deed of assignment by way of transfer in malaysia

• Transferring a Property NOT pursuant to a sale – can it be done?

by Donovan & Ho (BD) | January 19, 2022 | Real Estate

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We often receive queries from individuals where a property was jointly purchased with loved ones or business associates, or even with an ‘ex’ and subsequently, one party wishes to transfer their portion of the property so there will now be just one owner. Another common scenario is where a husband / parent wishes to transfer the property to his wife or children while still alive.

In this article, we explore some frequently asked questions relating to situations that do not involve a sale of the property.

What are the documents needed to effect such a transfer?

An “MOT”, also known as “Instrument of Transfer”, is the legal instrument prescribed by the National Land Code 1965, which is used to effect the transfer of property with individual title or strata title. For a property without individual title or strata title issued, a Deed of Assignment (by way of transfer) is used to effect the transfer of the property.

Is a Sale and Purchase Agreement needed if no money is changing hands?

A Sale and Purchase Agreement (SPA) is not needed if no money is changing hands. However, it can be useful to have a simple SPA drawn up on a ‘friendly-party basis’ to capture the transfer, especially for the future disposal of the property to a bona fide third party purchaser.

What if the property is still subject to bank loan / charged to the bank?

If the property is still charged to a Bank, the outstanding loan must first be fully redeemed with cash OR from a completely new loan facility. Getting a new loan could mean a new (and lower) loan interest rate, but it will also involve additional legal fees and stamp duty (0.5% on the borrowed amount) on the loan documents.

The solicitor will then simultaneously register both the bank charge documents (for the new loan) and the MOT at the land office. It is also likely that the bank will insist for an SPA to be signed.

What is the time needed for such a transfer?

The whole process might take between 3 to 4 months, or more, depending on the tenure type of property, i.e. freehold or leasehold, whether there is a loan to redeem, or whether a developer is involved the property where the strata title is not yet issued.

Will state authority consent be required for such a transfer?

For a leasehold property, state authority consent will be required for the transfer. The state authority consent will take between 2 to 3 months depending on the location of the property.

What is the stamp duty involved in such a transfer?

You are also required to pay for the stamp duty to effect the transfer. The rates of stamp duty under the Stamp Act 1949 are as follows: –

• First RM100,000                                                 –           1%       
• Next RM400,000                                                 –           2%         
• Next RM500,000                                                 –           3%       
• Amounts above RM1,000,000                           –           4%

The stamp duty will be based on the property’s current market value which will be valued by the Inland Revenue Board and not based on original purchase price .

However, there are full or partial stamp duty exemptions if the transfer is done between spouses, parents and children:

Be mindful that transfers between siblings, friends, boyfriends and girlfriends, or grandparents are subject to the full stamp duty rate.

Will the transferor need to pay RPGT on such a transfer?

Under the Real Property Gains Tax Act 1976 (RPGT Act), there is a 100% RPGT exemption in the transfer of property between family members by way of love and affection between spouses, parents and children. The transferor is deemed to have received “no gain and suffered no loss” and not subject to any RPGT.

Apart from the above, any forms of transfer between siblings, friends, boyfriends and girlfriends, or grandparents are not entitled to apply for the RPGT exemption.

What is the RPGT implication to the transferee / recipient in the subsequent disposal?

The transferee should be aware that he is deemed to have acquired the property at the acquisition price that was previously paid by the transferor . Therefore, upon subsequent disposal by the transferee , he might be exposed to significant capital gains, especially if the property was previously owned by the transferor for a long amount of time.

It is always advisable to seek professional legal advice to first determine your exact situation after conducting the updated searches and a review of your documents, in order to assess the multiple variable factors and costs that would apply to your specific situation.

This article was written by  Shawn Ho  (Partner) & Suzanne Fam   (Senior Associate) from the property & tax  practice group of Donovan & Ho.   Shawn leads the  corporate  practice group of Donovan & Ho, and has been recognised as a Notable Practitioner, whilst the firm has been recognised as a Notable Firm for Corporate and M&A by Asialaw Profiles 2020 and 2021.  We are also ranked as a Recommended Firm by IFLR1000 2020 and 2021.

Our corporate practice group advises on corporate acquisitions, restructuring exercises, joint venture arrangements, shareholder agreements, employee share options and franchise businesses, Malaysia start-up founders and can assist with venture capital funds in Seed, Series A & B funding rounds. We also advise on property transactions and real-estate related tax planning. Feel free to  contact us  if you have any queries.

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Property Law in Malaysia: Perfection of Transfer

Introduction

Many buyers of the strata properties, such as apartments, condominiums, town houses, duplexes, flats, and commercial buildings, whether they bought directly from the developer or other properties’ owners, were often shocked by their lawyers’ calls subsequent to the completion of transaction for perfection of transfer; and perfection of charge if they were taking a bank loan to finance the purchase. 

Either procedures, will have to be done at the buyers’ own cost, be it legal fee, stamp duty and other miscellaneous charges or disbursements. 

This happened because when these buyers bought their properties, the strata titles to the properties have yet to be issued or delivered to the buyers. This is evident by them only entering into a deed of assignment (by way of transfer) as proof of their ownership.

The truth is, in Malaysia, the ultimate proof of our ownership to a property is the title or strata title instead of a deed of assignment (by way of transfer). A title or strata title is also called as ‘Geran’ or ‘Grant’ by many Malaysians.

Once there is the issuance of the strata title under the developer’s name, the perfection of transfer can then be processed by transferring the strata title unto the property’s owner name. 

Normally, the developer would write to the buyers and suggested them to go to a designated lawyer to deal with the process.

Be that as it may, buyers can actually appoint their own lawyer of choice in dealing with the same.

Obligation on Developer to Ensure Strata Title issued upon Delivery of Vacant Possession with effect from 1 July 2015

Post 1st of July 2015, such hidden process and cost in buying a strata properties are very much alleviated by virtue of the Housing Development (Control and Licensing) (Amendment) Regulations 2015 (‘the 2015 Regulations’) which set to further improve the rights and interests of house buyers.

It is now stated in the statutory sale and purchase agreement under the 2015 Regulations, i.e. Schedule H (used for property under construction) and Schedule J (used for completed property), that the manner of delivery of vacant possession to the buyer has been amended in which the buyer must be furnished with the Certificate of Completion and Compliance (‘CCC’) and strata title , failing which the developer will have to pay late delivery interest to the buyers.

Unless, the developer had obtained a written certification issued by the Controller of Housing from the National Housing Department to exempt the furnishing of strata title when deliver vacant possession. In which case, the Controller of Housing would impose a time frame for developer to ensure the delivery of strata title, normally 4 to 6 months’ time after the delivery of vacant possession.

The net effect is, perfection of transfer can be done upon delivery of vacant possession after the 1st of July 2015.

As compared to the statutory sale and purchase agreement prior to 1st of July 2015, such provision does not exist, thus issuance of strata title could be a matter of 2, 5, or even 10 years, depending on the developer’s initiative to apply for it.

Legal Fee for Perfection of Transfer

The legal fee for perfection of transfer is regulated under the Solicitors Remuneration Order 2005 (as amended), with effect from 15th March 2017, depending on the property’s purchase price or ‘consideration’ as follows. The mandatory scaled legal fee is subject to either 75% statutory deduction the appointed lawyer is also the previous lawyer representing the buyer in his/her purchase or 50% if it is not:-

Stamp duty for Memorandum of Transfer (‘MOT’)

MOT, being the instrument to effect the transfer of strata title, will be imposed an ad valorem stamp duty under the Stamp Act 1949 calculated as follows: –

Be that as it may, the government at times introduced various stamp duty exemption orders for the benefit of the house buyers whether from middle or lower income group for the purchase of low cost as well as medium cost property, as seen in the recent years.

For example:

Stamp Duty (Remission) Order 2014 [PU (A) 360/2014]

– there is a 50% remission of stamp duty on MOT for the purchase of the first residential property cost not more than RM500,000, subject to sale and purchase agreement signed in between 01.01.2015 and 31.12.2016.

Stamp Duty (Remission) Order 2016 [P.U. (A) 365/2016]

– there is a 100% remission of stamp duty on MOT for the first RM300,000 in the purchase of first residential property cost not more than RM500,000, subject to sale and purchase agreement signed in between 01.01.2017 and 31.12.2018.

It is always advisable to engage one’s own lawyer in any property transaction in order to have one’s very own rights and interests protected in an expensive purchase to many.

About the Author:  

This article is written by Chia Swee Yik , Partner of this Firm (assisted by paralegal, Ooi Zhuang Hong ) who has provided practical advice on property transaction.

Feel free to contact us using the form below if you have any queries.

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https://www.propertyhunter.com.my/news/2021/01/7880/article/deed-of-assignment-and-grant-of-probate-why-are-these-legal-documents-important

Deed of Assignment and Grant of Probate: Why Are These Legal Documents Important?

Homebuyers will encounter a number of legal documents throughout the property buying and selling process. An important one is the Deed of Assignment, which facilitates a property transfer. Meanwhile, the Grant of Probate is necessary for estate administration – which is the administering of a deceased person’s will (and the property left behind).

During the home buying process, you will encounter a mountain of documentation that you will need to sign. Depending on what stage the land title is in, you may be asked to sign a Deed of Assignment. Or during the land title search, your lawyers may have discovered that one of the landowners is deceased and the remaining landowners are selling the property. Your lawyer would then ask them if probate had been taken out for the deceased landowner.

What is a Deed of Assignment?

It is a legal document that enables the transfer of ownership of the property from one party to another, for many types of property. In the law, a property may be defined as ‘things’ and ‘rights’ that can be owned or have a monetary value. It may also signify a beneficial right to a thing. Some of the most common forms of property include real estate, rental proceeds, shares, and intellectual property; just to name a few.

What are the common types of a Deed of Assignment?

 1. deed of assignment of transfer and loan.

These are two separate deeds commonly used in real estate. The deed of assignment of transfer is used when the property is sold before the  individual or strata title  has been issued. The seller would then assign the rights to the property over to the buyer, thereby giving them the proof of ownership to the property.

Whereas, the deed of assignment of loan is used by the bank to have the owner of the property assign their rights and interests in the property over to the bank as a security for the loan. This would also apply to joint purchasers who are taking a bank loan where each of them would assign to the bank their individual share of the property. For example, if two people jointly buy a property and take up a joint loan, each person would assign to the bank their 50% rights and interest in the property to the bank.

2. Deed of Assignment of Tenancy

When a number of tenants sign a tenancy agreement with the landlord for a certain rental period, and in the event where one of the tenants is unable to continue for the duration of the rental period, the landlord may sign a deed of assignment of tenancy with the tenant and their replacement. This is to assign the previous tenant’s interests and obligations over to the replacement tenant.

This is a better alternative to preparing and having all the existing tenants sign a brand new tenancy agreement.

3. Deed of Assignment of Rental Proceeds

This deed is commonly used by banks when a property that is used as security for a loan is also being rented out. The deed of assignment of rental proceeds entitles the bank to any income (from leases, rents, etc.) derived from the property once the owner defaults on the loan. For example, Company A takes out a loan from Bank A.

As security, Company A uses their factory premises which are currently being rented out to Company B as well as signing a Deed of Assignment of Rental Proceeds to Bank A. A few months down the road, Company A is unable to make the monthly repayments and defaults on the loan. Bank A can use the Deed of Assignment of Rental Proceeds to utilise the rental from Company B to offset the loan repayment as well as taking action against Company A for the balance of the loan sum.

The Deed of Assignment of Rental Proceeds may also be used between two private individuals or companies where a loan is involved.

What is the Grant of Probate?

To put it simply, the Grant of Probate is an official document that is sealed by the High Courts of Malaya and confirms that the person named on it (the executor) is entitled to deal with the estate – collect all the assets, pay all liabilities and debts of the estate and distribute the net balance to the beneficiaries.

What is the difference between a will and probate?

A will is a legal document that details what should happen to your property after your death, together with any other wishes, while probate is the legal process that gives a person, or a group of people, the authority to deal with the deceased’s assets. This process of settling a will is known as estate administration.

There are three forms of probate which depends on whether there is a  will or not .

a) Grant of Probate

This is where there is a valid will and an executor has been named and is willing to act. The executor would need to apply for the Grant of Probate of the will at the High Court, per S.3 of the Probate and Administration Act 1959 (“PAA 1959”)

b) Letters of Administration with will annexed

If there is a valid will but the executor is unwilling, unable to act, or no executor had been named in the will, then the person intending to be the administrator would need to apply for the grant of Letters of Administration with the will annexed at the High Court (S.16 of the PAA 1959).

c) Letters of Administration (if there is no will)

If there is no valid will (i.e. the deceased dies intestate), the person intending to be the administrator would need to apply for the grant of Letters of Administration (S.30 of the PAA 1959).

Disclaimer: This article is merely for educational purposes and cannot be regarded as advice, legal or otherwise. If in doubt, please seek the services of a lawyer for legal advice on how to obtain probate and administer the estate of the deceased.

How do you apply for probate for estate administration purposes? 

1. grant of probate.

To make an application for the grant in the High Courts, the following documents are required:

• Death certificate
• Executor’s identity card
• Identity cards of beneficiaries
• Original copy of will
• Land titles/evidence of property ownership
• Home loan statement (if applicable)
• Bank account details of the deceased
• Documentation of any other assets
• Documentation of any liabilities or debt

Generally, it takes between 3-6 months for the grant to be obtained from the High Court. Although in Kuala Lumpur, the courts have been known to issue the grant one month from the date of application.

 2. Letters of Administration with will annexed

The application process is similar to obtaining a grant of probate in the High Court, the difference being that because the executor is unwilling, unable to act or no executor had been named in the will, pursuant to S.16 of the PAA 1959, the following persons in the following order are allowed to apply and be granted the letters of administration:

• A universal or residuary legatee;
• A personal representative of a deceased universal or residuary legatee;
• Such person or persons, being beneficiaries under the will, as would have been entitled to a grant of Letters of Administration if the deceased had died intestate;
• A legatee having a beneficial interest; and
• A creditor of the deceased.

3. Letters of Administration

Obtaining the letters of administration is far more costly and time consuming as compared to obtaining the grant of probate. It generally takes anywhere from 6 months to over a year to obtain the letters of administration.

Depending on the size of the deceased’s estate, there are different ways for the administrator to obtain the letters of administration.

Estates that consist of Wholly or Partly Immovable Property, where the value exceeds 2 million

For these estates (land, house, office lot, etc.), the administrator will have to obtain the Letters of Administration at the High Court (S.30 of the PAA 1959). Furthermore, if the value of the estate exceeds RM500,000, the administrator is required to provide two sureties (guarantors) who have assets within the jurisdiction equivalent to the amount of the deceased’s estate (the sureties must also be residents in Malaysia) as security for the due administration of the estate, unless the court makes an order for dispensation.

Estates that consist of Wholly or Partly Immovable Property, where the value is below 2 million

The administrator may make an application for distribution under the Small Estates (Distribution) Act 1955(“SEDA 1955”). The application may be made at either the Estate Distribution Unit of the Department of the Director-General of Lands and Mines (“JKPTG”) or the relevant Land Office (S.4, SEDA 1955). The Small Estates distribution generally costs less and is quicker than obtaining the letters of administration.

The estate administrator would be required to submit the following documents:

• Form A of Small Estate application
• Identity cards or birth certificates of beneficiaries
• Marriage certificate of decreased (if any)
• Evidence of assets
• Certified true copy of land title or official title search from Land Office
• Quit rent  and assessment receipt

Upon successful application, a hearing will be held in the High Court to determine the estate administration. The administrator and all beneficiaries must be present during the hearing. If the court is satisfied that the details of the application are accurate, the Distribution order will be issued.

Estates that consist of only Movable Property and is less than RM600,000

For these estates, if there is no person who is entitled to apply for the grant of probate or letters of administration – then the interested beneficiary may apply for summary administration through Amanah Raya Berhad (S.17 Public Trust Corporation Act 1995). The letters of administration issued would be in the form of a Declaration outlining the assets.

Generally, the process of administration of moveable assets through Amanah Rakyat Berhad would take around 4-6 months.

What happens after the Grant of Probate / Letters of Administration has been obtained?

Once the Court has granted the Probate or Letters of Administration, the executor or the administrator can then proceed to do the following:

a) Collect all the deceased’s assets;

• The executor/administrator may request for all financial assets or bank savings to be transferred to an ‘executorship account’ (except for EPF and insurance payouts, as both would go into the nominee’s account, if nominations have been made).

b) Pay off the deceased’s debts and liabilities (if any), and

• The executor/administrator must pay off any remaining debts or taxes before distributing the estate. This may include outstanding loans, bills, and taxes of the deceased.

c) Distribute the estate following the deceased’s will if there is one, otherwise to distribute the estate per the Distribution Act 1958.

• The executor/administrator should prepare an estate account accordingly and record all documents showing how properties and money were distributed. These documents should include:

1. Receipts showing debts and taxes paid; 2. Receipts for expenses made from dealing with the estate; and 3. Written confirmation from the beneficiaries stating that they have received their share of the estate.

In conclusion, it is smart to be aware of the various documents which you may encounter during the home buying process. If you are unsure about anything, always make sure to clarify any doubts with your lawyer and never sign off on anything that has not been thoroughly explained to you.

This article was first published as " Deed of Assignment and Grant of Probate: Why Are These Legal Documents Important? " on iProperty.com.my .

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Selangor, Kuala Lumpur and Johor Law Firm - Deed of receipt and reassignment in Malaysia by the lawyer

Deed of receipt and reassignment in malaysia.

Deed of Receipt and Reassignment is to be treated as the same process as Discharge of Charge except that this will not include the redemption of Original Title from the Bank. This is because when the Purchaser/Borrower bought the property, the Individual Title or Strata Title is yet to be issued so they will use Deed of Assignment by way of security in order to protect the beneficial interest of the Bank for the assistance given to the Purchaser/Borrower in purchasing the property. Normally, the Purchaser/Borrower will signed the Deed of Assignment documents together with Power of Attorney upon receiving the loan from the bank. These documents worked as a protection for the Bank to sign the Perfection of Charge documents on behalf of the Purchaser/Borrower (if the Purchaser/Borrower is missing or do not have money to pay the fees) once the Individual or Strata Title has been issued. Therefore, once the Purchaser/Borrower already signed this Deed of Receipt and Reassignment documents, it can be a proof that the Purchaser/Borrower already settled the repayment of the housing loan with the bank and the Power of Attorney given to the Bank earlier will also be revoked. Most importantly, once the Individual Title or Strata Title has been issued later, the Purchaser/Borrower must prove to the Perfection of Transfer’s solicitor that the loan is fully settled by showing this Deed of Receipt and Reassignment documents and Perfection of Charge should not be done anymore. As a result, upon the registration of the Purchaser’s name on the Title by Perfection of Transfer, the Purchaser/Borrower can collect the Original Title for their safekeeping and don’t have to forward the same to the Bank anymore. • Basic process for Deed of Receipt and Reassignment 1. Deed of Receipt and Reassignment documents signed by Purchaser/Borrower 2. Deed of Receipt and Reassignment signed by Bank 3. Stamp relevant documents at LHDN 4. Revoke Power of Attorney at High Court 5. Purchaser/Borrower can collect all Original Documents for their safekeeping • Documents needed for Deed of Receipt and Reassignment:- 1. Identity card of Purchaser/Borrower 2. Prove of settlement of the housing loan from the Bank (if any) 3. Other relevant documents • What type of property under Deed of Receipt and Reassignment - master title property Disclaimer All data and information provided on this site are for informational purposes only. HS LIM & CO makes no representations as to the accuracy, correctness, completeness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis. If you are in any doubt, please contact us for further information.

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Stamp Duty Imposed For Transfer Of Properties In Malaysia

Stamp duty is one of the unavoidable costs in property purchase in Malaysia.

Under the Stamp Act, stamp duty is tax payable on the written documents during the sale and/or transfer of a real property. At least two documents will attract stamp duty in a conveyancing transaction:

i. the Sale and Purchase Agreement; and ii. the Memorandum of Transfer (if the individual title/strata title of the Property has been issued) or the Deed of Assignment by way of transfer (if the strata title of the Property has yet to be issued).

In a conveyancing transaction, the Purchaser has to pay ad-valorem stamp duty on the written instrument being the conveyance of sale, ie. the Memorandum of Transfer or the Deed of Assignment by way of Transfer and a nominal stamp duty at on every copy of the Sale and Purchase Agreement.

The ad-valorem stamp duty is variable cost payable on the Memorandum of Transfer or the Deed of Assignment by way of Transfer will be calculated based on either the purchase price of the Property or the market value of the Property, whichever is higher, whereas the nominal stamp duty are charged at a set price of RM10.00 on every copy of the document.

In a conveyancing transaction, the Memorandum of Transfer or the Deed of Assignment by way of Transfer has to be submitted to the Collector of Stamp Duty for assessment of such ad-valorem stamp duty payable. Take note that the amount of purchase price stated in the Memorandum of Transfer or the Deed of Assignment by way of Transfer by the parties is not binding on the Collector of Stamp Duty and they have discretion to call upon a valuation expert to obtain the market value of the Property.

From 1st July 2019 onwards, the calculation of the ad-valorem stamp duty of transfer pursuant to normal sub-sale Sale and Purchase Agreement is as follows:-

In cases where the transfer is done pursuant to Sale and Purchase Agreement entered into with a developer, two situations can arise:-

i. When the individual title is available at the time of entering into the Sale and Purchase Agreement, the stamp duty assessed will be based on the purchase price stated in the Memorandum of Transfer and Sale and Purchase Agreement OR the market value of the Property;

ii. When the individual title is not issued during the signing the Sale and Purchase Agreement, the Sale and Purchase Agreement and the Deed of Assignment will carry only the nominal stamp duty of RM10.00 on every copy of the documents. When the individual title is issued subsequently, the stamp duty assessed will be based on the market value of the Property on the date of the Sale and Purchase Agreement entered into with the developer and not the date of the Memorandum of Transfer which is drawn up substantially later.

In circumstances where the transfer is done pursuant to a Deed of Assignment which has already been duly stamped (because the Property was bought when the individual title was not issued), then the stamp duty payable on the transfer is a nominal sum of RM10.00 pursuant to section 11 of the Stamp Act subject to production of the original Deed of Assignment which has already been stamped. Upon issuance of individual title of the Property, an application has to be made for endorsement on the Memorandum of Transfer to evidence that an ad-valorem stamp duty has been paid on the Deed of Assignment prior to the issuance of the individual title.

Further, transfer of property pursuant to grant of probate or letters of administrators will carry a nominal duty of RM10.00.

Many transfers are made between families or close relatives for love and affection without any Sale and Purchase Agreement. Take note that the ad-valorem stamp duty for some transfers for love and affection between families can be exempted either fully or partially.

Get free quotation (for legal fees and stamp duty applicable) by filling in the form below and our property and conveyancing lawyers will send you the quotation in less than 2 working hours via WhatsApp/SMS .

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• Oct 21, 2021

Land Title Transfer Procedure In Malaysia

We have discussed on the types of land title in Malaysia. So now you may be wondering how do you then transfer a land title in Malaysia?

In this article we will go through a few crucial steps as well as give you some important knowledge and points that would assist you to transfer a land title from a land owner or known as a vendor to a purchaser.

In general, here are the things that we will be covering in this article;

Who are the parties involved in a land title transfer

What information you need to transfer a land title

What documents you will need before starting the land title transfer process

Why do you need a lawyer in a land title transfer

What do you have to pay and how much it will cost to transfer a title

How long does it take to transfer a land title?

When do you need a state consent for a land title transfer.

What information you need to transfer a land title in Malaysia

Parties information.

Based on Section 43 of the National Land Code 1965, the person who buys house or a land must attain the age of majority. And to indicate that the person is eligible, the parties must expressly provide a document as a proof that he has attained the age of majority.

Therefore, in order to prove so you must give a copy of your Identification Card (if you are a Malaysian citizen) or a copy of your passport (if you are a foreigner) to the relevant authority or your lawyer. Your personal identification is also needed by the relevant authorities i.e. land office for the said transaction.

Material information of the property

You can’t do the transaction without knowing what you are dealing with. For this reason you need the latest information of the land title. You can do this by conducting a land search at the land office.

With the land material details ascertained via the result of the land search you will have a glimpse of the procedures that needs to be complied.

Getting the result of the land search would allow your lawyers to have a base idea of how long it would take to transfer the land title. If you appoint a lawyer, the land search will be conducted by the lawyer.

Among the key information that you will look for in a land title as well as in a land search are;

If the land is subjected to Restriction in Interest, which means the owner of the land or the vendor cannot deal with the land unless he obtains consent from the State Authority.

If the land is an estate land in compliance to Section 214A of the NLC 1965, in order to transfer any estate land, the owner or the proprietor of the land must obtain consent from the Estate Land Board.

If the land is subjected to a charge, the purchaser would need to require the vendor to firstly discharge the charge on the land title.

Personal Tax Information for the purpose of Real Property Gains Tax purposes

At the beginning, it must be ascertained if the vendor is liable to pay any real property gains tax. A real property gains tax is a tax charged by the government on the profit that you make from selling the land. It is referred to as a chargeable gain. Therefore if you make a gain/profit from it, then you are is liable as a vendor to pay this tax.

In order prepare for this process you need to prepare your tax registration number. This information will then be used for this process at the Inland Revenue Board (LHDN).

Transaction Purchase Price of Property / Land

All the parties would need to come to terms or agree on the full purchase price as well as the breakdown of the payments.

For example, the amount of the earnest deposit, balance deposit and balance purchase price.

Parties need to also agree on the payment schedule of the transaction. Once the balance of the purchase price is fully paid, the new proprietor’s name will be registered on the title and a new title will be issued by the Land Office.

There are various documents involved whenever a transfer of real property is to occur.

Among others;

The sale and purchase agreement that has been executed and stamped between you and your vendor / purchaser;

The previous sale and purchase agreement of the property;

The executed Memorandum of Transfer;

The Quit Rent payment receipt of the current year;

The latest Assessment Tax payment receipt;

The original land title;

Deed of Assignment (in cases where the land title has not yet been issued to the Vendor)

The new Sale and Purchase Agreement

The Sale and Purchase Agreement is an agreement where it sets out the terms and conditions of the sale that shall be executed between the vendor and the purchaser.

It is a common practice for the vendor’s lawyer prepares the Sale and Purchase Agreement.

This is usual as the vendor’s lawyer would have all access to Vendor's information pertaining to the property. However, if both parties agree, the purchaser’s lawyer may also prepare the agreement, in which case the particulars of the Vendor's property should be made available to the purchaser’s lawyer.

Memorandum of Transfer (Form 14A)

Memorandum of Transfer (Form 14A) is a form of registering the title into the purchaser’s name at the Land Office. The Memorandum of Transfer is prescribed under the NLC 1965 to affect the registration of transfer of ownership where title is available, and it will be prepared by the purchaser’s lawyer. Both parties will need to sign this document to proceed the transfer of title from the vendor to the purchaser.

Deed of Assignment

Deed of Assignment is prepared when there is no title issued for the property. It functions to transfer all the rights of the vendor to other to the purchaser.

If a Vendor has entered into a financing agreement with a bank and has an exisiting Deed of Assignment for the benefit of the bank, the vendor will need to settle the loan first and get the bank to reassigned the property back to him.

What do you have to pay and how much do you have pay to transfer a title?

Here are the things that you need to take note of with regards to the cost if you intent to transfer a land title.

As a vendor

Payment of RPGT tax (chargeable gain if any);

Payment of quit rent & assessment rent (of the current year);

Payment of outstanding loan/redemption sum (if applicable);

Payment of registration for State’s consent (if applicable);

Payment of legal fees to the vendor’s lawyer.

As a purchaser

Payment of the deposit;

Payment of stamp duty tax;

Payment of MOT registration fee;

Payment of legal fees to the purchaser’s lawyer;

Usually, it will take about three (3) months from the day you have signed the Sale and Purchase Agreement (SPA) provided there isn’t any encumbrances on the land title.

However, in a situation where the process of transfer requires the vendor to ask for State Authority’s consent, it could take up to more than six (6) - nine (9) months from the date of signing the SPA.

However, it is also important to note that if the land is still subjected to a charge, the vendor or the owner must first discharge the charge from the property by paying the balance sum owed. Once the property has been discharge the title is no longer encumbered and the transaction can proceed.

Who are the parties involved in a land title transfer?

Aside from the vendor and the purchaser, cooperation and the involvements of other parties are also required to complete the land title transfer transaction. Below are the parties involved to ensure a successful transfer of the property;

1. The Vendor

The vendor is the party that sells the property and owns the property. Where there is title issued to the property, the appropriate authority to confirm registered ownership of the property is the land office.

However, if the title has not yet been issued, then the appropriate body to confirm beneficial ownership is the developer who is the current registered owner of the master title. In this particular scenario the vendor instrument of ownership is via Deed of Assignment and Sale and Purchase Agreement entered between the Vendor and its Developer.

2. The Purchaser

The purchaser is the party that buys the property and has to pay the purchase price of the property. The purchase price has to be paid in the manner as agreed in the Sale and Purchase Agreement.

3. The Vendor’s Lawyer/Solicitor

The vendor’s lawyer acts on behalf of the vendor, and their duties are:-

to ensure that the purchase price is received based on the completion date;

to assist the vendor to pay the tax if there is chargeable gain;

to apply for consent of transfer if the land is subject to restriction in interest;

to make sure that the title to the property is rendered and delivered to the purchaser’s lawyer; and

to act as a stakeholder for the money receive from the purchaser.

4. The Purchaser’s Lawyer/Solicitor

The purchaser’s lawyer acts on behalf of the purchaser, and among their duties are:-

to prepare the Sale and Purchase Agreement, MOT, entry and withdrawal of caveat (Form 19B & Form 19G), and CKHT 2A to LHDN;

to register the Form 14A MOT at the Land Office to ensure the successful registration of the title under the Purchaser's name;

to ensure that the title is registered in the name of the purchaser upon full payment of the purchase price to the vendor.

5. The Vendor’s Financier/Bank

The vendor’s financier/bank is also a party involved in the process of transferring the title to the purchaser if the vendor has a loan charge to the property and has not fully settled the housing loan. This loan was originally obtained by the vendor to help finance the purchase of his own property. The property was charged to the financier/bank and the title of the property was kept by the bank as a security to the said loan.

Now, when the vendor intends to sell his property which is still charged to the bank, the transfer of title to the purchaser will involve settling the vendor’s loan beforehand so that the original title can be obtained from the bank. The vendor’s lawyer will have to prepare the discharge document for execution by the vendor’s bank when the vendor’s loan is settled.

6. The Vendor’s Financier Lawyer

The vendor’s financier lawyer acts to execute the discharge document once the vendor’s loan is settled. The document would be discharged by a Deed of Receipt and Reassignment (DRR).

The vendor has to either settle the outstanding loan on his own or it can be settled by the purchaser from the purchase price.

7. Government Agencies

Below are the relevant authorities involved to complete every process of transaction to transfer the land title to the purchaser or the buyer :-

a. Land Office and Pejabat Tanah Galian

For land search, registration of caveat, & MOT, collection of land title

b. Inland Revenue Board (LHDN)

For payment of RPGT & stamp duty

c. Insolvency Department

For bankruptcy search

d. Jabatan Penilaian & Perkhidmatan Harta Malaysia (JPPH)

Valuation of property for stamp duty

e. Local Authority

To obtain consent for transfer of title

A state consent is required if the title has a restriction in interest, ie the property cannot be sold without the consent of the state authority.

dIf this is the scenario, you will need to firstly prepare an application form for consent from the state authority to transfer the property to the purchaser. The application form can be obtained from the relevant land office.

Section 5 of the NLC 1965 provides that a restriction in interest is any limitation imposed by the State Authority on any of the powers conferred upon a registered proprietor to deal with his land by way of a transfer, lease, charge, easement, tenancy or statutory lien over his land, as well as his powers to subdivide, partition or amalgamate his land. The effect of a restriction in interest is that it limits the rights and powers of a proprietor to freely deal with his land.

Therefore, if a registered proprietor wishes to transfer a land title to another party, he must first obtain the consent of the State Authority. Failure to obtain consent to deal with the land will render any transaction entered by the proprietor void and unable to be registered. In real world scenario what this means is the Land Office won’t even start the land title transfer process.

What will a purchaser lawyer do in a Land Title transfer

If the property to be transferred has a land title, these relevant documents will be prepared by the purchaser’s lawyer:-

Prepare and assist the Vendor to execute the Sale and Purchase Agreement;

Assist Vendor to execute the Memorandum of Transfer (MOT);

Prepare the Real Property Gains Tax Form for the Vendor CKHT 2A (RPGT);

Assist the purchaser to apply consent from the State Authority to transfer the property (if it is needed);

Prepare and register a private caveat form (Form 19B) together with statutory declaration of the Vendor; and

Prepare and register a withdrawal of caveat (Form 19G).

What will a vendor lawyer do in a Land Title transfer?

These relevant documents will be prepared by the vendor’s lawyer:-

Assist Purchaser to execute the Sale and Purchase Agreement (that has been signed by the vendor);

Prepare the Memorandum of Transfer to register the Land Title under Purchase’s name;

Prepare the Real Property Gains Tax Form for the Purchaser CKHT 1A (RPGT);

Obtain relevant information from the Purchaser for the purpose of the land title transfer transaction.

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Malaysia – Developer’s Consent To Assign And The Imposition Of Administrative Fee.

January 31, 2020 by Conventus Law

31 January, 2020

Not all stratified properties have separate strata titles: this may be due to the developer’s failure to make necessary application or that the application is still being processed. Thus, any dealings with such properties involving the transfer of rights and interests can only be done by way of a deed of assignment which, in some cases, require the developer’s consent before the property can be assigned to another party.

Requirement for consent 

Although Section 22D of the Housing Development (Control and Licensing) Act 1966 makes it an offence for developers to require consent or to impose any conditions to the assignment, the act only applies to “housing accommodations”, that is, any building, or tenement which is wholly or principally constructed, adapted or intended for human habitation or partly for human habitation and partly for business premises. This means that buildings not covered by the act, such as office buildings, will require developer’s consent to assign.

Imposition of administrative fee

As one of the conditions for giving their consent to assign, developers usually impose an administrative fee of 1% on the purchase price or on the value of the transaction (e.g. loan amount) which must be paid in order to obtain their consent. Though commonly regarded as market practice, the imposition of 1% can nonetheless be costly and unreasonable, given that the need for the consent is in some instances attributable to the developer’s failure to apply for the issuance of strata title.

Can we challenge the administrative fee amount?

In  KAB Corporation Sdn Bhd & Anor v Master Platform Sdn Bhd  [2019] MLJU 796, the Court of Appeal held that the administrative fee (1% of the loan facility amounting to RM 65,000.00) was plainly arbitrary, unreasonable, unfair and oppressive, and only allowed the developer to charge a nominal fee of RM 500.00.

What happened in this case? 

• The plaintiff is the owner of an office unit in a commercial building. It sought to assign its property to a bank, as security for a loan facility to a third party. However, as condition for its assignment, the developer required payment of administrative fee equivalent to 1% of the loan facility amount.
• The plaintiff sued the developer and argued that the administrative fee was illegal and excessive.
• Although the sale and purchase agreement and the house rules (promulgated by the joint management body) provide for a right for the developer to impose an administrative fee for the consent, at a rate to be decided at the developer’s absolute discretion, the exercise of the discretion must not be done arbitrarily, capriciously or unreasonably;
• (i) it results in varying amounts being charged based on the value of the transaction even though the administrative work involved was the same for each and every office unit;
• (ii) The developer’s obligation to undertake the administrative work was attributable to their failure and or neglect to obtain the strata titles despite the lapse of time after the completion of the property;
• As such, a nominal administrative fee of RM 500.00 is fair and reasonable.

Commentary 

• i) it provides some form of control on the fees that can be levied by developers;
• ii) developers may no longer be able to benefit from their failure or neglect to apply for strata titles.
• However, without legislative intervention, the law remains inadequate as the only way owners could obtain remedy is through litigation which is often time consuming and costly.

For further information, please contact:

Donovan Cheah , Partner, Donovan & Ho

[email protected] 

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RIGHTS OF ASSIGNORS AND ASSIGNEES TO SUE UNDER AN ABSOLUTE ASSIGNMENT AND ASSIGNMENT BY WAY OF CHARGE USED AS A SECURITY FOR LOAN

“In consideration of the Facility granted to the Assignor upon the terms and conditions contained in this Agreement, the Assignor as beneficial owner hereby absolutely assigns all of the Assignor's rights and title to and interest whatsoever in the Property including all rights and interest of the Assignor in the Sale and Purchase Agreement to the Bank.”

In this respect, one is often faced with the question of whether an assignor can found an action against the developer without involving the assignee. Likewise, can the assignee sue the developer directly without involving the assignor? The law in this area is at least settled after the date of coming into force of the Civil Law Act 1956 ("CLA") which is 7 April 1956 for West Malaysia and 1 April 1972 for East Malaysia as s 4(3) CLA provides that if the assignment is a statutory assignment under that section, then the assignee can sue the developer/debtor directly without the concurrence of the assignor which means the assignor cannot sue the developer/debtor directly without the concurrence of the assignee unless it is an assignment by way of charge. Position of the English law prior to 1873 In fact, s4(3) CLA is similar to s 25(6) of the English Supreme Court of Judicature Act 1873 . It is, therefore, relevant to examine the English position of an assignment and English authorities before and after the 1873 Act as courts in West Malaysia shall apply the common law of England and the rules of equity as administered in England on 7 April 1956; for Sabah as administered in England on 1 December 1951 and for Sarawak as administered in England on 12 December 1949 subject to local circumstances. (See s 3 CLA.) In England prior to 1873, common law and equity were administered in different courts – the common law courts (the Court of Exchequer, Court of Common Pleas and the Court of King’s Bench) would enforce legal rights and the court of equity (Chancery Court), equitable rights. Hence, common law courts would only recognise legal rights, but not an assignment of legal choses in action save in the case of bills of exchange, bills of lading and stocks and shares in incorporated companies. It follows that in the case of assignment of equitable choses of action, the assignee could always bring an action in the Chancery Court in his own name if it is an absolute assignment of equitable choses or by joining the assignor if it is a non–absolute assignment of equitable choses in action. On the other hand, an assignee of a legal assignment of rights, whether absolute or not, could not sue the debtor at common law since there is no privity of contract between the two – a legal principle, albeit the assignor could always sue the debtor for the recovery of the debt in the common law courts. There would be no problem if the assignor agreed to sue, but in most cases he would not be bothered after having assigned his legal rights over the debt. However, equity has always allowed the assignment of both legal and equitable choses of action. Thus in the case of an assignment of legal choses of action, the action had to be brought in the name of the assignor but equity would compel the assignor to lend his name to the assignee in the proceedings. As a result, a legal assignee had to go to two courts in order to enforce an assignment of legal choses of action – the court of equity to compel the assignor to lend his name to sue the debtor and the court of common law to commence the action against the debtor in the assignor’s name. Position of the English law after 1873 The old courts of common law and equity were then abolished by the English Supreme Court of Judicature Act 1873 which established in their place a single Supreme Court of Judicature comprising now a High Court with three divisions – King’s Bench, Chancery and Family. Each of these divisions could now administer both law and equity, but the latter is to prevail in the event of a conflict. This has brought a significant change in the position of an equitable assignee who can now enforce an equitable assignment in any of the courts unlike prior to 1873 when he could only do so at the Chancery Court. As regards the assignee of legal choses in action, now he need only to commence one legal action in any of the divisional courts by joining the assignor as a co–plaintiff. However, if the assignor refuses to be so joined, the assignee will still have to sue the assignor as a co–defendant with the debtor. The cause of action against the assignor would still be invoking the equitable jurisdiction to compel the assignor to lend his name to the assignee and the common law jurisdiction to enforce the legal rights against the debtor in the assignor’s name. Hence, even though the 1873 Act fused the administration of law and equity, it did not really fuse law and equity per se as the oft–quoted saying goes, “the two streams have met and now run in the same channel, but their waters do not mix.” Statutory Assignment under s4(3) CLA Apart from abolishing the old courts of common law and equity, the 1873 Act also introduced a statutory assignment. S 25(6) of the 1873 Act has now been replaced by s 136 of the Law of Property Act 1925 which is similar to our present s 4(3) CLA. In simple terms, an assignee of a valid statutory assignment can now sue the debtor in his own name. This is effectual in law to transfer to the assignee from the date of notice of assignment the legal right to a debt or chose in action, all legal and other remedies and the power to give a good discharge for the same without the concurrence of the assignor. However, for the Clause to create a statutory assignment under s 4(3), four conditions must first be satisfied, namely (1) the assignment is in respect of a debt or other legal chose in action; (2) the assignment must be in writing under the hand of the assignor; (3) express notice in writing of the assignment must be given to the debtor, trustee or other person from whom the assignor would have been entitled to claim the debt or chose in action; and (4) the assignment must be absolute and not purporting to be by way of charge only. S 4(3) CLA further provides that such an assignment is subject to equities having priority over the assignee, that is, the assignee takes the assignment subject to any defects in the assignor’s title and all other claims the debtor may have against the assignor. The assignment takes effect from the date of receipt of the notice of assignment by the debtor, an exception to the postal rule that acceptance takes effect upon posting. (See Holt v Heatherfield Trust Ltd [1942] 1 All ER 404.) As regards condition (1), the “debt or other chose in action” must be one that is existing at the time of assignment, albeit the debt is payable later. ( Earle v Hemsworth [1928] All ER 602.) Also, the debt must be of an ascertained amount and it was held in Jones v Humphreys [1902] 1 KB 10 that whilst an assignment of so much of an income which “ shall be necessary and requisite for payment to you of the sum of 22l.10s. ” might define the sum, “ any further or other sums in which I may at any time hereafter become indebted to you " is too indefinite and would fall outside the ambit of s 25(6) of the 1873 Act as an assignment by way of charge. As respects condition (2), in order to be within s 4(3), the assignment has to be in writing under the hand of the assignor. In other words, if an agent signs the assignment, then this will be outside s 4(3). ( Wilson v Wilson 1880 5 Ex D 155.) Whilst s 4(3) does not prescribe the exact form of assignment, the assignment must still be one of absolute assignment and not by way of charge. Condition (3) requires an express notice of assignment in writing to be given to the debtor ( Bank Bumiputra Malaysia Bhd & Anor v Lorrain Esme Osman & Ors [1987] 1 MLJ 502) even if the parties knew that he could not read and oral notice has been given ( Hockley and Papworth v Goldstein [1920] 90 LJKB  111) so that the debtor knows to whom he must now pay the debt. Consent from the debtor to the assignment is not necessary. ( Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor  [1993] 3 MLJ 633.) The date of assignment must also be stated correctly, ( Stanley v English Fibres Industries Ltd (1899) 68 LJQB 839) albeit if no date is given at all, the notice is still not defective. ( Van Lynn Development Ltd v Pelias Construction Co Ltd [1969] 1 QB 607) The notice will also be bad if the amount of debt has been stated incorrectly. ( W F Harrison & Co v Burke [1956] 2 All ER 169.) Though s 4(3) does not prescribe a particular form of notice, where there is doubt, the notice should also specify that the assignee was to receive the money for itself as principal, not to account of or on behalf of the assignor or as its agent. ( United Overseas Bank Ltd v Singapore Engineers Ltd   [1966] 2 MLJ 267.) Upon receipt of the notice, the debtor must make all payments of the debt to the assignee and not the assignor and if he pays the assignor without the consent of the assignee, he may have to pay the assignee all over again. ( Malayawata Steel Berhad v Government of Malaysia & Anor [1980] 2 MLJ 103, even though it involved an equitable assignment. See also Malaysian International Merchant Bankers Bhd v Malaysian Airlines Sytem Bhd [1982] 2 MLJ 59.) Condition (4) is perhaps the most important, that is, the assignment must be absolute and not by way of charge. Generally, the requirements of an absolute assignment are: (1) the assignment must be in respect of the whole and not part of the debt ( Jones v Humphreys Ibid.); the assignment must not be conditional and (3) the assignment must not be “by way of charge” and labels ( BP (Sabah) Sdn Bhd v Syarikat Jubrin Enterprise (sued as a partnership firm & Ors) [1998] 4 MLJ 715) are not important in construction. Thus the oft–repeated question is if the assignor has a right to redeem the loan, is the assignment an absolute assignment? In this respect, it has been held more than a century ago that an assignment of a debt to secure a loan given to the assignor with the assignor’s right to reassignment upon redemption has been held to be an absolute assignment without affecting the absolute character of the assignment. ( Tancred v Delagoa Bay Ry [1889] 23 QBD 239 and Hughes v Pump House Hotel Co. [1902] 2 KB 190.) This applies equally to the assignor under the Clause. An assignment by way of charge is different as it only entitles the chargee to the right of repayment without involving a transfer of title to the chargee. For example, in Durham Brothers v Robertson [1898] 1QB 765 where the assignment only states that it is a security for advances “ until the money with added interest has been repaid ” and silent on the point of reassignment to the assignor with notice to the debtor, it was held that such an assignment is not absolute but one by way of charge because the debtor would not be able to know when the loan has been repaid and when the assignment has ceased since such an assignment ceases upon repayment and not upon reassignment. If the assignment fails to meet the above conditions of s 4(3), then the assignment will be an equitable assignment in which case the assignee has to join the assignor as a co–plaintiff or as a co–defendant, as the case may be, but the assignor is entitled to sue direct. Locus Standi Hence, where there is an absolute assignment under s 4(e), only the assignee can sue the developer/debtor, but not the assignor since the latter has already assigned all his rights and has no more right to sue. This works fine in a factoring agreement where the assignee factor can sue the debtor directly to recover the debt as the assignor creditor will not be interested in suing the debtor since he has already obtained the loan from the factor by divesting all his rights in the debt. ( The Chartered Bank v Rashid Bin Mohadmed [1986] 2 MLJ 219.) Likewise, if the assignor defaults in his loan repayment, the absolute assignee bank can always dispose of the property by way of assignment to a third party with notice to the developer and without the concurrence of the assignor borrower. However, the assignment if given by a company requires registration as a charge under s 108(3)(e) of the Companies Act 1965 because it is an equitable mortgage (see Chuah Eng Khong v Malayan Banking Berhad [1998] 3 MLJ 97 and Ng Wei Teck Michael & Anor v Oversea–Chinese Banking Corp Ltd [1998] 1 SLR 55); otherwise the charge will be void against the liquidator and any creditor of the assignor. (s 108(1) Companies Act 1965 .)

But problems arise if during the currency of the absolute assignment, the assignor has a dispute with the developer particularly in relation to late delivery and defective workmanship. The assignor will find that he has no locus standi to sue the developer and has to run to the assignee to persuade the latter to personally sue the developer or sue in the name of the assignor. In most cases, the assignee bank will be reluctant to do so and it is always a time–consuming process to get the assignee to agree to this course of action, much to the advantage of the developer. The above legal position was well settled by the Malaysia’s highest court in Nouvau Mont Dor (M) Sdn Bhd v Faber Development Sdn Bhd [1984] 2 MLJ 268 and Hipparion (M) Sdn Bhd v Chung Khiaw Bank Ltd [1989] 2 MLJ 149 which held that a clause such as the Clause (above) is an absolute assignment under s 4(3) CLA notwithstanding that the assignment would later be converted into a legal charge under the National Land Code 1965 (“NLC”) upon issuance of the individual title. However, it is common knowledge in the housing industry that this is unfair to the assignor if the assignee refuses to sue the developer, a fortiori during the boom years of the nineties when thousands of apartment and condominium units without individual strata titles were sold in Malaysia, and loans were secured by loan agreements and assignment with clauses of assignment not dissimilar from the one in Nouvau Mont Dor . Also, it takes years before strata titles are issued when the assignments are then converted into a legal charge under the NLC which would then confer the assignor now a chargor the right to have direct recourse against the developer. As a result, many High Court judges attempted to circumvent s 4(3) by holding that such assignment is outside s 4(3) CLA by applying a different construction to the principle laid down in Nouvau Mont Dor which is whether an assignment is an absolute one is to be gathered only from the four corners of the instrument itself even though the clauses of assignment were similar to the one in Nouvau Mont Dor . Further, some judges were of the view Nouvau Mont Dor had been overruled by the later Federal Court case in Chooi Siew Cheong v Lucky Height Development Sdn Bhd & Anor [1995] 1 MLJ 513 which held that when construing a document, one must look at the “surrounding circumstances” and not at one clause in isolation. By doing so, the judges were able to hold that the assignment is by way of charge which entitles the assignor to sue the developer in his own name.

The High Courts in Loh Hoon Looi & Ors v Viewpoint Propertues (Sabah) Sdn Bhd [1995–4 MLJ 804], Lim Hock Lai v Hwa Kwong Development Sdn Bhd [2001] 5 CLJ 515, Max–Benefit Sdn Bhd v Phuah Thean An & Anor [2001] 1 MLJ 553 and Sakinas Sdn Bhd v Siew Yik Hau & Anor [2002] 5 MLJ 498 all held that whether an assignment was an absolute one would depend on the aim of the transaction, and if it was intended as a security for a loan, it could not be absolute and therefore the assignor was entitled to sue in his own name! Another judge in Pak Ki Yau & Anor v Kumpulan Promista Sdn Bhd [1999] 6 MLJ 220 held that as repayment of the loan as well as the execution and registration of the subsequent charge is an uncertain event, the result of which had made the assignment conditional and not absolute!

In Chan Min Swee v Melawangi Sdn Bhd [2000] 7 CLJ 1, the judge went even further to hold that even if the assignment was not absolute, the assignee bank must still be made a party to the action either as a co–plaintiff or a co– defendant on the ground that the assignee bank has an interest in the matter. The court also held that a letter of consent with reservation of rights from the assignee bank is not a good consent for the assignor to sue in his name.

To further protect the assignor purchaser, the Court of Appeal in Phileo Allied Bank (Malaysia) Bhd v Bupinder Singh Avatar Singh & Anor [1999] 3 MLJ 157 held that as an absolute assignment is an equitable charge or mortgage, the assignee bank could only dispose of the property by way of a court order pursuant to Order 83 of the Rules of High Court (“RHC”), triggering off a deluge of foreclosure cases being filed in the courts. Finally, the Federal Court put an end to all these upon appeal in Phileo Allied Bank (Malaysia) Bhd v Bupinder Singh Avatar Singh & Anor [2002] 2 MLJ 513 which reinstated the law in Nouvau Mont Dor and also held that the RHC could not extend into an area of substantive law and in the absence of any statutory provisions or common law requiring the equitable mortgagee to obtain a court order to realise its security under an absolute assignment of rights to land, the court should recognise the contractual rights of the parties. Hence, the assignee bank is once again entitled to foreclose the property by way of public auction without a court order. ( Ngoi Thiam Woh v Maxwell, Kenion, Cowdy & Jones (sued as a firm) & Anor [2002] 3 MLJ 341.) However, this still does not solve the problem of the poor assignor purchaser who is still incompetent to sue the developer. But his position has improved substantially if he is a homebuyer when Parliament passed the Housing Developers (Control and Licensing) Amendment Act 2002.The 2002 amending Act seeks to insert a new section 22C in the Housing Developers (Control and Licensing) Act 1966 which has the effect of overriding s 4(3) CLA and the decision of Nouvau Mont Dor if it involves a homebuyer who is a purchaser of a housing accommodation or has a dealing with a licensed housing developer under the 1966 Act. This new section will allow the assignor homebuyer to sue the developer directly unless a contrary intention is expressed in any assignment between the homebuyer and his financier in which case the prior written consent of his financier must first be obtained. This section operates “notwithstanding anything contained in any written law or any rule of law” and applies retrospectively to every assignment. Conclusion In conclusion, it cannot be gainsaid that a statutory assignment under our s 4(3) CLA is a common security for a loan if there is no individual title to the property, but not an assignment by way of charge. Therefore, there is a need for the legislature to look at the predicament of an assignor purchaser as particularised above just as what it did for the assignee under s4(3) CLA and a homebuyer under the Housing Development (Control & Licensing) Act 1966.

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What are the international justice norms? written by Tan Peek Guat, Sunday, July 20 2014 12:10 am

Assignment of Debt – What You Need to Know

By aqila zulaiqha zulkifli ~ 23 june 2023.

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Aqila Zulaiqha Zulkifli

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Occasionally, to ensure liquidity and to reduce financial risk, a creditor may assign its rights to a debt repayment to another party. Such an arrangement is known as the assignment of debt.

An assignment generally means the transfer of contractual rights and liabilities to a third party without the concurrence of the other party to the contract. [1] The assigning party is known as the assignor, whereas the recipient party is known as the assignee.

Once an assignment occurs, the assignee stands in the exact position as the assignor and has the legal right to a debt, other remedies therein, and even the power to discharge the debt. The debtor must then, make all payments to the assignee, and not the assignor. In fact, if the debtor pays the assignor without the consent of the assignee, the debtor may risk having to pay the assignee all over again. [2]

An assignment of debt is governed by Section 4(3) of the Civil Law Act 1956 (the “Act”) (cited with approval in the Federal Court case of UMW Industries Sdn Bhd v Ah Fook [3] , in which, the elements of a statutory assignment of debt can be summarized as follows:

• the assignment must be in writing under the hand of the assignor (and not, i.e the agent of the assignor);
• the assignment must be absolute and not by way of charge only; and
• the express notice in writing must have been given to the person liable to the assignor (i.e the debtor).

The effect of a statutory assignment is that the assignee possesses the legal right to the debt and the right to sue the debtor in respect of the debt without needing to join the assignor. [4]

However, rest assured, an assignment that is not in compliance with Section 4(3) of the Act is not automatically invalid. A non-statutory assignment could still be valid in equity [5] , though the assignee would have to join the assignor in the proceeding, either as a plaintiff or defendant [6] . This is to ensure a just disposal of the action, by ensuring that all relevant parties are before the Court so that the assignor would not make a claim against the debtor in respect of the same debt.

As such, in conclusion, before accepting an assignment of debt, it is prudent for an assignee to ensure that the elements in Section 4(3) of the Act abovementioned are fulfilled. If the assignment is meant to be absolute, such terms should be clearly reflected in the deed of assignment, or the assignee runs the risk of being crippled in a legal proceeding to recover the debt in the absence of the assignor.

[1] United General Insurance Co Sdn Bhd v Progress Credit Sdn Bhd [1988] 2 MLJ 297

[2] malayawata steel berhad v government of malaysia & anor [1980] 2 mlj 103, [3] [1996] 1 mlj 365, [4] mbf factors sdn bhd v tay hing ju (t/a new general trading) [2002] 5 mlj 536, [5] khaw poh chhuan v ng gaik peng & ors [1996] 1 mlj 761 (fc), [6] chan min swee v melawangi sdn bhd [2000] 7 clj 1.

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