Note: I got this email question which I a bit reluctant to answer… anyway, out of good mood I still give my opinion…
Subject: trivial issue
Date: Wed, 27 Aug 2008 06:09:24 +0000
i'm a law student currently taking the subject civil procedure. we were given tasks to open files and prepare the relevant documents for our 'clients'. i know this might be trivial to you and you might not be interested but can you at least give me some guide on how to deal with it?
my 'client' had bought a piece of land from this man who claimed to be its owner. they had entered into the sale & purchase agreement prepared by the man's lawyer. the client had completed paying full purchase price of rm450,000.00 to the man's lawyer and she expected the land to be transferred to her. however it was found out that he was not the owner and he was only the administrator of the land which actually belonged to a deceased person. and now she could not contact either the man nor the lawyer, and she just wanted the land asap.
so how do i go about with this problem? what are the documents that should be in the file? should i caveat the land since it is a case of fraud? can i ask for damages, specific performance etc? but how can i reach these ppl? so far as i can figure out, i would need to have a letter of demand, the memorandum of transfer, the s & p, the writ + statement of claim, what else? do i need to make a land search? if so, how? and what of quit rent, should i be concerned with it?
i am so very sorry that i have bombarded you with these questions. hope you can shed some light on it, i'm really at a loss here.
First of all, I would like to emphasize that I will not help 'student' doing their assignments. I would only trying my very best to help people solving 'real' problem. (in normal cases, I charge RM195 per hour of my legal fees, ) and the legal malaysia blog is for free consultation...
Second, when you graduated, you will find one important fact between being a practising lawyer and law student. that is while we study we are tend or often ask to details out certain things example 5 + 5 = 2 + 8 or 2 X 5 (or whatever) just to get a result of 10! but in practise 5 + 5 is 10 and that's it! we go to practicality, time and money saving strategies. so, my point is, i can help you to give some ideas in practical life but you may not get good marks for it.
Nonetheless, here is my answers:-
- sale and purchase agreement has been completed-contract concluded
- the transferor has no legal title
- the purchaser (assuming) a bona fide purchaser with value
- the transfer is completed, hence the title still registered under the owner's name ie the decease.
- the purchaser wants the land to be registered under his name asap
Whether the sale & purchase valid
Acting on behalf of the transferee, you have the duty to protect his interest. In order words as a smart lawyer-to-be you will find a way to make the S&P valid
my advise is the S&P is valid, but you must establish the fact that the transferor has valid authority on behalf of decease next of kin and being a valid land administrator entering into the S&P. to do that, establish any kind of clause inside his Power Attorney (if Any) or the Letter of Administrator that give him power to sell the land. if you get, then the S&P will bind over the decease's next of kind.
On the other hand, if you fail to find any evidence showing or supporting above matter, you may always depends on issue of Bona Fide Purchaser with Value.
How to go about?
First, a good and proper practice of conveyancing lawyer is to conduct land search before starting any S&P or transfer transaction to determine legal status of the transferor. In you case, it is obvious that the conveyancing lawyer failed to do so. Well, ask the purchaser to sue the lawyer and claim damages!
Second, file in private caveat to protect purchaser's interest and to stop all dealing with the land while he claim his rights.
- what normally we do is that, we file in either Originating Summons or Writ of Summons and get order for injunction at High Court, the pleadings would be:
- to declare that the S&P is valid
- to compel the transferor to sign and execute memorandum of transfer (and other relevant document) so to make the transfer duly and validly completed
- alternatively, if the transferor fails to do so or cannot be found, the Deputy Registrar of court is authorize to execute on behalf of the transferor.
- to declare that the S&P is valid
and that is!
Once you got the order, all memorandum of transfer executed, present it to relevant land office or PTG wherever necessary.
ok..good luck...(as my legal fee, promise me you will get highest score in class in this assignment!)
Kamarul Irzuan Bin Busu Piah Advocate & Solicitor http://legal-malaysia.blogspot.com/