Urusan Jual beli: Pengguna Masih Tidak Terlindung

1. Pengenalan

Dari segi sejarah, urusan jual beli adalah merupakan satu bentuk hubungan ekonomi dan sosial yang telah lama wujud1. Bermula dari konsep pertukaran barangan (sistem barter) kemudiannya penggunaan kulit siput sebagai medium pertukaran, kini manusia telah mempunyai satu sistem kewangan yang maju dan canggih. Urusan jual beli bermaksud satu bentuk hubungan di antara pihak penjual dan pembeli yang melibatkan pertukaran barangan dan matawang. la berasaskan prinsip kehendak dan permintaan iaitu manusia sentiasa mahukan sesuatu samada untuk memenuhi keperluan atau untuk tujuan keselesaan hidup. Urusan jual beli adalah permulaan kepada sistem ekonomi di peringkat asas, ia akhimya akan membentuk satu kerangka ekonomi yang bersifat global dan lebih kompleks. Namun, semakin ia berkembang, pihak pembeli atau pengguna akan terus menerima kesan samada baik atau buruk. Golongan pengguna perlu dilindungi untuk memastikan supaya mereka tidak teraniaya. Undang-undang adalah salah satu cara untuk melindungi kepentingan pengguna, tetapi persoalannya, setakat mana ia mampu memberi perlindungan tersebut. Dalam skop perbincangan tentang perkara ini, kita akan mengkaji situasi urusan jual beli di negara ini untuk melihat setakat mana pengguna dilindungi. Sebelum kita membincangkan samada pengguna dilindungi atau tidak dalam urusan jual beli, terlebih dahulu kita harus mengenal-pasti siapakah yang dimaksudkan sebagai pengguna.

untuk membaca isi kandungan selanjutnya, sila klik link berikut:-

http://www.malaysianbar.org.my/consumer_protection/urusan_jual_beli_pengguna_masih_tidak_terlindung.html

Untuk makluman, penulis kepada artikel ini adalah Encik Mohaji Selamat, Peguam Persekutuan, Bahagian Guaman, Jabatan Peguam Negara dan merupakan Pemenang Tempat Pertama Pertandingan Menulis Makalah Undang-Undang dalam Bahasa Melayu 2002.

Risk of being a guarantor - Part II

from part I ...

So, it's better for you to know all these details, rather than being surprised 3-4 years later. Worst, you don't want your name to be recorded in CTOS right? How if you suddenly found your banks account frozen because you have just been declared a bankrupt???

**********************************************************************************

You may want to consider the following steps should you found out that your name is recorded in CTOS database:-

Go to CTOS & conduct search on your name.

• CTOS address : please refer to www.ctos.com.my
• You have to bring your IC to conduct the search. No representative is allowed to conduct search on your behalf.
• The charge: FREE
  
• If you cannot go to CTOS office, you can download a form from CTOS website and print the form. Follow the instruction given in the website. The form can be posted to CTOS and they will contact you via telephone &inform you the search result-
• your name is clear from CTOS database; or
• they found the IC / name matched the information that you provide in the form

Next:

1. You will find the name of the party you initiated the legal action against you. The name, contact number, the reference number of the party including their lawyer can be found in the search report.
2. Negotiate with the party how can you be released from the debt. (you may consider seeking legal advice for this)
3. Upon reaching settlement with the bank, make sure everything is in black & white.
4. Keep the release letter from that party and give a copy of the same to CTOS.
   
5. CTOS will update your status in their database which reflects that you have settled your debts.
   
6. Remember: your name will still remain in CTOS database with a new status about the settlement of the debt. CTOS will not delete your name from their system. However, with the new status, normally you'll not have any problems to apply for a new bank loan.

Thanks.

Rose.

Note: all information availabe in this blog is published on a without prejudice basis. Please engage a lawyer should you face any legal actions.

Risk of being a guarantor - part I

Dear all,

have you ever heard of this situation:

3 years ago, 1 of my friend had a problem to obtain loan for his brand new car. The loan was not approved but the bank said they can consider if there is a guarantor. So, I helped her because I trust her, & I know her very well. I became her guarantor for that hire purchase. I never asked her about her new car / the installment progress. My husband & I decided to buy a house. Surprisingly, our loan was rejected because my name has been listed under CTOS. We were advised to go to CTOS & checked my CTOS record. We found out that my best friend did not pay the hire purchase installment after 1 year she bought the car. The car was repossessed & later auctioned by the bank. Although the car was already auctioned, there is a balance of RM100,000.00, to be paid to the bank being the differential sum. The bank claimed for the balance thru court summons. I was not aware of this. When I checked with the bank they said, if I want to clear my name from CTOS, then I have to pay the bank RM60,000.00! What??? It's not my car! & I never get any summons. In fact the bank said, judgment has been obtained from the court because both of the borrower (my best friend), and the guarantor (me) did not attend the court on the mentioned day. According to the bank, they have served the summons on us by putting an advertisement in newspaper. Worst, they are now in the process of obtaining bankruptcy order from the court because the amount of the judgment sum is more than RM30,000.00. What do I do now?????? Please help me.

I believe most of us have heard of this story.

The best way to avoid this problem is DON'T AGREE TO BECOME GUARANTOR FOR OTHERS.

If you decided to become a guarantor, you may want to consider to take the following steps:-

1. To state your actual address in the guarantee form;
2. To provide the bank with your contact number, both mobile/ residential no.
   
3. To take note of the bank's name, address & contact no.
4. To take note the details of the facility i.e. what type of facility? hire purchase? property financing? personal loan? business loan?
5. Make sure you get a copy of the agreement. If you don't have, then contact & request from the bank for a copy of the same/ from the lawyer who prepared the agreement.
6. Make sure you have a copy of the borrower's IC, and write down his/ her permament address, his/ her contact number:- mobile, office, residential.
   

Why do u need the above mentioned particulars? This is to ensure, if there is an arrears of the monthly repayment by the borrower, then you'll get a copy of the notice from the bank. You'll have the full knowledge of the situation. In fact when it later reach court's stage, then you will be aware of the same. Take note, by hiding your address from the bank will not make you avoid any legal action. If summons couldn't be served on you because you informed that bank the old/ wrong address, the bank later can advertise the summons on the news paper. Under the law, the advertisement in newspaper is a sufficient service. The summons is deemed served on you, 14 days upon such advertisement.

So, it's better for you to know all these details, rather than being surprised 3-4 years later. Worst, you don't want your name to be recorded in CTOS right? How if you suddenly found your banks account frozen because you have just been declared a bankrupt???

To be continued in PART II.

-Rose-

Buying a property - how long does it takes?

This is a very short question. However, don't be surprised that the answer is not that simple.

Among the factors that will effect the sale & purchase agreement/ processing period of transfer of name on the property title are:-

1. are you buying a new property (from developer) or, is this a sub-sale matter (2nd hand property)
2. has the individual title been issued by land office? or is the property still under master title?
   
3. what type of restriction of interest stated on the property title? i.e. is it a malay reservation land? is there any consent required to be obtained from local authority?
   
4. is the property still charged to any bank?
   

Please take note that this explanation is just a general explanation, which may not be the correct answer because the process will be different when you buy a property without individual title/ with master title/ malay reservation land/ any other restriction imposed on the title. Please consult your lawyer for exact explanation.

There are several stages that you need to understand:-

1. Negotiation stage
• how much is the purchase price?
• if you intend to apply for a housing loan, don't buy a property beyond market price because bank will normally finance your purchase between 80%-95% from the purchase price/ market price - whichever is lower (please survey the offers made by the licensed financial institutions). For those who intend to obtain 100% loan from government, the loan is subject to market price as well.
• To know the market price, you may conduct your own survey.
• how much is the agreed deposit?
• how much is the agreed down payment (normally 10%)?
• how about the term of payment for the balance of purchase price? normally it's 3 months and may be extended subject to interest (normally between 8%-10% per annum). For those who wish to obtain government loan, you may consider to negotiate with the Vendor for a longer time (i.e. 6 months).
2. Sale & Purchase Agreement
• Required docs:-
• Copy of NRIC of both Vendor & Purchaser
• Copy of previous s&p/ copy of title/ any relevant docs
• Copy of housing loan agreement/ deed of assignment
• Details of current financier i.e. address (if the property is still charged to any financial institution, or the housing loan has not been fully settled by the Vendor)
  
• Preparation of S&P will be done upon completion of the following task:-
• bankruptcy search on both Vendor & Purchaser
• land search on the property
  
• The solicitors will prepare:-
• The Sale & Purchase Agreement
• The Memorandum of Transfer (MOT @ Form 14A) - if the property has individual title
• The Deed of Assignment - if the property is still under master title
• The Discharge of Charge (if any) (Form 16N)
• The Charge Form
• Statutory Declaration of Non-Bankruptcy
• Undertaking letter to refund monies released by the bank in case the MOT/ Charge/ Discharge form could not be perfected
• any other relevant docs
• request for consent from state authority (if applicable - subject to type of restriction stated in the property title)
• request for confirmation from the developer (if the property is still under master title)
  
• Appointment of solicitors
• take note that it's important to have your own lawyer to safeguard your interest
• there are 2 fees involved:-
• professional fees (subject to the purchase price) + 5% govt tax
• disbursement fees (include stamping of s&p, stamp duty on memorandum of transfer (for property with title)/ stamp duty on assignment (for property without title), transportation, bankruptcy search, etc.)
• all the fees charged by the solicitors for property transaction / loan documentation is subject to the Solicitors Remuneration Order (SRO). Solicitors are prohibited from giving discount to client on the fees charged to their Clients. Failure to adhere to this rule is an offence under SRO (which may lead to disciplinary action by Disciplinary Board)
• Please take note, there are 3 different charges:-
• cost for sale & purchase agreement (borne by the purchaser)
• cost for loan agreement (borne the borrower / purchaser)
• cost for discharge of charge/ receipt & reassignment (borne the vendor)
  
3. Payment of the Purchase Price
• Not everyone can afford to pay the purchase by way of cash. If the Purchaser pay the purchase price by way of cash, then the process will be easier &it may save a lot of time.
• However, for those who wish to obtain loan, this may take a longer period because the process of application may take some times. And a lot of things need to be done by the lawyer before advising the bank to release the loan.
• Make sure you have all the required documents:-
• Copy of both Vendor & Purchaser IC
• Your current address, contact details (both residential & office)
• Copy of 3 months bank statement
• Copy of 3 months salary slip
• Copy of EA/ J form / Latest EPF Statement
• Copy of title of the property/ old S&P
• Any additional information about the property:-
• type of renovation/ extension & cost (including built in wardrobe, kitchen cabinet etc...)
  
• Once the loan is approved, then the Bank's Solicitors will have to request for the redemption statement from the S&P Solicitors (if the Vendor has not paid in full the current loan).
• S&P Solicitors will later request the redemption statement from the current bank.
• Within 1-2 weeks (depending on the bank), the redemption statement will be issued by the current bank.
• Then the new bank will have to prepare the redemption sum in favour of the current bank. This may also take about 3-7 days (or longer, depending on the documentation/ processing period by the bank).
• Upon getting the cheque from the new bank, the current bank will release the documents i.e. original title, discharge form, duplicate charge
• The S&P Solicitors will forward all the relevant docs to the Bank's solicitors.
• Upon getting all the documents, the bank's lawyer will have to present the MOT/ CHarge Form/ Discharge of Charge to the relevant land office
• Depending on the bank, some bank may release the balance of purchase price upon registration of private caveat on the property. Then only the solicitor can advise the bank to release balance of the purchase price.
• however there are certain banks that require the Registration of MOT & Charge Form to be presented to the land office, then only they will release the balance of the purchase price.
• presentation of MOT means the perfection on the transfer of name on the property title, from Vendor to Purchaser.

I guess no lawyers can guarantee how long will it takes for the transfer of name on the property to be completed, from the date of signing of the S&P. A lot of contributing factors to be considered:-

• how long does it takes for your lawyer to prepare the s&p?
• how long does it takes for the bank to issue instruction to their solicitor to prepare loan documents?
• how long does it takes for the developer to issue notice of confirmation? - if applicable
• how long does it takes for the land office to issue their consent? - if applicable
• how long does it takes for the current bank to issue redemption statement?
• how long does it takes for the assessment notice to be issued by LHDN?
• how long does it takes for the new bank to release redemption sum?
• how long does it takes for the current bank to release original title/ discharge of charge/ duplicate charge/ receipt & reassignment?
• how long does it takes for the land office to register the MOT?
• how long does it takes for the new bank to release the balance payment?
  

So, hope the above explanation would be helpful for people to have a better understanding on the process of buying a property, especially in relation to the legal documentation & preparation by the solicitor.

Regards,
-rose-

Intellectual Property - issue on illegal software (copyright)

Are you using an illegal software? Microsoft may not know that you are using illegal Microsoft Office in your premise. However, beware of Business Software Alliance (BSA), a watchdog company for most of the software companies i.e. Microsoft, IBM, Apple etc.....

BSA clients' offers monetary award to those who can provide BSA with information of any illegal use of their clients' software. The value of the award differs from 1 company to another. Upon getting the information from the informers, BSA will liaise with Ministry of Domestic Trade & Consumer Affairs to arrange for a raid. Should the raid succeed, the informer will get their money. (Please refer the article attached herewith. The pic shows the informer gets RM20,000.00).

Remember, using an illegal software is an act of infringement (of others' copyright). Under the Copyright Act, if you infringe others' copyright then you may be fined between RM4,000 up to RM500,000.00 depending on the type of infringement and/ or you may face imprisonment for a term of not exceeding 20 years.

DON'T USE ILLEGAL SOFTWARE.

Intellectual Property - issue on copyright

This notice was published in Utusan Malaysia on 30 May 2008. To avoid this kind of problem, do not infringe others' IP (i.e.copyright/ patent/ trademark/ industrial design). You may end up with receiving injunction order and/ or destruction order and/ or award of damages from the Court.

As for this particular Notice, the act of infringement was on the copyright. For your information, there is no form of registration for copyright protection in Malaysia. However, there are certain ways on how can we protect our copyright i.e. through a Statutory Declaration of any particular work.


I'll continue next time with the type of work that is protected under Malaysian Copyright Act and how does your copyright be protected in any other countries.

Jangan panik jika anda kehilangan S&P asal

Baru-baru ni saya membaca satu ruangan forum (bicara jutawan). Seorang rakan di BJ mengutarakan soalan mengenai kehilangan Sales & Purchase Agreement yang asal & juga Geran asal hartanah. Bagaimanakan tuan punya tanah hendak menjual hartanah dalam situasi ini? Ketika membeli hartanah tersebut beberapa tahun sebelum itu, beliau membeli hartanah secara tunai. Dan beliau juga tidak dapat menjejaki peguam yang bertanggungjawab dalam penyediaan S&P tersebut.

Perkara mengenai kehilangan S&P ini banyak terjadi.

Dalam urusan jual beli hartanah, S&P asal hanya diperlukan sekiranya hartanah tersebut belum mempunyai hakmilik indvidu (geran individu)

Bagi hartanah yang sudah mempunyai geran individu, perkara ini akan menjadi lebih mudah. Apa yg boleh anda buat adalah dengan merujuk kepada notis cukai pintu/ cukai tanah. Anda boleh pergi ke Pejabat Tanah yang bertanggungjawab untuk mendapatkan Certified True Copy bagi geran individu hartanah terbabit. Anda hanya perlu membayar RM50 (bergantung kepada Pejabat Tanah). Dalam tempoh kurang dari seminggu anda akan mendapat CTC geran hartanah anda.

& dengan adanya CTC geran anda, maka bolehlah anda meneruskan niat untuk menjual hartanah anda kepada pihak lain, tetapi mestilah tertakluk kepada syarat2 & sekatan kepentingan yang termaktub atas geran anda.

Bagi hartanah yang belum mempunyai geran individu (iaitu masih under Master Title/ Geran Induk), maka apa yang anda boleh merujuk kepada Majlis Peguam Malaysia di No. 13, 15 & 17, Leboh Pasar Besar, 50050 Kuala Lumpur, Malaysia (belakang Pasar Seni, Kuala Lumpur). Anda boleh melaporkan nama firma tersebut & Majlis Peguam akan cuba menjejaki alamat terkini firma tersebut. Sekiranya firma tersebut telah ditutup, Majlis Peguam selalunya ada rekod mengenai perpindahan/ penyimpanan fail anda.

Harap maklumat ini membantu anda semua.

TQ.