Deed Of Assignment By Way Of Transfer In Malaysia

1. Information which a buyer should obtain when buying a house

1. Does it have a separate title?

2. Take a photocopy of the title.

3. Get a photocopy of :-

(a) current quit rent receipt;
(b) current assessment receipt.

4. Make sure you deal with owner of house or his duly authorised agent. (such authority should be in writing). Any other person will not be able to make any binding commitment to you.

5.1. If the house/apartment does not have any title, then get evidence of the seller's ownership i.e. a copy of the Sale & Purchase Agreement (SPA) made by the seller with the developer when he purchased the house/apartment

5.2. If the seller is a Second/ Third hand owner, then he would have to give you:-

(a) 1st SPA made by 1st owner with developer;
(b) 2nd SPA made between 1st owner and seller, (if 2nd hand); and
(c) 3rd SPA between 2nd owner and 3rd owner seller, (if 3rd hand).

as proof that the seller is the owner of the house/apartment.

6. Did the seller take a loan to buy the property?

For most cases, the answer is "yes". In such a case, you should get the seller to provide you with the bank's statement of how much he still owes the bank (redemption statement). With the redemption statement, you would know how much money you can release to the seller and how much is to be paid to his bank to obtain a discharge of the property from the bank.

2. Information relevant to apartment

1) Maintenance and other charges that need to be paid to developer/management committee. You should check that seller is up to date with his payments and there are no arrears due to developer/management committee.

2) If the apartment has no strata title, the purchaser must notify the Developer of the assignment after the completion of the sale.

3. Housing Schemes that are developed by Statutory bodies e.g. Penang Development Corporation (PDC), Perda, PKNS, etc

1) The SPA of such schemes may have restriction on the buyer selling the property i.e. it could not be sold within a stipulated period or without the consent of the government.

2) The title to the property may have restrictions. (the restrictions could be read from the title or search of the title) e.g. property cannot be transferred or charged without State consent.

3) The consent application may take a few months to be approved.

4. Documents you need to sign

1) Sale & Purchase Agreement;

2) CKHT form (form required to be submitted by Vendor and Purchaser to Inland Revenue Department) (now exempted)

3) Stamp Duty form;

4) Transfer form 14A. (If title is issued);

5) Deed of Assignment (if title is not issued).

5. The process involved in getting you registered as the owner of the property (in cases where title is issued)

1) Both seller and buyer sign transfer form 14A.

2) Lawyer sends transfer form to Stamp Office for adjudication to ascertain how much stamp duty is to be paid.

3) Stamp Office then stamps 'transfer form' for a nominal value of RM10.00 and returns transfer form to lawyer.

4) Stamp Office then informs Valuation Department of transaction. Valuation Department then values property and informs Stamp Office of valuation.

5) Stamp Office then issues PDS form to the lawyer. Buyer is normally given three (3) to four (4) weeks to pay stamp duty failing which, a penalty would be imposed.

6) Lawyer collects stamp duty from purchaser and proceeds to stamp transfer form. It may take about a week for the Stamp Office to return the lawyer the duly endorsed form. After stamping transfer form, lawyer presents the transfer form to the Land Registry/Office for registration. On presentation, you would be the registered owner of the property. However it may take several months (depending on which Land Office) before the physical title is returned by the Land Registry/Office. With the computerization process recently implemented in all Land Offices/ Registries in the country, the process is expected to be shortened.

If you obtain a loan from a bank to buy the property, the title would be sent to the bank. You should get a photocopy of the title from the lawyer for your record.

6. How is stamp duty calculated?

For the transfer/assignment (if no individual title is issued), based on the adjudicated value by the Stamp Office:

 

 

Amount charge (RM)

Percentage

Duty (RM)

 

 

 

 

 

 

On the First

100,000.00

1%

1,000.00

 

 

 

 

 

 

On the Following

400,000.00

2%

8,000.00

 

 

 

 

 

More than

500,000.00

3%

For Charge

Stamp duty on a Charge is RM5.00 per RM1,000/- or part thereof of the loan amount e.g. Loan of RM100,000/-, stamp duty is RM 500/- on the original. The stamp duty per copy of the document is RM10/-.

The assessed value is the value assessed by the Valuation Office based on the purchase price or the market value of the property, whichever is higher.

7. Appointment of Lawyers

1. You have the right to appoint a lawyer of your choice to act for you in any transaction whether it is a purchase from a developer or an individual. After all, legal fees etc, are borne by you. You should ascertain that:-

(a) he is a lawyer;

(b) that he has a valid practising certificate for the current year.

Verification of the above can be done with the Bar Council.

Each party to the transaction is advised to retain separate lawyers to protect their respective interests.

A lawyer can:

(a) advise, prepare and /or vet documents such as SPA, deed of assignment, deed of reassignment, deed of mutual covenants, deed of reassignment and loan document. However, the SPA for purchases of residential properties from a developer is a standard form agreement fixed by law;

(b) conduct land, bankruptcy/insolvency and company searches to ensure that there are no surprises, such as a different registered owner, encumbrances (charges, caveats), conditions or restrictions on the title (important for a buyer), or that a party is bankrupt/insolvent;

(c) if there is an individual title, to enter a private caveat to freeze all dealings in the property until it is transferred to the buyer;

(d) send documents/instruments to the Stamp Office for adjudication and arrange for their stamping;

(e) act as stakeholder, to hold all money paid, retain 5% of the purchase price for the purpose of Real Property Gains Tax; and/or to hold the balance of the purchase price;

(f) prepare and witness the execution of statutory forms;

(g) for a sub-sale where the individual title has not been issued, get the consent of the developer to the sale of the property to the new buyer and to undertake the registration of the property in the name of the new buyer. The lawyer should also get an undertaking from the developer not to further encumber the property, and for a development project with a master title, a letter of disclaimer from the chargee of the master title confirming no right or interest in the individual property;

(h) if the buyer takes a loan, get a letter of undertaking from the lender. The undertaking will include an undertaking that it will not foreclose the property if the loan, interest, etc has been repaid/paid; and

(i) present the transfer (Form 14A) and if applicable, the charge (Form 16A) for registration at the land office.

Can a lawyer act for the seller, buyer and the buyer's lender?

A lawyer may only act for one party in one transaction, but may witness the execution of any documents/instruments by any party. A sale and purchase is one transaction and a loan is another separate transaction. Therefore a lawyer can act for a seller or buyer, and also a lender or borrower. However, the solicitor concerned should have regard to any possible conflict of interest situation.

Lawyers are bound by the Solicitors' Remuneration Order 1991 (SRO) and there are scale fees for all conveyancing transactions and secured banking transactions done by a lawyer.

Lawyers are not allowed to give any discount. If any lawyer gives a discount on the scale fees, he could face disciplinary action.

There are fixed scales for lawyers' fees if you, as a seller or buyer, engage a lawyer. (stated herein is for fees only and does not include disbursements).

8. Lawyers' Fees

Click here for the scale of professional fees chargeable by lawyers.

9. House Seller's Guide

Documents/ information you must provide buyer/buyer's solicitors

(a) Copies of your previous Sale & Purchase Agreement and Loan Agreement/Title.

(b) Current year quit rent receipt.

(c) Current year assessment receipt.

(d) Redemption Statement from your bank (if you have charged your house to the bank).

(e) Letter of Undertaking to purchaser's bank to refund purchaser's bank loan released to you in the event the transfer/deed of assignment signed by you in favour of purchaser cannot be registered/is defective.

(f) Income Tax file reference number.

10. Utility deposits

Make sure you make arrangements with purchaser to obtain refund of the remaining deposits i.e. water, electricity, telephone etc.

11. For Apartments

Make sure you make arrangements to obtain the refund of deposits which you have paid the developer. You would be required to provide the necessary original receipts to obtain the refund.

12. Notification of Change of Ownership of House/Apartment to Local Authority i.e. Majlis Perbandaran.

You or your lawyer must notify the Local Authority of any change in the ownership of any house/apartment so that its assessment record could be updated. It is an offence if you fail to notify the relevant authority.

13. Receipt of Balance Purchase Price

Generally, there would be a short time lapse between the payment of the balance purchase price by the purchaser to your lawyer and the date when you receive the balance purchase price from your lawyer depending on the completion of documentation. Please seek clarification from your lawyer.

©The Sun (Used by permission)
by Roger Tan

(The full version of this Q & A meant for members of the Bar can be downloaded here)

The Housing Development (Control and Licensing) (Amendment) Act 2007 (“Amendment Act”) which amended the Housing Development (Control and Licensing) Act 1966 (“Act 118”) came into force on April 12, 2007. Since then, the Conveyancing Practice Committee of the Bar Council (“CPC”) has received numerous queries from lawyers, developers and the public on the operation of some of the amendments.

While it is not the policy of CPC to proffer any legal opinion on questions of law posed to them, the CPC has decided that in order to assist the affected parties and subject to the disclaimer below, our views on some of the queries are as follows:

Section 22D(1)of Act 118 stipulates beyond any doubt that the consent of the developer is not required for the absolute assignment of rights or interests in a housing accommodation. In a case where the developer is not the proprietor of the land, is it necessary to obtain the proprietor’s consent to the assignment?

As the consent of the proprietor to an assignment was not required before the amendment, it is also, therefore, not required after the amendment.

The CPC is of the view that an absolute assignment is good if served by way of a notice pursuant to section 4(3) of the Civil Law Act 1956. What section 22D seeks to do is to restate the position of the law and to provide penal sanctions against a developer who requires consent to an assignment.

The CPC notes that under both the current Schedules G and H agreements, the duty to obtain the issue document of title or the strata title, as the case may be, and to deliver the same together with an instrument of transfer lies with the developer.

The CPC also notes that in a case of a sale of property for which no title has been issued at the time of sale and the developer is not the proprietor of the land, it has been the practice of solicitors for the purchaser or the purchaser’s financier to obtain the proprietor’s undertaking to deliver the issue document of title to the purchaser or the financier, when issued. It would therefore be prudent for a purchaser or financier to give notice of assignment to the proprietor as well, in which case, the undertaking from the proprietor to deliver title when issued is no longer necessary.

To reinforce this point, the amended Schedules G & H should be brought in line with section 22D by expressly stipulating that a purchaser may assign his rights and benefits under the sale and purchase agreement after the completion date without the consent of either the developer or the proprietor.

Since the developer’s consent has been dispensed with, there is no longer a need for the consent page to the deed of assignment between the assignor (vendor) and the assignee (purchaser). However, the consent page normally contains an undertaking by the developer to deliver the strata title and a valid and registrable instrument of transfer thereof in favour of the assignee. Is it necessary to request the developer to issue an undertaking by way of a separate letter to the new purchaser or to the new purchaser’s financier?

The obligation of the developer to deliver the strata title when issued together with the instrument of transfer and the right of the first purchaser to the same is already set out in clause 11 of the Schedule H agreement. In an assignment from a first purchaser to a second purchaser, all the rights and interests of the first purchaser are assigned to the second purchaser. When the second purchaser requires financing, all the rights and interests which he obtained from the first purchaser are in turn assigned to the second purchaser’s financier. Hence no further undertaking from the developer, by way of a separate letter or otherwise, is necessary.

Section 22(D)(4) states that the purchaser or his financier or their respective solicitors may request for the necessary confirmation from the developer, subject to payment of a fee not exceeding RM50 for every request for confirmation. Previously, it has been a normal practice to require the vendor to apply for the developer's consent, at the vendor's own cost and expense, and the developer's administrative fee usually includes the replies or confirmations made to the relevant solicitors. Section 22(D)(4) provides that the purchaser should pay the RM50.00 for every request made. Shouldn't the vendor be paying for this?

The law now requires the purchaser to seek the necessary confirmation from the developer, and to pay to the developer for every request made. The Vendor is not required to pay for this.

In a sub-sale transaction, the SPA was signed before April 12 and the developer has given its conditional consent before April 12. The developer's consent was conditional, inter alia, upon:

(i) the vendor paying the administrative charges of RM500.00;

(ii) the purchaser signing a fresh deed of mutual covenants with the developer; and

(iii) the developer endorsing its consent on the deed of assignment.

All these conditions have not been complied with by the vendor and purchaser at this moment.

1. Is the developer's consent or the endorsement of its consent on the deed of assignment still required in the above case?
2. Do the vendor and the purchaser still need to comply with the developer's conditions imposed before April 12, since the developer is now not permitted to impose any conditions under the section 22D?

3. Can the developer still insist on the compliance by the vendor and the purchaser of its conditions which were imposed before the section 22D came into force?

The answer to all the above three questions is “No”.

If an application had been made for the developer’s consent before April 12, and all the conditions and payments imposed or required by the developer have been fulfilled or paid, and the developer had endorsed its consent to the deed of assignment before April 12, then the parties to the transaction should continue and complete the transaction accordingly.

If the developer’s consent, conditional or otherwise, was granted before April 12, and the conditions or payments imposed or required have not been fulfilled or paid and the developer has not endorsed its consent on the assignment, then the pursuit of the developer’s consent should be abandoned as it no longer required. Parties are, however, required to comply with section 22(D)(2) and 22(D)(4).

After April 12, no developer is permitted to require any consent, and this will include endorsement of any consent granted before April 12. It follows that as the breach can only occur after April 12, the question of whether the legislation has any retrospective effect does not arise.

In a sub-sale of property where the individual strata title has not been issued, in view of the new section 22D, please confirm the conditions precedent to such an agreement (if any) as we are of the view that the vendor should obtain the developer’s written confirmation on the status or details of the property before the completion period can commence.

Before the Amendment Act, it had been the practice to require the vendor to obtain the developer’s consent and the obtaining of such consent is usually made a condition precedent to the completion of a sale and purchase transaction. After the amendment, there should be no longer any condition precedent relating to obtaining the developer’s consent.

However this should not affect the requirement of other consents from any other relevant body or authority required under any other written law, which may continue to be made as conditions precedent.

The amendment refers to any sub-sale or re-financing. In direct purchases from a developer, is the developer’s endorsement of consent necessary for the Deed of Assignment (by way of security)?

Section 22(D) applies to all these cases:

(a) financing of the acquisition by the first purchaser from the developer;

(b) sub-sale between the first purchaser and the second purchaser and purchasers subsequent thereto; and

(c) financing of the acquisition by the second purchaser and purchasers subsequent thereto.

Is the consent of the developer still required for a Deed of Receipt and Reassignment?

A Deed of Receipt and Reassignment is essentially an instrument where the financier assigns the rights and interests back to the purchaser/borrower. As such, consent of the developer is not required.

No amendments have yet been made to the Schedule G and H agreement under the 1989 Regulations. The existing provisions in the Schedule G and H SPA state that the developer shall endorse its consent to the purchaser’s assignment to any third party and charge an administrative fee of RM500 or 0.5% of the purchase price whichever shall be lower. In the event of a sub-sale of a property where no individual document of title has been issued, the principal SPA (whether under Schedule G or H) having such exiting provisions would be inconsistent with the Amendment Act. Are the parties still bound by the existing provisions?

We understand the amended Regulations are expected to be out soon. In the meantime, where there is inconsistency, the parent Act will prevail, meaning that from April 12, no consent is required and no administrative fee is required to be paid.

Does the definition of “housing accommodation” in the amended Act include serviced suites or apartments?

If the serviced suites or serviced apartments are intended for human habitation or partly for human habitation and partly for business premises, then they will fall within the definition of housing accommodation as amended. It does not matter if the accommodation is erected on a land designated or approved for commercial development as the Amendment Act has removed these words from the definition of housing accommodation inserted by the 2002 Amendment Act.

Does Section 22(D) apply to a housing development undertaken by DBKL, Perbadanan Kemajuan Negeri Selangor (PKNS) or the Perbadanan Kemajuan of other States?

Unless exempted by the Minister under section 2(2), all housing developers have to comply with Act 118 since 2002. Prior to December 1, 2002, Act 118 did not apply to any society registered or incorporated under any written law relating to co-operative societies and any body or agency established and incorporated by statute and under the control of the Federal Government or the Government of any State.

The writer is the Chairman of the Conveyancing Practice Committee, Bar Council Malaysia www.malaysianbar.org.my

Note: This column is brought to you by the Malaysian Bar Council for your information only. It does not constitute legal advice. You should therefore seek professional legal advice for your specific needs. Neither the Malaysian Bar nor the Sun Media Corp Sdn Bhd shall be liable to any reader who suffers losses as a result of relying on this column.



0 Replies to “Deed Of Assignment By Way Of Transfer In Malaysia”

Lascia un Commento

L'indirizzo email non verrà pubblicato. I campi obbligatori sono contrassegnati *