Conveyancing Lawyer in Malaysia: What Does a Conveyancing Lawyer Do?
A conveyancing lawyer’s role depends on whether the lawyer is acting for the purchaser, vendor, developer, bank or another party to the transaction as well as on the nature of the property transaction.
The following are some of the key areas where a conveyancing lawyer may assist.
1. Conducting Title and Property Searches
Before commencing a property transaction, it is important to understand the legal status of the property.
Depending on the circumstances, a conveyancing lawyer may investigate matters such as:
- the registered proprietor;
- title particulars;
- restrictions in interest;
- registered charges;
- private caveats;
- existing dealings;
- express conditions affecting the land; and
- other matters appearing from the relevant land records.
This is particularly important where the transaction involves a subsale property.
A purchaser should not simply assume that the property can be transferred without checking its legal status.
2. Preparing and Reviewing the Sale and Purchase Agreement
The Sale and Purchase Agreement (SPA) is one of the most important documents in a property transaction.
The SPA normally sets out matters such as:
- the purchase price;
- deposit;
- completion period;
- conditions of sale;
- payment arrangements;
- vacant possession;
- apportionment of outgoings;
- default and remedies;
- completion requirements; and
- other rights and obligations of the purchaser and vendor.
For a subsale transaction, the terms of the SPA may need to be negotiated between the parties.
One of the most common misconceptions about an SPA is that it is simply a standard contract that requires little or no consideration or negotiation.
The Malaysian Bar has noted that purchasers should seek clarification from their solicitor before signing an SPA and whenever amendments are made to the agreement.
Why this matters
A property transaction can involve a substantial amount of money.
A clause that appears to be standard may have significant consequences if the transaction is delayed, if the vendor cannot provide vacant possession, if there is an existing charge over the property or if one party fails to comply with the SPA.
A conveyancing lawyer should therefore explain the legal implications of the transaction to the client rather than simply treating the SPA as a form to be signed.
3. Buying a Property in Malaysia
If you are purchasing a property, your conveyancing lawyer may assist with the legal process from the initial documentation through to completion.
Depending on the transaction, this may include:
Step 1 — Review the property
Your lawyer reviews the available property and transaction documents and identifies relevant legal issues.
Step 2 — Title and searches
The relevant title and land information is checked.
Step 3 — SPA
The SPA is prepared, reviewed and signed.
Step 4 — Financing
If you are obtaining a bank loan, the relevant financing documentation will need to be completed.
Step 5 — Stamping and registration
The relevant instruments and documents are stamped and presented for registration where applicable.
Step 6 — Completion
The balance purchase price is dealt with in accordance with the SPA and the necessary documents are completed.
Step 7 — Transfer / assignment
Depending on the status of the property, the relevant transfer or assignment process is completed.
The exact procedure and timeline will depend on the nature of the property and transaction.
4. Selling a Property in Malaysia
A vendor’s conveyancing lawyer assists the seller in completing the legal sale of the property.
Before selling, it is useful for the vendor to have relevant documents ready, including documents relating to the title, existing financing and property outgoings.
A vendor’s solicitor may assist with:
- reviewing the title;
- preparing the SPA;
- negotiating the terms of the transaction;
- obtaining the redemption statement from the vendor’s bank;
- dealing with the purchaser’s solicitor;
- dealing with the vendor’s bank;
- attending to CKHT matters;
- arranging discharge of the existing charge where applicable;
- obtaining relevant documents and clearances;
- dealing with the balance purchase price; and
- completing the transfer or assignment.
If the vendor is overseas, additional arrangements may also be required for execution of documents, identification, witnessing, power of attorney and completion.
Read also: I Own a Property in Malaysia but I Am Overseas. How Do I Sell It?
5. Subsale Property Transactions
A subsale occurs when a purchaser buys a property from an existing owner rather than directly from a developer.
Subsale transactions can involve additional legal issues.
For example:
- Does the property have an individual or strata title?
- Is the title still charged to the vendor’s bank?
- Is there a restriction in interest?
- Is state consent required?
- Is there a caveat?
- Has the vendor paid the relevant outgoings?
- Is there an existing tenancy?
- Does the purchaser require financing?
- Does the property require vacant possession?
- Are there outstanding maintenance charges?
- Are there arrears of quit rent or assessment?
- Is the property subject to a restriction or condition affecting the sale?
These matters should ideally be identified early.
A conveyancing lawyer will coordinate with the parties, banks, land office and other relevant parties to work towards completion of the transaction.
6. Buying Property Directly From a Developer
Buying a new property from a developer is different from purchasing a subsale property.
Depending on the property and applicable legislation, the transaction may be governed by prescribed statutory SPA forms and requirements.
For example, certain residential properties within the scope of the Housing Development (Control and Licensing) Act 1966 may use prescribed forms of SPA.
A purchaser should nevertheless understand what they are signing.
Important matters may include:
- purchase price;
- progressive payments;
- financing;
- delivery of vacant possession;
- late delivery;
- defects;
- maintenance charges;
- sinking fund;
- common property;
- transfer documentation; and
- the eventual issuance or registration of title.
7. What Happens If the Property Is Charged to a Bank?
This is extremely common.
For example, a vendor may have purchased a property using a housing loan. The original title or relevant security documents may therefore be held by the vendor’s bank.
When the property is sold, the vendor’s solicitor will generally need to coordinate the redemption of the existing loan.
The transaction may therefore involve:
Purchaser → Purchaser’s Bank → Purchaser’s Solicitor → Vendor’s Solicitor → Vendor’s Bank
The redemption sum is dealt with as part of the completion process, and the relevant title/security documents are then released so that the transaction can proceed.
This is one reason why a conveyancing transaction can take considerably more work than simply signing the SPA.
8. CKHT / RPGT Matters
The disposal of Malaysian real property may have Real Property Gains Tax (RPGT) implications.
The relevant CKHT filings depend on the circumstances of the transaction.
For example, HASiL currently identifies CKHT 1A for disposal of real property, while CKHT 3 may be used for certain disposals that are not subject to tax or are exempt. The relevant forms generally have to be submitted within the prescribed statutory period.
There may also be obligations on the purchaser to retain and remit the prescribed amount in accordance with the RPGT legislation.
Your conveyancing lawyer can assist with the relevant CKHT documentation and coordinate the RPGT-related requirements as part of the transaction.
Important: RPGT treatment depends on the particular circumstances of the disposal, including the identity and status of the disposer and the nature and holding period of the property. Specific tax advice should be obtained where necessary.
9. Stamping and Registration
A property transaction does not end when the SPA is signed.
Various documents may need to be:
- adjudicated;
- stamped;
- executed;
- presented for registration; and
- lodged with the relevant authority.
The exact documents depend on the transaction.
For example, a transaction may involve:
- Memorandum of Transfer;
- Deed of Assignment;
- charge documents;
- discharge documents;
- loan/security documentation; and
- other instruments or supporting documents.
The conveyancing solicitor coordinates these steps to help ensure that the legal documentation is properly completed.
10. Vacant Possession
Where the SPA requires the vendor to deliver vacant possession, this is an important part of the transaction.
Vacant possession may involve more than simply handing over the keys.
Depending on the terms of the SPA and circumstances, issues may arise concerning:
- existing tenants;
- occupants;
- removal of belongings;
- access to the property;
- outstanding utilities;
- maintenance charges;
- assessment;
- quit rent; and
- the condition in which possession is to be delivered.
The exact requirements should be determined by reference to the SPA.
11. Do I Need My Own Conveyancing Lawyer?
This is one of the most common questions we receive.
The short answer is: it depends on the transaction and your role.
Where you are entering into a significant property transaction, having a solicitor who acts specifically for you can be important.
For example, a purchaser’s solicitor owes professional duties to the purchaser. A vendor’s solicitor acts for the vendor.
The Malaysian Bar has emphasised the importance of parties being properly represented and notes that each party’s solicitor is responsible for protecting that client’s interests.
This becomes particularly important where the transaction involves:
- complicated SPA terms;
- unusual payment arrangements;
- an existing charge;
- restrictions in interest;
- consent requirements;
- tenancy issues;
- co-ownership;
- overseas parties;
- companies;
- commercial property; or
- disputes between the parties.
12. How Much Does a Conveyancing Lawyer Cost in Malaysia?
Legal fees for conveyancing work are generally governed by the applicable rules and remuneration framework, including the Solicitors’ Remuneration Order where applicable.
The total amount payable may include more than the solicitor’s professional fee.
Depending on the transaction, there may also be:
- stamp duty;
- registration fees;
- search fees;
- land office fees;
- consent fees;
- bank-related charges;
- disbursements; and
- other transaction expenses.
The actual amount depends on the nature and value of the transaction and the work required.
A good conveyancing quotation should therefore distinguish between professional fees and disbursements.
13. How Long Does Conveyancing Take in Malaysia?
There is no single timeframe that applies to every property transaction.
A straightforward transaction may proceed relatively quickly, while other transactions can take substantially longer.
Delays may arise from:
- bank financing;
- redemption of an existing loan;
- state authority consent;
- restrictions in interest;
- incomplete documentation;
- land office processing;
- outstanding charges;
- caveats;
- title issues;
- developer documentation;
- CKHT matters; or
- issues involving the parties themselves.
This is why a conveyancing lawyer’s role is not simply to prepare documents. The solicitor also needs to coordinate the various stages of the transaction and identify issues that may affect completion.
14. Commercial Property and Corporate Conveyancing
Conveyancing is not limited to residential houses and condominiums. A conveyancing lawyer may also act in transactions involving shoplots, commercial buildings, offices, industrial properties, development land and other properties acquired or disposed of by companies.
In fact, corporate property transactions can be considerably more complex than ordinary residential transactions. They may involve corporate approvals, financing arrangements, due diligence, existing tenancies, restrictions in interest, conditions imposed by the relevant authorities and other commercial considerations.
For companies acquiring or disposing of property, it is therefore important to engage a lawyer who understands not only conveyancing but also the commercial and corporate aspects of the transaction.
We also assist with transactions involving:
- shoplots;
- commercial buildings;
- offices;
- industrial properties;
- land;
- investment properties;
- corporate property acquisitions;
- corporate property disposals;
- leases and tenancy arrangements; and
- property transactions involving companies.
Commercial transactions can involve additional considerations such as corporate approvals, due diligence, financing, conditions precedent, tenancy arrangements and the structure of the transaction.
For companies acquiring or disposing of significant property assets, legal advice should ideally be obtained before the transaction is committed.
15. Property Transactions Involving Co-Owners
Property owned by two or more individuals can create additional legal considerations.
For example:
- What happens if one co-owner wants to sell?
- Can one co-owner sell without the other?
- What happens if the co-owners disagree?
- Can one co-owner buy out the other?
- How should rental income be dealt with?
- What happens if one co-owner occupies the property?
- Can the court order the sale of jointly owned property?
These matters can move beyond ordinary conveyancing and into property dispute litigation. You
If you are already in a dispute with a co-owner, you should obtain legal advice before signing a sale document or agreeing to a proposed arrangement.
Read also: Jointly Owned Property in Malaysia: Rights, Sale and Co-Owner Disputes
Why Choose Tam Yuen Hung & Co.?
A property transaction may represent one of the largest financial commitments an individual or company makes.
Our approach is to look beyond simply preparing the documents.
We assist clients with the legal and practical aspects of property transactions, including:
Property Sale & Purchase
Assistance with residential and commercial property transactions.
Subsale Transactions
Legal assistance for purchasers and vendors buying or selling properties from existing owners.
Developer Transactions
Advice and assistance in property purchases involving developers.
Commercial Property
Legal assistance for shoplots, commercial properties, land and corporate property transactions.
Property Disputes
Advice where conveyancing issues overlap with disputes involving co-owners, tenants, vendors or purchasers.
Overseas Property Owners
Assistance to owners who are outside Malaysia and need to sell or deal with Malaysian property.
Frequently Asked Questions
Do I need a conveyancing lawyer to buy property in Malaysia?
Yes. If you are buying property in Malaysia, you will generally need a solicitor to prepare and attend to the legal documentation for the transaction, including the Sale and Purchase Agreement (“SPA”) and the relevant transfer or assignment documents.
Can a conveyancing lawyer handle my property dispute?
Not every property dispute is a conveyancing matter. Some disputes may require civil litigation or other court proceedings.
A lawyer with both property and litigation experience may be particularly useful where a transaction has developed into a dispute.
Can a conveyancing lawyer help if I am overseas?
Yes. Depending on the circumstances, arrangements can be made for execution of documents, identification, witnessing, power of attorney and other requirements.
The process should be discussed with your solicitor at an early stage because an overseas vendor or purchaser may require additional arrangements.
Can a conveyancing lawyer act for both the buyer and seller?
No. A conveyancing lawyer should not act for both the purchaser and the vendor in the same sale and purchase transaction.
The purchaser and vendor have different interests in the transaction. The purchaser’s solicitor acts to protect the purchaser’s interests, while the vendor’s solicitor acts to protect the vendor’s interests.
When should I appoint a conveyancing lawyer?
Ideally, before signing the SPA or committing yourself to the transaction.
Early legal advice can help identify title issues, restrictions, financing issues and contractual risks before they become difficult or expensive to resolve.
Can I request a quotation from a solicitor before appointing him or her?
Yes. You can request a quotation from a solicitor before deciding whether to appoint the solicitor to act for you in a property transaction.
It is advisable to understand the likely legal fees, disbursements and other transaction costs before appointing your conveyancing lawyer. You may provide the solicitor with details of the property and transaction, such as the purchase or sale price, whether the property is subject to a bank loan, and whether it is a subsale or a purchase from a developer.
The solicitor can then provide an estimated quotation based on the information provided. However, the final fees and disbursements may vary if additional work or unforeseen issues arise during the transaction. You are not obliged to appoint a solicitor merely because you have requested or received a quotation.
Can I choose my own conveyancing lawyer?
Yes, you are free to choose your own conveyancing lawyer. You do not have to appoint a lawyer recommended by the property agent, developer, bank seller or any other party. You may approach a conveyancing lawyer of your choice and request a quotation before deciding whether to appoint the lawyer.
What happens after I sign the SPA?
Signing the SPA is not the end of the property transaction. It does not, by itself, mean that you have successfully completed the purchase or sale of the property. Your conveyancing lawyer will still continue to attend to matters such as the payment of the balance purchase price, stamping and registration of the relevant documents, obtaining any necessary consent, redemption of the vendor’s existing loan and other completion requirements.
Once the relevant requirements have been fulfilled, the transaction can proceed to completion and the purchaser can take possession of the property in accordance with the SPA.
How long does a SPA take to complete?
A straightforward subsale transaction usually takes about 3 months from the date of the SPA, assuming the property is freehold and is of no complications. However, the transaction may take longer where bank financing, redemption of an existing loan, state authority consent, title issues or other approvals are involved. Your conveyancing lawyer will advise you on the applicable completion period and the expected timeline based on the particular transaction.
Do I need a lawyer for my bank loan?
Yes, when you purchase a property with a bank loan, you will generally require two sets of legal services from your conveyancing lawyer: one for the SPA and another for the bank loan. You will need two legal services from your conveyancing lawyer., one is for the SPA and another is for the bank loan. The solicitor will also assist in ensuring that the necessary documentation and conditions are fulfilled so that the bank can release the loan sum in accordance with the transaction.
Speak to a Conveyancing Lawyer in Malaysia
Buying or selling property? Our conveyancing lawyers can assist you with the legal documentation and completion process, whether you are purchasing a residential property, selling a subsale, acquiring a commercial property or dealing with a property transaction while overseas.
Contact us to discuss your property transaction or request a quotation.
