Malaysia

Land scams on the rise in Malaysia

(The article was first published in The Star, Dec 23, 2007.)

KUALA LUMPUR: Landowners beware!

Your property is at risk. There has been a rising number of land scams in recent years, especially in the Klang Valley. Worse, the scams are targeting higher-value land too.

Government statistics revealed in Parliament recently showed that there were 16 land scams recorded in 2001, 19 in 2002, 22 in 2003, 32 in 2004, 35 in 2005 and 80 last year.

Police statistics also showed that last year the value of land involved in the scams was almost RM4.9mil. This year, up till October, the value of the land was more than RM10.4mil.

Only four people were arrested over the offences last year and just one this year.

National House Buyers Association secretary Chang Kim Loong expressed concern over increasing incidences of land scams and the high number of unsolved cases.

"This could lead to a loss of confidence in the Malaysian property market," he said.

Chang urged the Government to initiate an insurance scheme to indemnify anyone who suffers loss due to fraudulent land transfer.

Commercial Crimes Investigation Department legal / inspectorate division principal assistant director ACP Tan Kok Liang said that in certain cases it was difficult to get evidence against the perpetrators because they used other people's identity.

The most recent case involves Taiwanese businessman Chen Wei Pin, who found that a private caveat had been entered on his land by a director of Zen Zaman Sdn Bhd, claiming that Chen had sold the land to his company. Chen denied any such transaction.

His plight was brought up by the MCA Public Service and Complaints Department, which has received 18 such complaints involving land worth RM30mil in the past five years.

Assistant professor Dr Sharifah Zubaidah Syed Abdul Kader of the Public Law Department of the International Islamic University Malaysia said the law did not fully protect landowners, especially in cases of forgery.

"Even if they are able to prove the title is theirs, they can still lose their land. The court will inevitably rule against them as long as it can be proven that the purchaser had bought the land on good faith," she added.

Roger Tan, the Bar Council's Conveyancing Practice Committee chairman, said the onus had fallen on landowners to conduct regular checks on their land title.

The article was first published in The Star, Dec 23, 2007.

COURT DECISIONS

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Links to websites for other sources of court decisions:

Malaysia Court Homepage - http://www.kehakiman.gov.my

Cases from Malaysia, Singapore and Other Jurisdictions - http://www.ipsofactoj.com

Cases - 2002

Matrix Momentum Sdn Bhd v. Saratoga Sdn Bhd
10 JANUARY 2002 - HIGH COURT MALAYA, JOHOR BAHRU
[CIVIL SUIT NO: 22-20-2001]

CIVIL PROCEDURE: Summary judgment - Proper procedure - Mode of application - Facts deposed in affidavit in Form 18 - Whether derived from plaintiff's solicitors - Whether facts ought to be within deponent's personal knowledge - Whether O. 14 r. 2(1) of Rules of the High Court 1980 complied with - Whether deposition could be admitted as evidence
CONTRACT: Sale and purchase of property - Late delivery of vacant possession - Sale and purchase agreement - Provision for liquidated damages for late delivery of vacant possession - Whether plaintiff allowed to sue for damages only - Whether time an essence of agreement - Whether plaintiff entitled to rescind contract - Contracts Act 1950, s. 56
LAND LAW: Housing developers - Sale and purchase agreement - Late delivery of vacant possession - Provision for liquidated damages for late delivery of vacant possession - Whether plaintiff entitled to rescind contract - Whether time an essence of agreement - Contracts Act 1950, s. 56

Lim Chee Holdings Sdn Bhd V RHB Bank Berhad
20 FEBRUARY 2002 - HIGH COURT (IPOH)
GUAMAN SIVIL NO: 22-188-1994
Introduction: These two cases were consolidated and tried together. The cause of action in both the actions is basically breach of contract though, in the latter, negligence is added. The facts involved are briefly as follows: The plaintiff is a housing development company involved in developing a small housing estate known as Taman Mewar (the project) in a minor town called Langkap, which is between Telok Intan and Kapar, in Perak. The total project consist of only 186 units of building which was to be made up of: 127 single story houses; 52 double story houses and 7 double story shops.

Sakinas Sdn Bhd v. Siew Yik Hau & Anor
19 MARCH 2002 - HIGH COURT (KUALA LUMPUR)
CIVIL APPEAL NO R1-11-139 OF 2000

Civil Law Act - Assignment - Whether deed of assignment an absolute one or by way of charge only - Right of assignor to sue - Whether necessary to join assignee - Civil Law Act 1956 s 4(3)
Contract - Breach - Performance of contract - Purchasers took vacant possession after agreed date of delivery of vacant possession - Whether purchasers had accepted performance of the developer's promise at a time other than the agreed date of delivery of vacant possession - Whether purchasers had to give developer notice of their intention to claim compensation for late delivery - Contracts Act 1950 s 56 (3)
Contract - Damages - Liquidated damages - Damages for late delivery of vacant possession agreed to in sale and purchase agreement - Liquidated damages provided by legislation - Whether necessary for purchaser to adduce evidence of actual loss or damage suffered - Contracts Act 1950 s 75
Equity - Assignment - Civil Law Act 1956 s 4(3) - Whether deed of assignment an absolute one or by way of charge only - Right of assignor to sue - Whether necessary to joint assignee
Land Law - Housing developers - Damages for late delivery - Whether purchasers must prove actual damage of loss - Whether method of calculating liquidated damages as prescribed in Housing Developers (Control and Licensing) Regulations 1989 was incapable of overriding s 75 of Contracts Act 1950 - Reasonable compensation under s 75 of Contracts Act 1950 - Whether liquidated damages prescribed in Housing Developers (Control and Licensing) Regulations 1989 constituted reasonable compensation

Neoh Khoon Lye- vs - Trans-Intan Sdn Bhd
12 APRIL 2002 - HIGH COURT MALAYA, PULAU PINANG
[CIVIL SUIT NO: 22-132-2001]

CONTRACT: Building contract - Set-off - Whether right of set-off could be excluded by express words or by implication - Whether claim for set-off proper and not premature - Whether plaintiff entitled to set-off liquidated damages due to him against final progressive payment due to defendant
CIVIL PROCEDURE: Injunction - Mandatory injunction - Application for delivery of vacant possession of land - Balance of convenience - Whether damages an adequate remedy - Whether there was a serious issue to be tried - Whether case so "unusually sharp and clear" that injunction should be granted

Lim Ee Fah & Ors v. Seri Maju Padu
12 JULY 2002 - HIGH COURT OF MALAYA
[CIVIL APPEAL NO: MT(3) 11-3-1999]

LAND LAW:Housing developers - Damages for late delivery - Agreement to deliver vacant possession within 24 months - Date of vacant possession - Whether time to commence from date of acceptance of deposit - Whether contract deemed to have existed on receipt of deposit

CHIHARU YABE (ZAUGG) & ANOR V. PENTADBIR TANAH WILAYAH PERSEKUTUAN KUALA LUMPUR
05 AUGUST 2002 - HIGH COURT MALAYA, KUALA LUMPUR
[ORIGINATING MOTION NO: R1-25-39-2001]
LAND LAW: Restraint on dealings - Restrictions in respect of non-citizens for purchase of property - Rejection of application to purchase property - Bumiputera quota - Whether applicable
WORDS & PHRASES: "Bumiputera quota" - Garis Panduan Perolehan Tanah oleh Warganegara Asing/Syarikat Asing 1998
CIVIL PROCEDURE: Appeal - Time - Limitation to file appeal - National Land Code, s. 418- Whether appeal filed beyond limitation period - Whether to be dismissed
ADMINISTRATIVE LAW: Exercise of administrative powers - Discretion - Restrictions in respect of non-citizens for purchase of property - National Land Code, s. 433B - Requirement of approval from State Authority - Whether discretion vested in Land Executive Committee - Rejection of application to purchase property - Whether decision null and void

Tan Tien Seng & Ors v. Grobina Resorts Sdn Bhd
14 AUGUST 2002 - HIGH COURT [MELAKA]
SAMAN PEMULA NO. 24-537 TAHUN 2000
Dalam Perkara Perjanjian Jual Beli bertarikh 3 Januari 1995 berhubung dengan harta yang dikenali sebagai Parcel No. 16- 01 of No. 01-Pent 7, Tanjung Samudera Kondominium Beach Resort

"FOOTNOTE: The Court of Appeal on 5.11.07 affirmed the decision of Justice Low Hop Bing at the Melaka High Court made in 2005. The developer's appeal was dismissed with costs. The case is very important as it concerns the right of a buyer to object to changes in a housing plan made without his consent. The issues covered are:
1. to what extent can a developer make changes to the design of his condominium without getting the consent of the buyers.
2. what constitutes fundamental breach of a sale and purchase agreement."

Chung May Yen v. Puncakdana Development Sdn Bhd
20 SEPTEMBER 2002 - HIGH COURT MALAYA, KUALA LUMPUR
[ORIGINATING SUMMONS NO: S6-24-1604-2001]

Contract: Housing development contract - Breach - Delay in delivering vacant possession of property - Whether caused by relevant authorities - Defence of waiver - Whether defendant entitled - Whether purchaser entitled to terminate agreement
Land Law: Housing developers - Sale and purchase agreement - Non-delivery of vacant possession - Whether delay caused by relevant authorities - Whether plaintiff waived right to terminate agreement - Whether plaintiff entitled to terminate agreement

Ng Weng Sum v. Lembah Beringin Sdn Bhd
21 SEPTEMBER 2002 - HIGH COURT MALAYA, KUALA LUMPUR
[ORIGINATING SUMMONS NO: S6-24-1507-2001]

LAND LAW: Housing developers - Sale and purchase agreement - Defendant failed to complete and deliver vacant possession within stipulated time - Whether time was of essence of contract - Whether plaintiff entitled to terminate agreement - Whether defendant had established a good defence -Whether defendant had applied for extension of time

Honour Properties Sdn Bhd & Anor V. Duniaga Sdn Bhd
30 SEPTEMBER 2002 - HIGH COURT MALAYA, PENANG
[COMPANIES WINDING UP NOS: 28-43-1997 & 28-51-1997]

COMPANY LAW: Winding-up - Housing developer - Consent judgment - Consent judgment by creditors to distribute progress payment payable to developer among themselves - Whether ultra vires - Whether to be set aside for illegality - Progress payment thereof - Whether to be remitted to developer's Housing Development Account - Companies Act 1965 s. 221- Housing Developers (Control And Licensing ) Act 1966 ss. 7A, 24- Housing Developers (Housing Development Account) Regulations 1991 rr. 4, 7

Archlaw Development Sdn Bhd v. Saw Ewe Leong
16 OCTOBER 2002 - HIGH COURT MALAYA, PENANG
[ORIGINATING SUMMONS NO: 22-298-2002]
The plaintiff is a housing developer and was at all material times developing a housing project known as Rumah Pangsa Kos Rendah on Lots 1518, 1521, 816 and 824, Mukim 12, S.W.D., Daerah Barat Daya, Permatang Damar Laut, Pulau Pinang.

Hariram Jayaram & Ors v. Sentul Raya Sdn Bhd
21 OCTOBER 2002 - HIGH COURT MALAYA, KUALA LUMPUR
[ORIGINATING SUMMONS NO: S5-24-1213-2002]

LAND LAW: Housing developers - Sale and purchase agreement - Non-delivery of vacant possession - Damages - Claim for - Whether purchasers prevented from claiming damages - Whether to rescind contract before making claim - Contracts Act 1950, s. 56(3)- Whether claim allowed under Housing Developers (Control and Licensing) Act 1966
STATUTORY INTERPRETATION: Cannons of construction - Generalia specialibus non derogant - Sale and purchase of land agreement - Whether Contracts Act 1950applicable - Whether Housing Developers (Control and Licensing) Act 1966governing statute - Whether specific laws ought to be applied as opposed to general legislation
CONTRACT: Housing development contract - Breach - Non-delivery of vacant possession - Damages - Claim for - Notice to claim compensation - Absence of - Whether purchasers prevented from claiming damages - Whether to rescind contract before making claim - Contracts Act 1950, s. 56(3)- Whether applicable

Sinwara Sdn Bhd V. Maris Housing Sdn Bhd & Anor
26 NOVEMBER 2002 - HIGH COURT [KUALA LUMPUR]
SAMAN PEMULA NO: S6(S2)-24-3114-2001

Right to increase the management fee, and if so, whether the Plaintiff must pay before strata title is issued

Arab-Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors
03 DECEMBER 2002 - COURT OF APPEAL, KUALA LUMPUR
[CIVIL APPEAL NOS: W-01-68-2000, W-01-67-2000, W-01-69-2000 & W-02-602-2000]

Tort: Negligence - Collapse of high-rise block of apartments - Loss in value of neighbouring blocks of apartments - Appeal by defendants against liability - Whether defendants owed a duty of care - Whether they breached duty - Whether there was causation - Remoteness of damage - Pure economic loss - Whether recoverabel - Whether recoverable if reasonably foreseeable
Civil Procedure: Pleadings - Departure from - Judge decided on issue against defendant that was not raised in pleadings - Whether judge erred - Whether defendants had, by conduct, entered upon issue during evidence and argument - Whether defendants were not prejudiced
Tort: Negligence - Title to sue - Collapse of high-rise block of apartments - Claim by residents/plaintiffs of neighbouring blocks for loss in value - Whether they had title to sue - Whether possessory titles sufficient
Tort: Negligence - Local Authority - Breach of duty of care - Idemnity - Whether s. 95(2) Street, Drainage and Building Act 1974 applicable - Whether action barred by limitation
Tort: Nuisance - Failure to maintain drains - Failure thereof led to landslide causign collapse of high-rise block of apartments - Whether a case of actionable nuisance - Loss in value of neighbouring blocks of apartments - Whether recoverable - Remoteness of damage - Whether test of reasonable foreseeability


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