments
Termination

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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

Protection for Purchasers The sale and purchase of houses by developers in Malaysia by-and-large is based on sell and build method.

Purchasers are exposed to too high risks to the advantage of developers.

Thus in 1966 Parliament passed a bill Housing Developers (Control & Licensing) Act 1966. Parliamentary handsurd Salleh Buang cases the statute is - for protection of purchasers. Judges realised this policy interpreted the provisions & clauses in favour of purchasers.
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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

Protection for Purchasers Schedule H favours Purchasers Date of Contract Termination due to Delay Liquidated Damages Contract Out

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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

Favours Purchasers City Investment v. Koperasi Serbaguna [1988] Sentul Raya v. Hariram [2008] Expo Holding v. Saujana Triangle [2009)

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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

Termination Kang Yoon Mook Xavier v. Insun Development [1995] 2 MLJ 91 CONTRAST

Berjaya Time Squares v. M Concept [2010] 1 MLJ 597

Chye Fook & Anor v. Teh Teng Seng Realty [1989] 1 MLJ 308

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CONVEYANCING UNDER HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966

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)

Sakinas v. Siew Yik Han & Anor [2002] 5 MLJ 497

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