Disputes and Issues Relating to Sale and Purchase of Land in Malaysia
Sharifah Zubaidah Abdul Kader
International Islamic University Malaysia
November 30, 2011
LAW AND COMMERCE: THE MALAYSIAN PERSPECTIVE, p. 345, IIUM Press, 2011
This chapter deals with the sale of land or building or parcel in a sub-divided building or land parcel in Malaysia. Realising that it is quite impossible to give a complete treatment of such sale and purchase transaction in just a few pages of this chapter, it is proposed that the approach taken in this writing will be to introduce such transaction to the general reader and to only elaborate the salient features, issues and disputes of a general sale and purchase of land in Malaysia.
The discussion begins with explanation of the features of land ownership and the laws governing the sale and purchase transaction. It highlights that Malaysia applies the Torrens system of title by registration and describes the contractual and statutory dimensions in which the sale and purchase of land operates. The chapter goes on to identify the types of land or property that becomes the subject matter of sale as the conveyancing procedures will differ depending on each type of land or property. There are many practical steps to be done by a solicitor who is handling a sale and purchase of land including due diligence like conducting a land search, a bankruptcy search; dealing with the vendor’s financier to discharge a charge, making sure that the vendor is duly represented by his own solicitor and the requisite consent, if any, of the State Authority is obtained, obtaining the consent of the developer, if any, and many more. It is not the intention of this chapter to delve into these conveyancing procedures. Suffice for purposes of this chapter to note that the vendor and purchaser should be represented by their own respective solicitors and that unless agreed otherwise, it is the vendor’s solicitor that is to prepare and supply the sale and purchase agreement.
The types of issues and disputes that can arise out of the sale and purchase of land are many. This chapter will highlight selected issues and disputes arising out of land as the subject matter of sale. Issues relate to matters that need to be considered and dealt with by the solicitor in ensuring the success of the transaction whilst disputes relate to differences between the vendor and the purchaser that may lead to the seeking of remedies arising from the breach of obligations under the contract. Some of the issues that will be discussed in this chapter are the conditional nature of the sale due to preliminary applications to be made either to the State Authority or the land office or third parties in respect of restrictions on the title, or the rights of third parties having interests on the land, purchase subject to an existing tenancy, purchase of land subject to a charge action and the effect of a pending land acquisition on the land. Disputes include a discussion on late delivery of vacant possession by the vendor, abandonment of the project by a developer and poor workmanship or quality of the completed building.
Number of Pages in PDF File: 21
Keywords: sale and purchase of immovable property, Malaysia
JEL Classification: K11, K12Accepted Paper Series
Date posted: February 19, 2012
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