Who May Legally "Market" Properties As Agent in Malaysia? Who may act as sale agent in Malaysia

Dear Readers,

In this maiden post, let me blog on the issue relating to these questions: Who may legally market properties as an agent in Malaysia? Or, simply, who may act as a real estate sale agent in Malaysia? Can anyone including a foreigner sell real estate in Malaysia? Who can sell foreign properties in Malaysia? Is there absolute freedom for anyone to sell any real estate in Malaysia? Do you need to be a registered estate agent to market or sell properties in Malaysia?...

Now, Sec 22C(1)(ba) of the Valuers, Appraisers & Estate Agents Act 1981 ("VAEA Act 1981") reads:
“No person shall unless he is a registered estate agent and has been issued with an authority to practice under section 16…offer for sale or invite offers to purchase any land, building…irrespective of whether such land, building and interest is located within Malaysia or outside Malaysia: Provided that where foreign properties are to be marketed in Malaysia, such offer or invitation shall be made by or through an estate agent practising and residing in Malaysia…”

Now, if the word "market" includes the meaning "offer for sale or invite offers to purchase", then I think Section 22C(1)(ba) of the "VAEA Act 1981" (Act 242) provides a ready answer to the above questions: Who may legally market properties as an agent in Malaysia? Or, simply, who may act as a real estate sale agent in Malaysia?

Section 22C(1)(ba) of the "VAEA Act 1981" stipulates quite clearly that the person - whether local or foreign - who may market properties - again, whether local or foreign - as a sale agent in Malaysia must be "...a registered estate agent...(who)...has been issued with an authority to practice under section 16..." 

Now, you may ask: What if it is a one-off "offer for sale or invite offers to purchase" any land, building...by someone - whether local or foreign - who is not a Malaysian real estate agent? Does that go against the Section and make it an offence under Sec 30(i) of the "VAEA Act 1981"?

If you read Section 22C(1)(ba) again, you will agree that it does not contain the words "habitually", "repeatedly", "regularly" or "as a matter of business practice" i.e. it does not read: "No person shall unless he is a registered estate agent and has been issued with an authority to practice under section 16…"habitually", "repeatedly", "regularly" or "as a matter of business practice", offer for sale or invite offers to purchase any land, building…irrespective of whether such land, building and interest is located within Malaysia or outside Malaysia..."

So, there should be no disagreement that even a one-off "offer for sale or invite offers to purchase" by anyone who is not a registered estate agent is forbidden by Sec 22C(1)(ba) as well - unlike the ensuing subsection (c) (i.e. Sec 22C(1)(c)) where proof of "practice" of estate agency appears to be required: to establish an offence beyond reasonable doubt in a criminal case; or to nullify a contract under Sec 24 of the Contracts Act 1950 (Act 136) on balance of probabilities in any civil case.

Sec 24 of the Contracts Act states that "...Every agreement of which the object or consideration is unlawful is void." Sec 24 of the Contracts Act reads:
"The consideration or object of an agreement is lawful unless -
(a) it is forbidden by a law;
(b) it is of such nature that, if permitted, it would defeat any law;
(c) it is fraudulent;
(d) ...
(e) the court regards it as...opposed to public policy.
In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."

There were at least three (3) decided court cases involving non-registered persons suing for payment upon successful introduction of buyers to the defendants: Lim Eng Heng v. Lim Sam Kew & Others [2003] MLJU 47 was decided in favour of the defendant in the High Court; in the Court of Appeal,the decision went in favour of the Plaintiff.

Whereas, Matad Sdn Bhd v. Ng Chee Keong [2005] 1AMR and Teh Eng Peng @ Teh Joo v. Teh Swee Lian [2006] 2 MLJ were both cases decided in favour of the Plaintiffs. Click the hotlink given to read details of one of the cases. As for the other two (2) cases, you can request for faxed copies from me.

In my view, strictly by the wording of the Parliamentary enactment - in Sec 22C(1)(ba) of the VAEA Act 1981- as already explained in the foregoing: If there is evidence on balance of probabilities (in civil cases) or beyond reasonable doubt (in criminal cases) that someone who is not a registered estate agent with an authority to practise (except 3 classes of people - please see my next posts) has "offer for sale or invited offers for purchase" any local or foreign properties in Malaysia, then the said Sec 22C(1)(ba) of the VAEA Act 1981 would, in my view, render even a "one off" real estate marketing sale activity an offence under Sec 30(i) of the VAEA Act 1981; and, render any agreement founded on it (including to pay fee, etc.) void under Sec 24 of the Contract Act 1950.

Any finding to the contrary must only be because Sec 22C(1)(ba) - where even a "one-off" sale activity by a non-registered person is outlawed - was not pleaded or successfully by the defendant and Sec 22C(1)(c) - which requires defendant to prove "estate agency practice on the part of the Plaintiff" was successfully pleaded by the Plaintiff. I believe the outcome of a court case depends not just on what is in the parliamentary act but also what is in the pleading. Agreed? 

Anyway, a moot point for your consideration: Is a one-off "offer for sale or invite offers to purchase" as illegal in our estate agency law as a "one-night-stand" is infidelity in marriage law?

Your views, please.

Cheers,

Douglas GT Tan
Principal/CEO
GT Realty

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