Lawyer's Corner v2, One-stop centre for any legal queries
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 Jan 31 2012, 03:35 PM
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#141
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Elite
2,795 posts Joined: Aug 2010 From: District 9  
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QUOTE(1282009 @ Jan 30 2012, 11:55 PM) The bank's panel lawyer quoted me around RM630 for the whole thing (mine is without strata title yet so its slightly more expensive). Seems to be alright. If not happy you always have the option to get another quotation.   |
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Jan 31 2012, 04:38 PM
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#142
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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ave_20:
» Click to show Spoiler - click again to hide... « Basically the liquidator is stepping into the shoes of the developer and is taking over all affairs of the developer. The 2% would be to cover their expenses in running the show. The liquidator's job is to clear off the assets and liabilites of the developer at the lowest cost possible. As such, they are indirectly asking the poor purchasers/owners to bear the burden of costs with them. This is where you need to check with the Joint Management Body (JMB) of your flat and find out what their stand is. All residents have to be united in their stand. No point if you pay and your neighbour doesn't pay. In fact, what tehe JMB ought to do is to write formally to the liquidator and ask the basis of such fees and for them to justify the law which allows them to charge the purchasers for it. Why should the purchasers bear the costs on behalf of the developer when all dues have been paid to the developer already? With regard to the documents - how come the trail of documents is not complete? If property without title, the trail of Deed of Assignments (DOA) and Deed of Receipt n Reassignment (DRR) must be complete from day 1 until yourself. Only then is the beneficial interest in the property properly passed on from one party to another. If one document is missing, the trail is broken. Did you lawyer give you the complete set? Did you misplace it? Or perhaps it was not handed over to you via oversight? This is urgent and you need to check it. The reason why the Liq is asking from you all this is because the developer must've packed up and left town without leaving any proper records! Your house will not be auctioned because you bought by cash. That person is talking rubbish. A letter of disclaimer must've been issued by the end-financier way back to the first purchaser/purchaser's financier. So there's nothing to worry about. It is not true that you cannot sell your house without strata title. How did you obtain ownership in the first place (plus the previous purchasers before you) if all the while, strata title is not out? Don't worry about that. This post has been edited by dariofoo: Feb 1 2012, 09:53 AM |
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Feb 2 2012, 05:17 PM
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#143
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(TkPerak @ Feb 2 2012, 10:36 AM) Just wonder is LoI really a legal binding document. What is the stand or step to take if the buyer want the deal go through? I've already explained in detail much earlier to your questions above as you've asked them. Please go through it again.  |
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Feb 2 2012, 11:19 PM
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#144
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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dsugums:
Where's the itemised breakdown for each expense or fee? How much is the selling price? This post has been edited by dariofoo: Feb 2 2012, 11:20 PM |
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Feb 2 2012, 11:22 PM
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#145
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(sharpeye @ Feb 2 2012, 11:18 PM) Hi thanks for answering my question..it is very helpful.. the vendor finally hand over the documents.. The extended completion date is for your benefit already. The vendor suffers for that as he needs to wait longer to get his money.I have another question though.. My deadline (delivery date) should be on 15 January but bcos of some problem at the bank last time, my snp lawyer only receive the undertaking letter on 16 Jan so now the delivery date is extended for 1 month until 15 February. becos everything can only be proceed after we got all the documents from the vendor, what happen if the extended delivery date is missed? do i have the right to ask for compensation or otherwise? thanks again.. If you miss the extended completion date, you would have to pay late penalty interest to the vendor, as you need more time to pay him the balance purchase price. That's how it works. |
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Feb 3 2012, 04:42 PM
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#146
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(sharpeye @ Feb 3 2012, 12:10 AM) thanks for the prompt reply.. I think you misunderstood me,bro. Any delay by the vendor will extend the completion date for you.wow.. i still need to pay the penalty..even they are the one who delaying the process.. i guess i need to speed up the payment process... how many days normally it will take for the bank to come out with cheque after all the documents have been submitted to them? thanks again.. Example: SPA Date: 01/11/2011 Comp Date: 01/02/2012 Ext Comp DatE: 01/03/2012 - If you pay the balance purchase price on/before the Comp Date, there's no penalty. - If you pay after the Comp Date but before the Ext Comp Date, you pay penalty. - After Ext Comp Date, the vendor can either extend it further, or choose to terminate the SPA. But it is unlikely to be terminated in your case as parties have progressed quite far in the deal. It would be tedious and unreasonable to the vendor to terminate it. Assuming tha there is a 20 days delay on the part of the vendor, the Comp Date above will be adjusted (+20 days). New Comp Date: 21/02/2012 Ext Comp DatE: 21/03/2012 So instead of 01/02/12, you get another 20 days to complete the transaction. As such, no late penalty interest has to be paid, unless you fail to pay the balance purchase price by 21/02/12. On 22/02 onwards, late penalty interest would be payable calculated on daily rest until full and final payment. Ok? |
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Feb 3 2012, 04:45 PM
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#147
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(Milo_O @ Feb 3 2012, 01:23 AM) Hi dariofoo, There was a previous question on caveat posed by kobebyrant. It's in the early pages of this thread. Do check it out. I answered in detail there but I guess it wasn't good enough coz the guy never came back. May i know what is private caveat (PC) ? How does it works and how does it helps the buyer ? What does it do and what it is function for ? Thanks.  Check it out first,bro. |
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Feb 3 2012, 04:51 PM
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#148
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(ziafdhom @ Feb 3 2012, 12:54 PM) Just wondering whether this process should taken by owner or lawyer? If lawyer, which lawyer? Snp lawyer or loan lawyer..? Since i have been using different lawyer for snp and loan. Unless something else is stated in the SPA, the duty to change name is always upon the purchaser personally. Some law firms will do it for you but they will charge you for it in the bill itself. |
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Feb 3 2012, 05:00 PM
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#149
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(kennielee @ Feb 3 2012, 04:29 PM) Dear all: The distress order can only be served once and it is for the items at the premises at the time the bailiff attends at the premises to do an inventory. Then a public auction will be held. All proceeds from the auction, less court costs and fees, would be paid to you.Regarding landlord tenant dispute, i have some questions about distress order. If the value of seized goods from tenant is not enough to cover overdue rent (for example the tenant may have moved all his goods beforehand), can the same disress warrant be used to seize tenants other assets like bank deposits or goods at other premise? or I have to do the whole process of serving summons and obtaining judment and writ or seizure? My problem is that my errant tenant has kind of disappeared from my property leaving behind damages to my house, unpaid bills and rental arrears(the deposits hardly can cover the outstandings) while the tenancy still has 6 months to go. Me is still trying to figure out how best to take back vacant possession and cover my losses. your kind reply is much appreciated. my understanding is that distress act is the best remedies ? If the amount recovered is not sufficient, you have to sue for the outstanding amount in a fresh civil suit. Once you obtain judgment, then you can choose how you want to enforce it: a) Writ of seizure and sale - same concept as distress, but this would be at the tenant's new address. b) Garnishee proceedings - freeze his bank account, and attach monies from the bank account to be paid to you. For this, you need to know the bank where his active account is and that he has monies in it. c) Judgment debtor summons - you need to serve this personally on the tenant and he would be compelled to attend Court to be questioned as to his income, assets, liabilities and how much he can pay back to you, most probably on an installment basis. d) If sum due is more than RM30K - you can go for bankruptcy. That's basically it. It's not easy to sue an individual and recover damages from that person. Service of documents will be a hassle, and be prepared to just end up with a paper judgment as the tenant can just ignore you by not attending court or refuse service. If he refuses or if you can't locate his address, you would need to serve it by substituted service (newspapers/court notice board) where you will end up paying more legal fees and costs for it. |
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Feb 3 2012, 05:05 PM
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#150
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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dsugums:
» Click to show Spoiler - click again to hide... « Fees are alright but the bill is normally combined and not separated. I mean disbursements. They can't charge you RM50 for miscellaneous x 3. It ought to be once only. RM200 for courier seems expensive. If you want to tumpang the purchaser's lawyer you would only be paying for discharge of charge and consent. If you think that you don't need to be represented then that option is open to you. |
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Feb 5 2012, 12:10 AM
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#151
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(leechers @ Feb 4 2012, 02:03 AM) Dario. 1. If it is contrary to the tenancy agreement, of course it is wrong. The landlord has to return it.This is not entirely on hire purchase/ property problem but i post up here and hopefully you can give ways on how go deal with it. This problem actually faced by my friend My friend actually will end up his rent this february (end of the month) and according to agreement final month will need not to pay and landlord will take one month deposit as payment. However my friend mistakenly bank in the rental for february and now he already alert the landlord and requested her to refund back the money. She will return the money upon surrenderin the key and if any things that need to be fix she will deduct from the money. My friend disagree with it as it is not in the agreement at all. And fyi during tenancy period the house was sold to current landlord, and my friend did rent out from previous owner/landlord. And according to current landlord the she did not took the deposit from previous owner, however she did agree to my friend not to pay for final month, which in agreement the deposit will be render as the final payment. Now another problem which occur about how this fiance of landlord raise up voices and ask my friend to get out of the house immidiately, which is impossible and improper since he is a family man with wife and child. I was there when this inciden happened and i am not happy the way my friend was treated. My question is 1. Is it proper for landlord to deduct the money which was mistakenly bank in by my friend? Isnt it right for her to return back the money 2. About the threat from her fiance, what should we do to deal about it? He did not said anything obvious like wants to beat up, chop off etc but he did raised voices and intimidate and challenge my friend. 3. Please advice on how to deal with this whole scenario. If anyone have opinions on this please share. Thanks. 2. Didn't lodge a police report? I can't see how you can take it any further. Defamation seems a bit far fetched. 3. Try diplomacy to get back the excess payment made. Has keys been handed over? When handing over keys, make sure that landlord inspects everything and make sure that there is no defect whatsoever, so that no issues will be raised once keys has been handed over to the landlord. Be present when the inspection is done. After that, anything that goes wrong has to be borne by the landlord, not by the tenant anymore. If the landlord doesn't want to return it, the option would be to see a lawyer and send out a letter of demand. |
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Feb 5 2012, 12:14 AM
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#152
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(joey7559 @ Feb 4 2012, 04:58 PM) Hi Dario Everything will be provided for in the SPA which your lawyer will draw up for you. If you want to know the process you can always read it up. The process is different for different types of properties, titles and if the property is encumbered. Also differs if there are restrictions in the title.I just bought a condo at KL. At the stage of applying bank loan. Could you kindly advice the proper procedure of transferring land titile, S&P etc? It is currently tenanted too. Anything else should i need the lawyer to help me settle in order to take over the condo and tenant appropriately? what is the estimate charges a lawyer would impose on this kind of services? With regard to the charges, it is based on the SPA price - for your SPA lawyer - as well as the loan sum - for your loan lawyer. You can use the calculator at the first page to calculate the legal fees. It is fixed. |
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Feb 5 2012, 12:45 PM
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#153
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(ultraman29 @ Feb 5 2012, 09:55 AM) hi, You can lodge a police report but it is not to state that he is a trespasser. Such persons are called ''tenants holding over" and not trespasser. A trespasser is one who never had permission to be in the premises, for example a drug addict who breaks into an empty unit and occupies it.can u advise the proper way to evict a tenant? assuming tenancy agmt clearly states a specific date of payment per mth, and that clause has been breached. can we a) lodge police report for trespassing b) terminate the utilities/deactivate access cards c) lock up the premise what is also the procedure i need prior to getting a court order for eviction? thank you! Basically you need to serve a one-month's notice of eviction to that person. Once that is done and he does not move out, you go to Court and get an eviction order. The bailiff will assist you to execute the order and evict the tenant. That would be the legal way to do it. You cannot, in any circumstances: a) Cut off utilities; or b) Lock up the premises as those actions are deemed to be self-help which is not allowed in Malaysia. You can be sued by the tenant. The fact that he owes you rental is different and he has a right to claim damages from you if he suffers any loss as a result of your actions. A lot of landlord opt to use those methods to force the tenant to move out, but if you're lucky and the tenant obliges, then all is good and you save time and money. However, it can backfire on you. In version 1 of this thread I shared a real life example of a tenant who counter-sued a landlord who terminated the utilities of a house due to non-payment of rent. The tenant also managed to get an injunction against the landlord to compel the landlord to re-connect the utilities. The landlord also had to pay costs to the tenant. Of course, the landlord was not deprived of his right to claim for double-rental as the tenant was holding over even after notice was served on him, but the injunction allowed the tenant to continue to be in the premises until the suit to determine if the landlord has to pay any damages has been heard and disposed off. In the end, parties reached a settlement whereby the tenant moved out and the landlord had to waive almost all of the outstanding rental and the landlord had to pay a bit of costs to the tenant. |
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Feb 6 2012, 03:50 PM
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#154
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(sapphire_rock @ Feb 6 2012, 07:06 AM) What should i do now? Check with the bank first as to whether you require you to refinance and transfer OR can do transfer subject to charge. If refinance also they might require you to appoint their panel law firm to do it. So check with the bank first before appointing a lawyer. |
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Feb 6 2012, 03:57 PM
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#155
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(ultraman29 @ Feb 5 2012, 01:53 PM) thank you for your reply. what is the use of a police report then? what if there is a clause which mentions that the tenant is in breach of the tenancy and is then a trespasser? would that help? Police report would be for record purposes. Of course the police would not assist you to evict the tenant as it is out of their jurisdiction.for the utilities, would it also help if say we hv a clause which authorises the landlord to cut off the utilities in the event of non payment of rental? would this gv the landlord the right?  Yes for utilities you can have such a clause. But there must be a limit in which you must set. Perhaps not exceeding RM200/month outstanding for following month, or along those lines. In a standard tenancy agreement there would be a clause which allows the landlord to re-enter and take VP of the premises. However, in actual practice, that is difficult to do as the tenant would definitely place another padlock and furthermore, there are his items and belongings in the premises which he may make the landlord accountable for in the event the landlord effects re-entry in the tenant's absence. Even things which do not exist can be claimed to be stolen by the landlord during re-entry. Therein lies the difficulty. |
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Feb 8 2012, 05:20 PM
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#156
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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Dear all,
Sorry for the delay in replying to your queries. Been busy. Will answer all queries tomorrow morning. Cheers! |
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Feb 9 2012, 08:23 AM
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#157
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(Urban @ Feb 8 2012, 03:09 AM) Does he consider as trespassing after the notice i gave him to evict? Please read post #347 above.QUOTE(Urban @ Feb 8 2012, 03:09 AM) Is there anyway to evict him without going to court? You mean evict him illegally? |
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Feb 9 2012, 09:06 AM
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#158
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(F3RAL HO @ Feb 7 2012, 01:59 PM) Dear Bro & Sis Lawyers, Welcome. This is an open thread for anyone to drop by and pose questions, so don't need to to say sorry to barge in for anything. Open discussions are always welcome. Sorry to barge in on any current discussion, but i got a case which i really need help. Really hope dear bro & sis lawyers could share your expertise and guide me. I was referred by a lowyat member onto this thread after i've posted my question on Finance, Business and Investment House. Previous Thread Anyhow, my relative is sued for bankruptcy on year 2009 (he is still not bankrupt at the moment, but blacklisted), he transferred his property (own house) to his sister in the same year 2009. I've heard that the official assignees or government have the power to take back the property of the bankrupt (even after transferred or sold to third party). Is it true? Also, there is a duration of 2/5 years, why is there 2 different durations? Now, a person commits an act of bankruptcy in the following scenarios as stated in Section 3 of the Bankruptcy Act 1967: 3. (1) A debtor commits an act of bankruptcy in each of the following cases: (a) if in Malaysia or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally; (b) if in Malaysia or elsewhere he makes a fraudulent conveyance, gift, delivery or transfer of his property or of any part thereof; © if in Malaysia or elsewhere he makes any conveyance or transfer of his property or of any part thereof, or creates any charge thereon which would under this or any other written law for the time being in force be void as a fraudulent preference if he were adjudged bankrupt; (d) if with intent to defeat or delay his creditors he does any of the following things: (i) departs out of Malaysia or being out of Malaysia remains out of Malaysia; (ii) departs from his dwelling-house or otherwise absents himself, or begins to keep house or closes his place of business; or (iii) submits collusively or fraudulently to an adverse judgment or order for the payment of money; Bankruptcy 15 (e) if execution issued against him has been levied by seizure of his property under process in an action or in any civil proceeding in the High Court, Sessions Court or Magistrates Court where the judgment, including costs, is for an amount of one thousand ringgit or more; (f) if he files in the court a declaration of his inability to pay his debts or presents a bankruptcy petition against himself; (g) if he gives notice to any of his creditors that he has suspended or that he is about to suspend payment of his debts; (h) if he makes to any two or more of his creditors, not being partners, an offer of composition with his creditors or a proposal for a scheme of arrangement of his affairs, and such offer or proposal is not followed by the registration within fourteen days thereafter of a deed of arrangement with his creditors, in accordance with the rules for the time being in force for the registration of deeds of arrangement under this Act; (i) if a creditor has obtained a final judgment or final order against him for any amount and execution thereon not having been stayed has served on him in Malaysia, or by leave of the court elsewhere, a bankruptcy notice under this Act requiring him to pay the judgment debt or sum ordered to be paid in accordance with the terms of the judgment or order with interest quantified up to the date of issue of the bankruptcy notice, or to secure or compound for it to the satisfaction of the creditor or the court; and he does not within seven days after service of the notice in case the service is effected in Malaysia, and in case the service is effected elsewhere then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice or satisfy the court that he has a counterclaim, set off or cross demand which equals or exceeds the amount of the judgment debt or sum ordered to be paid and which he could not set up in the action in which the judgment was obtained or in the proceedings in which the order was obtained: Provided that for the purposes of this paragraph and of section 5 any person who is for the time being entitled to enforce a final judgment or final order shall be deemed to be a creditor who has obtained a final judgment or final order; (j) if the officer charged with the execution of a writ of attachment or other process makes a return that the debtor was possessed of no property liable to seizure; and for the purposes of this paragraph the date when the writ is lodged with the officer shall be deemed to be the date of the act of bankruptcy. In your relative's case, the act of bankruptcy referred to would be in clause © - fraudulent transfer. Why fraudulent? Because it was done clearly to defeat the interest of his creditors, who would be entitled to the proceeds of an auction of the property had it still been registered in his name. As such, such transfer would void and can be set aside by the Director-General of Insolvency. With regard to the doctrine of relation back, I am not aware of any duration of 2/5 years in relation to voidance of transfer in such scenarios. The doctrine of relation back is provided for in Section 47 of the Act: Relation back of Director General of Insolvency’s title 47. (1) The bankruptcy of a debtor, whether the same takes place on the debtor’s own petition or upon that of a creditor, shall be deemed to have relation back to and commence at the time of the act of bankruptcy being committed on which a receiving order is made against him, or if the bankrupt is proved to have committed more acts of bankruptcy than one to have relation back to and to commence at the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within six months next preceding the date of the presentation of the bankruptcy petition The assets of a bankrupt are deemed to be under the control of the Director General of Insolvency [DGI]. As such, the DGI has title over it. Section 47 provides that the bankruptcy of a debtor can be related back to the date of the act of bankruptcy committed by that debtor. In your relative's case, it would be on the date he transferred the title in favour of another relative to defeat the interest of his creditors. It also provides, in simple terms, that if there are more than 1 act of bankruptcy, any act done to defeat the title of the DGI can be related back to 6 months before the presentation of the bankruptcy petition by a creditor. Property is not limited to real property. It includes others as well. Definition of property in the Act is as follows: “property” includes money, goods, things in action, land and every description of property, whether real or personal and whether situate in Malaysia or elsewhere, also obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined Hope the above helps. If there is anyone else who would like to contribute another opinion backed by legal provisions, you are most welcome to correct my opinion as above. |
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Feb 9 2012, 09:09 AM
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#159
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(lyt25_1234 @ Feb 8 2012, 09:45 AM) I have the dumbest question and I hope you can be patience enough to answer them. There are no dumb questions. As the saying goes, "Malu berkayuh perahu hanyut, Malu bertanya sesat jalan".  QUOTE(lyt25_1234 @ Feb 8 2012, 09:45 AM) Recently I bought a sub-sale house and right now I have to undergo applying new accounts for TNB, Water, and Majlis Perbandaran for the Cukai Pintu. From what I know, there are no requirements to paste a RM10 stamp upon the forms for Water and Majlis respectively.The question is for TNB account, I need to give a copy of the S&P together with RM10 stamp duty. But why for Water and Majlis Perbandaran I don't need the RM10 stamp duty??? |
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Feb 9 2012, 09:12 AM
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#160
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Elite
2,795 posts Joined: Aug 2010 From: District 9
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QUOTE(Mlchoo @ Feb 8 2012, 10:25 AM) I need advice from all the sifus here. Is there an agreement? If yes, then look at your agreement to see what is provided for in the event of termination. Some states that notice can be given for early termination, while others do not. So check and see what are the terms first.My tenant wishes to break lease. Its a 2 yrs lease and they have occupied for about 10 months. Can I know what I can claim from them besides forfeiting the 2 months deposit. Must I return the utilities deposit? Must they give 1 months notice before termination? Can I claim back the commission paid to the agent (pro rated)? Any other advice is most appreciated. Thanks. Whether you can forfeit or not also depends on the agreement. Same goes for utilities. With regard to the commission, I doubt if you can claim for that. The agent has done his job and the lessee's act has nothing to do with the agent, who is not privy to your agreement. |
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