No thoughts left,brother. Just got to have a little patience. Listen to Patience from Guns N' Roses. Nice song.

Dear all,

Off for a holiday in conjunction with the long weekend.

Will be back on tuesday to answer all queries.

Do be patient.

Happy holidays.



This post has been edited by dariofoo: Apr 29 2011, 02:58 PM

It depends on the terms of the agreement between A and B. Did A assign his rights over the carpark to B?

Does it bind the successors-in-title/heirs/subsequent purchaser? If it does, then you would be able to use the first agreement between A and B as you would be deemed to have replaced B in that agreement. You can enforce it against A.

If nothing is stated in the first agreement, your remedy is against B, not A. You have no privity of contract with A. Before you pay B, you must make sure that B has the beneficial right over the carpark via the first agreement with A. The legal principle is that 'one cannot give what one does not have' [nemo dat quod non habet].

If all the agreement were prepared by lawyers then there ought not be a problem as all these would've been envisaged.

Hard to advice you anything beyond that as I do not have the benefit of perusing the terms of the agremeent.

Good luck

This post has been edited by dariofoo: May 3 2011, 11:10 AM

Between 1 - 6 months. Average 2-3 months. It really depends on the effectiveness of the authorities, and how often the lawyer follows up with them. Very very hard to tell

What is land office registration and land office search? I don't get it. Search is search. Registration is registration. You don't need to register a search.

Stamping is RM10 and can be done immediately. Where got penalty?

This law firm is

Basically, the contract runs for 3 months from the date of the SPA and a further extended completion date of 1 month after the expiration of the said 3 months. In this case, as you stated, 20/12/2010. Thus, the completion date would be 20/3/2011, and the last day of the extended completion date would fall on 20/4/2011.

After 20/4/2011, the SPA lapses and would be of no further effect. The vendor has the right to forfeit the 10% as damages. Some SPAs even provide for an additional 10% as damages. He can also elect to file a suit for specific performance to compel you to complete the transaction. But it does not appear so as he seems to be demanding for a higher price.

As the law stands, he has the right to do so as the transaction has lapsed and parties would have to start afresh. Your private caveat is now useless in this case as the transaction has lapsed and the vendor can apply to remove it easily.

What your SPA lawyer ought to have done was to seek for an extension of the extended completion date before 20/4/2010 - as it was highly likely that the transaction would not be completed before then.

Was there any delay by the vendor which might extend the completion date by any chance? Your lawyer ought to know how to calculate that.

You now face two options:

1) Forget about it and let the vendor forfeit the 10%. However, it would be complicated as the vendor's loan has been redeemed by your financier. The vendor's financier has to reimburse the money back to your financier. Your loan repayment would start to kick in and if you abort it (which is not technically correct as it has lapsed, not aborted) - you would have to pay a penalty to the bank as well.

2) Agree to the higher price of the transaction - pay him the difference by cheque/bank draft separately. Your lawyer would know how to prepare a side agreement. Get an acknowledgement from the vendor that he agrees to extend the completion date for another 2 months (just to be safe), and get him to waive the late penalty interest. This way, you save a lot of costs.

Option 2 is more feasible in your circumstances. The transaction is almost complete and you would be throwing away a lot of money if you allow it to lapse. What the vendor is doing is very unethical but not illegal.

With regard to your lawyer - you better get a complete set of all the letters sent out/received by him to ascertain if he did not follow up on your case properly. Ask if he attempted to seek for an extension of time to complete it. He must have. Otherwise it shows that he was sleeping on your file until it was too late.

Lastly, why did it take so long for your loan to be approved?

This post has been edited by dariofoo: May 4 2011, 10:33 AM

What is this private company? A moneylender? Licensed or not?
Are the documents legitimate?

If all is legitimate, then there is a serious breach of contract by the vendor. Your fren can sue the vendor and seek for a full refund of the purchase price, plus all fees and costs incurred.

With regard to the house, the vendor cannot assign ownership of it to your fren without first obtaining a deed of receipt and reassignment from the company - to relinquish their rights over the property. The company is considered to be the beneficial owner of the property - but for them to take over vacant posession, they would have to follow the procedure in their agremeent.

eg, for banks it would be by way of auction.

Your fren can't do anything with regard to the house. The company has the first right over it. Your fren's only remedy would be to sue the vendor for the return of all monies paid.

If a joint loan, both parties take responsibility to pay the loan, so it does not matter to the bank if only one party has financial difficulties.

If the payment is not made on time, legal proceedings would be instituted. Normally for properties, it would be put up for auction by the bank.

If the money obtained from the auction is sufficient - there would be no more legal action.
If if is insufficient - then the bank has the right to institute legal proceedings again to recover the deficit. Once they have won the case (which is usually so), they will institute enforcement proceedings - and this would mean bankruptcy.

If the couple forsee that they would not be able to make the repayments and that legal proceedings would commence, I would advise them to go the AKPK and seek help.

http://www.akpk.org.my/

This is a property title, not a piece of cake which you can split 60-40 and everyone goes back home happy. If there's 60% of the loan sum remaining which is unpaid, the creditor can institute auction proceedings, put it up for auction, sell it, take the proceeds, pay off whatever is due and owing plus auction fees & misc, and return the balance (if any) to the borrower

Same goes for bank - if the money from the auction is enough to cover the sum due and owing, any balance/excess will be given to the borrower. If there is a shortfall, there would be a civil suit to claim for the balance and bankruptcy proceedings await if the sum is RM30k and above.

Well, the lawyer ought to have sight of all the original documents in relation to the property - i.e. if the vendor is the original purchaser from the developer and he took a loan - then there ought to be the original SPA, the original deed of assignment and original deed of r&r. Since your fren bought it for cash i'm assuming that the property was free from encumbrances? Then there ought to be the original deed of r&r in the vendor's possession. When there's no separate individual title, the trail of original deed of assignments would be the form of proof of ownership of the property.

If there is a loan given out by any party - that party would hold the original documents - up and until your loan is settled and ultimately, a deed of r&r is executed and the lender reassigns all the rights over the property back to you.

So, does your fren have a proper trail of documents? If the company did indeed gave out a loan to the vendor and has a deed of assignment to show for it, he ought to possess the complete set of original docs as well.

Check with him and see. I doubt if the lawyer would be so careless as to omit such important documents!

Sorry bro I can't name it. No idea. Anyone reading this can help?


Police, perhaps as it does look like a cheating case by the vendor (if the creditor is a genuine one).

MCA ????? What can MCA do to help?

Your fren wants to appear on TV or in Chinese newspapers beside Datuk Michael Chong?

Which creditors are you talking about? External creditors or the bank itself. If the bank we refer to them as the lender. That would make it easier.

Now, if the lender takes action - it would be by way of auction. It doesn't matter if the wife is not a party to the loan. She has agreed for the husb to take out a third party charge. Basically she has put up her half-share to be charged to the Bank for a loan granted to her husb. So she would have to pay the price as well.

If creditors take action - they can't go for the house immediately - they have to file a civil suit to recover the sum due. Once they win the case and serve the Court order on the wife and she refuses to pay, they can enforce the order. That would be by way of bankruptcy proceedings, writ of seizure and sale, garnishee proceedings, committal, judgment debtor summons etc. Those are the few options open to them to enforce.

They can't go for auction of the property as it is being charged to the bank (as the lender), and the bank has the first right over the property.

So no cause for concern with regard to the property if it is an external creditor.

Hope the above helps.



This post has been edited by dariofoo: May 5 2011, 03:33 PM

If you appoint, you pay, irregardless whether you're the purchaser or the vendor. If vendor wants to tumpang your lawyer also he has to pay separately for that, although he would not be paying full scaled fees. Only you would.

MOT is always borne by purchaser.

deed:



If got deed of assignment that would mean no individual title - so there's no need to lodge a caveat. You can't lodge it over the master title.

Check with them.

Statutory Declaration (stamp & affirm) = 50.00
* stamping is RM10, affirm is RM4 per doc. How can reach RM50?

Registration on Entry of Private Caveat = 320.00
Registration on Withdrawal of Private Caveat = 80.00
* if no need to lodge caveat all these charges are out.

Bankruptcy Search = 100.00
* RM12 per pax only! This is the most ridiculous ever. Unless there's 4 purchasers and 4 vendors???

Winding up Search & ROC Search on Developer = 100.00
* RM15 per search.

Land Search = 120.00
* If no individual title only need to search master title once. RM30-50 is fair.

Travelling = 150.00
Postage, Printing & other incidental costs = 150.00
* RM300 quite ex.

chargor - wife/husband
chargee - bank

If the wife is adjudicated bankrupt and the bank is served with a copy of the receiving order by the creditor, it would normally be construed as an Event of Default by the Security Party (chargor) and the bank has to the right to recall the loan facility and institite legal proceedings to recover the outstanding loan amount. This would be by way of public auction.

Same goes if there are execution proceedings levied on the property by an external creditor, eg writ of seizure and sale on the movable property of the charged property. If the bank finds out, it will be construed as an Event of Default by the Security Party as well.

So in any event, the chargor stands to lose out on the property at the end of the day.


Then the creditor goes for bankruptcy proceedings, get the debtor adjudicated a bankrupt - and pursue with the Insolvency Department to put up the house for auction and pay the creditor from the proceeds of the sale. A bankrupt can't own property. So it will go under the hammer to pay the creditors.

This post has been edited by dariofoo: May 6 2011, 12:58 PM

Welcome

That is possible for a property with individual title but not for property without individual title.

With a title, you can create multiple charges over the title. But where any of the chargees (bank/creditor) want to go for foreclosure to sell off the property due to a breach, the first chargee gets all the proceeds first and if there's any balance, it goes to the second chargee, and so on and so forth.

In reality, it is rarely the case as the second chargee would most likely end up with peanuts so it is highly unlikely that any party would want to grant you a loan and sit in as a second chargee. Doesn't make much sense, unless the first charge created was for a small loan which is much less than the price of the property. But how often does that happen?

Since there's no title in your case - the only security is by way of deed of assignment (DOA) - and the assignee (bank/creditor) has been assigned with the whole of the property. The assignor (owner) cannot deal with the property in any way as the original documents are all held by the assignee.

So no other party would in reality come in and agree to give a loan without any security documents whatsoever to protect their interests.

So your example of them holding photocopies or nothing at all is not realistic and is unlikely the scenario.

Best to go to the ground to find out the exact scenario rather than coming up with hypothetical situations which would not help to resolve things at all but would only add to the aggravation of the matter.

Good luck

Yes you would be eligible for 50% rebate for SNP. With regard to the loan I don't understand your statement that " the loan under joint applicant (myself 1st house while 2nd house for the other joint applicant)?"

1st house? 2nd house?

Please elaborate

I see I see.

Well you would be entitled to 50% of your share - in other words 25% rebate.

If loan solely under your name then you would be entitled to the 50% rebate.

Guarantor? If for mortgage loan normally your property is collateral and thus there's no need for guarantor.

Welcome

Ok mate. Better that way. Hope to hear from you again with the exact scenario.

Good luck

It doesn't matter which one is sent for adjudication of stamp duty first. What matters is the date on which SPA has been executed (executed and signed carries the same meaning, by the way). Whichever is executed and dated first is considered your first purchase.

If you try to go on the basis of the date of MOT, LHDN will find out eventually as your CKHT forms would have to be filed together with a photocopy of the SPA.

The process of submitting the MOT for adjudication would be via online nowadays. LHDN has a STAMPS website. Particulars are filled up online and documents are scanned, uploaded and sent to LHDN via the site. For the rebate, there would be the option of selecting certain Orders for purposes of exemption/reduction in stamp duty. So finally when the Notice is sent out by LHDN it will state whether the application for exemption/reduction would be allowed or otherwise.

The Notice would state the sum payable. The MOT would then be sent for stamping. Last time a franking machine would be used but nowadays a Sijil Setem would be issued, and that would basically be proof of payment of stamp duty.

That's about it.