Thanks Dario!

Is there any source where I can get the list of bank panel lawyers from? Any idea?

1. No such thing. In the first place, it is the purc's duty to conduct a title search, not yours. As such, you do not need to pay for it.

2. No such thing. If the purchaser's bank require it, then it is the purchaser who ought to be billed for it, not you. There is also no duty for the seller to pay to conduct a bankruptcy search on himself. It is all upon the purc.

3. Miscellaneous of RM50 is fixed by Bar Council and is allowed to be claimed. It can also be waived, at the discretion of the lawyer. With regard to printing - if there is nothing to print, there should not be any charge. Same goes for travelling. Is the lawyer travelling for anything on your behalf? If title is clean (so there is no need to do any redemption) and CKHT is done by you at your own cost and expense, I see no reason why there ought to be any legal charges upon you at all!

I think you are being taken for a ride.

Speaking for yourself is it?

Does the vendor have an existing loan with a bank? If so, then the original documents would be with them and the vendor can approach his bank to obtain a photocopy at his own cost.

You're a lawyer? You need to check with the bank as different banks may have different requirements. They might ask for proof of payment of the stamp duty upon the original FA. If so, then you would need to get a letter from LHDN to confirm same, or even a replica of the Sijil Setem, if the bank requires it. Did you submit the FA for adjudication online? If so, you can print out the confirmation slip (pengesahan ketulenan) as a further supporting document. I am not 100% sure but I think that a mere SD would be insufficient.

Good luck

The redemption is because the master title is still encumbered to an end-financier (the developer's financier).

The weird thing about your case is this - why did your lawyer not advise you to pay to the end-financier? If you had taken a loan instead, the developer will issue a letter of authorisation to your bank to pay directly to the end-financier (or master chargee) in exchange for a letter of undertaking-cum-disclaimer from the end-financier to the developer to disclaim their right over that parcel. If cash, and there is a master chargee, then payment ought to be made to them. I do not want to comment more as I do not know of the arrangement between the SPA lawyer, you and the developer.

The reason why you have been served with this letter is because the developer did not pay to the end financier, as they should.

Check with your lawyer first and find out the arrangement.

Haha

SBC/CIR/069/12
16th August, 2012

Dear Members Of The Bar,

ATTACHMENT STUDENTS TOUTING FOR CASES AT KLANG COURTS

We refer to our circular dated 20.3.2012.

We have again received complaints from lawyers that attachment students are touting for cases at the Klang Courts. The Selangor Bar Committee views such practices as distressing.

Meanwhile, the Selangor Bar Committee has informed the Police of the above and will not hesitate to take whatever legal action available in law against such students and firms that have engaged them and would like to advise members not to misuse attachment students in order to ensure that the integrity and dignity of the legal profession is preserved.

We would keep members informed of any future developments.

Thank you.

Dato' Suraj Singh DIMP PKC
Chairperson
Criminal Law Court Liaison Sub-committee
Selangor Bar Committee.

Terrible. Well, the usual method is to complain, complain and keep complaining, but have you or your neighbour even visited the neighbours upstairs for a heart-to-heart talk (or confrontation talk, depending on the mood) ?

Isn't diplomacy the best solution?

If that fails, perhaps you can arrange for the JMB committee members to visit them and see what they say. Perhaps they can have more clout to advise them.

You have to follow the SPA date, not date of consent.

There is no change to the policy with regard to leasehold properties. It is the same as for freehold.

If the mortgage consultant does not want to get it for you, ask his manager, then his manager, and so forth up the ladder.

Dear Dario,

Thanks for your reply.

In case if I refuse to pay all the above, will the deal still go through?
Will the lawyer act inappropriately, for example changing certain conditions in the S&P which will not favor me, as the seller?

What if I choose another lawyer at this juncture? (though this option is a bit tough since there is basically no charges can be applied on)

What are my options now?

Thanks so much for your advice, appreciate it very much.

The lawyer only just adviced me yesterday (through the letter I received from them). The reason is because they only received the notification on the redemption by the bank recently. However, when I looked at the SPA there is no mention of the land being encumbered to a 3rd party (normally, this would be mentioned in the SPA, right?). Is there a possibility that the developer took a loan from the chargee bank AFTER the SPA was signed (with the land as collateral) and now only the bank wants to claim the redemption.

Anyway, I called the lawyer and they told me to settle whatever future progress billings direct to them , which they will forward to the chargee bank and c.c. the developer. The balance of the redemption sum will be settled by the developer to the bank and for this the lawyer is getting a confirmation letter from the developer.

I also called the developer and they informed me that I could pay the progress billings via 2 alternatives i.e. to the lawyer, like above or direct to them and they will settle the redemption with the chargee bank.

I will probably follow the lawyer's advice to settle the progress billings direct to them to be transmitted to the chargee bank.

Thank you again and wish you well for the future.

This post has been edited by baharinsav62: Oct 12 2012, 12:05 PM

Did your SPA lawyer do a title search before signing the SPA? If so, this encumbrance would be stated in the search and the lawyer ought to have obtained that letter of disclaimer from the end-financier on your behalf.

Unless of course like you said - the loan was procured after the SPA , but that is highly unlikely. End-financing is always prior to SPA. After SPA and when funds start to roll in, it is redundant to obtain end-financing. My opinion, of course.

Anyway, just get a letter from the end-financier that whatever you have paid to the developer has been received by them or a letter by the developer to that effect. Secure your position with regard to payment made.

1. Of course it can go through. The lawyer cannot charge you for something which he does not do any work for!

2. How can he change it if it has been signed, initialled on every page and if you have a copy of it? Just be extra vigilant, that's all.

3. SPA signed? If so, then there is little point to bring in a lawyer at such a late stage, bearing in mind also that there is no redemption involved and that you are doing the CKHT yourself.

Just be extra careful and vigilant. If you are smart, the lawyer would not dare to mess around with you.

Dear Dario
Thanks for the reply. Do we consider SPA for lease hold property a conditional contract?


Would you to clarify considering the following extract on Conditional contract:

The significance of a conditional contract is that the disposal and acquisition date of the chargeable asset concerned depends on the date the condition or the last of the conditions is/are fulfilled.
A contract is conditional for purposes of RPGT if the contract requires the approval of the government or a state government, or an authority or committee appointed by the government or a state government. The date such approval is given would constitute the date of disposal.

Thanks

Thanks Dario for your quick reply.

I am thinking of more aggressive ways. We have tried diplomatic ways already.

Calling police will help? Can I engage lawyer to sue them for making noise every night for the past few months?

JMB hasnt been set up yet as it is a new condo development.

Thanks,
Mcray

Is there any channel e.g. land office dept where I can expedite the process for obtaining the consent?

I was having the same case and lawyer told me to wait for 2-3 months to get the consent

You got that from an ACCA write up, right?

Let's take a look at the RPGT Act 1976. The definition of dispose:
“dispose” means, subject to subsection (4), sell, convey, transfer,
assign, settle or alienate whether by agreement or by force of law.

Looking at a strict interpretation , it would mean that disposal is by way of an agreement. As such, I would argue that date of disposal is the date of the agreement.

Yes, there is no doubt that in a transaction of a leasehold property where consent is required, it is a conditional contract. However, I am not of the opinion that date of disposal should be extended to date of consent.

I have two reasons for the said view:

1. Every agreement is conditional up to the very end, i.e. success of registration of the Memorandum of Transfer or perfection of the Deed of Assignment. If the MOT cannot be registered or the DOA cannot be perfected, then the entire agreement is terminated and parties are restored to their original position. Assuming that the argument for the date of disposal ought to be the date consent is given, one might as well go on and say that it is further conditional upon successful registration of the MOT or perfection of the DOA. After all, if consent is given, and yet at the end, transfer/assignment cannot be done - would the transaction still fail and the agreement terminated?

2. For purposes of RPGT, 2% is payable to the Director General of the IRD within 30 days from the date of disposal (date of SPA) being advance remittance of RPGT payable - if disposal is less than 5 years and if no exemption has been applied for.

However, LHDN does not define date of disposal as date consent is given. It looks at date of disposal as date of SPA, i.e. 30 days from date of SPA.

Couple this with the fact that for leasehold properties which require consent, there is a very very very little chance for consent to be given within 30 days from the date of the SPA. However, the 2% must still be paid. As such, LHDN is indifferent as to whether consent is ultimately allowed or otherwise. The 2% must still be remitted.

From my personal experience, date of disposal has always been date of SPA. For 100% confirmation, you can call LHDN customer service and enquire therein.

Police might knock on the door once and give a polite reminder but I doubt if it will work. Legal LOD seems like the last resort and there is a legal cause of action for nuisance. There would be merits in this case to even get an injunction. However, one has to bear in mind the legal costs involved. Is it worth the hassle and who is going to bear the costs?

2-3 months is quite average. If you want faster there are some folks who claim to know people inside who can 'expedite' things but such things are illegal (as it is akin to corruption) and there is no guarantee of success.