This case is also about commission.In one of my earlier posts a nephew was held to entitle to the payment of commission from his uncles(sellers). The reason given by the Court was as long as he did not carry out the business of an estate agent ,as long as the deal was an 'isolated act',in another word he must not be seen to carry out the business of an estate agent. Then he will be entitled to the commission.
Here we have a case where the introducer was held not entitled to the commission. The reason given by the Court was that the introducer was in the business of selling properties. In short what he did fit the description of the job of an estate agent.
Before this introducer made it known to the seller that it had a buyer for its property,the seller upon the request of the introducer had agreed to pay the sum of One million as a finder's fee to the introducer.
The property was successfully sold through the introduction of the introducer.The seller refused to pay the introducer the one million as finder's fee.
A finder's fee is not much different from a commission.
The seller resisted the introducer's claim. Evidence was brought to the Court to show that the introducer had been in the business of selling and inviting people to buy properties.The introducer prior to this case had already successfully concluded many huge land deals as a introducer.It was said that the introducer was caught under ss 22B(1) and 22C(1) of the Act (Valuers,Appraisers and Estate Agents Act 1981.
Anyone found to carry out the business of an estate agent is required to have a license for that purpose.The Court held that the introducer was in the business of an estate agent. Since it did not have a estate agent's license he was held not entitled to the finder's fee of one million.
Friday, August 3, 2007
Friday, July 27, 2007
An Open Contract
I would like to quote from a well-known law book about the definition of open contract:
If a contract for sale specifies merely the names of the parties,a
description of the property and a statement of the price,it is
called an open contract.When this form of contract is made,the parties
are bound by certain obligations implied by the law.
This quote comes from Dr.Geoffrey Cheshire in the 10th edition of The Modern Law of Contract.
At hand is a case where the following note(handwritten) had been signed by three parties being the intended seller,buyer and a witness.
IN consideration of the sum of Rm22,000.00 only being 10% of the selling
price for the piece of xxxxxxxxxxxx The total selling price for the
whole piece is Rm220,000.00 only.Balance amount Rm198,000.00 only.
I namely xxxxxxxxxxxxxxxxx,i/c xxxxxxxx ressiding at xxxxxxx do hereby
give my Irrevocable Consent To Sell the abovementioned property to
Mr.xxxxx i/c.xxxxxxxxxx .
The duration for the completion of the sale is Three(3) plus 1 month@
10% interest per annum. The signing of the Sales and Purchase Agreement
is to be signed upon the Official Searched(sic) at the Land Office.
Dated this x day in the month of xxx,xxxx.
Sgd. sgd. sgd.
x x x x x x x x x
(Vendor) (Purchaser) (Witness)
As a practising lawyer I would think that this is no child's play. Remember,10% of
the sale price had been paid.No right thinking person would dish out such a big sum if he was not serious about the whole deal.To me this note had done what it had to do ie :to express the simplest desire of the Parties ,it was that the deal was on.
After the note was signed things did not proceed as it originally intended, one of the parties changed its mind.The seller did not want to sell.Even after a few letters from the buyer's solicitors.
At first the seller rejected the draft agreement because there was a power of attorney clause. Subsequently the power of attorney clause was removed, the seller still refused to sign the agreement.
The buyer brought the matter to Court.Seller put up a few defences,the High Court judge after hearing the arguments of both sides ruled that the buyer had no right to force the seller to sell.Among the reasons given were there was uncertainty as to the terms of the agreement, that the buyer took unfair advantage of the seller.However when this matter went up for appeal.The jugde's reasoning was not accepted by the appeal court judges.The judge's judgement was examined thoroughly
by the appeal court.The appeal court found there was no justification for the judge to refuse specific performance to buyer,in other word the seller was ordered by the appeal court to proceed with the sale.The seller also had to pay whatever damages that the buyer had sufferred for the delay.
If a contract for sale specifies merely the names of the parties,a
description of the property and a statement of the price,it is
called an open contract.When this form of contract is made,the parties
are bound by certain obligations implied by the law.
This quote comes from Dr.Geoffrey Cheshire in the 10th edition of The Modern Law of Contract.
At hand is a case where the following note(handwritten) had been signed by three parties being the intended seller,buyer and a witness.
IN consideration of the sum of Rm22,000.00 only being 10% of the selling
price for the piece of xxxxxxxxxxxx The total selling price for the
whole piece is Rm220,000.00 only.Balance amount Rm198,000.00 only.
I namely xxxxxxxxxxxxxxxxx,i/c xxxxxxxx ressiding at xxxxxxx do hereby
give my Irrevocable Consent To Sell the abovementioned property to
Mr.xxxxx i/c.xxxxxxxxxx .
The duration for the completion of the sale is Three(3) plus 1 month@
10% interest per annum. The signing of the Sales and Purchase Agreement
is to be signed upon the Official Searched(sic) at the Land Office.
Dated this x day in the month of xxx,xxxx.
Sgd. sgd. sgd.
x x x x x x x x x
(Vendor) (Purchaser) (Witness)
As a practising lawyer I would think that this is no child's play. Remember,10% of
the sale price had been paid.No right thinking person would dish out such a big sum if he was not serious about the whole deal.To me this note had done what it had to do ie :to express the simplest desire of the Parties ,it was that the deal was on.
After the note was signed things did not proceed as it originally intended, one of the parties changed its mind.The seller did not want to sell.Even after a few letters from the buyer's solicitors.
At first the seller rejected the draft agreement because there was a power of attorney clause. Subsequently the power of attorney clause was removed, the seller still refused to sign the agreement.
The buyer brought the matter to Court.Seller put up a few defences,the High Court judge after hearing the arguments of both sides ruled that the buyer had no right to force the seller to sell.Among the reasons given were there was uncertainty as to the terms of the agreement, that the buyer took unfair advantage of the seller.However when this matter went up for appeal.The jugde's reasoning was not accepted by the appeal court judges.The judge's judgement was examined thoroughly
by the appeal court.The appeal court found there was no justification for the judge to refuse specific performance to buyer,in other word the seller was ordered by the appeal court to proceed with the sale.The seller also had to pay whatever damages that the buyer had sufferred for the delay.
Tuesday, July 24, 2007
Sale of Land and Commission
If you help your friend to find a buyer for a piece of property that he wants to sell.He puts up a note saying that you will be entitled to 2% commission of the sale price.You are not a full-time broker,you just help him for friend's sake. Are you legally entitled to the commission? After the sale could your friend turn around and say that you are not entitled since you are not a licensed estate agent? What follows is a case in point.
In this case a few co-owners who were related instructed their nephew to sell a few pieces of lands on their behalf.A brokerare contract was drawn out where they agreed to pay their nephew 2% of the sale price.This nephew of theirs was not a broker.He did not earn a living by doing brokerage job.
The nephew did get a buyer for them and the sale was completed. Now they turned around refusing to pay the nephew 2% of the purchase price solely on the ground that the nephew 's claim was illegal since he had no license for doing brokerage job.Their lawyers based their argument on the provisions of the Valuers,Appraisers and Estate Agents Act 1981.
The nephew brought the matter to Court and won.The uncles appealed to the higher Court.The Court of Appeal dismissed their appeal.
The Court held that as long as you do not act or practise as an estate agent,which means the business of selling and leasing of properties, occasionally acts as a middleman in the sale of property will not make you an estate agent , you are therefore entitled to the commisssion. You will not be entitled to the commission if all along you have been acting as a broker, and it is your full time job and you do not possess an estate agent license.
In this case a few co-owners who were related instructed their nephew to sell a few pieces of lands on their behalf.A brokerare contract was drawn out where they agreed to pay their nephew 2% of the sale price.This nephew of theirs was not a broker.He did not earn a living by doing brokerage job.
The nephew did get a buyer for them and the sale was completed. Now they turned around refusing to pay the nephew 2% of the purchase price solely on the ground that the nephew 's claim was illegal since he had no license for doing brokerage job.Their lawyers based their argument on the provisions of the Valuers,Appraisers and Estate Agents Act 1981.
The nephew brought the matter to Court and won.The uncles appealed to the higher Court.The Court of Appeal dismissed their appeal.
The Court held that as long as you do not act or practise as an estate agent,which means the business of selling and leasing of properties, occasionally acts as a middleman in the sale of property will not make you an estate agent , you are therefore entitled to the commisssion. You will not be entitled to the commission if all along you have been acting as a broker, and it is your full time job and you do not possess an estate agent license.
Landlord and Tenant
Can a Landlord take the law into his own hands evicting his tenant who has been arrears in payment of rentals?
We all understand that it is very cumbersome to see a lawyer to apply for a Court order to remove the tenant from our property.
Here is a case where A rent a factory from B.A is in arrears of rental payment for two months.B locks up the factory and forces A to leave the factory.
A ,not happy with what B does makes an application to the Court to restrain B from doing so.
The Court holds that B as a Landlord has no right to force A out of the rented premises in this way.A has the right to take back and move in again until B applies proper procedure to evivt him,that is to go to Court applies for a Court order under s.7(2) of the Specific Relief Act 1950.
I have seen tenancy agreement where it is stated that the landlord has the right to break in in the event of non payment of rental. These clauses are not valid in the eyes of the law.
We all understand that it is very cumbersome to see a lawyer to apply for a Court order to remove the tenant from our property.
Here is a case where A rent a factory from B.A is in arrears of rental payment for two months.B locks up the factory and forces A to leave the factory.
A ,not happy with what B does makes an application to the Court to restrain B from doing so.
The Court holds that B as a Landlord has no right to force A out of the rented premises in this way.A has the right to take back and move in again until B applies proper procedure to evivt him,that is to go to Court applies for a Court order under s.7(2) of the Specific Relief Act 1950.
I have seen tenancy agreement where it is stated that the landlord has the right to break in in the event of non payment of rental. These clauses are not valid in the eyes of the law.
Monday, July 23, 2007
About Land Caveat
Under what circumstances can a person enter a caveat on a piece of land? The word 'caveat' is a Latin term which means 'let him beware'.
Here a shareholder of a Company entered caveat on lands which was about to be sold by the bank. The bank made an application to remove the said caveat.
The Court held that the Managing Director or shareholder of a Company had no right to enter caveat on the lands. It was held that the Company and the shareholders were two different identities. The lands were registered in the name of the Company.
The Court held that in order to determine whether a person has the right to enter caveat there are three steps to follow:(1) Whether the person has shown that he has a caveatable interest on the lands(2) After he shows that he has an caveatable interest, he must also show that there is a serious issue to be tried.He must state the reason for doing so, it must be a strong reason, if he can pass these two steps the next step to be considered by the Court is (3) whether the balance of conveniece or justice lies in favour of the caveat remaining on the register pending the disposal of the the case.
In this case the reason for entering the caveat was because the shareholder was dissatified with the price put up by the bank on the lands,they thought that it was below market value. But they failed to show strong evidence that the price was an undervalue.In this case the shareholder had never passed the first step.
The Court finally held that the shareholder had no right to enter the caveat.
Here a shareholder of a Company entered caveat on lands which was about to be sold by the bank. The bank made an application to remove the said caveat.
The Court held that the Managing Director or shareholder of a Company had no right to enter caveat on the lands. It was held that the Company and the shareholders were two different identities. The lands were registered in the name of the Company.
The Court held that in order to determine whether a person has the right to enter caveat there are three steps to follow:(1) Whether the person has shown that he has a caveatable interest on the lands(2) After he shows that he has an caveatable interest, he must also show that there is a serious issue to be tried.He must state the reason for doing so, it must be a strong reason, if he can pass these two steps the next step to be considered by the Court is (3) whether the balance of conveniece or justice lies in favour of the caveat remaining on the register pending the disposal of the the case.
In this case the reason for entering the caveat was because the shareholder was dissatified with the price put up by the bank on the lands,they thought that it was below market value. But they failed to show strong evidence that the price was an undervalue.In this case the shareholder had never passed the first step.
The Court finally held that the shareholder had no right to enter the caveat.
Saturday, July 21, 2007
Malay Customary Land (MCL)
I am quite sure you have heard about MCL lands. These are lands which can only be owned by Malays or what under the law known as certificated person though he or she is not a Malay. A certificated person is a person who is being granted a certificate from Governor-in-Council of Malacca.
Recently the Federal Court rules that only a Malay or a certificated person can hold title to MCL land or can derive benefits from the land.
The name of this case is Robert Lee & Anor v.Wong Ah Yap & Anor. This case is about a piece of MCL land which was acquired by the State Government,prior to the acquisition the land was 'sold' (through some informal sales agreement) by a certificated owner to a non-Malay, this non Malay did not make effort to apply for a certificate to qualify for the land although he had 'paid' for the MCL land.Since he did not apply for the certificate the Federal Court says that the so -called 'purchase' by him was not valid.
The issue at hand is ,the State after the acquisition paid compensation to the various parties in their various capacities, some were occupiers of the land some were owners of houses. The owner of the land of course was also being compensated. The point now is who is the actual owner of the land? The Federal Court held that the 'sale' was not valid therefore the 'purchaser' is not entitled to the compensation. The compensation money thus goes back to the original 'seller' who was a certificated person. Both the seller and purchaser had passed away,the case is being represented by thier executors.
This case reminds us of the seriousness of the intention of the Court to strictly applying the law notwithstanding the fact that there are many efforts tryng to circumvent it.
Recently the Federal Court rules that only a Malay or a certificated person can hold title to MCL land or can derive benefits from the land.
The name of this case is Robert Lee & Anor v.Wong Ah Yap & Anor. This case is about a piece of MCL land which was acquired by the State Government,prior to the acquisition the land was 'sold' (through some informal sales agreement) by a certificated owner to a non-Malay, this non Malay did not make effort to apply for a certificate to qualify for the land although he had 'paid' for the MCL land.Since he did not apply for the certificate the Federal Court says that the so -called 'purchase' by him was not valid.
The issue at hand is ,the State after the acquisition paid compensation to the various parties in their various capacities, some were occupiers of the land some were owners of houses. The owner of the land of course was also being compensated. The point now is who is the actual owner of the land? The Federal Court held that the 'sale' was not valid therefore the 'purchaser' is not entitled to the compensation. The compensation money thus goes back to the original 'seller' who was a certificated person. Both the seller and purchaser had passed away,the case is being represented by thier executors.
This case reminds us of the seriousness of the intention of the Court to strictly applying the law notwithstanding the fact that there are many efforts tryng to circumvent it.
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