BASIC INFORMATION ABOUT CONVEYANCING.(Part 1)

The business of Buying & Selling property and transferring ownership of such property is known as Conveyancing.The Advocate & Solicitor who does this transaction is known as a Conveyancing Lawyer. Conveyancing lawyers are very different from litigation lawyers in the sense that they do not have to attend Court. I got a shock when a client of mine for whom I was handling a Probate matter informed me that the original Sale & Purchase Agreement was sealed in Court by the Court Registrar by his previous lawyer!!! Probably the Court is somewhere in Timbaktoo.

Firstly one has to understand that there are two types of property which are in existence in Malaysia. The property which has a Title and the property which does not have a Title.

The difference is this- if there is NO TITLE issued to the property, because there is no title issued yet, the proper person to confirm the beneficial ownership is the Developer. This situation usually arises in connection with the purchase of condominiums and apartments. Only the developer has the Master Title.

But if there is a TITLE ISSUED (IDT- Issued Document of Title), then the appropriate body to confirm is the Land Office. Contrary to many peoples opinion, though much of Malaysian Law is derived from English Law, the Malaysian Land Law is derived not from England but from Australia- called the Torrens system also known as the mirror principle. In other words the persons name which appears on the Land Office Register is the legal owner.

The first issue to settle is that the vendor must own the property, otherwise he has no right to sell the property. Sometimes the property may be in more than one name, and the Vendor may not divulge this piece of information. It is the lawyers job to make a land search or conduct a search at the Developers office to confirm the Vendors ownership.

Section 340(1) National Land Code 1965(NLC), the title or interest of any person or body for the time being registered as properietor of any land shall be indeafeasible except for cases of fraud, forgery or unlawful acquisition as provided under Subsection(2).

It is the lawyers job to verify the legal ownership of the Vendor otherwise the lawyer may be liable for professional negligence. The buyers Solicitor is advised not to accept the representation of the Vendor's lawyer but to conduct an independant search.