Protecting house buyers’ interest


I REFER to the reports “Court: No power to grant extension” and “A fair and right judgment, says housing developer” ( The Star, Feb 28 – Developer has to compensate buyers for delays of projects, Court says).

The High Court decision declaring as ultra vires (beyond one’s legal power or authority) the Housing and Local Government Minister’s granting of a one-year extension of time (EOT) to developers to complete a delayed housing project and thus denying house buyers liquidated and ascertained damages (LAD) provided for under the sale and purchase agreement is timely, sound and indeed meritorious. It is hoped that the decision would be maintained should the minister decide to appeal it.

The Housing Development (Control and Licensing) Act 1966 was enacted for the protection of home buyers.

The long title of the Act (paragraph stating Parliament’s intent for the Act) says: “An Act to provide for the control and licensing of the business of housing development in Peninsular Malaysia, the protection of the interest of purchasers…” This makes clear that the housing development business is regulated to ensure that the protection of home buyers’ interest is paramount.

Two eminent judges, the late Tun Mohamed Suffian, former Lord President of Malaysia, and the late Tan Sri Lee Hun Hoe, the longest serving Chief Justice of Borneo, stated this in two landmark cases respectively.

Suffian LP (Sea Housing Corporation v Lee Poh Chee): “To protect home buyers, most of whom are people of modest means, from rich and powerful developers, Parliament found it necessary to regulate the sale of houses and protect buyers by enacting the Act.”

Lee Hun Hoe CJ (Borneo) (Beca (Malaysia) Sdn Bhd v Tan Choong Kuang & Anor): “The duty of observing the law is firmly placed on the housing developers for the protection of house buyers. Hence, any infringement of the law would render the housing developer liable to penalty on conviction.”

Respectfully, it is submitted that the decision to grant the developer of a housing project extension of time and thus deny the home buyers’ statutory rights to LAD ought to be exercised with diffidence. The decision, if any, ought to be made with the Act’s long title in mind, namely, “for the protection of interest of purchasers”.

In doing so, some aspects to consider are:

> In granting EOT, how will home buyers’ interest be protected?

> LAD is agreed monetary payment for home buyers’ losses for delay in completion of a housing project. Is denying home buyers’ the LAD by the EOT tantamount to protecting their interest?

Although Section 11(3) of the Act states that the developer under “special circumstances” may apply to the Controller of Housing for EOT, it is submitted that Parliament and the long title of the Act surely did not intend LAD to be wiped out by “a stroke of a pen”.

To avoid doubt, “special circumstances” would mean act of God or natural disaster, for example earth quake or tsunami, and not business or economic related challenges or hardship.

The above view would make legal sense of Section 11(3).

Again, the High Court decision is lauded.

Home buyers’ interest is of paramount importance under the Housing Development (Control and Licensing) Act 1966. The Controller of Housing’s or Minister’s decision, although seemingly made “by a stroke of a pen”, must materialise or recognise this intent. Failing to do so would be ultra vires the Act.

May the redeeming light of the Housing Development Act (Control and Licensing) 1966 continue to shine effervescently and protect effectively home buyer’s interest for many years to come.

This letter is dedicated to the National Housebuyers Association, its great team of lawyers, professionals and volunteers for their sterling and pro-bono efforts to speak up for and preserve home buyers’ interest.

Source: ROBERT TAN,  Home buyer and author of Buying Property From Developer: What You Need To Know And Do, Petaling Jaya

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Developer has to compensate buyers for delays of projects, Court says


 

 
Take them to task: According to the liquidated damages clause, condo buyers can claim 10 per annum of the purchase price for the delay

KUALA LUMPUR: The Housing Controller has no power to grant an extension of time to developers who delay the completion of housing projects, the High Court has ruled in a landmark judgment.

This means a housing developer has to pay compensation to the affected buyers for delays in the delivery of vacant possession.

High Court (Appellate and Special Powers) judge Justice Hanipah Farikullah also held that the regulation which empowers the Controller to modify terms of the contract of sale was ultra vires the Housing Development, Control and Licensing Act.

The judge said this in allowing an application for judicial review by 71 buyers of the Sri Istana condominiums in Old Klang Road against the Housing Controller and Urban Well-being, Housing and Local Government Minister.

Their lead counsel Datuk Wong Kok Leong told The Star the judge held that the minister’s decision to grant the developer an extension of time to complete the project via a letter dated Nov 17, 2015 was invalid.

In the letter, the minister had granted the developer a 12-month extension to complete the project.

“This means that the Housing Controller has no power to grant an extension of time to housing developers for any delay in completing their projects,” Wong said.

“Now, the developer has to pay the liquidated damages (a pre-determined sum) for late delivery of vacant possession of those condominium units.”

Wong called the decision a landmark judgment as many project developers seek extensions to complete their projects in Malaysia.

“This is a victory for all house buyers. With this ruling, the housing developer can’t just go to the Housing Controller for an extension of time to complete the project in order to avoid paying the liquidated damages to house buyers.

“This is because if an extension of time is allowed, house buyers lose their rights to claim damages for late delivery of vacant possession,” he added.

Wong explained that according to the liquidated damages clause, the condo buyers can claim 10% per annum of the purchase price for the delay.

In their application for judicial review, the condo buyers stated that they wanted to quash the decision allowing BHL Construction Sdn Bhd an extension of time for the delivery of vacant possession from 36 months to 48 months.

They also asked the court for a declaration that Regulation 11(3) was ultra vires of the Housing Development Act (Control and Licensing) Act.

Wong said the judge has ordered the parties to address the issue of costs on the next date for case management.

When contacted, SFC Mohamad Rizal said the judge also allowed a similar application involving another group of condominium buyers involving the same developer and project.

Source: By  m. mageswari, royce tan, thean lee cheng, eugene mahalingam, The Star

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Investing in property to let may not be a good idea


Buying to rent may not be a good idea

RENTING out a house or apartment used to be a source of income that would help to pay back the loan instalment or increase one’s available income.

Today, this is no longer a good idea, particularly for those whose income is just enough to meet their needs in the near- or short-term. This is because many people have become less honest.

Those who buy a property with the idea of renting it out may find themselves dealing with a delinquent tenant. To illustrate the situation, I reproduce part of a letter from a reader who is having sleepless nights.

“I have rented an apartment to a Bangladeshi family for a monthly rent of RM900 for several years without a written tenancy agreement. The rental payment went on smoothly until roughly nine months ago, when the tenant started delaying payment of both rental and water.

The rental and water payment was owed several months. Every time he said he would pay, but ended up not paying. He now owes me more than three months rent and more than six months water and has refused to move out, saying he needs time to find a place.

What can I do to get him out, if he continues staying without payment? People have advised me to lodge a police report and get the Rela to forcibly move him out. Is it legal to cut off the water and/or force the tenant out?”

To start with, it is legally wrong to disconnect the electricity or water. Once rented out, the tenant acquires a special kind of right to be on the premises.

A breach by him allows the landlord to terminate the tenancy. Thereafter the tenant becomes liable to pay double rent. The landlord should get a court order to evict him. I don’t think making a police report or approaching Rela will help.

This does not go very far in hel­ping the reader, but what I have to say could help readers who are renting out their property of the type referred to, or who are planning to do so.

Such a person should consider carefully whether he has sufficient spare funds if he is taking a loan. If he is a cash buyer or has resources to pay the instalments then it is fine.

This is because rent will not roll in immediately once the property is ready. There will be a need to spend time and money on putting in some basic fixtures. Time may be required to find a tenant.

In the meantime, the loan instalments will become payable and if he is unable to pay, these will add up and attract penalty interest, increasing the amount of the loan. There will be an added problem if the tenant is only able to pay rent which is less than the instalment.

So what could a landlord do to safeguard himself? The landlord should have a written agreement, and should require at least three months’ deposit at the outset and one month’s rental in advance, with the rental to be paid on or before the seventh day of each month, if not earlier.

Breach of these requirements would entitle the landlord to terminate the tenancy forthwith and require vacant possession.

Once the landlord has put himself in this position, he must monitor the payment of the rent. The tenant may pay late, but the landlord must not keep quiet. When there is a delay in payment but he pays within the month, you must give him a warning that the late payment is a breach.

The need to do this every month is important, because if the landlord allows the tenant to do this repeatedly, the law may regard this as acquiescence and a waiver by the landlord of the obligation to pay on the stipulated date.

If the tenant has not paid for two months the landlord should, by the middle of the second month, terminate tenancy and ask him to vacate the premises. At this stage the landlord has one and half month’s deposit, which allows him to have time to take meaningful action against the Tenant.

Chances are that if the landlord proceeds with such promptness, the tenant will come forward and resolve the matter.

As a term for allowing the tenant to stay on, the landlord could require the tenant to pay the legal costs. In such an event, the tenant would in future pay the rent regularly or he would leave, allowing the landlord to let the premises to another tenant.

Going to court can be costly, but the landlord should not just give up. He should approach a lawyer who can help him with the problem. Not all lawyers are out to make big profits from every client. Some lawyers will even do it for a very low fee, just to help the tenant.

Going to court will look harsh and is something that the owner may not like to do. This is because, at the point of renting, tenants project themselves as very decent and nice people who have every intention of paying the rent promptly. The issue here is: does the owner want his rent to be paid?

If the owner wants to be kind, then the tenant is likely to take advantage of him and drag on the non-payment. Of course, if the landlord is so inclined, he must be prepared to pay the price for being nice.

Law For Everyone By Bhag Singh The star

Any comments or suggestions for points of discussion can be sent to mavico7@yahoo.com. The views expressed here are entirely the writer’s own.

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Penang has confirmed the illegal hill clearing cases reported by Penang Forum


Land clearing in Penang is rampant with Civil liberties group, Penang Forum (PF) revealing only 7.4 per cent of the state is categorised as forested land. NSTP pix
Location : Near Lintang Bukit Jambul 1
Approximate Coordinates : 5°20’38.47″N,100°16’52.82″E
Report sent in August 2016. Photos taken in November 2016 and 2014. PHW Report 15 pix.

 

GEORGE TOWN: Penang has acknowledged that nine out of 29 hill clearing cases on the island, as reported by Penang Forum , were illegal.

Penang Forum representative Rexy Prakash Chacko said state Local Government Committee chairman Chow Kon Yeow and Penang Island City Council (MBPP) had a discussion with them last week.

This came about after the forum’s first Penang Hills Watch (PHW) report on hill clearing cases was submitted to the state on Jan 2.

“They investigated the report and concluded that only nine were illegal clearing activities while the rest were legally permitted land works (14) and natural slope failure (one). The other five cases are still being investigated by the relevant departments.

“The illegal clearing cases have been issued with stop work orders or are being followed up by court action,” he said on Saturday.

Chacko commended Penang’s concern and transparency in responding to the PHW report.

He urged for close monitoring on the nine illegal clearing cases and for mitigation action to be taken to rehabilitate the areas if necessary.

“For those with permits, the forum hopes that the clearing will strictly adhere to the state laws on land works and drainage.”

Chow, when met at Datuk Keramat assemblyman Jagdeep Singh Deo’s CNY open house in Taman Free School, said he had discussed with Penang Forum members about the report and answered their queries.

The public can view the PHW report as well as the response from the state government at the Penang Hills Watch Facebook page (@PenangHillsWatch) or the Penang Forum website, and see them interactively on a map at the Penang Hills Watch page.

PHW, a citizen-oriented initiative to provide a platform to monitor activities affecting the hills of Penang, was launched in October last year by Penang Forum, a loose coalition of non-political civil society groups often critical of the state government’s plans and policies. –  The Star

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Penang Island City Council, MBPP councilor Dr Lim fed up change not happening in Penang


Stepping down: Dr Lim giving a speech at the council meeting at City Hall, Penang.

Dr. Lim tells why he walked

GEORGE TOWN: The only city councillor here who dared to go against the state government does not want to continue after his term ends on New Year’s Eve because he is disappointed with the Penang Island City Council (MBPP).

Dr Lim Mah Hui (pic) said he no longer wanted to serve because “the change in Penang that we want doesn’t seem to be happening”.

“I will remain active as a Penang Forum committee member. I will still speak up on public issues.

“I believe people in public offices should serve for limited terms. Perhaps it will take a fresher mind with new ideas and approaches to make things happen for the better,” he said.

Dr Lim, who has served as a councillor since 2011, also believed that the council should allow the public to observe council committee meetings.

“The committee meetings are where decisions are made. If people are watching the deliberations, then public scrutiny can help temper political interests,” he added.

The press and the public are allowed to witness full council meetings, but Dr Lim said these were formal meetings to confirm matters that had been decided upon.

Dr Lim is the sole city councillor out of 24 with no political ties. A former professor and international banker, he was nominated to MBPP by Penang Forum, a loose coalition of numerous NGOs in the state.

His appointment stemmed from the current government’s 2008 move to swear in councillors representing NGOs. Four such councillors were initially appointed but since 2012, although the official NGO councillors still stand at four, only Dr Lim is known to come strictly from civil society.

He made his maverick nature clear less than a year after being a councillor when he joined a group of 30 people to publicly protest against his own council outside City Hall months after being appointed.

In March this year, he was involved in a heated exchange with Chief Minister Lim Guan Eng during an NGO dialogue session over parking woes, road-widening projects and the council enforcement’s car-towing figures.

In July, Dr Lim criticised the state’s Penang Transport Master Plan (PTMP) and suggested an alternative better, cheaper, faster transport master plan.

A month before that, he sent a letter to Unesco expressing fears that the PTMP would jeopardise George Town’s World Heritage Site status.

Throughout his tenure in MBPP, Dr Lim has been called a liar, back-stabber and betrayer of the state government by local politicians. NGO members, however, hold him in high regard.

“Nobody can live up to Mah Hui’s standard as an example of integrity and representing public interest without fear or favour.

“He had been talking about stepping down for some time.

“Maybe he needs to take a break and we hope he will accept the post again,” said fellow Penang Forum member Khoo Salma Nasution, whom the group has nominated to take Dr Lim’s place.

Former DAP member Roger Teoh, who was initially at loggerheads with Dr Lim over the PTMP, said it was a shame that local politicians had painted him in a negative light.

“Something was not right about how the state was reacting to Dr Lim’s Unesco letter. I felt he was unfairly labelled as treasonous. If his concerns were heard internally, would he have needed to write to Unesco?” he asked.

Teoh had initially supported the PTMP and openly criticised Dr Lim.

He changed his stand after doing a Masters thesis research on car use in 100 cities around the world, which led him to resign from DAP recently.

Sources: Arnold Loh The Star/Asian News Network

Dr Lim Mah Hui to make way for new blood 

                                                                          GEORGE TOWN: Outspoken Penang Forum member Dr Lim Mah Hui (pic) will not seek another term as a Penang Island City councillor.

“I have declined to be nominated for the reappointment as a councillor next year. I have served six years.

“I think I have served long enough and we need new blood and new people to take up the cause,” he said at the council’s monthly meeting yesterday.

He later told a press conference that Penang Forum suggested Khoo Salma Nasution, the forum’s steering committee member and Penang Heritage Trust vice-president, as his replacement.

“We have nominated Khoo as the representative for Penang Forum and NGOs. We will have to wait for the state executive council to decide on the nominations.

“Nobody told me to step down. It was my own decision. Penang Forum wanted me to continue but I told them I had done more than my share.

“I will remain in the Penang Transport Council,” he said.

Dr Lim, however, said he would continue to be vocal and speak out.

He urged the Penang Island City Council to open its meetings to the public to promote greater transparency and participation.

“Section 23 of the Local Govern-ment Act 1976 gives the local council the power to do so.

“Members of the public can also be invited to sit in, possibly as observers, at the council’s committee and sub-committee meetings where decisions are made.

“This is the challenge I put forward. If they are truly taking about change and a new type of government, then they should do that,” said Dr Lim.

Dr Lim has raised various concerns during his stint as a councillor and forum member on issues related to hill clearing, land reclamation, heritage conservation and the proposed Penang Transport Master Plan. – The Star

Developers unafraid of Penang authorities, says activist group

 

CHANT cited the demolition of the 19th century Khaw Sim Bee Mansion and illegal hilltop clearing of Bukit Relau as examples of the developers’ fearlessness. — File picture by Bernama – See more at: http://www.themalaymailonline.com/malaysia/article/developers-unafraid-of-penang-authorities-says-activist-group#sthash.muMUgaNa.dpuf

GEORGE TOWN, March 16 — Developers in Penang no longer fear flouting the law as the authorities seem to be “toothless” in taking punitive actions, an activist group claimed.

Referring to the latest hill-clearing incident on Bukit Gambir and similar past incidents, Penang Citizens Awareness Chant Group (CHANT) coordinator Yan Lee said the developers knew they could easily get away with illegal earthworks or structural demolitions.

This was because the state government and the municipal council were not prepared to take stern punitive action against them, he said in a text message yesterday.

The council has come under fire in the past few days after a developer defied a stop-work order to carry out earthworks on the hill slope of Bukit Gambir in Gelugor.

CHANT cited the demolition of the 19th century Khaw Sim Bee Mansion and illegal hilltop clearing of Bukit Relau, commonly referred to as “Botak Hill”, as examples of the developers’ fearlessness.

Yan Lee claimed that the developers were fearless because they knew a contribution to the state heritage fund (SHF) “can do magic”.

A check by Malay Mail yesterday showed the developer had stopped work for two days on the hill slope, located behind the Gambier Heights apartments.

The council had issued the stop-work order on Thursday.

The hill was cleared to build a temporary 500m-long access road and fencing for a housing project site on the hill slope.

Trees were chopped down to make way for the road, while a lorry and an excavator were parked at the construction site.

According to some residents, the earthworks began early this month.

The residents also complained of pollution caused by dust, and noise caused by the frequent movement of vehicles.

Traffic management and flood mitigation committee chairman Chow Kon Yeow called on the council to take stern action against the developer for “jumping the gun”.

He said the developer should have waited for the council to issue a commencement of work certificate.

Sahabat Alam Malaysia urged the state authorities to stop the developer from clearing the hill, and to implement firm policies to protect the hills and greenery in the state.

It warned against a repeat of the “Botak Hill” incident.

An MPPP councillor also said the developers had no respect for the authorities.

“Even if the council were to haul them up for violating the law, they know they will get away with a token fine,” the councillor, who asked not to be named, said.

He cited a previous case where a developer completed a housing project despite the case for carrying out illegal earthworks pending in court.

Sources: Athi Shanka, MalayMail online

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Childcare centre fees set to go up


Child care centre fees will likely increase by 10 per cent next year. — Picture by Zuraneeza Zulkifli

Operators expect 10% hike next year

SUNGAI BULOH: The fees for childcare centres across the country are expected to increase by at least 10% next year, says the Association of Childcare Centres Selangor.

This was due to the revised minimum wage, said association president Mahanom Basri.

“The increase depends on the management of the centre. If the rent, salaries and other expenditures have gone up, it will increase by between 5% and 10%.

“It won’t be a lot, but there will definitely be an increase,” she said here yesterday.

For example, Mahanom said a 10% increase from the RM300 fee per child would result in a new fee of RM330.

Besides the minimum wage, she said childcare centre operators also had to install CCTVs for extra security.

“Quality facilities require money so I hope parents are ready to pay for them,” she added.

The Government introduced the minimum wage policy in 2013.

On July 1, the monthly minimum wage was increased from RM900 to RM1,000 for peninsular Malaysia and from RM800 to RM920 for Sabah, Sarawak and Labuan.

Mahanom, together with more than 300 childcare centre operators, attended a dialogue session with Deputy Women, Family and Community Minister Datin Paduka Chew Mei Fun yesterday.

One of the issues raised during the two-hour closed-door dialogue was the licensing fees charged by local councils.

“We have proposed to the local councils that they could treat childcare centres as community service instead of commercial business.

“By doing so, they can reduce the licensing fees,” Chew said.

She said the ministry was also looking into easing some regulations.

“We will be looking at the ratio; such as how many children should be cared by one minder without compromising on safety.

“Childcare service is important and the demand is big. Many families have both parents working so we need to have a strong childcare service,” she added.

By Nurbaiti Hamdan The Star/Asia News Network

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