Chapter 4 - Land Dealing: Transfer

Question 1

TRANSFER

Overview

Answer 1

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

Question 2

WHAT MAY BE TRANSFERRED

Overview

Answer 2

1) The law

2) Application

Question 3

WHAT MAY BE TRANSFERED

The law

Answer 3

S.214

Question 4

WHAT MAY BE TRANSFERRED

Application

Answer 4

Peter Lai v Collector of Stamp Duties:

• transfer of undivided equal shares of land is NOT a transfer of a part of land.

Question 5

WHO CAN TRANSFER

Overview

Answer 5

1) Who

2) Power to refuse transfer

Question 6

WHO CAN TRANSFER

Who

Answer 6

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.

Question 7

WHO CAN TRANSFER

Power to refuse transfer

Answer 7

Pow Hing & Anor v Registrar of Titles, Malacca:

• Registrar has the power to refuse transfer for unpaid rent under S.301A.

Question 8

TRANSFER TO FOREIGNER

Overview

Answer 8

1) The law
2) Application
3) Effect of non-compliance

Question 9

TRANSFER TO FOREIGNER

The law

Answer 9

S.433B(1)(b):

• Must obtain approval by State Authority before executing memorandum of transfer.

Question 10

TRANSFER TO FOREIGNER

Application / failure to obtain approval

Answer 10

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.

Question 11

TRANSFER TO FOREIGNER

Effect of non-compliance

Answer 11

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

Question 12

REQUIREMENTS OF TRANSFER

Overview

Answer 12

1) Memorandum of transfer
2) Execution of instrument
3) Attestation

Question 13

REQUIREMENTS OF TRANSFER

Memorandum of transfer

Answer 13

S.215

• Form 14A

Question 14

REQUIREMENTS OF TRANSFER

Execution of instrument

Answer 14

S.210

• Sign or thumbprint

Question 15

REQUIREMENTS OF TRANSFER

Attestation

Answer 15

S.211 + 5th Schedule

Question 16

REQUIREMENTS OF TRANSFER

Attestation - whether S.211 is mandatory

Answer 16

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.

Question 17

REQUIREMENTS OF TRANSFER

Attestation - effect of non-compliance on the instrument

Answer 17

Overseas Realty Sdn Bhd v Wong Yau Choy:

• Non-compliance will render the document to be an insufficient document & incapable of being registered.

Question 18

REQUIREMENTS OF TRANSFER

Attestation - effect of non-compliance to the practising solicitor

Answer 18

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.

Question 19

DUTIES OF PARTIES

Overview

Answer 19

1) Duties of solicitors
2) Roles of stakeholders
3) Duties of Registrar

Question 20

DUTIES OF SOLICITORS

The law

Answer 20

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.

Question 21

ROLES OF STAKEHOLDERS

Overview

Answer 21

1) Who is stakeholder
2) What is his duty
3) Failure to perform

Question 22

ROLES OF STAKEHOLDERS

Who is stakeholder

Answer 22

Tan Suan Sim v Chang Fook Shen:

• The one who undertakes money paid by purchaser pending the outcome of future event.

Question 23

ROLES OF STAKEHOLDERS

What is his duty

Answer 23

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.

Question 24

ROLES OF STAKEHOLDERS

Failure to perform

Answer 24

OCBC Bank v Lee Lee Fah:

• A stakeholder is holding the money under trust;
• Remedy against failure to perform is against the stakeholder himself.

Question 25

DUTIES OF REGISTRAR

Overview

Answer 25

1) The law
2) Scope of duty
3) Failure to perform

Question 26

DUTIES OF REGISTRAR

The law

Answer 26

S.384: private search

S.385: official search

Question 27

DUTIES OF REGISTRAR

Scope of duty

Answer 27

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.

Question 28

DUTIES OF REGISTRAR

Failure to perform

Answer 28

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.

Question 29

POSITION OF PARTIES PENDING REGISTRATION

Overview

Answer 29

1) Vendor
2) Purchaser
3) The land

Question 30

POSITION OF VENDOR

Overview

Answer 30

1) What position
2) When does it arise
3) Right

Question 31

POSITION OF VENDOR

What position

Answer 31

Ong Chat Pang v Valliappa Chettiar:

• Pending registration, vendor is a bare trustee.

Question 32

POSITION OF VENDOR

When does it arise

Answer 32

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.

Question 33

POSITION OF VENDOR

Right of bare trustee

Answer 33

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.

Question 34

POSITION OF PURCHASER

Overview

Answer 34

1) What position
2) Right
3) Assignment of rights

Question 35

POSITION OF PURCHASER

What position

Answer 35

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.

Question 36

POSITION OF PURCHASER

Right of equitable owner

Answer 36

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.

Question 37

POSITION OF PURCHASER

Assignment of rights

Answer 37

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.

Question 38

POSITION OF THE LAND

Lodgment of Registrar’s caveat

Answer 38

Temenggong Securities v Registrar Titles, Johore:

• RC may not be ordered to be entered;
• Caveat entered may be ordered to be removed.