1.

0 Intervivos Transfer

Definition:
- A transfer of property from transferor to transferee without any monetary compensation
or it is transferred to the transferee as a gift. The transferor will convey his property to the
transferee based on love and affection.
Sec.26(a) of the Contracts Act 1950: An agreement is valid if
- It is expressed in writing (form 14A)
- It is registered under the applicable law (for convey, under the NLC)
- It is made on the account of natural love and affection between parties standing in near
relation to each other
Re Tan Soh Sim (near relation):
- The court held that adoption under Chinese custom does not give a rise to a relationship
falls within the meaning of standing in a near relation.
- It will only be considered as standing in near relation if the parties have a blood
relationship.
Queck Poh Guan (blood relation):
- The court held that intervivos transfer between mother and son based on love and
affection is valid.
Issue: Whether the transferor can transfer only half portion of the land to the transferee?
- Sec.214(1) NLC: Transfer can only be carried out in respect of the whole of undivided share
or the whole piece of land.
- Peter Lai Kee Chin: However, it was decided by the court that when the transfer is on the
half share of the land to his wife and the other portion to himself to make them both co-
owners of the property in undivided equal shares, it will not contravene Sec.214(1). In
practice, the proprietor will have to execute on the transferors part as well as on the
transferees part in Form 14A.
Procedure:
1. Pre-requisite inquiries
- Sec.384: Solicitor conduct land search/bankruptcy search
- Private search: go to the Land Office and check personally
- Tirai Kristal Sdn Bhd: The plaintiff conducted a private search and found out that it was a
scam, the court refused to grant for compensation.
- Official Search: Go to Land Office and apply for land search and then guaranteed by
Registrar.

2. Preparation
- No contract of sale needs to be drafted when there is no exchange of money.
- The relevant dealing document to effect a transfer is provided in Sec.215(1) NLC, the form
is form 14A.
- Sec.208(1)(a): Details of parties must be stated
- Sec.43: A party must be a natural person of the age of majority
- Sec.208(1)(b): If the land transfer is to more than one party it must be specified in form
14A.
- Sec.209: Description of the land must be filled by the transferor in form 14A.
- (a): Administrative area
- (b): Lot number
- (c): Title of the land
th
- 10 Schedule: How to prepare form 14A

3. Execution and attestation

- Sec.210(1): Parties involved must execute the document
- Sec.210(2): Execution by natural person by signing or affixing a thumbprint
- Sec.210(3): Execution by a corporation can be done by affixing the seal of the corporation
or by the secretary of the company and one director of the company to seal.
- Sec.211: Every execution must be attested by the relevant officer specified under the 5th
schedule.
- On 28 August 2017, Parliament has amended the requirement for an attestation by an
advocated & solicitor in the 1st Schedule and 5th Schedule.
- Para 2, 5th Schedule: An advocate and solicitor, in attesting any execution, shall indicate
that he holds a practicing certificate which is in force at the date of the attestation and shall
also indicate the reference number to which it relates.
- Para 3, 5th Schedule: A Malay Reservation Land (MLR) can only be attested by the Land
Administrator.
- Applicable only when the party is a natural person.
- If the party is a corporation even if the land is under MRL, the attestation is waived.
- Sime Bank Berhad v Tetuan Projek Kota Langkawi: the court held that when
signing of the document for a MRL by a company, the requirement of attestation by
a land administrator is waived.
- Para 4, 5th Schedule: Where the instrument of charge is executed by a holder of a Power of
Attorney, the requirement of attestation only by Land Administrator is waived.
- A charge instrument for MRL can be attested by an advocate and solicitor.

4. Stamping and adjudication

- Document must be produced at the Stamp Duty Office for stamping in accordance with the
Stamp Act 1949.
- Sec.16(1) Stamp Act: Stamp duty is payable even in an intervivos transfer.
- Sec.80 Stamp Act: The Minister of Finance may exempt, reduce, remit stamp duties
- Transfer between spouses: Stamp duty is exempted through the Stamp Duty
(Exemption) Order 2007 presented through the 2007 budget by the Prime Minister.
- Transfer between parent and children: Stamp duty is remitted by 50% through the
Stamp Duty (Remission) Order 2002.
- Despite the exemption, the document still needs to be submitted to the Stamp Duty Office
for confirmation of exemption by the Collector.
- Sec. 296 NLC: Without such confirmation and signature of the Collector, the
document will still be deemed as not fit for registration
- Sec. 296: For the purpose of registration, it must be an original duly stamped instrument of
dealing (sufficient stamp payable on the instrument of dealing in accordance with the Stamp
Act)
- Adjudication: A process where the transferor (or his solicitor) sends a relevant document to
the Stamp Duty Office for valuation of the property and to determine the stamp duty payable
on the transfer form.
- Required documents:
- Completed Form 14A
- Duplicate copy of IDT
- 5 Copies of PDS 15
- Fee of RM10
- After all the documents are sent to the Stamp Duty Office, an adjudication number will be
stamped on the Form 14A and a Notice of Assessment (Notis Taksiran) will be issued.
- 2 methods:
i) Manual: submit completed 14A together with the copy of IDT, and 5 copies of
PDS15 (PEJABAT DUTY STAMP): must be submitted personally to the stamp duty
office. They will revise the original copy then return it back once documents are all
in order.
ii) Online: legal firm must be registered with SDO (Stamp duty office) and provide
password so that we could submit online. The documents must be scanned. Once
documents received, it will take some time for them to determine. SDO will send
out notis taksiran in which they will determine the value of the land and how much
stamp duty is payable. Notis taksiran is sent via online. Must pay the stamp duty
- Stamp duty of transfer is calculated based on item 32, First Schedule, Stamp Act.
- Calculation of stamp duty:
- The amount to be paid is dependent on the value of the property as under the
Stamp Act.

Property Value Stamp Duty

For the first RM100,000 1%
For the remaining amount in excess of 2%
RM100,000 but not exceeding RM500,000
(RM100,01 RM500,000)
For the remaining amount in excess of 3%
RM500,000

- Steps (where the purchase price exceeds RM500,000):

- i) RM100,000 x 1% = RM1000
- ii) Remaining amount not exceeding RM500,000 x 2% = RM X
- iii) Remaining amount in excess of RM500,000 x 3% = RM Y
- iv) RM1000 + X + Y = Stamp duty payable
- Sec.47: Stamp duty must be paid within 30 days of the execution if executed in Malaysia
and 30 days it been received if executed outside Malaysia.
- Sec.47A: If stamp duty is not paid within time, the penalty of late stamping will be
calculated based on unpaid stamp duty.
- Sec.77A: Assesment of stamp duty may be done online.
- Sec.7(1): Payment shall be indicated on such instrument by
(a) means of an adhesive stamp;
(b) affixing an official receipt to such instrument; or
 (c) attaching a stamp certificate to such instrument. (usually online)

5. Registration
- Sec.292(1): Transferor must present the document for registration at the Registry or Land
Office
- Sec.293(1): Document must be accompanied by a registration fee
- Sec.292(4): Death of any person of whom any instrument has been executed shall not
affect the validity of the instrument to be presented for registration.
- Once the transfer has been registered, the title may be collected from the Registry or Land
Office.
2.0 Transfer by Contract of Sale

A transfer is executed only after the terms and conditions of the sale have been agreed
upon.
- The transferor (registered proprietor) will part with his title upon payment of monetary
compensation (purchase price) made by the transferee.
- Two types of transfer by contract of sale:
i. Private treaty (sub-sale)
ii. Regulated contract of sale (governs by Housing Development Act).

Issue: Whether a contract of sell property is valid and enforceable where it is made orally?
- Sec.9 CA 1950: So far as the proposal or acceptance is made otherwise than in words, the
promise is said to be implied.
- Diamond Peak Sdn Bhd: An oral contract for the sale of immovable property is valid and
enforceable.
- Sandrifram Sdn Bhd: All the terms and conditions of sale had been agreed upon by the
parties. When the vendor discovered that the property is valued higher that the sale price,
he refused to execute the agreement on the ground that it was made orally. The court
granted the purchaser's application for specific performance of the sale agreement.

Advantages of a written SPA:

- Both parties can minimize any dispute (because it is documented)
- Parties can easily identify rights and obligations
- Parties can ascertain available remedies upon breach & provide liquidated damages as well
(depend on the breach made on the contract)
- A duly stamped SPA is admissible as evidence in court/ witnesses in oral documents/
tendering of contract can be made by the solicitors or the vendor/ purchaser themselves.

The registered proprietor is known as the transferor in the Form 14A and as a Vendor in a
sale and purchase agreement.

The acquirer of the land is known as the transferee in the From 14A and a Purchaser in the
sale and purchase agreement.

Legal Profession Act

- Both parties must appoint their own solicitor (vendor's solicitor/purchaser's solicitor).
- LPA prohibits solicitors from acting for both parties. It will be a conflict of interest when the
solicitor acts for both, the vendor and solicitor.
- Only one solicitor will prepare Form 14A, no legal obligation as to which solicitor should
done it, but in practise, purchaser's solicitor will be the one who prepared it.
 Private treaty: Transfer between a registered proprietor who wishes to dispose his property
in order to obtain money and purchaser interest to own that property.

1. Pre-Contractual matters
(A) Duties of vendors solicitors.
- The RP will consult his solicitor as how the disposal of property by way of transfer can be
prepared and completed in order to get money from the transaction after negotiation with
the prospective buyer.
- VS should obtain the details of the vendor, property and the terms and conditions of the
contract and clarify whether the parties have concluded an agreement during the
negotiation.
- VS must also ascertain the vendors status in relation to the land;
- The capacity of the vendor will determine as to whether he will need to make any
application for consent from any relevant authority beforehand.
- If the vendor is registered as the holder of a Power of Attorney, he must be
subjected to the Deed of Power of Attorney executed between him and the donor.
Thus, his power to deal with the land is limited as granted to him under the Deed,
and exceeding the power will cause the contract to be void (Hj Saud v Hj Ahmad).
- Moreover, the material details of the land must also be ascertain
- If the land is subject to a restriction in interest, then the vendor cannot deal with
land unless he obtained consent from the relevant authority. Non-compliance will
render the transfer null and void.
- Other type of restriction is provided under Section 214A NLC, with regards to
estate land where it stated that in order to transfer any estate the proprietor must
obtain consent from the Estate Land Board.
- Rengamah Rengasamy: The contract to sell the land is conditional upon the
approval of the Estate Land Board.
- It is the vendors duty to apply for the consent from the relevant authority. Thus, it
is the duty of the VS to advise the vendor to make the necessary application to
facilitate the transfer.
- The VS must also inquire from the vendor whether his property is subjected to any
charge. This is to notify the purchase that the land is used as a security and is still
subject to a charge in favour of a charge (bank) and help the purchaser redeem the
property.
- Terms of SPA
- The VS must ascertain the important terms of the SPA such as the purchase price,
duration, and deposit in order to assist him in liaising with the purchasers solicitor.

(B) Duties of purchasers solicitors.

a. Interviewing the client
- PS must obtain the relevant details to the sale transaction such as the details of the
purchaser, the details of the property and the terms and conditions that has been
negotiated between the vendor and purchaser.
- PS must also take down the material details of the purchaser to ascertain that he is not
prohibited from being registered as proprietor of any property in West Malaysia in
accordance with Sec.43 NLC.
- Anthony Ting: The court held that the solicitor was negligent because he failed to ascertain
the identity of his client, the person who claimed to be the owner of the land when he relied
merely on the report of the lost of identity card.
- It is also important to inquire as to how the money used for the payment of purchase price
was obtained to eliminate the possibility of terrorism activity.
- This practice is not mandatory but it is considered as the best practice.

(b) Conducting Land Search

- The PS must contact the VS and obtain details of the property in order to conduct a land
search.
- There are two types of land search as provided under the NLC:
i. Sec.384: Private land search
ii. Sec.385: Official land search
- A land search is conducted for the purposes of:
- To get the latest detail of dealing of the land in the RDT
- To ascertain the status of the land and the registered proprietor
- To ascertain whether the land is subjected to any encumbrances or any forfeiture
proceeding
- Where the property is still subject to a charge, the PS should request for a
bank statement from the vendor (redemption statement).
- To determine whether the land is subject to any caveat or prohibitory order.
- To determine whether the land is subkect to an acquisition by the government
under the Land Acquisition Act.
- The cheapest way of obtaining accurate information
-RDT (Register Document Title) is the original and genuine document issued
by the State Authority.
- Sec.89, NLC: Priority is given to RDT in the case of any dispute.
- Conducting a land search will enable the PS to acquire as much knowledge as possible
regarding the land.
- In the event of any dispute, failure to conduct a land search will cause the solicitor to be
charged under professional negligence.
- Ngeoh Soh On: The solicitor did not conduct a land search and was not aware that
the land was subjected to a land acquisition. This caused the purchaser to suffer
losses as the compensation was lower than the purchase price. The solicitor was said
to have failed to use reasonable care and skill in discharging his duty as a competent
solicitor.
- Chow Yoong Hong: A purchaser is entitled to insist that a land search is conducted
before the purchase price is paid.
- Tirai Kristal Sdn Bhd: However, any party who carried out private land search is not
allowed to claim for compensation under Section 386 of the NLC in the event of any
errors on the result of the search conducted.
 (c) Enquiries
- PS should make the necessary enquiries from other relevant authorities (e.g: TNB, Indah
Water) to determine whether the relebant property has any arrears in payment.
- Any arrears in payments may be set off from the purchase price.
- It is also a good practice to enquire whether the renovation done to the building (if any)
complied with the relevant laws.
- The PS must conduct a bankruptcy search on the vendor to ensure that he is not a
bankrupt or a fraudster.

(d) Site inspection

- The purchasers solicitor should advise the purchaser to inspect the land personally in
order to indentify the place before purchasing it.
- If the land is purchased together with a building, it must be ascertained whether there is
any tenant, lessee or occupier.

2. Execution of Contract of Sale

There are four components of a valid sale and purchase agreement:

i. Date of agreement
ii. Recital part
- Details of the parties and property.
- Any existing encumbrances
- Status of parties to ensure they fall within Sec.43 for the purpose of preparation of
SPA
- If an executor or trustee enters into a contract to sell land, the contract is ineffective until
court grants an order allowing the administrator or trustee to sell.
- Factors taken into consideration:
i. Is the price reasonable? The reasonableness of the price was not decided on the
date of the contract but on the date of application. If there is a lapse in time, then
the court will consider the application.
ii. Beneficiaries are of the age of majority and have agreed to the sale at a certain
price.
iii. Consent has been obtained from all the adult beneficiaries (Gan Khay Beng)
iii. Terms and conditions of the sale (fundamental part)
- Payment of deposit
- Conditional terms
- Only if the said property is subjected to any limitation such as RII where the sale
can only be concluded if the State Authority grants its consent for transfer.
- Payment of purchase price and mode of payment
- Duration of payment
- Within 3 months free of interest (completion date) plus another 1 month extension
period with interest (extension completion date) at a mutually agreed percentage.
 - General clause
- Parties should include time as an essence of the contract
- Important to helps determine whether the injured party can repudiate the
contract in the event the other party fails to comply with the agreed time period.
- Obligations to vendor
-To give an assurance that title is under his name and will be transferred free from
encumbrances
- To not refuse to proceed with the sale at the agreed purchase price
- To undertake to apply for the necessary consent and execute all the relevant
documents.
- Obligations of purchaser
- To pay the agreed purchase price within stipulated time
- To determine the method for payment of balance of purchase price
- In the event of default, to determine whether to pay interest or treat the
agreement as null and void, and forfeit the deposit.
- Miscellaneous terms
- The status of the SPA must be determined in the event of:
- Frustration of contract
- Breach of contract
- Consent rejected by State Authority
- Impossible to execute the contract
- Land is reverted to the State Authority
- Remedies available to an injured party when there is a breach of SPA
- Repudiation or rescission of the agreement
- Payment of liquidated damages
- Enforce an order of specific performance under the Specific Relief Act
- Palmerston Holdings Sdn Bhd: Where the SPA did not provide for the relief of
specific performance, the plaintiff was only entitled to liquidated damages.
iv. Signing and attestation clause
- Where both parties have agreed to the SPA, both parties must execute the
agreement before their solicitors and it must be attested by the qualified persons.

3. Post Contract

- The purchasers solicitor must ensure that the SPA and Form 14A are completed and duly executed
and that the deposit has been paid.

- Once completed the documents must be attested in accordance with Sec.211(1), (2), (3)
whereby it must be witnessed by person specified under 5th schedule, NLC.

- Private caveat: To protect the purchasers interest over the land before the transfer is registered,
the purchasers solicitor should lodge a private caveat on behalf of the purchaser.

- In order to do so, the purchaser must show that he has a caveatable interest over the land
as required under Sec.323(1)(a).
 - Ong Chat Pang: A purchaser has caveatable interest once he has signed the SPA and made
payment of deposit.

- In order to lodge a private caveat:

- Sec.323(2): An application in Form 19B must be made and attested in accordance with
Sec.211 and 5th Schedule, NLC.

- Sec.323(3): The applicant must state the nature of his claim verified by a Statutory
Declaration and accompanied by a prescribed fee.

- A Statutory Declaration requires several particulars to be stated:

- Full name, amount of deposit, particulars of property and vendor,

caveatable interest of applicant, signed before the Commissioner for Oath

- Form 19B and the Statutory Declaration must be registered at the relevant Land Office.

- A caveat will protect the purchasers interest (caveator) once it is registered.

- Sec.328, NLC: It will last for a period of 6 years.