Providing the points for the practice on conveyancing law and practice in Malysia

1. Conveyancing
(Part 1)
By
Dr Noorfajri Ismail

2. Content
1. Introduction
2. Governing Law
3. The Practice
4. Transfer of property
5. Subject to contracts
6. Sale & Purchase Agreement

3. Introduction
• Torrens system
• Mirror and curtain principles
• Conveyancing - the branch of law concerned with the
preparation of documents for the conveyance of property.
The action of preparing documents for the conveyance of
property.
• “mortgage”, “caveat”, “charge”, “encumbrances” & etc.

4. The ”Conveyance”
• Conveyance is the act of transferring an ownership interest in a
property from one party to another.
• Conveyance also refers to the written instrument, such as a deed or
lease, that transfers legal title of a property from the seller to the
buyer.
• The term is most closely associated with real estate, where a
conveyance refers to the written contract between the seller and the
buyer stating the agreed-upon purchase price and date of actual
transfer, as well as the obligations and responsibilities of both parties.
• Conveyance of ownership of real estate is also referred to as
conveyancing, and the legal representative overseeing the process
can be referred to as a conveyancer.

5. Governing Law
Contract
Act 1950
HD (C&L)
1966
NLC 1965 LPA 1976
Strata Title
Act 1985
SRA 1950
PA Act
1949

6. Activities Involves – “Dealings”
1. Transfer of title of the property
2. Purchasing home
3. Mortgage
4. Re-financing home

7. Conveyance
Item Dealings / RoD Particulars / Details Instrument
1. Transfer of title Sale & Purchase of Property 1. SPA
2. SPA (Sch. G) (HDA (CL))
3. SPA (Sch. H) (HDA (CL))
4. SPA (Sch. I) (HDA (CL))
5. SPA (Sch. J) (HDA (CL))
6. Form 14A
2. Mortgage A mortgage is a debt instrument, secured by
the collateral of specified real
estate property, that the borrower is obliged
to pay back with a predetermined set of
payments.
1. Loan agreement
2. Power of Attorney (PA)
3. Form 16A & 16B (s.242 NLC)
4. Form 16N (Discharge of Charge)
(s.278 NLC)
3. Caveat Caveat is a Latin term that means "let him
beware." "caveat emptor," meaning "let the
buyer beware," and "caveat venditor,"
meaning "let the seller beware."
1. F19B (Pte) – F19C (removal)
2. F19D (LHC)
3. F19E (Trust)
4. F19F (Registrar)

8. Subject to Contract
• Options – booking proforma
• Vendor – Purchaser relationship
1. Offeror & offeree
2. Capacity
3. Consideration – payment, vacant possession – time is of essence
• Stakeholders – bare trustee
• Obligations & rights
• Conditions & warranties

9. Registration of Instruments
• S.304 – Registrar making under his hand and seal a memorial of the
dealing on the register document of title, and completing, under his
hand and seal, on the instrument of dealing itself.
• Procedure:
1. S.207 – prescribed instrument
2. S.208 – 209 – instrument to contain full & proper description
3. S.210 – 211 – instrument must be properly executed & attested
4. s.294 - presented together with fees, related docs & adequately
stamped under Stamped Ordinance 1949.
• S.300 - two or more instruments affecting the same land or interest
can be presented at the same moment.

10. Presentation of Instruments For Registration
•S.292 – Instruments capable of being registered
•S.292A – Lodgment of instrument in electronic form
•S.293 – Fees to accompany instruments so presented
•S.294 – docs to accompany instruments
•S.295 – entry of instruments in presentation book
•S.296 – withdrawal of instruments

11. Fitness for Registration
•S.297 – registrar to determine fitness for registration
1. S.301 – when an instrument is fit for registration
2. S.301A – rent to be paid before presentation
3. S.302 – enquiries by the registrar
4. S.303 – limitation of Registrar’s powers
•S.298 – Rejection or suspension – if not fit for
registration
•S.299 – procedure in absence of other documents

12. Manner of Registration
•S.304 – how the instruments to be registered & time
registration to be effective
•S.305 – further actions by the Registrar
•S.306 – docs with copies of memorials
•S.307 – additional endorsement pursuant to s.305
•S.308 – additional procedure to extinguish subsequent
charges

13. S.306: Docs With Related Copies of Memorials
No. Documents Copies of Memorials
1 Issue document of title 1. Transfer of any land
2. Any lease or surrender of a lease
3. Any charge or discharge of such a charge
4. Certificate of sale
2 Grant of any easement or release of any
easement
1. Issue document of title - both dominant and servient
land
2. Form 17A & 17B

14. Johor Land Administrator
• https://ptj.johor.gov.my/index.php/bahagian/pendaftaran
• https://ptj.johor.gov.my/index.php/bahagian/pendaftaran/pendaftara
n-hakmilik-baru
• https://ptj.johor.gov.my/index.php/bahagian/pendaftaran/hakmilik-
sambungan
• https://ptj.johor.gov.my/index.php/bahagian/pendaftaran/perolehan-
asing
• https://ptj.johor.gov.my/index.php/bahagian/pendaftaran/pindahmili
k-longgar-sekatan
• https://ptj.johor.gov.my/index.php/bahagian/pendaftaran/kaveat

15. Power of Attorney
• A power of attorney (POA) is a legal document giving one person (the agent
or attorney-in-fact) the power to act for another person (the principal).
• POA is a legal document which allows a person (referred to as the
“Donor”) to appoint another person (known as the “Donee”), which
authorises the Donee to act on behalf of the Donor in any dealings of
physical or non-physical assets such as land, property, shares or
intellectual property.
• It is a common practice in Malaysia for landowners to give out POA to
developer to allow their lands to be developed by the developer.
• POA is also commonly used by the elderly to give out specific power or
authority to his/her younger next of kin to act on his behalf to ease up any
dealings relating to his/her land.

16. Know Your Rights - Issues Related to PA
• https://www.thesundaily.my/archive/1578130-BSARCH332736

17. Effect of PA
• POA may enable a Donee to carry out certain dealings relating to
the real or unreal property without having to obtain the Donor’s
signature or consent, provided that the task is carried out within the
powers granted by the POA.
• Please note that POA is a very powerful legal document. Usually,
there will be a specific clause in the POA which renders the
POA REVOCABLE OR IRREVOCABLE.
• An irrevocable POA means that neither the Donor’s intention to
retract nor his death can revoke the registered POA.
• POA will continue to take effect even after the demise of the Donor.

18. PA – the Best Practice
• CREDENTIALS – ALWAYS check and conduct a due diligence on whether
that person is legitimate, regardless of whether that person is a
representative from a company, a broker or a property agent, it is always a
good practice to check their credentials and intentions;
• ENGAGE A LAWYER – before you execute a POA, engage a lawyer to
peruse the content of the POA. Even if the other party insisted that the
POA was drafted by a lawyer, do not trust them blindly. It is better for you
to incur some expenses at the beginning of the process rather than to
regret later on for not doing it earlier;
• KEEP A COPY OF THE POA – A copy of the signed, stamped and registered
POA must be given to you at the end of the process for your safekeeping.
You are entitled to have a copy of that said POA

19. Samples & Guidelines
• http://ambankgroup.com/Document/Solicitor/AmI3rdPartyPowerOfA
ttorneyMTQ-010716.pdf
• https://www.uob.com.my/securitydoc/pdf/LEG-060.pdf
• http://www.kehakiman.gov.my/en/node/1940

20. Cancellation of Registration
•S.305(1)(c), s.312 & 381 – general power of the
registrar
•S.313 – Cancellation of lease – Form 18A
•S.314 – Cancellation of Charges – Form 18B
•S. 315 – Cancellation of easements – Form 18C

21. Conveyancing Practice
• Advise the Purchaser on the terms and conditions in the SPA,
including the preamble. Do not assume your client is familiar with the
clauses. For example, the existence of any encumbrances on the
Property.
• Conduct a Land Search prior to the execution of the SPA. Advice the
Purchaser NOT to pay a deposit to the Vendor until you are satisfied
that the title is clear.
• Advise or notify clients immediately of the existence of any
encumbrances or notices of land acquisitions, for example, Gazette
Notification, Charge, caveats, restrictions in title etc.

22. Conveyancing Practice (2)
• If there is a lapse of time between the Government Gazette and the
actual registration of the notice with the relevant registering
authority, the searches conducted will not reveal the acquisition.
Therefore, apart from conducting a search in the Interim Register, the
solicitors should also conduct a search or enquiry with the Collector
of Land Revenue in the Land Office concerned which would have
revealed the notice of land acquisition.
• Conduct a Search at the Official Assignee’s/ Insolvency Office to
ensure that the vendor is not a bankrupt.

23. Conveyancing Practice (3)
• Lodge a Caveat preferably as soon as the SPA is executed and
Purchaser pays the Vendor a deposit towards the SPA.
• Safeguard clients’ interests on the property according to the terms
and conditions in the SPA.
• Lodge a caveat on the property pending the presentation for the
transfer of ownership.
• Check with City Hall or Municipality to ensure that there are no
arrears of outgoings (assessment, rates etc) and utility bills.
• Advise your clients to file the relevant change of ownership with the
Municipality.

24. Conveyancing Practice (4)
• Safeguard Original Titles
1. Keep all original titles in a waterproof and fireproof safe.
2. Maintain an inventory of all documents in that safe and have a
signing off procedure in place for removal/ return of the titles.
• Acknowledge Receipt of Sensitive Documents - When returning any
important documents, for example, titles, to clients, the firm should
obtain a written acknowledgement from the client that the document
has been returned to them.

25. Conveyancing Practice (5)
• Attend to Clients Personally - Ensure that the Advocate and Solicitor
in charge of the file personally meets the clients and is present at all
critical junctures of the transaction, for example, the signing of the
sale and purchase agreement. DO NOT leave these tasks to the firm’s
support staff.
• Don Not Act for Both Parties.
Don’t act as solicitor for both the Developer and Purchaser or Vendor
and Purchaser in a SPA (Section 84 Legal Profession Act 1976; Rule 7
Solicitors’ Remuneration Order 2005)
• Evade from Breach the Duty of Trust whilst holding the stakeholders
sum on trust for and on behalf of the clients.

26. Conveyancing Practice (6)
• Proper Docs Management - Avoid Misplace or Fail to return the ORIGINAL
title deed to clients that was previously given or entrusted for registration
of charge on the property.
• Do not Assume All Letters of Undertaking are the Same. Ensure the firm
has a strict policy regarding undertakings, its best that only a Partner is
allowed to give an Undertaking.
• Do not Assume Your Clients are Aware of RPGT. Highlight it to them and
confirm in writing if you are required to assist them in filing their RPGT.
• Most SPAs require the Firm to retain a portion of the sale price to pay RPGT
that may be charged, do not give in to Vendor’s pressure to release this
fund to him/ her before obtaining the relevant clearance.

27. Conveyancing Practice (7)
• Cutting Out Conflict – Determine early on which party to the conveyancing
matter
1. S&P between Developer & Purchaser
2. Sub-Sale & Purchase between an Individual/Company
• Solicitor Representation
1. The Purchaser’s solicitor must include a clause into the SPA stating that
the Vendor has chosen not to be represented.
2. The Purchaser’s solicitor can witness the Vendor’s signature.
3. The Purchaser’s solicitors can explain the clauses of the SPA to the
vendor but must be cautious when doing so as explaining what the
clauses mean must not be confused with advising the unrepresented
Vendor.

28. Conveyancing Practice (8)
• Establishing Identities
• Scrutinise the NRIC and the temporary NRIC to ensure the full name,
IC number and house address are correct and is the information
appearing in the title.
• Scrutinise the details of the passport. If another passport is produced
with differing serial numbers, contact the relevant High Commission
or Embassy to verify the travel document.
• Check the validity of the Power of Attorney – witnessed correctly &
duly stamped – has to be lodged with the High Court – contact
Registrar of High Court to establish its validity.

29. Sale & Purchase Agreement
• https://www.sec.gov/Archives/edgar/data/1322705/0001193125122
00168/d306594dex101.htm

30. Thank You

31. Conveyancing
(Part 2)
By
Dr Noorfajri Ismail

32. Content
• Solicitor’s roles
• The instruments
• Resolving Disputes

33. Roles of the Solicitor
• https://www.malaysianbar.org.my/conveyancing_practice/circulars_r
elating_to_conveyancing_practice.html
• https://www.malaysianbar.org.my/conveyancing_practice/law_realty
_the_role_of_a_solicitor_in_a_property_transaction.html
• https://www.malaysianbar.org.my/conveyancing_practice/the_solicit
or_in_a_sale_and_purchase_transaction.html
• https://www.thestar.com.my/business/business-
news/2018/12/03/right-to-legal-representation-in-a-conveyancing-
transaction