Chapter 4 - Land Dealing: Transfer Flashcards
TRANSFER
Overview
1) What may be transferred
2) Who can transfer
3) Transfer to foreigner
4) Requirements to transfer
5) Duties of parties
6) Position pending registration
WHAT MAY BE TRANSFERRED
Overview
1) The law
2) Application
WHAT MAY BE TRANSFERED
The law
S.214
WHAT MAY BE TRANSFERRED
Application
Peter Lai v Collector of Stamp Duties:
- transfer of undivided equal shares of land is NOT a transfer of a part of land.
WHO CAN TRANSFER
Overview
1) Who
2) Power to refuse transfer
WHO CAN TRANSFER
Who
Md Khamis bin Yaakob v Ismail Abdullah:
- Nemo dat quadnon habet, i.e. no one gives what he does not have.
- Therefore, only registered proprietor can transfer the land.
WHO CAN TRANSFER
Power to refuse transfer
Pow Hing & Anor v Registrar of Titles, Malacca:
- Registrar has the power to refuse transfer for unpaid rent under S.301A.
TRANSFER TO FOREIGNER
Overview
1) The law
2) Application
3) Effect of non-compliance
TRANSFER TO FOREIGNER
The law
S.433B(1)(b):
- Must obtain approval by State Authority before executing memorandum of transfer.
TRANSFER TO FOREIGNER
Application / failure to obtain approval
Jalaludeen Abdul Aziz v Thurmalingam S Rajadurai:
- Approval of State Authority must be obtained before execution of memorandum of transfer.
- OTF, since no approval had been obtained, it had contravened S.433B.
- Effect: the object or consideration was unlawful and the agreement was therefore void by reason of S.24 of the Contracts Act 1950.
TRANSFER TO FOREIGNER
Effect of non-compliance
1) If registration has taken place: title can be set aside by void or insufficient instrument.
2) If registration has not taken place: the object or consideration was unlawful and the agreement was therefore void by reason of S.24 of the Contracts Act 1950
REQUIREMENTS OF TRANSFER
Overview
1) Memorandum of transfer
2) Execution of instrument
3) Attestation
REQUIREMENTS OF TRANSFER
Memorandum of transfer
S.215
- Form 14A
REQUIREMENTS OF TRANSFER
Execution of instrument
S.210
- Sign or thumbprint
REQUIREMENTS OF TRANSFER
Attestation
S.211 + 5th Schedule
REQUIREMENTS OF TRANSFER
Attestation - whether S.211 is mandatory
Majlis Peguam Malaysia v Rajehgopal Velu & Anor:
- S.211 is a mandatory requirement.
- i.e. it is mandatory for the person authorised to attest a signature to ensure that it is signed by a real person before him.
REQUIREMENTS OF TRANSFER
Attestation - effect of non-compliance on the instrument
Overseas Realty Sdn Bhd v Wong Yau Choy:
- Non-compliance will render the document to be an insufficient document & incapable of being registered.
REQUIREMENTS OF TRANSFER
Attestation - effect of non-compliance to the practising solicitor
Albert Chew v Hong Leong Finance:
- Attestation to the veracity of a signature w/o his presence amounts to violation of the most fundamental code of legal profession.
- It would be tantamount to an illegal & improper act.
DUTIES OF PARTIES
Overview
1) Duties of solicitors
2) Roles of stakeholders
3) Duties of Registrar
DUTIES OF SOLICITORS
The law
Neoh Soo Oh v Rethinasamy:
- Search: conduct search beyond register on matters which yet to be noted in the register.
- Identity & veracity: ascertain the identity & veracity of the vendor.
- Execution: Ensure that the instrument is duly executed by the parties.
- Failure: failure may result in liability in tort or contractual liability as a solicitor.
ROLES OF STAKEHOLDERS
Overview
1) Who is stakeholder
2) What is his duty
3) Failure to perform
ROLES OF STAKEHOLDERS
Who is stakeholder
Tan Suan Sim v Chang Fook Shen:
- The one who undertakes money paid by purchaser pending the outcome of future event.
ROLES OF STAKEHOLDERS
What is his duty
Tan Suan Sim v Chang Fook Shen:
- Stakeholders will hold the money temporarily under trust pending future event;
- After which, he will pay it over to the vendor.
ROLES OF STAKEHOLDERS
Failure to perform
OCBC Bank v Lee Lee Fah:
- A stakeholder is holding the money under trust;
- Remedy against failure to perform is against the stakeholder himself.
DUTIES OF REGISTRAR
Overview
1) The law
2) Scope of duty
3) Failure to perform
DUTIES OF REGISTRAR
The law
S.384: private search
S.385: official search
DUTIES OF REGISTRAR
Scope of duty
Hak Milik Pejabat Pendaftaran WP v Poh Yang Hong:
- Statutory duty is imposed on LA/Registry to maintain accurate records of the Register;
- Breach of duty will expose them to claims for negligence.
DUTIES OF REGISTRAR
Failure to perform
Hak Milik Pejabat Pendaftaran WP v Poh Yang Hong:
- Administrative shortcomings amounting to negligence & breach of duty;
- Party suffered damages may bring claim for damages.
POSITION OF PARTIES PENDING REGISTRATION
Overview
1) Vendor
2) Purchaser
3) The land
POSITION OF VENDOR
Overview
1) What position
2) When does it arise
3) Right
POSITION OF VENDOR
What position
Ong Chat Pang v Valliappa Chettiar:
- Pending registration, vendor is a bare trustee.
POSITION OF VENDOR
When does it arise
Ong Chat Pang v Valliappa Chettiar:
- The vendor has done all that is necessary to divest himself of the estate.
- i.e. has executed a valid transfer of the land in favour of the purchaser.
- i.e. full purchase price has been paid & purchaser has received the instrument of transfer & title deed from the vendor.
POSITION OF VENDOR
Right of bare trustee
Wong Siew Choong Sdn Bhd v Anvest Corporation:
- Right to purchase money, charge or lien on the land.
- Right to retain possession until the full payment is paid.
POSITION OF PURCHASER
Overview
1) What position
2) Right
3) Assignment of rights
POSITION OF PURCHASER
What position
Macon Engineers v Goh Hooi Yin:
- A purchaser is an equitable ownership of the land.
- Vendor is regarded as holding the legal title on trust for the purchaser.
POSITION OF PURCHASER
Right of equitable owner
Munah v Fatimah:
- To have the full title of the land formally transferred to him;
- To not lose the right to the title to the land merely by delay or laches.
POSITION OF PURCHASER
Assignment of rights
Vallipuram Sivaguru v Pananiappa Chetty:
- A purchaser may make assignment of rights under the contract in favour of third party;
- The third party is treated as being in the same position as the original purchaser.
POSITION OF THE LAND
Lodgment of Registrar’s caveat
Temenggong Securities v Registrar Titles, Johore:
- RC may not be ordered to be entered;
- Caveat entered may be ordered to be removed.
