Fre­quently asked ques­tions on wakaf land

New Straits Times - - Property - The pur­chaser shall not carry out any vari­a­tions to the prop­erty with­out prior writ­ten con­sent of the rel­e­vant au­thor­i­ties.

Q: Who is qual­i­fied to pur­chase the prop­erty?

A:

All Mus­lims are qual­i­fied to pur­chase prop­erty built on wakaf land.

Para Ulama’ As-Syafie cited that wakaf may be ex­tended to non-Mus­lims or “Zimmi”, so long as it is not in­tended to be used for vice. If there is a pos­si­bil­ity that the re­cip­i­ent of the wakaf prop­erty will per­form vice, then the wakaf is in­valid as it con­flicts with the wis­dom and pur­pose of wakaf.

Though non-Mus­lims can ben­e­fit from wakaf land, it is deemed more pru­dent for Mus­lims to ben­e­fit from it in view of the above and the cur­rent de­mand for lim­ited af­ford­able hous­ing by the Mus­lims.

Q: Will the pur­chaser be sign­ing a Sales & Pur­chase Agree­ment? If not, want kind of le­gal agree­ment will he be sign­ing?

A:

The pur­chaser will not be sign­ing a Sales & Pur­chase Agree­ment since own­er­ship of a wakaf land can­not be sur­ren­dered. In­stead, pur­chaser will be sign­ing a tri-par­tite Lease Agree­ment be­tween the land owner/ lessor (MAIS), devel­oper (NSC) and lessee (pur­chaser). For the de­vel­op­ment of wakaf land, con­cept of “Ijarah”, or lease, is ap­plied, where the land to be de­vel­oped con­tin­ues to re­main the prop­erty of MAIS and only its ben­e­fits are trans­ferred to the lessee. The lease Agree­ment is drafted in such man­ner that it will be syariah-com­pli­ant.

Q: How long is the lease pe­riod for the prop­erty?

A:

The prop­erty has been granted a 99-year lease pe­riod.

Q: Will there be any le­gal fee and stamp duty charge­able to pur­chaser?

A:

Yes, the pur­chaser will still need to pay for le­gal fee and stamp duty ac­cord­ing to the Solic­i­tors’ Remuneration Or­der 2005 (amended re­cently as at 15 Mar 2017) and Stamp Duty Act 1949.

Q: Will the pur­chaser’s name ap­pear on the land ti­tle?

A:

As men­tioned above, MAIS will re­main the landowner. How­ever, the pur­chaser’s par­tic­u­lars will be en­dorsed on the land ti­tle as lessee and he will also need to sign Form 15A (Mem­o­ran­dum of Lease) with the Land Of­fice.

Q: What will hap­pen to the prop­erty in event of the demise of the pur­chaser?

A:

Since lease can be in­her­ited, a re­place­ment can be nom­i­nated by the de­ceased next of kin.

Q: Will pur­chaser be able to se­cure home fi­nanc­ing loan for wakaf prop­erty?

A:

Yes, such loan is now of­fered by sev­eral fi­nan­cial in­sti­tu­tions un­der Is­lamic fi­nanc­ing. Ear­lier, wakaf prop­er­ties are thought to be in­alien­able be­cause they have to re­main as wakaf in per­pe­tu­ity, which make the wakaf in­sti­tu­tions wary of us­ing them as col­lat­eral for fear of los­ing them to the fi­nanciers. The fi­nanciers are not will­ing to ac­cept wakaf land due to le­gal con­straints aris­ing from the same con­cept of in­alien­abil­ity and per­pe­tu­ity.

The con­cept of per­pe­tu­ity of the phys­i­cal be­ing of the sub­ject mat­ter of wakaf is sub­sti­tuted with one that recog­nises the per­pe­tu­ity of ded­i­ca­tion, through as­sign­ing value to the ob­ject of wakaf and amor­tis­ing it, so that not only var­i­ous rights can be ac­cepted as the ob­ject of wakaf but also make the ob­ject alien­able.

Q: Is it pos­si­ble for the pur­chaser to sell the prop­erty in the sec­ondary mar­ket?

A:

The pur­chaser is al­lowed to sell the prop­erty. How­ever, a lawyer needs to is­sue a let­ter to PWS to con­firm the cur­rent reg­is­tered lessee.

Q: Will the pur­chaser en­joy full profit from the sale of the prop­erty or will he/she be shar­ing it with the landowner?

A:

The pur­chaser will en­joy full profit from the sale of the prop­erty.

Q: Can the pur­chaser rent out the prop­erty to non-Mus­lims?

A:

Yes, the pur­chaser can rent out the prop­erty to non-Mus­lims.

Q: Does MRTA ap­ply on pur­chaser’s loan in the event of pre­ma­ture death or to­tal per­ma­nent dis­abil­ity of the pur­chaser?

A:

Yes, cer­tain Is­lamic fi­nan­cial in­sti­tu­tions of­fer the same cov­er­age known as Mort­gage Re­duc­ing Term Taka­ful (MRTT).

Q: Can the pur­chaser make any ren­o­va­tion or ex­ten­sion to the prop­erty?

A:

Q: Is there any ev­i­dence to prove that wakaf land can be de­vel­oped and leased?

A:

As stip­u­lated in Sec­tion 8(1) Ad­min­is­tra­tion of the re­li­gion of Is­lam (State of Se­lan­gor) En­act­ment 2003, Sec­tion 3(1) of the Es­tab­lish­ment Waqaf Cor­po­ra­tion of Se­lan­gor Or­der 2011 and Fatwa by the Mufti of Se­lan­gor (04/12), MAIS is au­tho­rised for the de­vel­op­ment of wakaf land by way of lease of 99 years.

Launch of Ta­man Impian Kas­turi.

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