Chapter 4 - Land Dealing: Transfer Flashcards
(38 cards)
TRANSFER
Overview
1) What may be transferred
2) Who can transfer
3) Transfer to foreigner
4) Requirements to transfer
5) Duties of parties
6) Position pending registration
WHAT MAY BE TRANSFERRED
Overview
1) The law
2) Application
WHAT MAY BE TRANSFERED
The law
S.214
WHAT MAY BE TRANSFERRED
Application
Peter Lai v Collector of Stamp Duties:
- transfer of undivided equal shares of land is NOT a transfer of a part of land.
WHO CAN TRANSFER
Overview
1) Who
2) Power to refuse transfer
WHO CAN TRANSFER
Who
Md Khamis bin Yaakob v Ismail Abdullah:
- Nemo dat quadnon habet, i.e. no one gives what he does not have.
- Therefore, only registered proprietor can transfer the land.
WHO CAN TRANSFER
Power to refuse transfer
Pow Hing & Anor v Registrar of Titles, Malacca:
- Registrar has the power to refuse transfer for unpaid rent under S.301A.
TRANSFER TO FOREIGNER
Overview
1) The law
2) Application
3) Effect of non-compliance
TRANSFER TO FOREIGNER
The law
S.433B(1)(b):
- Must obtain approval by State Authority before executing memorandum of transfer.
TRANSFER TO FOREIGNER
Application / failure to obtain approval
Jalaludeen Abdul Aziz v Thurmalingam S Rajadurai:
- Approval of State Authority must be obtained before execution of memorandum of transfer.
- OTF, since no approval had been obtained, it had contravened S.433B.
- Effect: the object or consideration was unlawful and the agreement was therefore void by reason of S.24 of the Contracts Act 1950.
TRANSFER TO FOREIGNER
Effect of non-compliance
1) If registration has taken place: title can be set aside by void or insufficient instrument.
2) If registration has not taken place: the object or consideration was unlawful and the agreement was therefore void by reason of S.24 of the Contracts Act 1950
REQUIREMENTS OF TRANSFER
Overview
1) Memorandum of transfer
2) Execution of instrument
3) Attestation
REQUIREMENTS OF TRANSFER
Memorandum of transfer
S.215
- Form 14A
REQUIREMENTS OF TRANSFER
Execution of instrument
S.210
- Sign or thumbprint
REQUIREMENTS OF TRANSFER
Attestation
S.211 + 5th Schedule
REQUIREMENTS OF TRANSFER
Attestation - whether S.211 is mandatory
Majlis Peguam Malaysia v Rajehgopal Velu & Anor:
- S.211 is a mandatory requirement.
- i.e. it is mandatory for the person authorised to attest a signature to ensure that it is signed by a real person before him.
REQUIREMENTS OF TRANSFER
Attestation - effect of non-compliance on the instrument
Overseas Realty Sdn Bhd v Wong Yau Choy:
- Non-compliance will render the document to be an insufficient document & incapable of being registered.
REQUIREMENTS OF TRANSFER
Attestation - effect of non-compliance to the practising solicitor
Albert Chew v Hong Leong Finance:
- Attestation to the veracity of a signature w/o his presence amounts to violation of the most fundamental code of legal profession.
- It would be tantamount to an illegal & improper act.
DUTIES OF PARTIES
Overview
1) Duties of solicitors
2) Roles of stakeholders
3) Duties of Registrar
DUTIES OF SOLICITORS
The law
Neoh Soo Oh v Rethinasamy:
- Search: conduct search beyond register on matters which yet to be noted in the register.
- Identity & veracity: ascertain the identity & veracity of the vendor.
- Execution: Ensure that the instrument is duly executed by the parties.
- Failure: failure may result in liability in tort or contractual liability as a solicitor.
ROLES OF STAKEHOLDERS
Overview
1) Who is stakeholder
2) What is his duty
3) Failure to perform
ROLES OF STAKEHOLDERS
Who is stakeholder
Tan Suan Sim v Chang Fook Shen:
- The one who undertakes money paid by purchaser pending the outcome of future event.
ROLES OF STAKEHOLDERS
What is his duty
Tan Suan Sim v Chang Fook Shen:
- Stakeholders will hold the money temporarily under trust pending future event;
- After which, he will pay it over to the vendor.
ROLES OF STAKEHOLDERS
Failure to perform
OCBC Bank v Lee Lee Fah:
- A stakeholder is holding the money under trust;
- Remedy against failure to perform is against the stakeholder himself.
