Michael LeongSIM & PARTNERS

Sale and Purchase

Direct From Developer Sub-Sale

With TitleWithout Title

(Title Yet To Be Issued)With Title

Without Title(Title Yet To Be Issued)

House

Shop House

Land

Factory

Flats

Apartment

Condominium

Land

House

Shop House

Land

Factory

Flats

Apartment

Condominium

Land

Strata Title(Flats/ApartmentCondominium)

DeveloperFirst

Purchaser(Vendor)

Purchaser

Purchaser

Single Storey Bungalow House

Single Storey Terrace

Double Storey Bungalow

Double Storey Corner Lot

Double Storey Link House

Townhouse

Three Storey Shop House

Semi-D House

Flats

Walk-up Apartment

Apartment

Condominium

Factory

Land

Terms and Conditions (Sale and Purchase

Agreement)

The Parties

The Recitals

The Terms and Conditions

THE PARTIES

The Vendor (Seller)

The Purchaser (Buyer)

• The registered owner and the property

• The encumbrances• The intention of the

parties• The Purchaser’s

loan to finance• The Solicitors

SNP (With Title) THE RECITALS

• The agreement to sell• Conditions Precedent• Special Express Conditions• Consideration and Price• Payment of the Balance

Purchase Price• Purchaser’s Loan• Absence of Purchaser’s

Loan

SNP (With Title) - Terms

• Lodgment of Caveat• Documentation• Apportionment of

Outgoings• Release of Moneys• Redemption of Property• Default Clause• Delivery of Vacant

Possession

SNP (With Title) - Terms

• Government Acquisition• Effect of Bankruptcy• Vendor’s representations

and warranties• Condition of Property• Passing of Risk• Notices• Time of Performance

SNP (With Title) - Terms

• Binding Effect• Undertakings and

Covenants• Severability• Knowledge or

Acquiescence• Costs• Definitions

SNP (With Title) - Terms

• THE REGISTERED OWNER AND PROPERTY

• The details of the land (freehold or leasehold) on which property is erected

• The details of the property such as the type of property, measurement and the postal address

SNP (With Title) RECITALS

• THE ENCUMBRANCES

• Whether property charge to any Bank

• If yes, details of charge

• Whether any restriction-in-interest

• If yes, list the restriction(s)

SNP (With Title) RECITALS

• The encumbrances

• Express Conditions

• (Syarat-syarat nyata)

• “Bangunan Kediaman sahaja”

• “Tanaman getah sahaja”

• “Perindustrian sahaja”

SNP (With Title) RECITALS

Restriction-in-interest

• (Sekatan-sekatan kepentingan)

• "Tanah yang diberimilik ini tidak boleh dijual, dipajak, digadaikan atau dipindahmilik dengan apa cara sekalipun melainkan dengan kebenaran Pihak Berkuasa Negeri.”

SNP (With Title) RECITALS

SNP (With Title)

RECITALS

The intention of the partiesIntention to create a legally

binding contractVendor and Purchaser

• The Purchaser’s loan to finance

• The intention of the Purchaser to take up loan

SNP (With Title) RECITALS

• The Solicitors• The Vendor’s

Solicitors• The Purchaser’s

Solicitors

SNP (With Title) RECITALS

The Agreement

Vendor Purchaser

Conditions Precedent

Consent (leasehold)

Vendor Purchaser

State Authority’s consent to

transfer

S 433B NLC 1965(foreigne

r)

State Authority’s consent to charge (if

loan)

Kaveat

Gadaian

Consideration & Price

Purchase Price

Earnest Deposit

Balance Deposit

Balance Purchase Price

Normally pay

to agent

Upon signing ofAgreement

OR

Upon receipt by

Purchaser’s Solicitors

of State Authority’sConsent to transfer

Balance Purchase Price

With title

With consent

Without consent

90 days from date of receipt by Purchaser’s Solicitors of the State Authority’s letter of consent to transfer or charge

90 days from date of

SNP

• Section 322 of the National Land Code 1965

• Purpose of lodgment

• To prohibits the Vendor from dealing with the Property

• For example - Selling to a third party

• Issue of Priority

Lodgment of Caveat

• Vendor’s protection

• Purchaser to sign Withdrawal of Caveat Form in escrow

• Form to be deposited with Purchaser’s Solicitors

• Purchaser’s Solicitors to withdraw caveat upon lawful termination of agreement

Lodgment of Caveat

• Execution of Documents• By the Vendor and the Purchaser• The Sale and Purchase Agreement• The Memorandum of Transfer (Form 14A)• The Stamping Proforma (PDS 15)• The Consent to Transfer Form (Vendor)• Section 433B NLC 1965 (If Purchaser -

Foreigner)• Letter of Appointment of Solicitor

Documentation

• Who to sign agreement first?

• Purchaser

• Then Vendor

Documentation

• DELIVERY OF DOCUMENTS• To the Purchaser’s Solicitors (from the

Vendor’s Solicitors)• The Memorandum of Transfer (Form 14A)• The Stamping Proforma (PDS 15)• The Consent to transfer Form• The Section 433B NLC 1965 (Foreigner)• Identity Card of the Vendor (if individual)

Documentation

• DELIVERY OF DOCUMENTS• To the Purchaser’s Solicitors (from the

Vendor’s Solicitors)• If Vendor a company• The latest Company Forms 24, 44 & 49• The Memorandum of Articles & Association• The Vendor’s company Board of Directors’

Resolution to dispose Property

Documentation

• WHAT ARE OUTGOINGS?• Quit rent • Land assessment• Electricity • Water (including Indah Konsortium

Water)

Apportionment of Outgoings

Land Assessment (Cukai Pintu) DBKL

Land Assessment(Cukai Pintu)

• Time of apportionment

• At the date of delivery of vacant possession (keys)

Apportionment of Outgoings

• IF WITH LOAN

• After the expiry of 14 days from the date of presentation

When to release Balance Purchase Price?

• IF WITHOUT LOAN• After the expiry of

14 days from the date of receipt by the Purchaser’s Solicitors of the Security Documents OR the expiry of 14 days from the date of presentation, whichever is earlier.

When to release Balance Purchase Price?

• THE DEFAULT

• Failing to pay the Balance Purchase Price within the time stipulated

Default by Purchaser

• VENDOR’S REMEDY• Terminate agreement• Deposit paid forfeited• Free to sell• If caveat lodged Purchaser to withdraw

caveat at own cost• If vacant possession has been

delivered, Purchaser to re-deliver vacant possession

Default by Purchaser

• THE DEFAULT

• Failing to transfer the Property to the Purchaser

Default by Vendor

Default by Vendor

Terminate Agreement

SpecificPerformance

OR

• PURCHASER’S REMEDY• Terminate Agreement• Vendor to refund the Deposit paid• Vendor to further pay liquidated

damage equivalent to Deposit• Purchaser to withdraw caveat (if

lodged)• Purchaser to re-deliver vacant

possession (if vacant possession delivered to Purchaser)

Default by Vendor

• PURCHASER’S REMEDY

• Specific Performance

• Vendor to specifically perform the contract ie. by transferring property to Purchaser

Default by Vendor

• Upon receipt by Vendor’s Solicitors the Balance Purchase Price and the late payment of interest (if any) and (apportionment of outgoings!!)

Delivery of Vacant Possession

• TIME OF ACQUISITION

• After signing of agreement but before presentation of Memorandum of Transfer

• After presentation of Memorandum of Transfer for registration

Government Acquisition

• TIME OF ACQUISITION

• After signing of agreement but before presentation of Memorandum of Transfer

• PURCHASER’S ENTITLEMENT

• Terminate agreement OR

• To continue with agreement

Government Acquisition

• PURCHASER’S ENTITLEMENT• Terminate agreement• Vendor to refund Deposit• Purchaser to return Security Documents

to Vendor• Purchaser to withdrawal caveat (if

lodged)• Purchaser to redeliver vacant

possession (if vacant possession delivered to Purchaser)

Government Acquisition

• PURCHASER’S ENTITLEMENT• Continue with agreement• Vendor to notify government of

Purchaser’s interest• All acquisition notices must be

delivered to the Purchaser• Compensation belongs to Purchaser

(provided Purchase Price paid to Vendor)

• Vendor to obtain the best compensation award

Government Acquisition

• Is the registered owner of Property

• Has good and clean title to pass

• Has authority to execute and perform terms of agreement

• Has not previously and/or will not hereafter sell, transfer, let, charge property

Vendor’s Representations & Warranties

• All extensions, renovations duly approved by the authorities

• No notice of legal proceedings affecting property (auction)

• Reliance by Purchaser of Vendor’s representations

• Indemnify Purchaser

Vendor’s Representations & Warranties

• Substantially the same condition and state as at the date of viewing

• Joint inspection

• If any changes, Vendor to repair and restore

• Inventory List (Fixtures & Fittings)

Conditions of Property

Notices

Passing of Risk

Passing of Risk

Passing of Risk

When do you think RISK

should pass?

• At the time of delivery of vacant possession

Passing of Risk

Time of Performance

Shall be of the essence

• Binding upon heir, personal

representatives, executors,

administrators, successors-in-

title and assigns

Binding Effect

• Solicitors’ Fees (its own)

• Stamp Duty (Purchaser)

• Section 433B NLC (Purchaser)

• Consent to Transfer (Vendor)

• Discharge of Charge (Vendor)

Costs

Schedule of Fees (Sale & Transfer)

Consideration or Adjudicated Value

Scale of Fees

For the first RM150,000-00 1.0% (subject to a minimum fee of RM300)

For the next RM850,000-00 0.7%

For the next RM2,000,000-00 0.6%

For the next RM2,000,000-00 0.5%

For the next RM2,500,000-00 0.4%

Where the consideration or adjudicated value is in excess of RM7,500,000-00

Negotiable on the excess (but shall not exceed 0.4% of such excess)

• Subject to existing tenancy

• Novation of the tenancy agreement

• To pro rate rental (date of payment of balance purchase price)

• Refund Security deposit and utilities deposit

Subject to Tenancy

• Security & Utilities Deposit (if required)

• Rental (if any)• If WITH rental

apportionment of outgoings at the time of payment of Balance Purchase Price (Landlord and Tenant)

Early Delivery of Vacant Possession

• If WITHOUT rental apportionment of outgoings at the time of delivery of vacant possession

Early Delivery of Vacant Possession

• Within 90 days from the date of the receipt by the Purchaser’s Solicitors of the letter of confirmation of compliance by Vendor of the Developer’s terms

Payment of the Balance Purchase Price

• The Principal Agreement

• (Between the Developer/ Proprietor and the First Purchaser/Vendor)

• The Deed of Mutual Covenants

• (Between the Developer and the First Purchaser/Vendor)

THE RECITALS(Without Title)

• The Loan Documentation

• (The First Purchaser’s/ Vendor’s loan)

• The Facilities Agreement

• The Deed of Assignment

• The Power of Attorney

THE RECITALS(Without Title)

• The Sale and Purchase Agreement

• The Deed of Assignment (by way of sale) (cf : Memorandum of Transfer)

DOCUMENTATION(Without Title)

• OR Within 90 days from the date of the receipt by the Purchaser’s Solicitors of the letter of confirmation from the Developer

Payment of the Balance Purchase Price

• Solicitors’ Fees (its own)

• Stamp Duty (Purchaser)

• Developer’s Confirmation (Purchaser)

• Deed of Receipt and Reassignment (Vendor)

Costs

Terminology

Charge Assignment

Discharge of Charge

Receipt and Reassignment

Memorandum of Transfer

Deed of Assignment (by

way of sale)

• Strata Title registered in Developer’s name

• Strata Title Registered in Vendor’s name

Strata Title Issued

• Strata Title registered in Developer’s name

• Restriction-in-interest endorsed on Strata Title

• (consent to transfer required)• If Developer does not agree

to Direct Transfer

Strata Title Issued

DeveloperFirst

Purchaser(Vendor)

Purchaser

Strata Title Issued

MOT-1

MOT-2

Direct Transfer

NOT agreeable

Consentto Transfer

Consentto Transfer

stamp duty

stamp duty

• Strata Title registered in Developer’s name

• Consent to Transfer not required

• If Developer agrees to a Direct Transfer

Strata Title Issued

DeveloperFirst

Purchaser(Vendor)

Purchaser

DIRECT TRANSFER

Strata Title Issued

MOT

Stamp duty

THE END