BIG PROPERTY CONSULTANTS SDN BHD 1
FRAUD IN LAND
DEALINGS
&
LAND TRANSACTION PRESENTED BY:
PROF. DATUK. DR NIK MOHD ZAIN NIK YUSOF
COPYRIGHT RESERVED :
NOT TO BE REPRODUCED WITHOUT
THE PERMISSION OF THE WRITER
BIG PROPERTY CONSULTANTS SDN BHD 2
WHAT IS FRAUD ?
The modes of fraud are infinite. The courts have never laid down what shall constitute fraud, or any general rule, beyond giving equitable relief on the ground of fraud:
a)Actual Fraud
b)Constructive Fraud
BIG PROPERTY CONSULTANTS SDN BHD 3
Actual Fraud
Something said, done or omitted by a person with the design of perpetrating what he must have known to be a positive fraud.
BIG PROPERTY CONSULTANTS SDN BHD 4
Constructive Fraud Acts, statements or omissions which operate as virtual frauds on individuals or which if general permitted would be prejudicial to the public welfare and yet may have been unconnected with any selfish or evil design,
Eg; bonds and agreements entered into as reward for using influence over another to induce him to make a will for the benefit of the obligator. Such contracts encourage a spirit of artifice and scheming and tend to deceive and injure others.
“ To amount to fraud conduct must be deliberately dishonest” R V Sinclair, (1968) 3 A LL E.R. 241.
BIG PROPERTY CONSULTANTS SDN BHD 5
FRAUD ON A POWER
An exercise of power of appointment, must as defeats the intention of the person creating it. Eg: protection afforded to purchasers in good faith, S 157 of the Law of Property Act 1925 (U.K)
S 340 (3) ( … proviso) NLC “provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration or by any person or body claiming through or under such a purchaser”.
BIG PROPERTY CONSULTANTS SDN BHD 6
FRAUDULENT ACT UNDER NLC
FRAUD
See As Above
FORGERY
The making of a false document in order that it may be used as genuine or the counterfeiting of certain seals and dies (in U.K SECTION 1 of the Forgery Act 1913)
BIG PROPERTY CONSULTANTS SDN BHD 7
FRAUDULENT ACT UNDER NLC
MISREPRESENTATION
Suggestion false, either by words or by conduct. To an action for tort the representation must be false statement of fact and not a mere broken promise. The statement must be willfully false: mere negligence in the making of false statements is not actionable. See Derry V Peel (1889) 14 A C 337
BIG PROPERTY CONSULTANTS SDN BHD 8
INNOCENT
MISREPRESENTATION
When the statement is not known to be false, is ground for relief against a contract if such statement a material inducement to the plaintiff to enter into that contract. ( MacKenzie V Royal Bank of Canada (1934) A.C of P 475 [Deceit Fraud]
BIG PROPERTY CONSULTANTS SDN BHD 9
FRAUD CASES
Nallamal & Another V Karuppan & Another (1993) 3 MLJ 476
In this case the I.D.T was obtained by fraud by the borrower for lodging a lien holders caveat. Only the registered proprietor had the power or the right to deposit the title deed for purpose of creating a lien.
(see also Perwira Habib Bank (M) Bhd v Leo and Sons Realty Sdn Bhd & Anor (No.1) [1966] 3, MLJ 409.
BIG PROPERTY CONSULTANTS SDN BHD 10
POSSIBILITY OF FRAUD
IN LAND DEALINGS
BIG PROPERTY CONSULTANTS SDN BHD 11
POWER OF ATTORNEY
An authority given by one to another to act for him in his absence is to convey land, receive debts, sue, etc. The party so authorized to act is called the attorney of the party giving the authority.
See Power of Attorney Act
BIG PROPERTY CONSULTANTS SDN BHD 12
POWER OF ATTORNEY
The Donor may misused his power
The donor may not be the proprietor
The Donor may have died in the case of irrevocable
The Donor may be a bankrupt or unsound mind
BIG PROPERTY CONSULTANTS SDN BHD 13
TRANSFEROR IS NOT THE
PROPPRIETOR
Adorna Properties Sdn bhd V Boonsom Boonyamit @ Su Yok Eng (2001) IMLJ,241. S 340(3)… Proviso. [See Case Attached)
BIG PROPERTY CONSULTANTS SDN BHD 14
DISTRIBUTION OF ESTATES OF
DECEASED
Under probate and Administration Act.
Small Estates Distribution Act.
[Beneficiaries May Be Left out by other beneficiaries in the claims].
BIG PROPERTY CONSULTANTS SDN BHD 15
SALE OF STATE OR RESERVED
LAND
Fraud may involve in the Sale of State or reserved Land by individual to unsuspected or innocent buyer.’
S 5. NLC- Definition of Land
S 425, NLC- Illegal occupation of State Land
S 426 NLC- Illegal removal of rock material.
BIG PROPERTY CONSULTANTS SDN BHD 16
SALE OF T.O.L LAND
T.O.L lands are not allowed to be sold/assigned.
BIG PROPERTY CONSULTANTS SDN BHD 17
CHARGING OF LAND ERODED
BY SEA / RIVER
Borrower charged land eroded by Sea / river to secure a loan.
BIG PROPERTY CONSULTANTS SDN BHD 18
SALE OF LAND PURPORTEDLY
TO HAVE BEEN CONVERTED
Purchaser bought a piece of land with approved development order, assumed to have been Converted to building.
BIG PROPERTY CONSULTANTS SDN BHD 19
SALE OF LAND SUBJECT TO
CHARGED, LEASED OR WITH
RESTRICTION IN INTEREST
Land subject to the above encumbrances may be sold by agreement or transferred (except with restriction in interest). The purchaser is subject to the above encumbrances.
BIG PROPERTY CONSULTANTS SDN BHD 20