Purchasing a heritage property in George Town, Penang, a UNESCO World Heritage Site since 2008is not just a real estate transaction; it is also a legal commitment to preserving cultural legacy. The historic shophouses and colonial-era buildings are protected under Malaysian law and local conservation plans, making it distinct from the normal property purchases.
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The inscription of George Town as a UNESCO World Heritage Site is a cherry on the cake as the comprehensive efforts to protect and conserve the national heritage have been initiated by the federal government with the National Heritage Act 2005 which came into force on 1st March 2006 that repealed the Treasure Trove Act 1957 and the Antiquities Act 1976. Despite the fact that most of the gazetted heritage buildings under National Heritage Act 2005 in Penang such as Fort Cornwallis and Penang High Court Building are nonsalable, it is important to check with the National Heritage Department for accurate and updated information on whether the subject property is a designated heritage site or National Heritage under the National Heritage Act 2005 before purchasing a heritage property as there are legal requirements that must be complied with.
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Pursuant to Section 36 of the National Heritage Act 2005, “an owner of a heritage site who enters into an agreement of sale of the whole or any part of the heritage site, shall notify the Commissioner in writing in the prescribed form of the information about the existence of that agreement within 28 days of the date of the agreement.” Likewise, pursuant to Section 37(1) of the National Heritage Act 2005, “any person who purchases or acquires any heritage site shall within 28 days of the date of the completion of the purchase or acquisition, notify the Commissioner in writing of that person’s name and address, and whether the person intends to occupy the site”.
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In regards to the heritage properties which have been declared as National Heritage under the National Heritage Act 2005, stricter obligations will be imposed. Pursuant to Section 70(1) of the National Heritage Act 2005, there shall be no change in respect of the ownership of any National Heritage except by inheritance or by sale with the prior approval of the Commissioner of Heritage. Furthermore, the owner, custodian or trustee who administers the National Heritage on trust shall give priority to the Commissioner of Heritage to purchase the said property. In the event that the subject property is sold with the prior approval of the Commissioner of Heritage, the owner, custodian or trustee and the purchaser shall inform in writing to the Commissioner of Heritage within 30 days after the change in ownership for the Commissioner of Heritage to make necessary amendment in the National Heritage Register.
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The Penang State Government also plays its roles in regulating the heritage property transactions. Similar provisions were enacted under theState of Penang Heritage Enactment 2011 and the State of Penang Heritage Regulations 2016 which require the owner who intends to sell the heritage site to notify the State Heritage Commissioner in writing of any information on the sale and purchase agreement within 28 days from the date of the signing of the said agreement. Likewise, the purchaser shall within 28 days from the date of completion of the purchase or acquisition notify the State Heritage Commissioner in writing the purchaser’s name and address, and whether the purchaser intends to occupy the property.
.
As there are distinct rules and regulations governing the protection and conservation of heritage property, it is advisable to seek further information from the relevant authorities especially MBPP’s Department of Heritage Conservation and George Town World Heritage Incorporated which is the main management body responsible for safeguarding the heritage site’s Outstanding Universal Value. Before any repair work can be carried out to the heritage property, approval or permit must be obtained from the MBPP’s Department of Heritage Conservation and the repair works should not increase the overall area of the building and do not involve additional structure. For instances, the façade of a shophouse shall have the same feature and materials typical of the neighbouring shophouse style, the authenticity of the roofline of the shophouses shall be maintained and Marseilles tiles shall not be used for pre-1930s shophouses such as the Early “Penang” Style shophouses (1790s – 1850s), the “Southern Chinese” Eclectic Style shophouses (1840s-1900s), the Early “Straits” Eclectic Style shophouses (1880s – 1910s) and the Late “Straits” Eclectic Style shophouses (1910s – 1930s).
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It is an offence to carry out any works or activity that may cause damage to the heritage property without approval from the local authorities, and the maximum fine for the offence can be as high as RM 500,000.00 pursuant to Section 26 of the Town and Country Planning Act 1976.
.
Even unauthorised works or activities carried out on a non-heritage property adjacent to a heritage property may constitute a tortious act if they result in damage to the heritage property. In such cases, the court is likely to award damages to the injured party.
.
This principle was affirmed in Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd (Hong Hing Thai Enterprise Sdn Bhd, third party) [2011] 4 MLJ 354. The court held that the Defendant had failed to exercise reasonable care, citing:
• Breaches of the Street, Drainage and Building Act 1974
• Breaches of the Penang Island Earthworks By-Laws 1975;
• Failure to conduct soil investigation prior to commencing piling works;
• Failure to comply with stop-work orders issued by the local authority.
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While owning a heritage property in George Town is a rare opportunity to be part of Penang’s living history, the process involves more red tape and responsibility than buying a modern home. Accordingly, prospective buyers should seek advice from qualified legal professionals and relevant government authorities before purchasing any heritage property, to ensure full compliance with applicable laws and regulations.
Acquiring Heritage Properties in Penang, George Town UNESCO World Heritage Site – a Legal Commitment to Preserving Cultural Legacy
Purchasing a heritage property in George Town, Penang, a UNESCO World Heritage Site since 2008is not just a real estate transaction; it is also a legal commitment to preserving cultural legacy. The historic shophouses and colonial-era buildings are protected under Malaysian law and local conservation plans, making it distinct from the normal property purchases.
.
The inscription of George Town as a UNESCO World Heritage Site is a cherry on the cake as the comprehensive efforts to protect and conserve the national heritage have been initiated by the federal government with the National Heritage Act 2005 which came into force on 1st March 2006 that repealed the Treasure Trove Act 1957 and the Antiquities Act 1976. Despite the fact that most of the gazetted heritage buildings under National Heritage Act 2005 in Penang such as Fort Cornwallis and Penang High Court Building are nonsalable, it is important to check with the National Heritage Department for accurate and updated information on whether the subject property is a designated heritage site or National Heritage under the National Heritage Act 2005 before purchasing a heritage property as there are legal requirements that must be complied with.
.
Pursuant to Section 36 of the National Heritage Act 2005, “an owner of a heritage site who enters into an agreement of sale of the whole or any part of the heritage site, shall notify the Commissioner in writing in the prescribed form of the information about the existence of that agreement within 28 days of the date of the agreement.” Likewise, pursuant to Section 37(1) of the National Heritage Act 2005, “any person who purchases or acquires any heritage site shall within 28 days of the date of the completion of the purchase or acquisition, notify the Commissioner in writing of that person’s name and address, and whether the person intends to occupy the site”.
.
In regards to the heritage properties which have been declared as National Heritage under the National Heritage Act 2005, stricter obligations will be imposed. Pursuant to Section 70(1) of the National Heritage Act 2005, there shall be no change in respect of the ownership of any National Heritage except by inheritance or by sale with the prior approval of the Commissioner of Heritage. Furthermore, the owner, custodian or trustee who administers the National Heritage on trust shall give priority to the Commissioner of Heritage to purchase the said property. In the event that the subject property is sold with the prior approval of the Commissioner of Heritage, the owner, custodian or trustee and the purchaser shall inform in writing to the Commissioner of Heritage within 30 days after the change in ownership for the Commissioner of Heritage to make necessary amendment in the National Heritage Register.
.
The Penang State Government also plays its roles in regulating the heritage property transactions. Similar provisions were enacted under theState of Penang Heritage Enactment 2011 and the State of Penang Heritage Regulations 2016 which require the owner who intends to sell the heritage site to notify the State Heritage Commissioner in writing of any information on the sale and purchase agreement within 28 days from the date of the signing of the said agreement. Likewise, the purchaser shall within 28 days from the date of completion of the purchase or acquisition notify the State Heritage Commissioner in writing the purchaser’s name and address, and whether the purchaser intends to occupy the property.
.
As there are distinct rules and regulations governing the protection and conservation of heritage property, it is advisable to seek further information from the relevant authorities especially MBPP’s Department of Heritage Conservation and George Town World Heritage Incorporated which is the main management body responsible for safeguarding the heritage site’s Outstanding Universal Value. Before any repair work can be carried out to the heritage property, approval or permit must be obtained from the MBPP’s Department of Heritage Conservation and the repair works should not increase the overall area of the building and do not involve additional structure. For instances, the façade of a shophouse shall have the same feature and materials typical of the neighbouring shophouse style, the authenticity of the roofline of the shophouses shall be maintained and Marseilles tiles shall not be used for pre-1930s shophouses such as the Early “Penang” Style shophouses (1790s – 1850s), the “Southern Chinese” Eclectic Style shophouses (1840s-1900s), the Early “Straits” Eclectic Style shophouses (1880s – 1910s) and the Late “Straits” Eclectic Style shophouses (1910s – 1930s).
.
It is an offence to carry out any works or activity that may cause damage to the heritage property without approval from the local authorities, and the maximum fine for the offence can be as high as RM 500,000.00 pursuant to Section 26 of the Town and Country Planning Act 1976.
.
Even unauthorised works or activities carried out on a non-heritage property adjacent to a heritage property may constitute a tortious act if they result in damage to the heritage property. In such cases, the court is likely to award damages to the injured party.
.
This principle was affirmed in Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd (Hong Hing Thai Enterprise Sdn Bhd, third party) [2011] 4 MLJ 354. The court held that the Defendant had failed to exercise reasonable care, citing:
While owning a heritage property in George Town is a rare opportunity to be part of Penang’s living history, the process involves more red tape and responsibility than buying a modern home. Accordingly, prospective buyers should seek advice from qualified legal professionals and relevant government authorities before purchasing any heritage property, to ensure full compliance with applicable laws and regulations.
About the authors
Tan Poh Yee
Senior Associate
Real Estate
Halim Hong & Quek
[email protected]
◦
Ch’ng Zhen Hong
Associate
Real Estate
Halim Hong & Quek
[email protected]
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