Questions You Must Ask the Agent and Seller Before Booking a Subsale Home

It often happens like this: you have viewed the house, the price has been agreed verbally, and then the agent sends a booking form and asks you to make a payment so that the house is "locked in" for you.

At that point, most buyers ask: what should I check in the booking form?

There is an earlier and more important question:

Do you already know enough about the seller, the title and the transaction to even consider the booking form?

The short answer: before signing a booking form or paying anything, a subsale buyer should get some basic information from the agent and the seller. This includes who the real owner is, the title status, whether the seller's name is registered on the title, whether the property is still charged to a bank, whether there is a caveat or restriction in interest, whether the seller is acting personally or through someone else, and who is living in the house.

What the agent or seller tells you is preliminary information. It does not replace an official land search, a document review and a check by your lawyer.

Quick summary: what to know before booking

Before you consider the booking form, try to get answers to these questions:

1. Who is the registered owner of the property?

2. Is the person selling the same person as the registered owner?

3. Has an individual or strata title been issued?

4. If the title has been issued, is the seller's name registered on it?

5. Is the property still subject to a bank loan or charge?

6. Is there a caveat, restriction in interest, lease or other registered interest?

7. Might consent from the State Authority or another party be needed?

8. If the owner has died, who has legal authority to handle the sale?

9. If someone is acting on the owner's behalf, what is their authority?

10. Is the house empty, occupied by the seller or still tenanted?

11. What arrears and commitments on the property are still outstanding?

12. Who will any booking money be paid to, and on what terms?

If the answer to any of these is unclear, it does not necessarily mean the house cannot be bought. But it may mean the structure of the transaction needs to be checked before you commit.

1. Ask first: who actually owns this house?

The first question for the agent or seller should be very simple:

"What is the name of the owner of this property as shown on the title?"

Under Malaysia's land registration system, the name of the registered owner is a critical fact. The National Land Code also provides for an official search, which can show who the registered owner is and the endorsements still in force on the title.

So do not stop at answers like:

• "This is my father's house."

• "It's my brother's house, I'm helping him sell it."

• "All the siblings have agreed."

• "The owner has let me handle it."

Answers like these may have a legitimate explanation, but they raise the next question: what is the legal relationship between the person dealing with you and the owner recorded on the property documents?

If possible, ask for a copy of the title, or at least enough title details to run a check. You do not need to ask for unrelated personal information just to do a preliminary check.

For what land title records can confirm, see Land Title.

2. Ask about the title: individual, strata or master title?

Do not just ask "is there a title or not?"

A more useful question is:

"Has the individual or strata title for this unit been issued?"

Then ask:

"If it has, whose name is it registered in now?"

This matters because several different situations are possible.

Situation A: the individual or strata title is registered in the seller's name

This is usually the easiest situation to identify. Even so, a search is still needed to see whether there is a charge, caveat, restriction in interest or other endorsement.

Situation B: the individual or strata title has been issued, but the seller's name is not yet registered

This can happen when an earlier transfer was not perfected after the title was issued.

This does not necessarily mean the seller cannot sell. But it is not something to wave away with "it's fine, it's normal". A lawyer needs to look at the chain of documents and decide what steps must be completed or coordinated before the property can be transferred to a new buyer. See Perfection of Transfer.

Situation C: the individual or strata title has not been issued yet

For property still under a master title, the transaction can involve different documents and a different chain of rights from a transfer under an individual or strata title.

In this situation, ask the agent or seller to confirm whether they have the earlier purchase documents and related documents that can be given to a lawyer for review.

The principle is simple: do not treat "no title yet" and "title issued but not yet in the seller's name" as the same situation.

3. If the seller's name does not match the title, do not jump to conclusions

A name mismatch is a signal to investigate, not necessarily a reason to walk away straight away.

Ask:

"Why is the seller's name not the same as the name on the title?"

Possibilities that need to be told apart include:

• an earlier transfer has not been perfected;

• the registered owner has died;

• someone is acting under a power of attorney;

• the property is still under a master title and the seller's rights are shown through an earlier chain of documents; or

• some other situation that needs specific documents.

What matters is not just accepting a verbal explanation. Ask for the relevant documents to be made available for your lawyer to review before you make a commitment that is hard to undo.

4. Ask whether the registered owner is alive and who has authority to sell

If you are told that the original owner has died, ask clearly:

"Who is administering the estate, and what documents of authority have been obtained?"

The agreement of all the heirs does not, by itself, give someone authority to sign documents disposing of land on behalf of the deceased.

For land registered in the name of a deceased person, the National Land Code has specific provisions on registering the personal representative. Section 346 provides, among other things, that a personal representative cannot execute an instrument of dealing for that land until they have been registered in that capacity.

So if the answer you get is:

"The owner has passed away, but all the children agree to sell,"

treat it as an issue to check before booking, not a small administrative matter that will sort itself out later. For background, see Letter of Administration in Malaysia.

5. If someone is acting for the owner, ask what their authority is

Sometimes the person handling the sale is not the owner. It might be a child, spouse, relative, company representative, or someone said to hold a power of attorney.

Ask:

• Who will actually sign the sale documents?

• If someone else will sign for the owner, what is the document giving them authority?

• If a power of attorney is being used, is it still valid, and has it gone through the registration needed for a land dealing?

JKPTG (the Department of Director General of Lands and Mines) lists a power of attorney registered with the High Court and the Land Office as a relevant document when an application is made by the landowner's representative.

Do not treat a family relationship with the owner as a substitute for legal authority.

6. Ask whether the house still has a bank loan or charge

Next question:

"Does this house still have a bank loan on it?"

If so, ask:

• which bank holds the seller's financing;

• whether the seller knows the approximate current balance; and

• whether the loan will need to be redeemed out of the sale proceeds.

A property that is still charged to a bank can still be sold. The difference is that there is a redemption process to coordinate so that the seller's charge can be discharged as part of the transaction.

The point to watch early is any sign that the redemption amount may be high compared with the sale price. Your lawyer needs to understand whether the sale proceeds are enough, or whether the seller will have to top up any shortfall to complete the redemption. See also Discharge of Charge By Lawyers.

7. Ask about restrictions in interest, caveats and consent to transfer

You can ask the seller or agent:

"Is there any restriction in interest, caveat or consent needed for the transfer?"

But do not rely entirely on their answer.

JKPTG explains that a transfer can proceed directly for a title with no restriction in interest or particular limitation, while a restriction in interest, caveat, charge or other registered interest can mean that consent or further action is needed.

This is one reason a land search matters. An official search can be used to see the registered owner and the endorsements still in force on the title.

If you are told the property is leasehold or has a restriction in interest, do not only ask "can I buy it or not?" Also ask:

• what the restriction on the title actually says;

• which party needs to give consent;

• who will make the application; and

• whether the requirement could affect the transaction timeline.

For the transfer steps in general, see Land Title Transfer Procedure In Malaysia.

8. For strata homes, ask about maintenance charges and the sinking fund

For a condominium, apartment or other strata property, ask the seller or agent:

• whether there are arrears of maintenance charges;

• whether there are arrears of sinking fund contributions;

• whether any special charge is being imposed by the JMB (Joint Management Body) or MC (Management Corporation); and

• whether the latest statement can be given to the lawyer when the transaction starts.

This does not mean you need to audit the seller's accounts yourself. The point is to identify commitments tied to the unit early so they can be dealt with clearly in the transaction documents. See also Process of JMB Collecting Outstanding Strata Maintenance Fees (FAQ).

9. Ask who is living in the house and when possession will be given

Do not assume the house you saw during the viewing will automatically be empty when the transaction completes.

Ask:

"Who is living in the house now?"

If the seller lives there:

• when does the seller plan to move out;

• will the house be handed over with vacant possession; and

• what items will be left behind or taken away?

If a tenant lives there:

• is there still a tenancy agreement;

• when does the tenancy end;

• are you expected to take over the house with the tenant in place, or with vacant possession; and

• what tenancy deposit or related matters need to be dealt with if the tenancy continues?

This should be clear before booking, because it affects what you are actually agreeing to buy and receive.

10. Ask about the condition of the house, renovations and what is included

A title check will not tell you whether the roof leaks, whether the kitchen cabinets will be taken out, or whether renovations were done without the proper approval.

Ask the seller:

• whether there have been any known leaks or major defects;

• what major renovations have been done;

• if a renovation needed approval from the authority or management, whether the documents are available;

• which furniture, air-conditioners, cabinets, lights or fittings are included in the price; and

• whether any repairs have been promised before handover.

If an item matters to your decision, do not leave it as a verbal promise. Make sure what was agreed is eventually recorded in the proper transaction documents.

11. Ask what commercial terms the seller has really agreed

Sometimes the buyer hears one thing from the agent while the seller understands something different.

Before moving on to the booking form, confirm at least:

• the sale price that has actually been agreed;

• the amount proposed as the booking fee or earnest deposit;

• what is included with the house;

• the vacant possession or tenant position;

• the proposed timeframe for the SPA; and

• any important conditions you have raised, for example on financing or particular checks.

The aim is to make sure the booking form is not the first place you discover that you and the seller had two different understandings.

12. Before paying anything, ask exactly where the money is going

Do not stop at an instruction like:

"Transfer to this account first to lock the unit."

Ask:

• who the recipient of the money is;

• whether the account is the official account of the firm or party named in the documents;

• in what capacity the recipient holds the money;

• what document will be issued to record the payment;

• in what circumstances the money is refunded or forfeited; and

• whether those conditions are written into the booking form you will sign.

Do not conclude that your money will be refunded just because someone says "if the loan isn't approved, you can get a refund". Your rights depend on the documents and the terms actually agreed. If the loan is refused after the SPA stage, see Loan Rejected After Signing the SPA: What Happens to the Deal & Deposit.

Once you are satisfied with the basics of the transaction, move on to the contents of the booking form itself, and have its terms reviewed before you sign.

Also check who the agent dealing with you is

If the purchase is being handled by an estate agent, ask for:

• the full name of the agent or negotiator;

• their REN number, if they are a Real Estate Negotiator;

• the name of the estate agency firm; and

• the firm's official channel for verification if needed.

LPPEH (the Board of Valuers, Appraisers, Estate Agents and Property Managers) provides a public search that lets you check negotiator and firm details. Do not feel awkward about doing this basic check, especially before handing over money or personal documents.

The agent's answers do not replace your lawyer's checks

A good agent can help gather information quickly. The seller is an important source of facts only they know.

But some things need to be confirmed independently, for example:

• who the registered owner is;

• the endorsements on the title;

• whether a charge is still registered;

• whether there is a caveat or restriction in interest;

• the chain of documents if the title is not yet registered in the seller's name; and

• the authority of anyone acting on the owner's behalf.

So use the agent's and seller's answers as a first map of the transaction. Then give that information and the documents to your lawyer to confirm the parts that need a legal check.

Six answers that should make you stop and check first

You do not necessarily have to cancel the purchase. But do not rush into signing a booking form if you get answers like these:

1. "The name on the title isn't the seller's, but there's no problem." Ask for an explanation and documents. It may be an unperfected transfer, an estate matter, a master title or something else that needs to be identified.

2. "The owner has passed away, all the heirs have agreed." The heirs' agreement does not on its own explain who has authority to carry out the land dealing.

3. "There's a caveat, but it can be settled later." Find out who the caveator is, the basis of the caveat and what steps are actually needed.

4. "The title is out, but the name hasn't been changed yet." Ask whether an earlier transfer has not been perfected, and pass the chain of documents to your lawyer to review.

5. "Pay into this personal account first." Do not let time pressure replace documentation. Ask for official payment instructions and understand the terms before any money leaves your account.

6. "No need to look at documents now; the lawyer will check after booking." Some checks are indeed done by the lawyer after appointment, but basic facts that are clearly problematic should not be deliberately left until after you have committed.

A message you can copy and send to the agent

You can use this message as a starting point. Adjust it for the property:

Hi. I'm interested in this property. Before I consider a booking form or make any payment, could you please get the following confirmations from the seller:

1. The registered owner's name as shown on the title, and a copy of the title or the title details for checking.

2. Whether an individual or strata title has been issued, and if so, whether it is registered in the seller's name.

3. If the name on the title is not the seller's, the reason, and the documents showing the seller's right or authority to sell.

4. Whether the property still has a bank loan or charge, and which bank is involved.

5. Whether there is any known caveat, restriction in interest or consent needed for the transfer.

6. If the registered owner has died or the seller is acting as a representative, what estate or authority documents have been obtained.

7. For strata property, whether there are any arrears of maintenance, sinking fund or special charges.

8. Who is living in the house now, and whether it will be handed over with vacant possession.

9. What furniture, fittings or items are included in the sale price.

10. The proposed booking or earnest deposit amount, who it should be paid to, and the written conditions for its refund or forfeiture.

Could you also give me your REN number and agency name for my records? Thank you. I will pass this information to my lawyer to review before making any commitment.

This message is not a substitute for legal advice. Its purpose is to help you get useful basic information before the transaction goes too far.

What to give a lawyer for an early review

If you have found a house and want a view before booking, prepare as much of the following as you have:

• the property address and price;

• a copy of the title or the title details;

• the seller's name as given to you;

• the proposed booking form, if you have been given one;

• the agent's and agency's details;

• whether the title has been issued and in whose name;

• details of the seller's loan or charge, if known;

• any information on caveats, restrictions or consent, if known;

• earlier purchase documents in the chain, if the seller is not yet registered on the title and those documents are available; and

• the key commercial points you and the seller have discussed.

You do not need every answer to be perfect before getting help. Sometimes the missing documents are themselves the issue that needs to be identified.

So when should you consider the booking form?

No single list can make every transaction automatically "safe".

But a better order is:

Identify the property, then get the basic facts from the agent and seller, spot the red flags, carry out the legal checks needed, understand the booking form terms, and only then decide whether to sign and pay.

Not:

Pay first, sign first, and only then ask who the owner is and what is wrong with the property.

A booking form should record a decision made with reasonable information. It is not the place to start investigating the transaction.

How ASCOLAW can help

If you have found a subsale home but are not yet sure whether the seller's position, the title or the structure of the transaction is clear enough to move on to booking, you can send the details and documents you have through the enquiry form below.

The ASCOLAW team at Messrs Akmal Saufi & Co can assess which issues need to be checked, identify any further documents that may be needed, and explain the legal steps involved if you decide to go ahead with the purchase.

Do not wait until after the money has been paid to ask questions that could have been asked before booking. Fill in the ASCOLAW enquiry form below.

Frequently asked questions

Must the seller be the same person named on the title?

If an individual or strata title has been registered, the identity of the registered owner is very important. However, there are situations where the person selling is not yet the registered owner, because an earlier transfer has not been perfected, the title is still under an earlier structure, or someone is acting in a particular legal capacity. Do not assume the transaction is impossible; ask for the reason and the documents so they can be checked.

Can I buy a house if the individual or strata title has not been issued?

A master title situation does not necessarily prevent the transaction, but the documentation is structured differently. The seller's chain of documents, the position of the developer or original owner, and any consent or related documents need to be assessed on the actual facts.

Can I buy if the seller still has a loan on the house?

Yes, depending on how the transaction is structured. The seller's loan usually needs to be redeemed so that the charge can be discharged. The issue is making sure that step can be coordinated with the purchase price and the transaction documents.

If there is a caveat, does that mean the house cannot be bought?

Not necessarily. But a caveat can prevent certain dealings from being registered while it is in force. The cause of the caveat, who lodged it and how it will be resolved need to be identified before you rely on an assumption that it "can be settled later".

Should I ask the agent or the seller directly?

If the agent represents the seller, a lot of information can be obtained through the agent. But important facts should be supported by documents and, where needed, confirmed by the seller. Asking the agent speeds up gathering information; it is not a substitute for legal verification.

This content is for general information and education only. It is not legal advice for any particular transaction. Title status, the seller's authority, caveats, restrictions, financing and booking terms vary with each property and its actual documents. Get specific advice from a qualified lawyer before making a decision that creates a legal or financial commitment.

Related guides

• Land Title

• Perfection of Transfer

• Discharge of Charge By Lawyers

• Buying Property In Malaysia