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Showing posts with label National House Buyers Association. Show all posts
Showing posts with label National House Buyers Association. Show all posts

Sunday, March 27, 2016

House buyers' traps: purchasers lose their homes because of defaulting developers

WHY does this keep happening to house buyers in Malaysia?


This incident happened two years ago in Taiping where a laid-back community of mainly retirees found the roof over their heads nearly, and in some cases, actually, blown away. The purchasers had paid the developer and had moved into their houses and lived there for 10 years. Problem was that the purchasers paid the developers in cash remittance without taking out end-financing loans.

Unknown to the purchasers, the developer did not pay the developer’s bank to settle the developer’s loan vide bridging loans. The developer’s charge remained and grew into bigger indebtedness to the bank.

Apparently, the developer’s bank had not been collecting payment of the loan from the developer, even as the developer was collecting the instalments of the purchase price from the purchasers, as provided in the sale & purchase agreement (S&P) schedule.

Having waited for 10 years for the developer to settle his loan, the bank realised that the developer was not going to pay; that foreclosure was unavoidable.

The bank had a problem. Apart from the developer’s loan having ballooned over the years because of the bank’s laxity in not insisting on the developer paying promptly, there was also political repercussion. There are a few issues here, namely, the destruction of a settled community in a pleasant location, the injustice of the S&P; the solicitousness for developers in preference to purchasers on the part of the powers that be; and the embarrassment resulting from the bank’s philanthropic ramifications.

Has the bank breached the fiduciary duty of care to the purchasers as the bridging loan financier to the defaulting developer?

The crux of the problem is that the Housing Ministry-prescribed S&P allows the developer to build the purchaser’s house with the instalments of the purchase price paid by the purchaser from the day the S&P is signed. On top of this, and even more seriously, the developer is allowed to borrow from the developer’s banks on the security of the purchaser’s property.

Where a purchaser has paid the purchase price in full to the developer, and the developer does not pay the developer’s loan secured by the purchaser’s property, the developer’s bank may foreclose, auction off the purchaser’s property to recover the developer’s loan.

The developer suffers nothing. It has received the purchase price and pocketed it. The developer borrowed from its bank and gave the purchaser’s property as security, and with foreclosure the developer’s bank recovers its loan, and so the developer owes no money to the bank. It takes no risk, suffers no loss.

Purchasers the victims

It is the purchaser who loses. He loses his house and he has to settle the loan he took to buy the house with increasing interest on it. He is blacklisted, which means he can never borrow again. He may never buy a house again! Is this fair to the buyer who never did anything wrong to the developer or to the developer’s bank? In the Taiping housing fiasco, some of the purchasers had to buy their houses again at prices bloated by 10 years’ arrears of interest (i.e. pay the developer’s debt) to stave off foreclosure.

Who is to blame for this sad state of affairs? We will consider each one in turn. The most obvious candidate is, of course, the developer. Not so. It is the Housing Ministry for providing a standard form S&P that allows this to happen. Firstly, the S&P allows the developer to borrow money from a bank with a charge on the whole housing development land before it is sub-divided and sold. This pre-sale loan is referred to in the recitals to the S&P. This is understandable as the developer needs money before sale. The result of this is that the purchaser buys an encumbered property but the purchaser is not told how much of the developer’s loan, if apportioned equally, is borne by each purchaser’s sub-divided land (the redemption sum). After sale, the developer collects money from the purchaser from the day the S&P is signed, and should be able to make use of it to meet all the expenses of the development. However, after the sub-divided land is sold, the developer keeps borrowing, and no effort is made to keep the purchaser informed about the increasing amount of the developer’s loan/ the redemption sum.

The purchaser’s consent to the additional, post-sale loans is taken for granted. In fact, the purchaser cannot withhold his consent as long as the purchaser receives some fig-leaf protection from the developer’s bank in the form of an undertaking not to foreclose.

What is the use to the purchaser of the developer’s bank’s undertaking not to foreclose? What the purchaser needs is the absolute undertaking by the developer and the developer’s bank that a purchaser who has paid the purchase price will not face foreclosure vis-à-vis the disclaimer(s). This would have helped the Taiping purchasers. It is, therefore, a matter between the developer’s bank and the developer, with the Housing Ministry playing the proper protective role required of it by law, to ensure that such an undertaking/ disclaimer is given by the developer’s bank to the purchaser. This and other issues arising from the S&P have been raised by HBA with the Housing Ministry which continues to procrastinate.

To the developer’s bank, the loans to the developer on the security of the purchaser’s land is regarded as if it is the developer’s property entirely; it is of no concern to the developer’s bank that some of the purchasers have paid the developer and the developer may or may not have forwarded some of these payments to the developer’s bank.

The developer’s bank’s concern is whether the whole loan has been settled by the developer-borrower. If not, the developer’s bank feels secure in the knowledge that the entire housing development land is available to the developer’s bank to recover its loan/s. In so far as the developer’s bank is concerned, payments made by each purchaser to the developer is of no consequence. The transaction between the bank and the developer is the one that matters.

Under the then S&P, there is also no control over how much the developer should be allowed to borrow, for what purpose and by when it should be settled. Each loan to the developer increases the risks to the purchaser.

In the recent past, developer’s borrowed only for the purpose of meeting the expenses of the housing development. The developer was allowed to borrow twice only – once before sale and once after sale. Although the developer was not required to disclose the redemption sum, there was a very important safeguard. And that is, the developer had to settle the redemption sum to the developer’s bank before completion of construction so that at the end of the 24- or 36-month construction period, as the case may be, the property was free from the developer’s encumbrances and safe from foreclosure, even if the property was not transferred to the purchaser just as promptly. It was at least safe from foreclosure.

Bank initiatives

Banks/financial institutions should take the initiative to recover progressively the loan it had given the developer. Banks should stipulate as a condition for giving loans to their customers (developers) that the latter open its Housing Development Account (HDA), a statutory requirement, with the same bank and require the instalments of the purchase price be paid into it, and authorise the bank to deduct the developer’s loan by instalments from the HDA so that when the purchaser completes payment, the developer’s loan is also settled.

There is no such statutory requirement in the S&P so that if it happens at all, it’s serendipity!

HBA had meetings with the Housing Ministry to propose changes to the law and S&P with the view of giving greater protection to purchasers within the framework of the sell-and-build (which Rehda defend so fervently) but some pertinent ones had been objected by Rehda.

As if that is not enough, the ministry too have rejected those proposals vis-a-vis pre-determination of redemption sums in the S&P transaction. And that notwithstanding the Housing Development Act 1966 stating that it is inter alia for “the protection of the interests of purchaser.”

The next continuing article will dwell on the new “protection” or whatever in lieu thereof approved by the Attorney-General’s Chambers vis-à-vis “redemptions and disclaimers”.

Buyers beware by Chang Kim Loong

Chang Kim Loong is secretary-general of the National House Buyers Association: www.hba.org.my, a non-profit, non-governmental organisation.

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Sunday, August 23, 2015

A strata property living nightmare: leakage

The party responsible is not your upstairs neighbour but the management



Stiff penalty: Whoever fails to give access to the party carrying out the inspection commits an offence. The fine imposed is up to RM50,000 or imprisonment of up to three years or both, under regulation 63(2).

IF you live in a high rise building and have an inter-floor leakage issue, you can be rest assured that you are not alone. Inter-floor leakage is without a doubt one of the biggest problems faced by many dwellers of high rise buildings.

Whilst the leakage may appear only in a particular parcel, the source of the leakage may lie in the parcel above or even elsewhere. The cooperation of more than one party is therefore required; without which one cannot even begin to identify the problem, let alone solve it.

Two issues must be identified when there is an inter-floor leakage. Firstly, the source of the leakage and secondly, the person or body responsible for repair or rectification. Who is supposed to identify the source of the leakage to start with? The person or body responsible of course, you may say, but how do you know who is responsible before the cause of the problem is ascertained? A bit of a chicken and egg situation arises.

New Act

Will the new management Act answer to all ceiling leakages?

In February 2013 the Strata Management Act 2013 (SMA) was passed by Parliament. With that came a presumption in law, under Section 142 of the SMA, that if the leakage is on the ceiling, then such leakage is presumed to be from the parcel above unless it is proven otherwise. So, if you have a leakage from your ceiling, go to your upstairs neighbour and tell him/her that he/she is responsible and must therefore find the source of the leakage and do the repair. What if he/she disclaims responsibility? Simple, You just quote Section 142 of the SMA. What a magical section with a “one fits all” answer to ceiling leakages! I thought so too when I first read Section 142, but I was not completely right for the law does not place the entire responsibility squarely on the upstairs parcel owner.

It was to be another couple of years before the SMA was implemented in June 2015 but the good news is that with that came also the implementation of the Strata Management (Maintenance & Management) Regulations 2015 (SMR). Many thanks to those (including HBA volunteers) who worked tirelessly on drafting and fine tuning the provisions of the SMR, we now have some definite answers on what to do if you have a leakage from your ceiling.

Who is responsible?

In dealing with inter-floor leakage one must not just look at Section 142 of the SMA but also Part XV of the SMR. Indeed it is Part XV of the SMR which tells you what to do if you discover dampness, moisture or water penetration from your ceiling or if you were to go home one day only to find that it is raining in your apartment.

Go to the developer if you are still covered by the defects liability provisions.

If the leakage is still covered by the provisions of your sale and purchase agreement (SPA), follow the provisions of your SPA. For homebuyers, these are typically cases where the leakage or defect occurs during the defects liability period, and which the housing developers are required to rectify, as provided in the statutory SPA.

JMB/MC/Management first in the line of responsibility – regulation 56

If the leakage is not one which is covered by the SPA, then notice may be served by the owner of the affected parcel on the developer or the joint management body (“JMB”) or the management corporation (“MC”) or the subsidiary management corporation (“sub-MC”), as the case may be.

This is provided for in regulation 56(1) of the SMR. What regulation 56 essentially means is that you serve notice on the body responsible for the maintenance and management of the common property, which for convenience I shall refer to as “the management”. So, now you see, the party first in the line of responsibility is not your upstairs neighbour but the management.

Once notice is received, the management must, within seven days, carry out an inspection to determine the cause of the leakage and the party responsible for rectification (regulation 57). Thereafter, the management must issue a “Certificate of Inspection” stating the cause of the inter-floor leakage as well as the party responsible for rectification (regulation 59). A standard form certificate for this purpose can be found in Form 28 under the Second Schedule of the SMR.

So, what is the purpose of Section 142, you may ask? Section 142 merely creates a presumption that the defect lies in the parcel above. In practical terms, this does nothing towards resolving any inter-floor leakage issues other than perhaps as a starting point for inspection. After all, one cannot possibly rectify a defect which causes the leakage until and unless the actual defect is identified. The legal implication of Section 142, however, is perhaps best left to those much more qualified than I but I do wonder if this statutory presumption alone can be a valid ground for holding the upstairs parcel owner responsible and if so under what circumstances in light of the provisions of the SMR.

Determining factor(s)

Under regulation 58 of the SMR, the management must take into account not just the aforesaid presumption but also the following matters which to my mind are far more relevant once the defect is identified:-

(1) that any defect in something which serves more than one parcel is a common property defect; and

(2) that any defect in something which serves only one parcel is a defect of that particular parcel even though that something is situated in common property or in void space.

In other words, the determining factor is not the location of that defective something but which parcels that something serves. If it serves just one parcel, that particular parcel owner is primarily responsible and must rectify the defect failing which the management shall carry out the rectification works and charge the expenses to that particular parcel owner. I say primarily because whilst regulation 61 of the SMR imposes the obligation on a specific parcel owner such obligation is expressly stated to be without prejudice to that parcel owner seeking indemnity from someone else.

That of course begs the question of who can be held liable for such indemnity; a question which is beyond the scope of this article but I certainly will not rule out any parcel owner, including the affected parcel owner, who contributes towards the defect or any delay in the rectification of the defect.

The decision of the management is, as expected, not final. Anyone not satisfied with a decision made against him/her may refer to the Commissioner Of Buildings (COB) who shall ascertain the cause of the leakage and the party responsible in accordance with regulation 64(1) & (2) and the decision of the COB shall be complied with by all parties concerned.

Grant access for inspection or risk prosecution

It goes without saying: that neither inspection nor rectification works can be effectively carried out without access to all relevant parcels and common property. Hence, the imposition of a statutory obligation on all relevant parties to give access as provided by regulation 63(1) of the SMR comes as no surprise at all.

Whoever fails to give access to the party carrying out the inspection commits an offence! And the punishment is severe too; a fine of up to RM50,000 or imprisonment of up to three years or both, under regulation 63(2).

Given that the lack of cooperation on the part of some parcel owners/occupiers has remained one of the main causes of delay in resolving inter-floor leakage problems, these provisions are definitely a step in the right direction. It does puzzle me, however, that whilst a failure to give access for inspection tantamount to an offence, the same does not seem to apply to a failure to give access for rectification.

Some of you cynics out there may be tempted to brush this aside as something unlikely to be enforced by the authorities but do you want to take that chance? Do you really want to risk prosecution over something as simple as giving access for inspection and/or rectification?

Beside, now that the Strata Management Tribunal has been set up you may be slapped with an order much sooner than you think.

By Chang Kim Loong Buyer Beware

Chang Kim Loong AMN is the honorary secretary-general of the National House Buyers Association: www.hba.org.my , a non-profit, non-governmental organisation manned purely by volunteers.

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