Shahizad Bin Sulaiman
Introduction
It has been universally accepted that to own a satisfactory house is a basic need for every human. Right to adequate housing has been incorporated under Article 25 of the United Nation’s Universal Declaration of Human Rights 1948 and further elaborated and entrenched in various international treaties and documents. The Office of High Commissioner of Human Rights clarifies that the rights to adequate housing contains entitlements that include security of tenure; housing, land and property compensation; equal and non-discriminatory access to adequate housing and participation in housing-related decision-making at the national and community levels.[1] Owning a house particularly a landed house could also include to own a land. In this regard, Article 13 of the Federal Constitution provides that no person shall be deprived of property save in accordance with law.
In relation to this, the Government has threefold responsibility namely to respect, to protect, and to fulfil the right to adequate housing and to own property. Undeniably, many land or house purchasers and tenants in Malaysia have been facing numerous problems such as dispute between tenant and landlord on various matters including the increase of rent and evacuation of premise, land scam and fraudulent land transfer, the failure or delay to deliver vacant possession of the parcel, house defects due to under quality construction, houses are not built according to plans and specifications as stated in the sale and purchase agreement, and many other issues that may require a long list. The question is, are the land and house purchasers and tenant are considered as consumers? If the answer is affirmative, the next question is what are the protections provided by the consumer related statutes to ensure that every individual is able to fully enjoy such rights?
Definition of Consumer
The main law that protects the consumers in Malaysia is the Consumer Protection Act 1999. The Act came into force on 15 November 1999 and placed under the jurisdiction of the then Ministry of Domestic Trade, Co-operatives and Consumerism which is now renamed as Ministry of Domestic Trade and Consumer Affairs. The purpose of the Act is to provide protection to the consumers and to establish the National Consumer Advisory Council and the Tribunal for Consumer Claims.
‘Consumer’ is defined under Section 3(1) of Consumer Protection Act 1999 as a person who acquires or uses goods or services of a kind ordinarily acquired for personal, domestic or household purpose or consumption. The Act goes further to define ‘acquire’ as includes obtaining goods by way of purchase, exchange or taken on lease, hire or hire-purchase. Under the same provision, the ‘goods’ is defined as goods which are primarily purchased, used or consumed for personal, domestic or household purposes, and includes goods attached to, or incorporated in, any real or personal property. By that definition, lands or houses are included under the consumer goods category. Therefore, the person who acquire a land parcel or a house, either by purchasing or tenancy for a household usage and not for commercial purpose, are considered as consumers and supposedly entitled to all protections and rights provided under the Consumer Protection Act 1999.
The consumer association in Malaysia such as the Federation of Malaysian Consumer Association (FOMCA) and the Consumers Association of Penang (CAP) also used to receive complaint on land-related issues before the consumer lodge their complaints with the relevant authorities. This clearly indicate that the issues pertain to landlord and tenant are within the purview of consumer protection area.[2]Thus, the next question is what are the legal protections available to the land or house purchasers and tenants under the Malaysian laws.
Based on the definition in the CPA 1999, consumer includes land or homebuyer and tenant, however, Section 2(2)(d) of the Act excludes matters in relation to land or interests in land from the protection of the Act except as what is expressly provided in the Act. This exclusion clause confines the applicability of CPA. The protections in the Act are only applicable if the relevant provisions explicitly mentioned that land and house matters are not excluded.
Section 11 of the Act provides protection from false representation and other misleading conduct in relation to land. Specifically, the provision prohibits any person from making a false representation on any person has any sponsorship, approval, endorsement or affiliation and misleading representation in relation to land in term of the nature of interest; the price; the location; the characteristics; the usage; and the existence or availability of facilities associated with the land. However, Section 11(3), clearly excludes housing accommodation as provided under the Housing Developers (Control and Licensing) Act 1966 (HDA 1966) from the prohibition. Such exclusion is understandably to avoid duplication of jurisdiction under the two laws as the CPA 1999 is under the Ministry of Ministry of Domestic Trade and Consumer Affairs whereas the HDA 1966 is under the Ministry of Housing and Local Government.
The CPA 1999 also established a Tribunal of Consumer Claim (TCC) under Section 85 to hear consumer-related complaints. Section 98 of the Act sets 3 main conditions to determine a complaint is within the jurisdiction of the TCC namely the claim has to be in respect of goods and services as defined by the CPA 1999; secondly there is no redress mechanism provided under any other law to hear the claim; and the third condition is the award sought does not exceed fifty thousand ringgit. Once again, Section 99 limits the jurisdiction of the TCC from hearing any claim for the recovery of or interest in land. ‘Interest’ under the Act is defined as right of occupancy of the land or of a building or a right, power or privilege over or in connection with the land. Despite the exclusion of land and house from the jurisdiction of TCC, nonetheless, TCC has heard a complaint from a consumer, Kelik Anak Bayel, against a developer, Sabu Development Sdn Bhd, for a contractual dispute involving the purchase of property and claimed for damages for late delivery and defective workmanship of a single storey terrace house purchased by the consumer. In 2007, the developer filed a judicial review at Kuching High Court on the decision of the TCC, however the application was dismissed on technical ground for not naming TCC as one of the respondents[3].
While the above provisions expressly exclude land from the protection, the product liability provisions under Part X of CPA 1999 explicitly comprises land under its protection dominion. Section 66 (1) of the Act provide that “damage” means death or personal injury, or any loss of or damage to any property, including land, as the case may require.
It is clear from the discussion that the protection available in the CPA for the land and house purchasers or tenant in Malaysia is rather shallow. The scenario is in contrast with Victoria, Australia, where a Victoria Consumer Affair (VCA) is established under the Department of Justice and Community Safety, within the Victorian government which have the functions among others to advise and educate tenants, and landlords on their rights, responsibilities and changes to the law and conciliate disputes between tenants and landlords. The position of the Director of Consumer Affairs is provided under Section 107 of the Australian Consumer Law and Fair Trading Act 2012[4].
Apart from the protection under the CPA 1999, the land and house buyer and tenant can also find protection under other Malaysian laws, inter alia:
- National Land Code (Act 56 of 1965);
- Strata Management Act 2013;
- Housing Developers (Control and Licensing) Act 1966 (HDA 1966)
In peninsular of Malaysia, the land matters are regulated by the National Land Code 1965 (NLC). NLC provides protection for tenant against subsequent dealings through application of endorsement on land title. Section 213 of NLC provides that a tenancy may be created either by a written document or by words of mouth for a duration of three years or less. There is no requirement for a tenancy to be registered and it is known as tenancy exempt from registration (TER). In order for a tenancy, to have a right that is recognized by the NLC, an endorsement must be made under Section 316 on the issued document of title. In the case of Than Kok Leong v Low Kim Hai[5], the plaintiff purchased a premise upon which the defendant was a tenant of the previous proprietor. One-and-a-half years later, the plaintiff gave the defendant a notice to quit the premise. The defendant refused to vacate the house and contended that his tenancy was a lease pursuant to an oral agreement made between him and the former landlord who granted him an oral lease for three years with an option to renew for another three years to be exercised by the tenant. The court considered section 213(3) of the National Land Code and held that the oral agreement between the defendant and the previous proprietor came under section 213 of the NLC and was a tenancy exempt from registration. It was also held that the tenancy was not binding on the plaintiff since there was no endorsement on the register document of title. Furthermore, under section 228(2) of the NLC, an option for renewal conferred by an oral tenancy is not enforceable. Failure to register a lease or to make endorsement of a tenancy will leave the tenant to get protection under the law of contract only as affirmed in the case of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor[6].
One would find that the security of tenancy tenure is much more safeguarded in Scotland. the rights and obligations of a landlord and a tenant in Scotland, are dealt with under the purview of housing law. The issues on landlord and tenant in Scotland are basically confined to rent, eviction, repairs, and succession[7]. Section 1 of the Rent (Scotland) Act 1984 provides a security to a tenure of tenancy by recognizing that a tenancy under which a dwelling-house is let as a separate dwelling is a protected tenancy. Section 22 of the Act goes further to criminalize unlawful eviction and harassment of the occupier. Section 22 (2A) provides that the landlord of any premises or an agent of the landlord shall be guilty of an offence if he does acts likely to interfere with the peace or comfort of the residential occupier; or he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence, and he knows or believes, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises. The landlord is burdened to prove his innocence by advancing reasonable grounds for doing the acts or withdrawing or withholding the services in question. A person guilty of an offence under this provision is liable on summary conviction, to a fine not exceeding £ 10,000 or to imprisonment for a term not exceeding six months or to both; and on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both.
Protection against excessive rent
Prior to year 1997, Malaysia used to have a legislation known as the Control of Rent Act 1966 (CRA) which regulate the relationship between landlord and tenant. Nevertheless, the Act was repealed by the Control of Rent (Repeal) Act in 1997. The CRA was enacted to protect the welfare of the people due to the shortage of housing during the post-war period. The Act gave the Government the power to ensure that the rent charge is not exorbitant and to provide security of tenancy. A rent tribunal was established to hear any dispute between tenant and landlord. However, the Government felt that the Act was outlived its purpose and decided for the Act to cease to operate, and for the landlords to be able to recover possession of the controlled premises for purposes of development. Unfortunately, such move by the Government left the tenant without legal protection.
After the repeal of Control of Rent Act 1966 (CRA), with effect from 1st January 2000, the parties concerned are at liberty to enter into any fresh tenancy at any rental according to the market rate to be determined at the absolute discretion of the landlord. The ordinary law of landlord and tenant under the National Land Code will then apply in the event of their entering into a fresh tenancy[8].
The right to have a fair rent is also guaranteed by Rent (Scotland) Act 1984. The Act provides the power to the Secretary of State to make an order to specify the maximum amount of the rent payable under a tenancy or restrict the total additional rental income which may be recovered by a landlord under such a tenancy in any period. This provision would protect the tenant from being burdened with excessive rent.
In 2017, Scottish Parliament passed the Private Housing (Tenancies) (Scotland) Act 2016 to make provision about private rented housing; in particular to establish a new type of tenancy to be known as a private residential tenancy. Under the Act, tenants can appeal to the Housing and Property Chamber, First Tier for Scotland if they disagree with a rent increase. The Housing and Property Chamber, First Tier for Scotland replaces the Private Rented Housing Panel. The Housing and Property Chamber has been set up to ensure that private tenants are treated fairly. The chamber is responsible for setting reasonable rents for properties and giving tenants a means of enforcing the repairing standard[9].
In Australia, the relationship between landlord and tenant is regulated by Residential Tenancies Act 1997. The Act provides a mechanism for the tenant to complain about excessive rent. Section 45 of the Act provides that a tenant may complain to the Director of Consumer Affairs Victoria about excessive rent having regard to the fact that the landlord has reduced or withdrawn services, facilities or other items provided with the rented premises; or has received a notice of a rent increase and the tenant considers that the proposed rent is excessive. After receiving the complaint, the Director would conduct an investigation and as a result produce a written report to the tenant and a copy of the report to the landlord. Should the report found that the rent is excessive and the landlord is still adamant, the tenant then has the right to apply for an order from the Victorian Civil and Administrative Tribunal (VCAT) under Section 46 of the Act. The Tribunal that hears the application may make an order declaring the rent or proposed rent excessive; and directing that for the period specified in the order the rent must not exceed the amount specified in the order.
Protection in term of imposing legal obligation on landlord/houseowner
In Malaysia, there is a Strata Management Act 2013 that provides for the proper maintenance and management of buildings and common properties. The Act outlines the responsibilities of the developer, joint-management body, management corporation or subsidiary management corporation to maintain and repair in respect of defect in a parcel, building or land and its common property. The Act also, under Section 102 established a Strata Management Tribunal with the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and the total award sought does not exceed RM250,000. Among the complaints that are within the jurisdiction of the Tribunal are a dispute on the failure to undertake the duties prescribed by the Act or a dispute on cost or repairs in respect of defect.
Whereas in Scotland, the Housing (Scotland) Act 2006 has a more detailed prescriptions on the duties and responsibilities of landlord and tenant. Section 18 of the Act provides prescriptions on the duties of a landlord whereby he provides a habitable and tenantable property and the landlord is under a duty to give and maintain the premise in good conditions throughout the tenancy period. Similarly, the duties of a tenant are also properly put in the statute such as not to make a false or fraudulent representation in order to obtain a tenancy. If this occurs, the tenancy may be reduced.
In Australia, Section 59 to 71 of the Victorian Residential Tenancies Act 1997 Act, enunciated the general duties of tenant and landlord. Among the duties of the tenant specifies under the Act are tenant must not use premises for illegal purpose; not cause nuisance or interference; avoid damage to premises or common areas; give notice of damage; keep rented premises clean; and, not install fixtures without consent. Whereas the landlords have the duties to ensure that the rented premises are vacant and in a reasonably clean condition on the occupation day; provide tenant with certain information namely rights and duties of a landlord and tenant under a tenancy agreement, landlord's full name and address for the service of documents; and an emergency telephone number to be used in the case of the need for urgent repairs; ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement; ensure that the rented premises are maintained in good repair; ensure that if an appliance, fitting or fixture provided by the landlord that uses or supplies water at the rented premises needs to be replaced, the replacement has at least a prescribed level of rating in a prescribed rating system; and, provide locks to secure all external doors and windows of the rented premises.
In the United States, in particular Oklahoma, there is a Residential Property Condition Disclosure Act which provides for an obligation of disclosing defects of the property to the buyer. The Act is an exception to the common law rule of “caveat emptor” or “buyer beware.” The disclosure is required if the seller is represented by a realtor. If the seller is not represented by a realtor, the disclosure is only required if requested by the buyer. The purchaser may file a civil action in District Court in the event of the seller’s failure to disclose to provide to the purchaser a disclaimer statement or a disclosure statement[10].
Protection on security of property for registered proprietor under NLC
There have been many cases of illegal land transfer and fraud in Malaysia. The National Land Code applies the Torrens title system which aims to make the Register of documents of title conclusive evidence of land ownership. The three principles underpinning the Torrens system are mirror principle, the curtain principle and the insurance principle. The mirror principle means that the register accurately and completely mirrors the state of title. The curtain principle means that the purchasers of land should not concern themselves with trusts and other interests lying behind the curtain of the register. These two principles are applicable in the Malaysian land law. The third principle is the insurance principle which means that the state provides guarantee to the title and the interests registered on it and provides for losses incurred as a result of errors in the registry.
In this regard, the NLC provides protection in term of security of property for registered proprietor under the indefeasibility of title provision namely Section 340 of NLC. Indefeasibility is defined as immunity from attack by adverse claim to the land or interest in respect of which a registered proprietor enjoys.[11] There are two types of indefeasibility namely immediate and deferred. Immediate Indefeasibility means that an immediate purchaser of title or interest will have indefeasible title notwithstanding that the title or interest was obtained pursuant to vitiating circumstances. Deferred Indefeasibility means that a subsequent purchaser of land acquired by means of fraud and/or forgery, were they found to be acting in good faith and have purchased the land for valuable consideration, would be afforded an indefeasible title to the land.
The Act specified under Section 340(2), three situations in which indefeasibility is not applicable. Section 340(2)(a) provides that the title or interest of any such person or body shall be defeasible in any case of fraud or misrepresentation to which the person, or any agent of the person, was a party or privy. In the case of Tai Lee Finance Co Sdn Bhd v Official Assignee & Ors[12], the learned judge decided that the title obtained through actual fraud, not constructive or equitable fraud, turned defeasible. Actual fraud is dishonesty or conscious disregard and violation of the right of other persons whereas constructive or equitable fraud is undue influence based on the relationship between the parties involved. If the fraud is committed by an agent, it is not required for the principal to have knowledge of the acts of his agent to render the title defeasible.[13]
Section 340(2)(b) of the Act further limit the applicability of indefeasibility when the title or interest of any such person or body was obtained by forgery, or by means of an insufficient or void instrument. The use of insufficient or void instrument by a purchaser for registration will only confer deferred indefeasibility. In the case of M&J Frozen Food Sdn Bhd v Siland Sdn Bhd, the learned judges found that the certificate issued by the Senior Assistant Registrar was ultra vires the statutory provision of the NLC and the title was unlawfully acquired by the purchaser and the finding by itself would have rendered the title of the purchaser defeasible.[14] The very fact of forgery suffices to make a registered title or interest defeasible irrespective of the absence of knowledge or implication of the immediate proprietor, chargee or lessee.[15]
Section 340(2)(c) further provides that the title or interest of any such person or body shall not be indefeasible where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law. In the case of Woon Kim Poh v Sa’amah bte Hj Kasim[16], the registration of a dealing in contravention of prohibition imposed by a caveat does not confer indefeasibility.
Subsequently, Section 340 (3) of NLC provides that where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in subsection (2), it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred, save for any title or interest acquired by any purchaser in good faith and for valuable consideration. The objective of this provision is to protect the interest of the subsequent purchaser who has no knowledge and was not involved with the illegal transfer. However that provision has created a confusion which resulted in a controversial decision in the case of Adorna Properties v Boonsom Boonyanit[17] in 2001. In that case, someone forged Boonsom Boonyanit’s signature and transferred the subject land to Adorna Properties. Adorna Properties had no knowledge of the forgery and had no reason to suspect that the instrument was forged. Boonsom Boonyanit challenged the transfer of title at the High Court and the Court found in favour of Adorna Properties on the basis that it fall within the proviso to section 340(3) of NLC. The Court of Appeal reversed the High Court’s decision and held that the title was defeasible under subsection 340(2) and that the proviso under subsection 340(3) had no application. The Federal Court agreed with the High Court and held that the proviso under subsection 340(3) was applicable and conferred immediate indefeasibility on Adorna Properties.
It took almost 10 years for the Court to revise the decision in the case of Tan Ying Hong v. Tan Siang Sang, Cini Timber Industrie Sdn Bhd and United Malayan Banking Corporation Bhd[18]. Tan Yin Hong was the registered owner of a piece of land in Kuantan. Tan Siang Sang used forged power of attorney to charge the land in favour of the United Malayan Banking Corp to secure loans amounting to RM300,000 for the Cini Timber Industries Sdn Bhd. Tan Yin Hong was not aware of the existence of such charges until the UMBC issued a notice of demand to him. The High Court found that the document of title was obtained by fraud or forgery. However, the High Court was bound by the decision in Adorna Properties and the UMBC was held to have obtained an indefeasible title to the land. Tan Yin Hong appealed to the Federal Court. It was held that Adorna Properties had been incorrectly decided. The proviso immediately after Section 340(3) of the NLC is directed towards s 340(3) alone and not to the earlier subsection. Although Section 340(3)(a) and (b) referred to the circumstances specified in Section 340(2), the application of the proviso was restricted to subsequent purchasers of the land.
While the Malaysia land legislation provides security of ownership, however, under Section 340 (3), it also gives immediate indefeasibility to the subsequent purchaser of land in dispute should the purchasing was made in good faith and for valuable consideration. Thus, the original registered owner of the land may lost the ownership of land without any economic compensation. Malaysia land administration does not provide the economic security in the form of protection from the economic aspect, therefore the risk of loss incurred by the landowner will not be compensated by the State Authority even though the stripping and loss of title was caused by the error of government officers.
Many countries have provided assurance fund to compensate those who lost their land due to fraud and forgery, omissions and errors in the land registration system. In Ontario, Canada, the Land Titles Assurance Fund (LTAF) was established under Part V of the Land Titles Act 1990 to compensate people who have lost money due to property fraud, omissions and errors in the land registration system. In addition to the financial loss, the claimant can also claim legal costs in relation to the claim and the claim must be made within six years from the time the victim suffered the loss.[19]
In Singapore, assurance funds have been established through legal provisions under the Part XVII of Land Title Act. Sources of insurance funds in Singapore are obtained through 5 per cent fees charged on each registration of land-related matters. This assurance fund established in Singapore is intended to provide compensation in the event of errors, omissions and misfeasance committed by the Registrar. The concept applied in relation to assurance funds in Singapore does not provide compensation for property acquired through fraud and counterfeiting because usually these crimes are committed by fraudsters and not the government at the stage of preparation and witnessing of an instrument and does not involve the Land Registrar[20].
While, in the United States, the Court has used the concept of constructive trust as a remedy to recover property or land acquired through fraud. Therefore, when the fraudster acquires a land title without involving a third party, the victim of land fraud has the right to take action with correction in the register and return of the land to him. In other words, if the property or land acquired by the fraudster through fraud then the fraudster in this case is considered a constructive trustee to the victim (landowner). The victim can cancel the contract and get back the land or value from the fraudster.[21]
Protection from errant developer
There have been many cases of developer’s failure or delay to deliver vacant possession of the parcel, house defects due to under quality construction, houses are not built according to plans and specifications. In this regard, the Housing Developers (Control and Licensing) Act 1966 (HDA 1966) provides some protection to the house buyers. Section 16B of HDA establishes a Tribunal for Homebuyers Claim to hear a claim from homebuyer for any loss suffered or any matter concerning his interests as a homebuyer. The Tribunal has the jurisdiction on a claim that is based on a cause of action arising from the sale and purchase agreement; the claim is lodged not later that 12 months from the date of the issuance of Certificate of Completion and Compliance; or the expiry of Defect Liability Period (DLP); or the date of termination of the sale and purchase agreement by either party; and the award sought is not exceed RM50,000. There are two types of claims that can be filed in TTPR, namely technical claims and non-technical claim. Technical claim includes quality defects; building material defects and houses are not built according to plans and specifications as stated in the sale and purchase agreement. Whereas non-technical claim includes compensation for delayed delivery of vacant property (Liquidated Ascertained Damages (LAD)); deposit return; and other claims arising from the sale and purchase agreement. However the Tribunal has no jurisdiction to hear claims pertaining to abandoned project; defamation; negligence; fraud by real estate agents; reclaim land / estate; disputes relating to rights under a will; goodwill disputes; disputes relating to trade secrets or other intellectual property rights; dispute between homeowner and tenant; disputes regarding the services provided by the lawyer who manages the sale and purchase of the house; design fault by the developer consultant; or disputes regarding the validity of the Certificate of Completion and Compliance.
Conclusion
Based on the discussion above, the land or house purchaser and tenant are not protected directly under the Consumer Protection Act and, therefore, the Tribunal Consumer Claim and the Ministry of Domestic Trade and Consumer Affairs have no jurisdiction on issues pertaining to land or house purchasers and tenant. Nonetheless, there are other tribunals such as Tribunal of Homebuyer Claim or Tribunal of Strata Management which could hear some of the complaints by the land or house purchaser and tenant.
Some comparisons made with legislations of other countries indicate that there are improvements that could be made to further strengthen the protection for the land or house purchaser and tenant. The repeal of Control of Rent Act 1966 (CRA) has left the tenant in Malaysia without adequate protection. The NLC does not provide comprehensive protection for tenant. A lot of issues pertain to relationship between tenant and landlord are not regulated and rely on the principle of common law and equity in absence of formal contract between them. In this regard, the Government is in the process of enacting the Residential Tenancy Act (RTA) which purportedly to be tabled in Parliament in 2021[22]. The Act is to be based on the Australian Residential Tenancy Act 1997 that is being used in Australian states, New South Wales and Victoria[23].
As for land or house purchaser, the introduction of assurance fund, Private Title Insurance and constructive trust mechanism are among approaches that could be introduced to protect from financial loss due to fraud and forgery of land ownership.
Table
1: Summary of protections available for land/house purchasers and tenants in
Malaysia and comparison with laws in other countries
|
Types of protections for consumer |
Consumer
related statutes in Malaysia |
Laws in other
countries |
|
Protection under consumer law |
Land is mostly excluded from the jurisdiction of
CPA. Nonetheless,
TCC has heard a complaint from a consumer, Kelik Anak Bayel, against a
developer, Sabu Development Sdn Bhd. The TCC’s decision was challenged at
High Cour but was dismissed on technical ground. |
In Australia,
Victoria Consumer Affair (VCA) is established under the Department of Justice and Community Safety, within the Victorian
government which have the functions among others to advise and educate
tenants, and landlords on their rights, responsibilities and changes to the
law and conciliate disputes between
tenants and landlords. The position of the Director of Consumer
Affairs is provided under Section 107 of the
Australian Consumer Law and Fair Trading Act 2012 |
|
Security of tenancy
|
Section 316 of National Land Code provides
endorsement mechanism for tenancy to be recognized and security of tenancy is
provided under NLC. Ex: case Than Kok Leong v Low Kim Hai |
Section 1 of the Rent (Scotland) Act 1984 provides a
security to a tenure of tenancy. Section 22 of the
Act goes further to criminalize unlawful eviction and harassment of the
occupier. A person guilty of the offence is liable on summary
conviction, to a fine not exceeding £
10,000 or to imprisonment for a term not exceeding six months or to both; and on conviction on indictment, to a fine or to imprisonment for a
term not exceeding two years or to both.
|
|
Control of
excessive rent
|
After the repeal of
Control of Rent Act 1966 (CRA) in 1997, the rental is based on the market rate
and determine at the absolute discretion of the landlord |
- The Rent (Scotland) Act
1984. provides the power to the Secretary of State to
make an order to specify the maximum amount of the rent payable under a
tenancy or restrict the total additional rental income which may be recovered
by a landlord under such a tenancy in any period. -
Under the Private Housing (Tenancies) (Scotland) Act 2016, tenants can
appeal to the Housing and Property Chamber, First Tier for Scotland if they
disagree with a rent increase. - Section 45 of the
Australia Residential Tenancy Act 1997 provides that a tenant may complain to
the Director of Consumer Affairs Victoria about excessive rent. |
|
Legal
obligation on homeowner/landlord
|
Strata
Management Act 2013 outlines the
responsibilities of the developer, joint-management body, management
corporation or subsidiary management corporation to maintain and repair in
respect of defect in a parcel, building or land and its common property. Section 102 of the Act established a Strata Management Tribunal with
the jurisdiction to hear a dispute on the failure to undertake the duties
prescribed by the Act or a dispute on cost or repairs in respect of defect.
|
- Section
18 of the Housing (Scotland) Act 2006 provides prescriptions on the duties of
a landlord whereby he provides a habitable and tenantable property and the
landlord is under a duty to give and maintain the premise in good conditions
throughout the tenancy period. - Section 59 to 71 of the Victorian
Residential Tenancies Act 1997 enunciated the general duties of
tenant and landlord. The landlords have the duties, among others, to ensure
that the rented premises are vacant and in a reasonably clean
condition on the occupation day; provide tenant with certain information namely rights and duties
of a landlord and tenant under
a tenancy agreement, landlord's full name and address for the
service of documents; and an emergency telephone number to be used in the
case of the need for urgent repairs; ensure that
the tenant has quiet enjoyment of the rented
premises during the tenancy agreement; ensure that
the rented premises are maintained in good repair, etc. - In the United States, in
particular Oklahoma, there is a Residential Property Condition Disclosure Act
which
provides for an obligation of disclosing defects of the property to the
buyer. |
|
Security of economic
for property loss |
Security of
property for registered proprietor provided under the Section 340 of NLC on
indefeasibility of title. However, there is no economic security in the event
of loss of property. |
- In
Ontario, Canada, the Land Titles Assurance Fund (LTAF) was established under
Part V of the Land Titles Act 1990. - In
Singapore, assurance funds have been established through legal provisions
under the Part XVII of
Land Title Act. - In
the United States, the Court has used the concept of constructive trust as a
remedy to recover property or land acquired through fraud. |
|
Claim against
developer |
Section 16B of Housing
Development Act establishes a Tribunal for Homebuyers Claim to hear a claim from
homebuyer for any loss suffered or any matter concerning his interests as a
homebuyer. |
- |
------------------------------------
[1] Office of the United Nation High Commissioner for Human Rights, Factsheet No. 21: The Rights to Adequate Housing, p.3, <https://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf> accessed on 22 January 2021.
[2] Azlinor Sufian, ‘A Conceptual Study on Landlord and Tenant Law in Peninsular Malaysia: A Focus on Private Residential Tenancy’, International Journal of Real Estate Studies, Volume 7, Number 1, p. 14, 2012, <https://www.utm.my/intrest/files/2013/08/A-CONCEPTUAL-STUDY-ON-LANDLORD-AND-TENANT-LAW-IN-PENINSULAR-MALAYSIA-A-FOCUS-ON-PRIVATE-RESIDENTIAL-TENANCY-1.pdf> accessed on 21 January 2021.
[3] Sabu Development Sdn Bhd v Kelik Anak Bayel [2007] 8 MLJ 264
[4] Consumer Affairs Victoria website, <https://www.consumer.vic.gov.au/about-us/who-we-are-and-what-we-do/our-role-scope-and-policies>, accessed on 27 January 2021.
[5] Than Kok Leong v. Low Kim Hai (1983)1 MLJ 187
[6] Luggage Distributors (M) Sdn Bhd v Tan Hor Teng (1995) 1 MLJ 719
[7] Note 2, p.17.
[8] https://www.lawyerment.com/library/kb/Real_Estate/Landlord_and_Tenant/1349.htm
[9]Rent and the Housing and Property Chamber, https://scotland.shelter.org.uk/get_advice/advice_topics/paying_for_a_home/paying_rent/rent_and_the_housing_and_property_chamber
[10] Oklahoma’s Residential Real Estate Disclosure Act, https://www.ballmorselowe.com/blog/oklahomas-residential-real-estate-disclosure-act, accessed on 27 January 2021.
[11] Frazer v Walker & Ors (1967) 1 AC 569
[12] Tai Lee Finance Co. Sdn Bhd v Official Assignee & Ors (1983) 1 MLJ 81
[13] Abu Bakar Ismail & Anor V. Ismail Husin & Ors &Other Appeals (2007) 3 CLJ 97
[14] M & J Frozen Food Sdn Bhd & anor v Siland Sdn Bhd & anor (1994) 1 MLJ 294
[15] Ocbc Bank (M) Bhd V Pendaftar Hakmilik, Negeri Johor Darul Takzim (1999) 2 MLJ 511
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[19] Government of Ontorio official website, Compensation for loss from the Land Titles Assurance Fund, https://www.ontario.ca/page/compensation-loss-land-titles-assurance-fund#:~:text=Under%20the%20Land%20Titles%20Act,of%20the%20land%20registration%20system, accessed on 27 January 2021.
[20] Land Title Acts, https://sso.agc.gov.sg/Act/LTA1993?ProvIds=P1XVII-, accessed on 27 January 2021.
[21] David Gray Carlson, Constructive trust and Fraudulent Transfer: When Worlds Collide, Marquette Law Review, Vol. 103, 2019, <https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3485182_code1717611.pdf?abstractid=3485182&mirid=1 accessed on 27 January 2021.
[22] MIEA supports Residential Tenancy Act, <https://www.thestar.com.my/business/business-news/2020/12/23/miea-supports-residential-tenancy-act>, accessed on 27 January 2021.
[23] Ryan Pasupathy, Residential Tenancy Act Malaysia 2020, <https://blog.rentandreturns.com/residential-tenancy-act/>, accessed on 27 January 2021.
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