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Common problems in a sub sale transaction

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A typical transaction for a sub-sale and purchase agreement (SPA) of an immovable property (whether a landed property or strata titled property) in the secondary market is normally divided into three stages:

The pre-SPA stage;
The formation of the SPA stage;
The completion of the SPA stage.

The pre-SPA stage:

During the pre-SPA stage, the investigations carried out at this stage are basically on the property and the vendor.

When a vendor sells his property, it is reasonable to believe that he wants to receive the proceeds of sale in the shortest possible time. On the other hand, when a purchaser buys a property, he wants to get early vacant possession of the property, or get vacant possession within the contemplated completion date of the transaction.

At the pre-SPA stage, it is prudent for the real estate agent to conduct due diligence on the property and the vendor with the assistance of a solicitor, so that the agent may advise his vendor client and also provide the relevant information to the purchaser.

Since the agents and negotiators are in the front line before the solicitor prepares the draft SPA, it is prudent for them to investigate the property and the vendor.

These are some of the issues and decisions that may affect the purchaser and the vendor’s decision to go through with the transaction.

Who is the registered proprietor of the property?

If the property is still in the developer’s name, the original purchaser (aka the vendor) may write to the developer to do a direct transfer of the property from the developer to the second purchaser. However, if the developer does not agree to do a direct transfer in favour of the second purchaser, then a Memorandum of Transfer will be signed between the original purchaser and the developer. At the same time, the original purchaser will sign a Memorandum of Transfer with the second purchaser.

After both Transfers have been duly adjudicated and stamped, both Transfers will be sent to the land office/registry for simultaneous registration, firstly from the developer to the first purchaser, and then from the first purchaser to the second purchaser.

Some developers accept requests for direct transfer, but others will not. If the property is subject to a restriction in interest, then generally the developer may not agree to do a direct transfer to the second purchaser as the developer would have obtained a blanket consent to transfer the property to the first purchaser.

Where the property is subject to a restriction in interest, the developer will firstly transfer the property to the first purchaser. After the first purchaser has been registered as proprietor, then only can he sell to the second purchaser subject to obtaining the consent of the State Authority. This type of transaction will exceed the normal completion period of three months.

The owner of the property is deceased

When a person dies and has left a will, then the executor of the estate of the deceased person has to apply for a grant of probate to enable him to deal with the property of the deceased person.

When a person dies without leaving a will, then the administrator of the estate of the deceased person has to apply for grant of letters of administration to enable him to deal with the property of the deceased person.

When the owner is deceased, we need to find out if the executor or administrator has been duly authorized by the court to deal with or sell the property of the deceased owner through the grant of probate or the grant of letters of administration respectively.

The executor or administrator of a deceased’s estate has the capacity to enter into a sale and purchase agreement to dispose of the property of the deceased owner.

Without the grant of probate or the grant of letters of administration, there is no authority to sell, and the SPA will not be signed. Parties are to ensure that all the legal formalities have been duly complied by the executor or the administrator of the estate of the deceased owner so that the completion date of the SPA to be eventually signed may be ascertained.

Who has custody of the title to the property?

Where the property has not been transferred to the vendor, it will be desirable to inquire whether the developer or the vendor has the custody of the title.

If the title is found to be lost or missing, then it may not be advisable to sign the SPA. It may take a few months from the time of application to obtain a new title from the relevant authority.

If the parties proceed to sign a conditional SPA despite the lost or missing title, then the process of completion of the SPA will exceed the normal completion period.

The identity of the vendor

If the vendor is a foreigner, and if his name in his identity card and in his passport differs, then the purchaser’s financier may require various documentation to be executed by the vendor to declare and state that the person named in the identity card and in the passport are one and the same person.

If such a discrepancy is discovered from the beginning, then it should be rectified immediately to avoid delays in the disbursement of the purchaser’s financier’s loan.

To ascertain the correct and property identity of the vendor is important to ensure that there are no unnecessary delays in the completion date of the SPA.

Check the title for the correct express condition where the category of land use is “building”

Where the property being sold is an office unit, it is important to ensure that the express condition stated in the title does not state “untuk rumah kediaman’ (for residential purpose). The correct description is “untuk pejabat” (for commercial purpose).

In one SPA transaction, the vendor wanted to dispose an office unit. After the purchaser had placed a deposit to buy, he discovered that the express condition in the title stated ‘untuk rumah kediaman’ when it should state ‘ untuk pejabat ‘. This could be due to an inadvertent mistake on the part of the relevant authority. The purchaser and his solicitors objected.

The SPA had to be drafted in such a way to indicate that the vendor was given a specific period of time to rectify the error on the title, failing which the SPA would be terminated. There is thus an element of uncertainty which would extend the completion period of the transaction.

Property held on leasehold tenure

If it is a leasehold property with a restriction-in-interest endorsed on the title against the transfer and the charge of the property without the consent of the State Authority, then it is imperative for the vendor to apply and obtain the consent to transfer from the State Authority before the purchaser may proceed to buy the property from the vendor.

Generally, the application for the consent to transfer is approved by the State Authority. However, if the vendor is a bumiputra and the purchaser is a non-bumiputra, then there could be a risk that the State Authority may not approve such application. If further appeals are not entertained by the State Authority, then the sale and purchase agreement will become ineffective and will be terminated.

Where the property of the vendor is caveated

If a land search on the property reveals that a private caveat has been entered on the vendor’s property, then obviously the purchaser will not proceed with the signing of the sale and purchase agreement, unless the private caveat is first removed.

On the other hand, if the preliminary land search shows that there are no caveats on the property, then the parties will proceed with the signing of the sale and purchase agreement.

However, if after the sale and purchase agreement has been signed, and another land search subsequent thereto reveals that a caveat is lodged on the vendor’s property, then if the vendor fails to withdraw the caveat, then the sale and purchase agreement may be terminated and in such an event, the vendor will have to refund all monies paid towards the account of the purchase price to the purchaser and pay compensation to the purchaser, as the case may be.

Developer in liquidation

There have been instances where after a housing project has been completed, but before the strata titles are transferred to the original purchasers, the housing developer company has gone into liquidation.

In such an event, a liquidator may be appointed and requested to act on behalf of the wound up housing developer company in handling the documentation pertaining to the execution of the memorandum of transfer in favour of and for the benefit of the original purchasers.

When an original purchaser does not intend to obtain registered ownership of his property but desires to sell it, then he has write to the liquidator to seek its consent to a direct transfer in favour of the second purchaser.

Upon receipt of such a request, the liquidator will conduct a verification of ownership exercise, and upon being satisfied that the legal formalities and requirements have been complied with by both the original purchaser (currently in his capacity as vendor) and the second purchaser and are found to be in order, and after payment of an administrative fee by the original purchaser to the liquidator, then the process of execution of the direct transfer by the liquidator in favour of the second purchaser may commence and proceed accordingly.

In the above situation, it will be prudent for a due diligence to be undertaken before the original purchaser decides to sell and the second purchaser decides to purchase the property so as to avoid or expect unnecessary delays in the intended sale and purchase transaction.


DISCLAIMER:

The views and opinions expressed in this article are solely those of the original author. These views and opinions do not necessarily represent those of StarProperty.my.

This article is intended to provide information and does not constitute legal advice for specific needs. You should consider, or seek and obtain independent legal or professional advice for your specific needs and situation.

Advocate & Solicitor Ivan Chan is a legal practitioner at Messrs Amir Toh Francis & Partners, K.L.

His area of practice is mainly in conveyancing matters both in the primary and secondary market, and loan and security documentation for real estate property transactions.

Father’s Day 2017

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My father once said to me. “When you become a father, you have the responsibility to look after your family and provide them with the best you could”.

Those words now mean more to me than ever. After 11 years having my own family, my responsibilities grew many folds throughout and naturally, providing them with the best is the least we can do. If there’s one thing that I’ve learnt about being a father, it is the value of respect and keeping a cool head dealing with everyday challenges in front of your family.

My dad is no multi-millionaire nor he is a celebrated individual in his field. He is an ordinary person with a family that he cared for very much. We don’t have fancy meals and pricey toys to satiate our childhood. We certainly don’t travel much let alone visiting countries after countries. But what we have was a pretty good family life with a lot of love and care.

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Best dad..

We never question our father’s ability to raise us in the most lavish ways. But God knows how much he must’ve tried and wish that he could. When you have a responsive father and a role model that you could look up to, he is worth more than anyone who could buy you everything in the world.

He earns our respect with the way he conducts himself and if I remembered clearly, there were not once he fell short of providing us with what he was supposed to.  My dad was never the one who speaks a lot, but he is the person who looks after the family with all his might and capacity.

Dad, if you could recall, there was once I threw a tantrum when I couldn’t get some Star Wars activity books from a book fair (equivalent to Big Bad Wolf now) and you went all the way back to the crowded place the day after to buy me a few. I still remember. I  probably wouldn’t have done it for Adrian. I don’t see this as an act of pampering. I see this as your way of showing me how much you loved me and not wanting to disappoint me even for such trivial matter.

To have you as my dad is truly a blessing. You have done so much to raise me up and given me countless advice and wisdom that the only way to repay you is to care for you and not have you worry about me. Happy Father’s Day dad, and I love you!

Adrian made me a Father’s Day card this round. He did so to last year but the work was a little shoddy. This time, it’s a better one. I guess my boy loved and respect me like how I did to my dad. The card was filled with words and scribbles of how much he loved me and thanking me for taking real good care of him.  He even bought a book marker for me with his own lunch money. ♥♥♥

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The Fresco & Avid team wishes all the fathers out there, Happy Father’s Day! May you be forever blessed with the most wonderful gift a father could have- the deserved love and care from your children and loved ones!

Wedding reaffirmation

11th June 2017 was a momentous date for both of us as it was our wedding reaffirmation day @ RLC (Renewal Lutheran Church). After 11 years of tying the knot in 2006, we finally come full circle and guess it’s time to renew our vows once again. Caroline always wanted to do an English and walking down the aisle wedding procession. The last one we had was a simple ROM and a 40-tables wedding feast.

With the help of RLC and of course our good buddies, Albert & Kah Ling, and the selected guests who turned out that day, we made that possible. There were 9 couples participating in the event. We were the 6th couple in terms of wedded days.

Albert helped us with the nice placard for guests signatures and gifts were ready the night before by Caroline and my MIL. Helen helped out with the wedding gown and make-ups. Thank you, guys!

The session starts at 7pm but most of us were there by 5pm. There was a light cocktail prepared by RLC before the main event. All the guests were on time (not the usual Chinese dinner timing.. ahem) and the session starts with each of the couples walking down the aisle following the order of marriage days, ascendingly.

Adrian leads the way and the cheeky boy almost danced his way to the front. And he was so handsome with his white-greyed coat. The rest of the couples also have their children as the flower girls and page boys. They all looked so wonderful!

The couples exchanged vows and rings and by the time the last couple did theirs, everyone was so happy and look forward to their fabulous dinner. The Big Rajah, a premium full services Malaysian food catering and events planning company, is RLC’s favourite caterer. And this time, it’s no different. Their Indian food was super duper delicious. Mutton curry, biryani rice, roti canai, pappadam, dahl… there were even some great ‘kuih-muih’ prepared by some of the RLC members.

Everything went really well as we catch up with friends and family members throughout the night and taking loads of pictures.  *Sorry if the pictures didn’t get to show some of our other guests. We have them in our hearts already though!

Capping off a memorable night, just want to say I love you Caroline Goh. Thank you for having me as your husband and have us the most wonderful boy one could wish for in Adrian.

 

 

12 Self Care Sunday Ideas

Personally, I thought this is lovely!

Hello, readers.

I hope you are all having the best day!

Many of you may have heard of the newest blogging/lifestyle trend that has become popular out there in the blog world… Self-care Sunday.

What is self-care Sunday?Well, basically it is the idea of taking a little time for yourself on a Sunday to do things that nourish your mind body and soul. Sounds simple, positive and awesome. Sounds like something I would like to write about!

I will be completely honest when I say that I have been taking part in my own personal self-careSunday routine for years. Although I never really thought of it as self-care Sunday, it was just kind of something I did. So this is nowhere near a new concept for moi,and I am so excited that this is a thing now. Yay!

It is so important to create your own little routine of self-care…

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Understanding How Real Property Gains Tax (RPGT) Applies To You In Malaysia

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RPGT is a tax chargeable on the profit gained from the disposal of a property and is payable to the Inland Revenue Board. As such, RPGT is only applicable to a seller.

For example, A bought a piece of property in 2000 at a value of RM500,000. Subsequently, A sold the property to B at the value of RM700,000, gaining RM200,000 from the disposal of the property. The RPGT is calculated for RM200,000.

Here are some frequently asked questions which may be relevant in understanding the concept of RPGT and how it applies to you:

What is the applicable rate?

The effective RPGT rates are as follows:

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When do I have to pay RPGT?

As prescribed by law, the purchaser’s solicitors are required to retain 3% of the purchase price from the deposit and remit the same to the Inland Revenue Board within sixty (60) days from the date of the sale and purchase agreement to meet the RPGT payable.

In instances where the consent of the State Authority is required to sell the property to a purchaser and/or charge the property to a financial institution, or a court order for sale is required to dispose of the property, remittance of the 3% of the purchase price may be deferred until such consent or court order for sale is obtained.

What is the consequence of late payment?

Any payment after 60 days may attract a penalty payable by the seller. The penalty is 10% of the amount payable as RPGT.

Am I required to do the documentation on my own?

The seller may opt to file the necessary forms with the Inland Revenue Board individually or seek assistance from the solicitors at a fee prescribed by the Solicitors Remuneration Order 2006.

What if I sell the property at a loss? Am I still required to pay RPGT?

RPGT is only chargeable if there is a profit gained from the disposal of the property. As such, if the disposal price is lower than the acquisition price, there is no profit gained and therefore no RPGT is payable.

Likewise, if the disposal price is equal to the acquisition price, there is neither a chargeable gain nor an allowable loss. As such, no RPGT is payable.

Am I entitled to any deductions?

The RPGT Act 1976 allows certain incidental costs of the acquisition of the property and disposal of the property to be taken into account, such as legal fees for the acquisition and disposal of the property and estate agency fees.

Am I entitled to apply for an exemption? Does it matter whether it is residential or commercial property?

Every disposer is entitled to a once in a lifetime exemption. However, this exemption is only applicable for the disposal of a “private residence”. The RPGT Act defines a private residence as a building or part of a building in Malaysia owned by an individual and occupied or certified fit for occupation as a place of residence. As such, it does not apply to commercial property.

In order to apply for an exemption, the applicant must show that:

  1. the private residence is owned and occupied by an individual; and
  2. the certificate of fitness for occupation or the Certificate of Completion & Compliance has been issued for that private residence.

It must be noted this exemption only applies to individuals. It does not apply if the private residence is owned by a company. A Permanent Resident in Malaysia is also entitled to apply for this exemption.

Am I subject to RPGT if I’m disposing of a property held under the estate of the deceased to a purchaser?

In this instance, the date on which the Inland Revenue Board will take into account to determine the acquisition date is the date of death of the deceased. In other words, there is RPGT payable if the disposal of the property is made within 5 years from the date of death of the deceased, even though the deceased has owned the property for more than 5 years during his lifetime.

Am I required to pay RPGT if it is a transfer between family members?

The law provides for 100% exemption from having to pay RPGT in the case of transfer of property between family members by way of love and affection in the following instances:

  1. transfer between husband and wife;
  2. transfer between parent and child; and
  3. transfer between grandparent and grandchild.

In these instances, the transferor is deemed to have received no gain and suffered no loss and the transferee is deemed to have acquired the property at an acquisition price equal to the acquisition price paid by the transferor together with any permitted expenses incurred by the transferor.

Apart from the above transfers, any forms of transfer between family members are not entitled to apply for an exemption, such as transfer between siblings.


(This article was published in the February 2016 issue of Home & Decor magazine.). The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Article by Jo Yan Lim and Mak Ka Wai of MahWengKwai & Associates

April Fool’s Day – don’t get pranked!

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Hey, it’s 1st April again. That’s right. It’s April Fool’s Day. Although it’s not much of a day to celebrate, the Fresco Team just wanna ‘remind’ (we know it’s not right) everyone, don’t get pranked tomorrow. It’s fun to execute a practical joke, but do be careful as not everyone is up for it…

April Fools’ Day (sometimes called All Fools’ Day) is celebrated every year on April 1 by playing practical jokes and spreading hoaxes. The jokes and their victims are called April fools. People playing April Fool jokes expose their prank by shouting April Fool. Some newspapers, magazines, and other published media report fake stories, which are usually explained the next day or below the news section in small letters. Although popular since the 19th century, the day is not a public holiday in any country.

You can head over to Wikipedia April Fool’s info for more details of this widely practiced event.


Link source: Wikipedia

A Guide to Malaysia Home Loan Refinancing

There are still many of us who do not entirely understand this. What is home loan refinancing? Reasons for refinancing. Considerations.  What are the impacts? We hope the following infographic is useful and able to provide some guidelines on home loan refinancing. Let’s go.

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Infographic source: iMoney.my