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Last updated on
22nd November 2005
Disclaimer:
The information is intended as a general guide only and may not be updated to reflect the most current amendments to the law. Any party wishing to rely on the information is advised to seek independent advice from respective qualified professionals. The publisher, the authors, consultants and editors hereby expressly disclaim all and any liability and responsibility to any person, in respect of anything and of the consequences of anything, done or omitted to be done by any such person in reliance, whether wholly or partially, upon the whole or any part of the information.

GUIDELINE ON THE ACQUISITION OF PROPERTIES BY LOCAL AND FOREIGN INTERESTS

I    INTRODUCTION

The purpose of this Guideline is to clarify the rules and regulations of the Foreign Investment Committee (FIC) pertaining to the acquisition of properties by local and foreign interests.

II   EFFECTIVE DATE
This Guideline is effective from 21 May 2003.

III  DEFINITIONS
In this Guideline, except when the context otherwise requires: -
acquisition    means any transaction involving transfer of property ownership from 
                      
one party to another;
agricultural   means land categorised as agricultural land under the National 
land              
Land Code 1965;

Bumiputera   means -
                      1. for Peninsular Malaysia, Malay individual or aborigine as defined
                          in Article 160(2) of the Federal Constitution;
                      2. for Sarawak, individual as defined in Article 161A (6)(a) of the
                          Federal Constitution;
                      3. for Sabah, individual as defined in Article 161A (6)(b) of the
                          Federal Constitution;

Bumiputera    means any interest, associated group of interests or parties acting
interest        
 in concert which comprises:-
                       1. Bumiputera individual; or
                       2. local company or institution whereby Bumiputera holds more
                           than 50% of the voting rights in the company or institution;

commercial     means area, premise or building used for business purposes such as
unit                
shop house, shop office, shop lot, office space, business space or
                       show room;

factory           means a building in which goods are manufactured (also referred as
                       industrial building);

factory lot      means a piece of land located in an industrial zone (also referred as
                       industrial lot);

foreign           
means a foreign company as defined in the Companies Act 1965;
company

foreign          
means any interest, associated group of interests or parties acting in
interest  
       concert which comprises: -
                       1. individual who is not a Malaysian citizen including Permanent
                           Resident; or
                       2. foreign company or institution; or
                       3. local company or local institution whereby the parties as stated in
                           item (1) and/or (2) hold more than 50% of the voting rights in the
                           company or institution;

immediate      means individuals having marriage relationship (husband and wife) or
family             blood ties (grandparents, siblings and children including step children
                      and legally adopted children);

industrial       means land categorised as industrial land under the National Land
land                Code 1965;
                               
industrial       means industrial land, factory  or factory lot;
property           
                   
interest         means holding voting rights or equity or any other rights in a company;

local               means a company incorporated in
Malaysia under the Companies
company        Act 1965;
                               
local               means any interest, associated
group of interests or parties acting
interest         in concert  which comprises:-
                      1. individual who is a Malaysian citizen; or
                      2. local company or local institution whereby
Malaysian citizens hold 
                          more than 50% of the voting rights in the company;
                                
own use        means for personal use or own operation
and not for rental,
                      lease or investment;
                               
Permanent    means an individual who is not
a Malaysian citizen and has been 
Resident        granted Permanent Resident status by the Government of Malaysia;
                              
property       means land, land with building,
commercial unit or residential unit;
                              
                               
residential    means an area, premise or
building for dwelling; and
unit                              
                               
voting right   means –
                      1. for local public company, the power to vote
attributable to the share
                          capital of a company
which are exercisable at an Annual General
                         
Meeting or Extraordinary General Meeting; or
                      2. for private limited company, the power to vote in the company.

IV   APPLICATIONS
This Guideline shall apply to any of the following
transactions: -
                        
4     ACQUISITION OF PROPERTY BY LOCAL INTEREST

       Acquisition That Requires Notification To FIC
4.1  Acquisition of property which is valued at RM10 million and less than RM20 million
       needs only to be notified to FIC if the transactions involve the following parties: -
      4.1.1. acquisition by Bumiputera interest from
other Bumiputera interest; or
      4.1.2. acquisition by Bumiputera interest from
non-Bumiputera interest; or
      4.1.3. acquisition by non-Bumiputera interest from
other non-Bumiputera interest; or
      4.1.4 acquisition by local interest from foreign
interest.

       Acquisition That Requires The Approval Of FIC
4.2  Acquisition of property as stated below requires
the approval of FIC: -
      4.2.1. acquisition of property by non-Bumiputera interest from Bumiputera interest
                valued
at RM10 million and above; or
      4.2.2. acquisition of property by local interest valued at RM20 million and above.
               This acquisition
must be registered under a locally incorporated company
               and is subject to the conditions for
acquisition.

5    ACQUISITION OF PROPERTY BY FOREIGN INTEREST
      5.1 Any acquisition of property by foreign interest  including Permanent Resident                     requires the approval of FIC;
                         
      5.2 Foreign interest is only allowed to acquire property valued at more than
            RM150,000 per unit with no limit on the number of property acquired;
                         
      5.3 The State Authority has the discretion to consider the acquisition based on the
            area or location of the property, types of property and percentage of the total
            units in a project; and
                         
      5.4 Financing from internal and external sources are
allowed for all acquisition of
            properties.


      Acquisition Of Residential Unit By Permanent Resident
      5.5 Permanent Resident is allowed to acquire
residential unit valued at more
            than RM100,000.

                             
      Acquisition Of Residential Unit By Manufacturing Company
      5.6 Local manufacturing company owned by foreign
interest is allowed to acquire
            residential unit valued
at less than RM150,000 but more than RM60,000
            subject
to the residential unit is used only for the company’s employees.
                          
      Acquisition Of Commercial Unit
      5.7 Acquisition of property valued at less than RM10
million by foreign interest
            does not have to
incorporate a local company subject to the property is only
            for own use.


      Acquisition Of Agricultural Land
      5.8 Foreign interest is only allowed to acquire
agricultural land valued more than
            RM250,000 or at
least five (5) acres in area, whichever is higher subject to
            the conditions for acquisition;

                         
      5.9 Acquisition of agricultural land by foreign
interest is only allowed for the
            following purposes: -
            5.9.1 to carry out agricultural activities on a commercial scale using modern
                     or high technology;
or
            5.9.2 to carry out agro-tourism project; or
            5.9.3 to carry out agricultural or agro-based
industrial activities for the
                     production of goods
for export. However, for this purpose relaxation
                     on equity condition may be considered.

                              
      Acquisition Of Industrial Property
      5.10 Foreign interest is allowed to acquire industrial
property without any price
             limit and must be
registered under a locally incorporated company subject
             to the conditions for acquisition.
                        
      Acquisition Of Property Through Public Auction
      5.11 Foreign interest including foreign bank is
allowed to acquire property through
             public auction valued more than RM150,000 per unit subject to the conditions
             for acquisition.
                        
      Transfer Of Property
      5.12 Transfer of property to a foreigner based on love
and affection requires the
             approval of FIC and is allowed among immediate family members only.
                          
      Leasing Of Property
      5.13 Leasing of property for a term of 10 years and
above by foreign interest
             requires the approval of FIC.

      Disposal Of Property
      5.14 Disposal of property by foreign interest to
another foreign interest requires
             FIC approval.
      5.15 Disposal of property valued at less than RM20
million by foreign interest to
             local interest needs only to be informed to FIC.

      Charging Of Properties To Foreign Interest
      5.16 Charging of property in Malaysia to foreign
interest requires the approval
              of FIC.

      5.17 Charging of property is allowed if all of the
loan taken would be utilised
             for operation of business in Malaysia only.

6    ACQUISITION OF PROPERTY BY PUBLIC COMPANY
      6.1 Acquisition of property by public company which is
financed by cash requires
           the approval of FIC.
          
V    EXEMPTIONS
      Exemption From Obtaining The Approval Of The FIC
                         
7    Acquisition of property valued at less than RM10
million by local interest.
                         
8    Multimedia Super Corridor (MSC) status companies are
allowed to acquire any
      property in the MSC area without obtaining the approval of FIC provided that
      the property is only used for their operational activities including as residence
      for their employees.
                         
9    Acquisition of residential unit under “Malaysia My
Second Home” Programme.
                         
10  Transfer of property pursuant to a will and court
order.
                       
11   Acquisition of industrial property by manufacturing
company licensed by the
       Ministry of International Trade and Industry for own manufacturing.

Exemption From The Conditions For Acquisition But
Requires The Approval Of FIC
12   Residential unit acquired for own use.
                         
13   Acquisition of one (1) or more contiguous properties
with a total value of less
      than RM10 million by foreign interest.
                       
                         
14   Acquisition of industrial property by foreign
interests for own manufacturing
       operations is exempted from the equity condition only.
                       
VI   RESTRICTIONS
15   Foreign interest is not allowed to acquire: -
      15.1   all properties under the category of low and
medium low cost as
               determined by the State Authority;
      15.2 all properties built on Malay reserve land;
      15.3 properties allocated to Bumiputera (Bumiputera
quota) in any property
             development project as determined by the State Authority;
       15.4 stall and service workshop; and
       15.5 agricultural land developed on the basis of the
homestead concept.  

VII  CONDITIONS FOR ACQUISITION
16   Conditions for acquisition of property by local and
foreign interests comprise the
       equity, share capital, property development and employment conditions as
       follows: -
                        
       Equity Condition
       16.1 Companies which do not have any Bumiputera equity
or having less than
              30% Bumiputera equity, are required to increase the Bumiputera equity to
              at least 
30%. The remaining equity shareholding can be held either by local
              interest
, foreign interest or by both;
        16.2 Companies with Bumiputera equity shareholding of
30% or more, but less
               than 51% are required to maintain at least 30% Bumiputera equity at all
               times;  and
         16.3 Companies which already have Bumiputera equity
shareholding of 51% or
                more, will be required to maintain at least 51% Bumiputera equity at all
                times;


         Share Capital Condition
         16.4 Local company owned by foreign interests with a
paid-up capital of less
                than RM250,000 will be required to increase the share capital to at least
                RM250,000 within six (6) months from the date of FIC’s approval letter;
                and
          16.5 Local company owned by local interest with a
paid-up capital of less than
                 RM100,000 will be required to increase the share capital to at least
                 RM100,000 within six (6) months from the date of FIC’s approval letter.

          Employment Condition
          16.6 Companies must, to the best of their ability,
recruit and train Malaysians
                 so as to reflect the country’s population composition at all levels of
                 employment.
                        
          Property Development Condition
          16.7  If the property acquired is to be developed as
housing or commercial
                  projects, at least 75% of the total value of building materials and fittings
                  used
for the construction project should be of local materials; and
           16.8 The company shall submit a certification issued by a certified consultant
                   regarding the total value of
the local building materials and fittings used
                   within six (6) months after the commencement of the construction
                   project and upon the completion of the project.

17  Acquisition of property by foreign interest as stated below has to be registered under
      a local company and will be subject to the conditions for acquisition: -
                        
      17.1  Acquisition of one (1) unit or more contiguous properties with a total value of
               RM10 million and above;
       17.2  Acquisition of an entire building or an entire property development project,
               irrespective of the value; and
       17.3  Acquisition of land or land with building for redevelopment on a commercial
               basis.

VIII  COMPLIANCE PERIOD OF EQUITY CONDITION
18   Equity condition imposed, if any, must be complied with within two (2) years from
       the date of FIC’s approval letter or from the date of commencement of the
       development of the property, whichever is earlier;
                         
19   The compliance status must be reported to the FIC at least one (1) month before
       the compliance deadline and/or whenever requested by the FIC; and
                         
20   The compliance period may be extended for one (1) year based on the merit of
       the case.
                         
IX   PROCEDURES ON SUBMITTING APPLICATION (Effective From 1 August 2004)
21   The onus to submit the application is on the purchaser. However, application by
       the vendor may also be accepted.
                         
22   All applicants are fully responsible to the accuracy of the information submitted.
                         
23   All proposals and communication will be treated in confidence.
                        
Transfer Of Property And Acquisition Of Residential Unit, Commercial Unit And Industrial Property
24   For proposed transfer of property to foreign interest and acquisition of residential
       unit, commercial unit and industrial property by foreign interest, each
application
       must be accompanied by the following documents: -
       24.1 Form FIC A/2004;
       24.2 One (1) copy of the relevant agreement;
       24.3 One (1) copy of the purchaser’s Passport/Identity Card;
       24.4 One (1) copy of the vendor’s Passport/ Identity Card;
       24.5 One (1) copy of the Master Title;
       24.6 One (1) copy of the Individual Title;
       24.7 Declaration Letter FIC SA/2004 signed by the purchaser for individual, or
              signed by the
Chairman/Managing Director/ Chief Executive Officer of
              the company, any member of the company’s Board of Directors or any
              authorised personnel/individual for company (for acquisition/transfer of
              commercial unit and industrial property); and
        24.8 Declaration Letter FIC SB/2004 signed by the
purchaser for individual,
               or signed by the Chairman/Managing Director/ Chief Executive Officer of
               the company, any member of the company’s Board of
Directors or any
               authorised personnel/individual for company (for acquisition/transfer of
               residential unit).
                        
Acquisition Of Other Properties
25   For proposed acquisition of other properties by local
and foreign interests,
      each application must be accompanied by the following documents: -
      25.1 Form FIC H/2004;
      25.2 Form Proforma I/2004 and/or Proforma II/2004;
      25.3 One (1) copy of the relevant agreement;
      25.4 One (1) copy of the letter/license from the
ministries or Government
              agencies (if applicable);
      25.5 One (1) copy of the approval letter on the same
proposal from other ministries
               or Government agencies (if applicable);
      25.6 One (1) copy of the confirmation letter from the
Company Secretary on the
              company’s current equity structure;
      25.7 One (1) copy of the latest valuation report
(transaction which involves
             Government agencies must be accompanied with the valuation report
             from Jabatan Penilaian dan Perkhidmatan Harta); and
       25.8 Declaration Letter FIC SA/2004 to be signed by
the Chairman/Managing
              Director/
Chief Executive of the company or any member of the company’s
              Board of Directors or any authorised personnel/individual.
                         
Acquisition Of Property For FIC’s Notification
26   For proposed acquisition/disposal of property by local
and foreign interests that
      requires notification to FIC, each application must be accompanied by the following
      documents: -
      26.1 Form Proforma I/2004 and/or Proforma II/2004;
      26.2 One (1) copy of the relevant agreement;
      26.3 One (1) copy of the purchaser’s Passport/ Identity Card;
      26.4 One (1) copy of the vendor/disposer’s Passport/ Identity Card; and
      26.5One (1) copy of previous FIC’s approval letter.

X    DECISION BY THE FIC
27   Decisions by the FIC on all complete applications will
be given within 24 working
      hours for acquisition of residential unit, commercial unit and industrial property
      by foreign interests and within 10 working days for other acquisition of properties.
                        
XI   CORRESPONDENCE ADDRESS AND ENQUIRIES
28   All applications must be submitted to: –
       The Secretary,
       Foreign Investment Committee,
       Economic Planning Unit,
       Prime Minister’s Department,
       Level –1, Block B5,
       Federal Government Administrative Centre,
       62502 Putrajaya, Malaysia.
                         
29   Any enquiries can be forwarded to the FIC’s
       Secretariat: -
       Tel. No. : 603-8888 3333/2944/2916
       Fax No. : 603-8888 3917

30   This Guideline is also available on the Economic
Planning Unit’s website: -
       Website : http://www.epu.jpm.my/                                            
                                                          
extracted from Sunrise Berhad homepage