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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Chinese hacker pleads guilty, deserves respect whether guilty or innocent

A Chinese national named Su Bin pleaded guilty in the US on Wednesday to conspiring to hack into the computer networks of several major US defense contractors to obtain sensitive information, according to a US Department of Justice statement. The information allegedly includes technical files about F-22 and F-35 fighter jets and C-17 military transport aircraft.

The statement says "Su Bin admitted to playing an important role in a conspiracy, originating in China," where he has two accomplices. Some US media have conjectured that the two accomplices must be Chinese military personnel.

Su was arrested in Canada in July 2014, and was handed over to the US this February. The Chinese government has denied any involvement in Su's case, and the Chinese Ministry of Foreign Affairs has asked the US to ensure the privacy and legal rights of Chinese citizens on US soil.

Plea bargaining is a common US judicial practice. Defendants can plead guilty in exchange for softer punishments. The disadvantage of this practice is that it is hard to know what the defendants truly think, and whether there might be any wrongs in the judgments.

Every country is gathering intelligence. The largest and most well-known information-collecting agencies are the CIA and FBI in the US. The FBI has even listed China as their top target. Recent years have seen the FBI arresting quite a few "Chinese spies," but most of them proved to be innocent. In the meantime, China has kept a low profile in reporting the exposure of US spies out of various considerations.

In most cases, governments won't acknowledge these spies after they have been caught. For example, whenever China intercepted spies from Western countries, the governments they served routinely denied any connection and even mobilized the Western media to attack China's human rights and win over sympathy.

We have no reliable source to identify whether Su has stolen these secrets and transferred them to the Chinese government. If he has, we are willing to show our gratitude and respect for his service to our country. On the secret battlefield without gunpowder, China needs special agents to gather secrets from the US. As for Su, be he recruited by the Chinese government or driven by economic benefits, we should give him credit for what he is doing for the country.

If Su was wronged and forced to plead guilty, he should have our sympathy. As the "war of information" between China and the US continues, there will probably be more Chinese framed as spies and jailed in the US. This is a tragedy of the times, and we hope the Chinese working in sensitive professions in the US can protect themselves.

At the helm of international public discourse, the US is able to define whether certain activities are espionage or not. When US espionage is exposed, the US media will try to divert public attention and tone down the case. But when the CIA or FBI catches suspects, hyperbole about these cases makes headlines in US media.

The most infamous case is that of Edward Snowden, who revealed the global US surveillance program PRISM. The whistleblower is wanted by the US government, which refuses to reflect on its behavior, but keeps criticizing China for espionage without solid proof.

China lags behind the US in technology. The existence of US cyberspace military forces is openly known to the public, and its capability is way higher than Chinese "hackers." But it doesn't mean that China cannot fight back in the face of ill-founded US accusations of Chinese spies. China should uncover Washington's brazen hypocrisy with concrete evidence. - Global Times

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BOAO Forum 2016: Asia's New Future - New Dynamics, New Vision

http://t.cn/RqvW8Fw

Chinese Premier Li Keqiang delivers a speech at the opening ceremony of the Boao Forum for Asia Annual Conference in Boao, South China's Hainan province, March 24, 2016.[Photo by Zou Hong / chinadaily.com.cn]

Premier Li Keqiang said on Thursday relevant parties should try to complete negotiations of Regional Comprehensive Economic Partnership (RCEP) within this year.

The statement is an injection of confidence into Asia-Pacific, which since last year has been hit by slowing growth, plunging commodity price and depreciation of local currencies. Li made the comments at the Boao Forum for Asia Annual Conference.

RCEP is a proposed free trade agreement (FTA) between the 10 member states of the Association of Southeast Asian Nations (ASEAN) and the six states: Australia, China, India, Japan, South Korea and New Zealand. RCEP negotiations were formally launched in November 2012 at the ASEAN Summit. The final round of negotiation is expected to be held in Laos in September.

"The economic situation is not optimistic, but the confidence cannot be shattered. The region, which has experienced two financial crises in the past, is not what it used to be. Contributing to one third of the global trade last year, Asia remains the most dynamic region in the world," he said.

Developing countries in the region last year grew 6.5 percent in GDP, contributing 44 percent of the world growth, according to him.

Premier vows to implement 'Shenzhen-Hong Kong Stock Connect'

Premier Li Keqiang on Thursday vowed to implement the "Shenzhen-Hong Kong Stock Connect" program within this year.

"We'll launch the Connect at an appropriate time within this year," Li said at the Boao Forum for Asia Annual Conference.

The statement is a further indication of central government's resolve to launch the program to facilitate cross-border securities investment. Li said last week at the closing of annual legislature session that China will "work toward the launch of the Shenzhen-Hong Kong Stock Connect within this year".

China opened the Shanghai-Hong Kong Stock Connect at the end of 2014. Plan to further expand cross-border investment activities was delayed by the stock market rout last year.

China will adopt measures if economy runs out of 'reasonable range'

Chinese Premier Li Keqiang said on Thursday that the government will resolutely take comprehensive measures if the economic growth slips out of the "reasonable range."

He said the government will prevent the loss of speed and maintain economic growth within a reasonable range.

Li made the remarks at the opening ceremony of the 2016 annual conference of Boao Forum for Asia in the country's southern island province of Hainan.

No foundation for the yuan's long-term decline, says Li

Premier Li Keqiang said at the Boao Forum for Asia Annual Conference on Thursday that there's no foundation for a long-term decline in the value of the yuan.

"The renminbi will stabilize at a reasonable level, and China is a responsible world power," said the premier.

Such stress comes as markets are concerned about the yuan's slump as a way to boost exports.

The country's fundamentals have ruled out the possibility of a long-term depreciation, the premier stated at the forum.

The 2016 Boao Forum for Asia is held in South China's Hainan province from Mar 22 to 25. The annual conference aims to open the floor to discuss Asia's New Future, New Dynamics, and New Vision.

Premier calls on Asian countries to be good neighbors

Chinese Premier Li Keqiang said Thursday that Asian countries should keep peace and stability in the region and work together to maintain Asia as the key driver for the world economy.

One important reason why Asia had achieved a rapid growth over the past decades is that the region kept a generally peaceful and stable environment, Li said when addressing the opening ceremony of the 2016 Boao Forum for Asia (BFA) in Hainan province.

Dialogue and cooperation is the golden key, the premier said.

He stressed that, inspired by history and experiences after the WWII, Asian countries should be good neighbors and friends and not be disturbed by minor frictions and contradictions, no matter what stage of development they are in.

Citing views that the Asian economy is in a difficult situation, Li called for coordination and united efforts to overcome difficulties.

This year's meeting in Boao, Hainan, from March 22 to 25, is themed "Asia's New Future: New Dynamics and New Vision." More than 2,000 participants from over 60 countries and regions attend the forum. The event features discussions on the macro-economy, politics, entrepreneurship, innovation, the Internet, public well-being and culture.- China Daily

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