Q.
Can i transfer my share in a land with co-proprietorship to another person without my other co-proprietors' agreement? E.g. I own 1/3 of the land, and I wish to transfer this 1/3 to my wife/son/bro/sis, without my co-proprietors' consent?
A.
In Malaysia, the rules regarding the transfer of land co-ownership depend on whether the property is held under joint tenancy or tenancy in common, as well as any applicable state laws and agreements between co-owners.
After checking with a West Malaysian Lawyer (practicing in KL/Selangor) and a local lawyer (practicing in Kuching), the answer to this questions is "YES, you can transfer your portion (1/3) to anyone you desire without consent from the other co-proprietors". This means, in our common occurrences, we are under "Tenancy in Common", not "Joint Tenancy".
Here’s how the transfer of a co-owner’s share typically works under Malaysian law:
1. Joint Tenancy
- In a joint tenancy, all co-owners have equal shares of the property, and the "right of survivorship" applies. This means that if one co-owner passes away, their share automatically transfers to the surviving co-owners.
- You cannot transfer or sell your share in a joint tenancy without severing the joint tenancy first. Severing it would convert the ownership to tenancy in common, which allows more flexibility in transferring shares.
- The other co-owners’ agreement is typically required before you can sever the joint tenancy or transfer your share.
2. Tenancy in Common
- Under tenancy in common, each co-owner holds a distinct, identifiable share of the property (e.g., 50%, 25%, etc.). This share can usually be transferred or sold without needing the agreement of the other co-owners, but:
- You may still need to give notice to the other co-owners or comply with any co-ownership agreement you may have.
- If there is an agreement between the co-owners (e.g., a co-ownership deed or contract), it might have specific provisions, such as a right of first refusal, where the other co-owners have the option to buy your share before you sell it to an external party.
- In some cases, local state land regulations may impose specific requirements.
3. National Land Code (NLC) 1965
- The National Land Code (NLC) 1965 governs most land matters in Peninsular Malaysia. Under the NLC, the transfer of co-owned land generally requires compliance with sections related to land transactions, but no specific provision requires the agreement of other co-proprietors under tenancy in common unless specified in a co-ownership agreement.
- The NLC also allows partition of the land, where co-owners agree to divide the land into distinct portions, allowing individual ownership.
4. State-Specific Considerations
- In Sabah and Sarawak, land laws are governed separately, and there may be additional regulations concerning land transfer and co-ownership.
- For example, in Sarawak, the Sarawak Land Code (Cap. 81) applies, and while similar principles of co-ownership apply, certain types of land, such as native customary rights (NCR) land, may have more restrictions on transfer.
Conclusion:
In Malaysia, if you own land as tenants in common, you can generally transfer your share without your co-owners' consent, unless a specific agreement between you and the co-owners restricts it.
However, if the land is held as a joint tenancy, you will need to either sever the joint tenancy or obtain the other co-owners' agreement to transfer your share. It’s advisable to consult a lawyer to ensure you comply with all applicable laws and any existing co-ownership agreements.