If there is late penalty interest from the vendor due to the delay, tell him to contra that with rent. Easy.

Is it with individual title? Is it charged/assigned to any bank in exchange for a loan?

Pursuant to section 16AC (1)(b) of the HDA 1966, an order of the Tribunal is final as is deemed to be an order of the Magistrate's Court or Sessions Court, as the case may be, and can be enforced by any party in the proceedings.

As your judgment sum is 26k, it will fall under the jurisdiction of the Sessions Court. As such, if the developer still refuses to comply, you need to enforce the order at the Sessions Court. Your options are:
1) Writ of seizure of sale - where the bailiff will seal and subsequently auction off the developer's goods in their premises;
2) Judgment debtor summons - where the directors of the Company would be compelled to attend Court to be questioned as to their respective financial capacity; and
3) Garnishee proceedings - where obtain a Court order to compel their bank to 'freeze' a sum equivalent to the judgment and remit same to you.

If you wish to go all the way, you can also issue a notice of demand pursuant to Section 218, Companies Act to give them 21 days to pay up, failing which you proceed to file a winding-up petition against the developer at the High Court. To wind-up the developer means to close them up (as they say 'tutup kedai')

At this stage, you would need to seek legal advice and your lawyer can advise you as to the best method to get your money.

Why do you assume that consent is needed when same is not stated in the question posed by ken8120?

Sorry,chief,my mistake. Read your query too fast and misunderstood it in my haste to provide an answer. Humble apologies.

Delay by vendor only extends the completion date for the purchaser to complete the transaction. So, the completion date would not be 22nd September anymore, as there were delays by the vendor (as you said). It would be extended according to the calculation of number of days of delay from the vendor. If there were no delays from your side, all the better. So, do check with your lawyer as to when the revised completion date would fall.

Coming back to the rental issue, you must remember that vacant possession is only when the full purchase price is paid to him. Although the delay is from his side, the vendor's "punishment" due to the delay, is that he has to wait longer to get his balance purchase price. As such, the discretion whether to charge you rental or otherwise is totally up to him. If you do wish to rent from him, do iron out the other payments - like maintenance fees - who pays such fees in the interim? If you're paying rent like any other tenant, then it ought to be him who bears the cost of maintenance fees.

Good luck. And sorry again.



This post has been edited by dariofoo: Oct 24 2011, 11:59 AM

No, a tenant can't do that. A person who has the intent to purchase the property (and who has paid some consideration to the owner pursuant to same) or who intends to enforce a proprietory right over the property can lodge a caveat to protect his interests. A tenant does not have any proprietory interest over the property.

Such clause is called 'cooling-off period' clause. Can you reproduce the entire particular clause of the contract here for me to take a look and advise you better?

This post has been edited by dariofoo: Oct 25 2011, 01:22 AM

11.1 provides for usual termination of the agreement. It should not encompass a situation where a cooling-off period is given. Under 11.1, the company forfeits all monies paid.

It does sound quite vague the clause in the subscriber's declaration only says that you are entitled to rescind your application, without giong further to state clearly as to whether you are entitled to receive a refund of all monies paid. If it is a usual cooling-off period clause, it ought to state that all monies paid shall be refunded.

What else is provided for in the clause in the subsriber's declaration?

Anything else to shed some light on this?

If it doesn't state, then the vendor is at a disadvantage as the purchaser can take his own sweet time to apply for loans with several banks and slowly decide as to which to choose before signing the SPA. In the law of contracts, market practice does not apply to vary/amend/insert any terms of the letter of offer. What matters is what was agreed and executed upon by both parties.

What needs to be determined is if the letter of offer is such that it forms a binding contract between the parties.

Two scenarios:

1) If the purchaser has paid 2% deposit to the vendor, then there is a binding contract as consideration (via the 2%) has moved from the purchaser. The letter of offer is a binding contract and parties are bound by its terms. If the vendor does not stipulate a fixed timeframe for the purchaser to finalise and execute a SPA, it can be inferred that the time given is indefinite. As scary as it may sound, in reality, it would not drag too long as surely the purchaser would want to settle in his new home as well.

2) If the purchaser has not paid any deposit to the vendor but merely executes a letter of offer, then it can be argued that there is no binding contract as no consideration of any kind moved from the purchaser to the vendor. All the purchaser did was offer to purchase, and the vendor accepted, but nothing was given to the vendor to 'bind' the vendor to honour that acceptance of the purchaser's offer.

In scenario (2), the vendor can unilaterally terminate the letter of offer. However, it would be prudent to first give the purchaser a timeframe (even if the letter of offer does not stipulate one) - perhaps a letter from the vendor's solicitor to the purchaser (or his solicitor), giving him a further 7 days to prepare and send a draft SPA to the vendor's solicitors, failing which the letter of offer would be terminated and be of no further effect.

Another situation where no consideration has passed is where the 2% was given to the purchaser's solicitors as stakeholder pending approval of purchaser's loan. If the loan is not approved, all of the 2% would be returned to the purchaser. Once again, I am of the opinion that this would fall under scenario (2), as no real consideration has passed to the vendor. If the vendor has the right to forfeit the 2%, then yes, there is some consideration. Otherwise, there is nothing to bind the vendor.

Consideration does not need to be adequate, it just need to be sufficient. In other words, it doesn't need to be 2%. Even if it is RM1.00 from the purchaser, which the vendor accepts, it is enough to form a binding contract, as sufficient consideration has moved from the purchaser to the vendor.

Hope the above helps.

Registrable interest would refer to where the person has put in a deposit to purchase the property pursuant to a sale& purchase agreement. As such, he has a registrable interest in the property.

A tenant only has the right of uninterrupted use and enjoyment of the property throughout the tenure of the tenancy. Once the period of the tenancy has ended, the tenant is either:

1) an occupier with consent (sometimes called 'monthly tenant') - if he continues to pay rent and the landlord accepts without protest; OR

2) a 'tenant holding over' if the vendor has given the tenant notice to evict the premises and the tenant fails to do so.

In no circumstances can a tenant ever have any registrable interest in the property UNLESS the tenancy agreement comes with an option to purchase at the end of the tenancy, or within the tenancy period - where the tenant has exercised that option, and paid a sum as stated in the agreement to the landlord being deposit.

If the landlord still refuses to sell, the tenant can lodge a caveat as he now has a registrable interest in the property.

Make sure that you get it acknowledged properly. In your letter you ought to demand for a full refund as well. If they don't refund you would need the acknowledged letter to show that you've rescinded the agreement.

Should be alright.

Can you please mention the section and the act you're referring to?

How much is your loan sum?
Has the developer demanded from you any late penalty interest so far?

There are pros and cons. Reading up the first few pages of this thread can help you as this topic has been discussed before. Ultimately, if you are confident that all will go smooth and you don't really need someone to safeguard your interest, then you can 'tumpang' the purchaser's solicitor. Just remember that it is not sharing solicitors, as most people always assume. You are deemed to be unrepresented.

You go back to what is stated in the letter of offer, if the SPA has not been executed. Does it provide for the seller to pay compensation? If yes, then claim. Does it provide for the right to specific performance? If yes, then get a lawyer and file a civil suit for specific performance. If nothing is stated, then buyer suffers the loss due to his own folly in not insisting for terms which benefits him from being included in the letter of offer.

If SPA has been executed, look at the terms. Surely the buyer has the right for specific performance. Go for it then.

Roughly speaking, RPGT is disposal price less acquisition price.

In this case, acquisition price is nil as it was acquired via inheritence.

As such, when filling up Form CKHT 1A (for seller), the column of acquisition price must be left blank. LHDN will assess the market value of the property at the time of transfer to your friend, and calculate the RPGT.

In any event, the seller has to pay 2% of the purchase price being advance payment of RPGT to LHDN. Any excess will be refunded later once LHDN has done the calculation.

There seems to be an unsual delay at the 45%, 55% and 75% stages. The delay is from the bank, and not the lawyer. The lawyer's role comes to an end once all the original documents and security documents has been handed over to the bank and the advice for drawdown of the first progreesive payment is given by the lawyer. After that, it is between the developer and the bank directly.

Has the developer shown you a copy of the respective copy of the their letters demanding payment of progressive payment acknowledged by the bank? Letters can be dated anytime, but it is the date of receipt by the bank which matters.

If indeed there is a delay, you first have to make payment to the developer in advance, as you need to collect your keys. After that, go to the bank and demand to be reimbursed by them. You would need to write officially to them, supported by documentary proof of the delay on their part.

Nope. Estate duty/tax in M'sia was abolished in the early 1990s.

With regard to your late mother's half-share - are there any other bequests in her will apart from the half-share in that property? No monies in bank accounts, EPF, etc? If none, then you can go to the land office in question (refer to the title) and do a transfer under the Small Estates Distribution Act. You don't need a lawyer for that, but as to the exact step-by-step procedure, I am not sure. You would need to make a trip to the land office to find out personally.

With regard to your father's half-share, you can do it on your own - provided you know how to draft a Form 14A (MOT), fill up the Form for adjudication, fill up the CKHT forms for both parties, send the MOT for stamping (50% rebate will be given), and finally present the MOT for registration. If you have the time and patience for all that, go ahead.

Good luck

Very honest of the lawyer to say so. Yes he has to hold the 2% as it is the duty of the purchaser to pay the 2% on behalf of the vendor. No fees incurred for submission of 2%.

It's not that complicated, but you do need to watch out not to make any mistakes, as some LHDN branches are known to turn down forms which are amended or corrected using a correction pen. Check out this thread (perhaps 20 pages back) where there's a member who submitted his own CKHT form. Perhaps you can contact him for further details.