Bro,

The act which your friend plan to do is a fraudulent transfer with the intent to defeat/delay his creditors. That amounts to what we call an 'act of bankruptcy'. Now, later when the creditors obtain a final court order against him for the sum due and owing,they will enforce it. And to enforce it, they issue a bankruptcy notice (BN) against him. Now, the doctrine of 'relating back' will apply in these circumstances.

So let's say that he transfers the property on 01.01.2011. On 02.02.2011, the bank obtains a court order compelling him to pay, let's say, RM40K. He fails to do so and the bank issues a BN on 03.03.2011.

Applying the doctrine, the bankruptcy would be deemed to have commenced on the date of the act of bankruptcy (01.01.2011), and not on 03.03.2011.

So, the purported transfer to his children would be null and void as the general principle is that a bankrupt cannot dispose off his property on his own volition.

The creditors would then have a field day with all the property.

So tell him not to waste him time and effort, as the law will catch up him in no time.

Advise him to go and see Agensi Kaunselling dan Pengurusan Kredit - AKPK

Website: www.akpk.org.my

The good folk there can REALLY help. They can negotiate with the banks, waive off the interest, arrange for another payment scheme, refinance,etc.

I've referred quite a few there and reviews have been good. But remember to do it early as they will not help your friend once the creditors have started legal action against him

This post has been edited by dariofoo: Feb 8 2011, 05:31 PM

Thank you so much for replying...
I know it has got no difference from cheating the Bank but he's just trying to safeguards all his properties from taken away by the Bank as all the people will find a way to get out from this.

I'll advice him properly. Maybe selling to other people who he trusted and ask him to hold it on trust, cause if the Purchaser can show proof that he's a bona fide purchaser, the Bank cant do anything. Does this way work? Do so before the summons commenced.

I know i'll give the impression that am doing all this to do fraud, but thats my friend, i must help with all i can. The sum is too huge, cant really help him, the only way is to find loopholes for him. Thats what all lawyers do, though am no lawyer.

This post has been edited by Cannabis: Feb 8 2011, 05:50 PM

Hehe,.. no, bro, not at all, actually I wanted to paste that comment about you working at the stalls, haha...

Bro, even if he creates a trust in his position as a debtor, the doctrine of relating back will still apply. He can't sell, transfer, or dispose off the property in any way now.

'Bone fide purchaser' principle also doesn't work,bro.

There are no loopholes,bro. What can a lawyer do now anyway? Just to look for a technicality in the BN and procedure (read: loophole) and delay proceedings only. Buy time. At the end of the day, he will still kena sangkut.

Just ask him to swallow his pride/ego and go to AKPK. It'll be the best advice ever. It's FREE, by the way. Forgot to mention.

Haha. I see. Guess you didn't quote properly, hence the blank.

By the way, your advice to that thread on land transfer dispute between late granpa's heirs and granduncle is, with respect, misconceived.

You can't lodge a caveat if you don't have a caveatable interest. Lodge a caveat wrongly and you'll end up on the wrong end of a court summons for damages

By the way, are you aware that being in possession of more than 200gm of cannabis or cannabis resin raises the presumption of trafficking under s37(da) of the Dangerous Drugs Act? Trafficking, as you would be well aware, is punishable with death.

Just informing you,bro

This post has been edited by dariofoo: Feb 8 2011, 06:19 PM

Hi Dario,

Thanks for calling LHDN on behalf.

Guess we got no choice but to wait for the refund.

Thanks a lot.

---------------------------------------------------------------------------------
Thank you so much . I gave up to these properties.

I have found another property with tenant included. After paying 10% deposit to the vendor but not yet signing S&P agreement, to whom the tenant should pay the following month rental to?

TheNew

Yeah bro, thats what i was thinking, if he create a trust, he has to register it....it will be shown in the title anyway...if he doesnt register, the person he transfer the property to, will makan it 100% as he holds full legal title on paper...

i'll try to talk to him and ask him to consult akpk for the best solution for repayment.....haiz...feel so helpless, couldnt help my friend when he really needs me....

hey dei...what you talking....haha....
dun worry i wont carry more than that...am just a user not a trafficker...wanna share some??

hi Dario

i recently completed a purchase for a retail lot from subsale and since tenancy agreement is up for renewal , can i just issue a side letter of sorts
confirming the renewal of the tenancy based onthe "old" agreement (with amendment with regards to the tenancy period only). thought i will just get the tenant to sign off on the side letter rather than having to sign a new agreement altogether..

can this be done legally?

Thanks

Good. If messy, better not to get yourself stuck in it too

Well, the vendor is still regarded as the lawful and beneficial owner of the property until the completion of the whole transaction. As such, rental should go to the vendor for the time being.

You're welcome. Get your lawyer to follow up with LHDN once in a while. Good luck

You're helping him by referring him to AKPK. Seriously. It'll work wonders.

Even if you're a user, and if you're found in posession, you can face up to 5 years max in the slammer under section 6. Don't say I didn't warn you.

Take a look at the initial agreement and see if there's a clause which says along the lines of "the agreement in binding upon the successors-in-title, heirs, etc of the landlord/tenant". If yes, you can use the agreement and both parties would still be bound by the terms and conditions therein. This would be applicable if the agreement has not lapsed.

When it lapses, this 'side letter' or 'side agreement' method is always used, most likely to save costs and reduce the hassle.

However, I would advise against doing this as you cannot extend, by way of a 'side letter' or 'side agreement' , a lapsed tenancy if 3 years has passed from the date of the tenancy.

A tenancy is only for a maximum period of 3 years. Any 'side letter' or 'side agreement' purporting to extend the tenancy while circumventing the requirement of a duly stamped tenancy agreement would be void and of no effect. It then becomes a monthly tenancy situation. You can't refer to the terms of the earlier agreement anymore as it has lapsed.

When the 3 year lapses, it would be advisable to draw up a new agreement. In your case, it'll be better as your name will be reflected as the landlord.

Furthermore, the tenant always pays for the tenancy agreement, so you don't lose out on anything. The cost is not high anyway.

Better be safe than sorry.

Bro,.. tks, ,.. okay. that caveat advice : if you read closely, I did use the word : try to caveat if possible, hence, I was implying that the grandchildren should consider this move if it could be legal and possible to lodge a caveat. I would do that.

Anyway, on a personal side : they are the official heirs, why wouldn't they have the rights to caveat ? ... under Probate Laws, the next-of-kins come into play in this situation. Well,.. bro ?

Hi Dario

Many many thanks for your valuable and prompt advice..

1) yes, there is clause that says that the agreement is binding upon the successors in title..
2) tenancy has not lapsed yet
3) the tenant is a bit sticky about costs, so i was trying to save him $$..its not much, but this young tenant is just starting out with this business..

its true one better be safe than sorry..i wud rather put in a new agreement but if i can get around this, i would do so as long as my rights as a landlord will not compromised in any way..

Thanks again..

You're welcome.

A lot of people take tenancy agreements very lightly. If you look at some of the problems faced by tenants/landlords who start up threads in this forum for advice, one common link is that there's no tenancy agreement.

Good luck.

Yeah but another one jumped on the caveat bandwagon and now TS is having a grand idea of it as well. Am still waiting for him to post the query here,but let's discuss things in general.

The initial question must not be whether you CAN or CANNOT lodge a caveat. The question is WHY.

Why do you want to lodge a caveat? You must have a caveatable interest first, and there must be a probability of the registered proprietor disposing off the property, thus defeating your rights over the property. That is the effect of a caveat. It 'locks' the title, so to speak. The registered proprietor can't deal with it in any manner.

What can the other person do with the title that you want to prevent? He can't transfer the deceased's half-share to his name, as there is no Form 14A [MOT] to give him such right.

If there's a situation where the owner of the half-share, in his lifetime, had executed a few MOTs in escrow (not dated nor stamped) and same has been deposited with the owner of the other half-share, then yes, the fear is there. The possibility is there. Then yes, a caveat would be prudent.

Only then would you go to the question as to WHO can lodge a caveat. In this case, it can be Chong, Muthu or Ali. It has to be the Executor or the Administrator of the deceased's estate, as the case may be. That person would have the capacity to have a caveatable interest over the property. He acts on behalf of all the beneficiaries of the half-share. He can lodge a caveat.

thanks bro for the time and the advice....i shall refer him to akpk ASAP....hope he get out from this sh*t alive...

hurm....when you say 5 years my balls already came up to my throat...haha

Hi Dario

i just asked my lawyer to draft the supplemental agreement and she said quote We wouldn’t recommend a side letter as it is insufficient for you as the Landlord to pursue recovery.unquote..

What do you think i should do? I definitely want a legal tenancy doc in place...to be on the "safe" side, i just have to put a new one in place? i can just reproduce the old one and get the tenant to sign..its almost 70pgs long..

have you yourself done a supplemental agreement before in similar circumstances as mine?

Thanks again