Legal Issues in the rehabilitation of abandoned housing projects of the liquidated housing-developer-companies in Peninsular Malaysia

Abandoned housing projects is one of the biggest problems in the housing industry in Peninsular Malaysia. Even though since the Independence days in 1957, the Malaysian Government have provided laws and policies to govern housing industry, yet abandoned housing projects problem is still an unsettled issue until today.The real victims are the purchasers themselves.Usually when a housing developer company is wound up, the affair and business of the company are taken over either by the private liquidator or provisional liquidator or the official Receiver (OR) under the Department of Insolvency.The liquidator may rehabilitate the abandoned projects left by the wound up housing developer companies, if the projects are viable for rehabilitation with the approval of the creditors, contributories, the committee of inspection and the court and that there is adequate fund to finance the rehabilitation. Otherwise, if the project is not viable, particularly because there are insufficient funds to run the rehabilitation, the projects may be stalled forever without any prospects for rehabilitation, to the detriment of the purchasers. This article discusses the law and practice in the rehabilitation of abandoned housing projects in Peninsular Malaysia of the wound-up-housing-developer-companies.At the ending part of this article the author proposes certain suggestions for facing the problems of abandoned housing projects of the wound up housing developer companies and their rehabilitation in Peninsular Malaysia

Wakaf in Malaysia: It legal history

Islamic laws had existed and were well entrenched in the Malay archipelagos since the coming of Islam in the 13th century.A rock inscripted in Jawi (the indigenous Malay's version of the Arabic writings) found at an adjacent village (Kampung Buluh at Sungai Teresat, Terengganu), dated 1302 AD or 702 AH is proof to these facts. Since the 13th century, it is believed that Islamic laws had already played a comprehensive part in the administration of the local communities' criminal justice system such as in family law, criminal law, and land law, and included as well the procedural laws and the law of evidence.This can be further be proven and buttressed by the laws that were adopted and practiced in the several states that comprised Malaya such as Melaka, Pahang, Kedah, Johore and Perak in the 13th, 14th, 15th, 16th, 17th and 18th centuries before the colonialist's master in the late 18" century and onwards began to meddle with the local laws.The British gradually introduced her English laws and equity, first through the charter of justices in Penang, Melaka and Singapore, and later through the enactment of civil law ordinances in the Malay states, in Sabah and Sarawak, as well in the early 191h century.The onslaught of English laws and equity by the colonial master had the effect of marginalising Islamic laws, and hitherto, through the passage 01 time, Islamic laws then became the secondary laws in the Malaya. Islamic law being the law of the land in Malaya is never disputed.This was illustrated in the case of Ramah v Laton where the English judge did not allow an expert to give evidence on it as it not a foreign law.In Islamic matters relating to wakaf, which means 'detention' and connotes the tying up of property in perpetuity for the benefit of the public, its application in Malaysia (then it was Malaya) was no less significant. According to an Islamic jurist, wakaf is the detention of a thing in the implied ownership of Almighty God, in such a way that its profits may be applied for the benefit of human beings. The moment it has been done, the detention then becomes absolute, so that the thing dedicated can neither be sold, given, nor inherited.According to some historical researchers,the implementation of wakaf in the Malay archipelagos commenced contemporaneously with the conversion of the locals into Islam. Ironically, there are little available records to highlight on the administration and management of wakaf.Such records indicated that the settlers administered the administration of this trusts personally or by the society leaders of the particular communities at that time such as the ham (head of the mosque), Bilal (deputy of the mosque) or Penghulu (the Head of a village or settlement).Most disputes, which arose were settled and resolved by the Islamic scholars at that time without letting the parties having to resort to a courts' trial.The first recorded case involving wakaf was Ashhee & Ors v. Sved Abu Bakar (1985) 4 Kv 213(check the citation).The civil court in this case had decided that the applicable law in resolving disputes involving wakaf is English law. Subsequent cases too upheld similar findings.However, 100 years after the abovementioned case, the civil courts began to decide otherwise.in that only Islamic law is the applicable law to resolve disputes in wakaf. Several cases were likewise decided such as Commissioner of Religious Affairs, Trenggganu v. Tengku Mariam, Tengku Embong v. Tengku Maimunah, Tengku Abdul Kadir bin Tengku Chik & Anor v. Majlis Agama Islam, Kelantan, Re Dato Bentara Luar, Mailis Agama Islam Pulau Pinang v. Isa Abdd Rahmah & Anor, G Rethinasamy v. Mailis Agama Islam Pulau Pinang & Anor, Shaik Zolkafily bin Shaik Natar & Ors (sued as trustees of the estate of Sheik Eusoff bin Sheik Latiff deceased) v. Majlis Agama Islam Pulau Pinang dan Seberang Perai.Albeit after 100 years from the decision of Ashbee, thc civil courts have taken the bold and firm decision thai only Islamic Law is the law applicable to settle disputes concerning wakaf, yet the jurisdiction to hear and determine wakaf is still in the hands of the civil courts, not the syariah courts.The Malaysian Federal Constitution pursuant to List II of the 9th Schedule and pursuant to the provisions in the respective states' enactments on the administration of Islamic law, provide that wakaf shall be within the jurisdiction of the syariah court.Alas, this has been decided otherwise, and negated by the civil courts.Based on the cases decided, even though the jurisdiction to hear wakaf exclusively falls within the jurisdiction of the syariah court, yet the civil court vehemently decided that to be in their domain. This paper intends to study cases involving wakaf so as to give suggestions and solutions in the problems on this conflict of jurisdiction to hear wakaf between civil courts and the syariah courts in Malaysia. It is hoped that through the illumination of this paper on the legal history of wakaf and its conflict of jurisdiction between the civil court and the syariah court in Malaysia, will give us some insights how the institution of wakaf could be resolved

Issues in the statutory housing sale agreements in Peninsular Malaysia: A case study of abandoned housing projects

The use of statutory housing sale agreements (‘the said agreements’) as enshrined under the Housing Development (Control & Licensing) Regulations 1989 is mandatory for all housing developers in Peninsular Malaysia. The use of the said agreements is to ensure protection to house purchasers against irresponsible housing developers. However, in practice, it is evident that the terms of the said agreements are inadequate to provide purchasers with the required protection particularly in abandoned housing projects. This paper aims to highlight this issue. This paper is also a fruit of a research exercise using legal research and qualitative case study methodologies. It finds that there are certain lacunae in the terms of the said agreements that have caused the said agreements inability to face the problems of abandoned housing projects to the detriment of the house purchasers’ rights. Further, there are certain housing transaction practices that have caused grievances to the house purchasers. The author provides, at the ending part of this paper, some proposals to overcome the highlighted problems. This is a part of the initiatives to strengthen the said agreements to become more protective to house purchasers

Abandoned housing projects in Malaysia: Legal issues relating to the housing developer's advertisement and sale permit

The issue of abandoned housing projects is still an unsettled issue in Malaysia.Even though, there are numerous housing policies and laws having been promulgated by the Malaysian government, yet the problem of abandoned housing projects is still occurring and has not yet been fully addressed. The victims in the abandoned housing projects are the purchasers themselves.One of the reasons leading to the occurrences of abandoned housing projects is the weaknesses and loopholes of the provisions under the Housing Development Act (Control and Licensing) Act 1966 (Act 118)('Act 118') that have allowed the problem to occur.This paper discusses the issues that arise from the provision under Act 118 relating to the housing developer's advertisement and sale permit.The aim of this paper is to highlight the lacunae in the said provisions that have contributed to the occurrence of abandoned housing projects. The research methodology used is a combination of legal research and the social research methodologies.This paper finds that there are some lacunae and issues in the provisions of Act 118 relating to housing developer's sale and advertisement permit that need to be adequately addressed to avoid the occurrences of abandoned housing projects in Malaysia

Limitation period of action for specific performance in contract of sale of land: Malaysian legal position

In all legal systems based on common law, limitation period plays an important part in all its civil actions.Failure to comply with the limitation period would diminish the action instituted.The limitation period for all actions founded on contract pursuant to section 6 of the Limitation Act 1953 is 6 years.However, based on the decided cases, the limitation period for action of specific performance of a contract of sale of land, notwithstanding that this action is unequivocally founded on contract, is 12 years, not 6. This is because all actions for specific performance of contract of sale and purchase of land should instead of 12 years, be 6 years as well, as this action too is an action founded on contract.However this is contrary to the judgement found in the decided cases. This article examines these cases and also provides the grounds to support the contrary contention of certain learned legal author in regard to the limitation period of specific performance for contract of sale of land.This article will attempt to unveil and study the grounds and policies of the courts concerning the issue

Melindungi hak pembeli rumah

Terdapat banyak kes pemaju menipu pembeli melalui cara penipuan sijil penyiapan kerja pembinaan berperingkat dan pengeluaran CF atau CCC