In a situation where the purchasers fail to obtain a loan, the SPA would be terminated and the purchasers would have to pay a penalty of 1% of the purchase price (if i'm not mistaken).

As this is due to an occurence of an unfortunate event, perhaps the husband can inform this to the developer and perhaps parties can execute a fresh agreement with only his name as the purchaser. The developer can use their discretion to waive the penalty since the husband is still proceeding with the purchase.

That is the most prudent way out which I can forsee for this unfortunate situation.

Good luck.

Go to page 10 of this thread and the answer lies therein

Isaclim:


Hello there.


In your case time would run from the date the letter of confirmation by the developer is received by the purchaser's solicitors. You can ask them to fax you a copy to see when it was received, or you can get a copy from the developer's office as well.

If the completion date is on 29.3.2010, then yes, confirmation would've been received on 29.12.2010.

You are deemed to be unrepresented. Don't go under the wrong assumption that you are sharing lawyers. The lawyer is acting for the purchaser and will only act in the interest and/or benefit of the purchaser.

Your remedy would be to write to the purchaser's lawyer informing them of the error and stating the exact completion date. Remember it's normally not from the date of the letter but the date of receipt of the letter by the lawyer from the developer. Read the SPA again to confirm the right term used. The developer can date the letter early but may issue it out only a week later, sometimes by post only. If you get a copy from the developer, get one with the acknowledgement chop by the law firm.

You can't take any other legal action or charge the interest. You just correct the completion date. Period.

Good luck

Read your SPA to see if there is a clause which states that it is the SPA lawyer's responsibility to do all those. 99.9% chance that nothing of that sort will be stated.

You would have to do everything on your own.

With regard to quit rent, bear in mind that there is no way the land office would allow the title to be transferred if there is an outstanding sum on quit rent payable. So, the most likely scenario would be that the owner has already settled it.

PS: Don't forget Indah Water as well. A lot of people take that one for granted. Vendor must settle that one as well.

No clause but the SPA lawyer is holding it? To be safe, I think you better take the money and settle it yourself la. Run around a bit but at least you have the peace of mind that things have been completed. With regard to TNB you can tukar nama instead of having to cancel it and registering a new account. With regard to procedure and documents, you can call TNB as I'm not too sure.

Au revoir

Better get your lawyer to draft a letter and get the vendor to sign, whereby the vendor consents for any outstanding sum for utilities, assessment,etc be deducted from the balance purchase price and for same to be paid forthwith on behalf of the vendor by the purchaser.

Then you use the money to settle it later la. I don't think the vendor would want to cough up money right now (although it is his duty to do so)


1. I'm sure you would've executed it. Or else no way the property can be subsequently transferred to you.
2. You don't have a case for complaint as you subsequently proceeded with the transaction and since the bank has agreed to grant you a loan, all should be alright. Just a matter of time before it is completed and you can enjoy the property as the registered proprietor.

To be honest, it does sound quite fishy from the lawyer's end as it does not take 3 months for a letter of confirmation to be sent out by the developer. Normally they are quite fast.

Did they fax it first? How do they know that it was posted on 7/10/2010? AR Card? Certificate of posting? Check with them.

How can there be an almost 3 months gap from date of posting to date of receipt?

Someone is lying.

But the question is....who?????

March up to the law firm and ask to see their acknowledgement copy immediately.

You asked a question and you proceeded to answer it yourself. So there's your answer.

Is there even any proof that he paid the 5k to you? Was it by cash?

Might as well you put things in writing by way of a letter stating that the final payment of 2k would be deemed to be 1k being outstanding rent and 1k being part-payment of the purchase price. Get him to acknowledge it.

If he doesn't then it's his word against your word and things will be a messy messy messy free-for-all since there's nothing in writing to confirm ANYTHING.

Is there anything in writing? At all?

That's unusual. Property with individual title right?

What is your question?

Then just follow my advice and get her to sign a letter stating that the final payment of 2k would be deemed to be 1k being outstanding rent and 1k being part-payment of the purchase price.

That ought to regularise things. For the moment, at least.

Then it's time to see a lawyer. Same thing for 'house transfer ownership'. Let a lawyer do it properly for you. It's not as easy as downloading sample letters and filling it up yourself.

Good luck.

Yes, they would wait for the developer to revert with the letter of confirmation as the letter would state particulars of the master chargee and the latest position with regard to same. Even if you look at their e-mail they stated "The developer just provide us(law firm) the particular of the master chargee recently".

I would say that information was given by the letter of undertaking.

A deed of assignment (DOA) is an agreement whereby you agree to assign all your rights over the property to the Bank.

DOAs arise when there is no individual title for your property and the whole development is still under a master title.

When the loan with your Bank has been fully settled, the Bank will execute a Deed of Receipt and Reassignment (R&R), whereby the bank reassigns its right over the property back to you.

When you subsequently sell your property, and assuming that the individual title is still not issued yet, you will assign your rights to the new purchaser by way of a new DOA.

It's pretty much proof of ownership of property.

You need to sign it only if you're taking a loan. If you're a cash purchaser then you only sign the SPA.

I think my explanation may have confused you.

You are the purchaser and you assign your rights over the property by way of a DOA. You are essentially the owner of the property and you merely assign it to the bank as secutiry for a loan

Jess,

To lodge a caveat you need to have a caveatable interest and that only accrues upon signing the SPA and paying the 10% deposit.

Until then you can't caveat the property.

If the 14 days has lapsed your remedy is to request for a refund of the deposit paid, or alternatively, grant the vendor an extension of time.

With regard to your second question - the answer is yes, the owner can still rent it out.

A caveat only stops him from transferring ownership of the property to another party,

This post has been edited by dariofoo: Feb 27 2011, 01:52 PM

Jessy,

In the circumstances where the sale was aborted due to the refusal of the vendor to proceed with the sale, and if you intend to sue the vendor upon the letter of offer to compel him to sell it, then yes, you can lodge a caveat.

However, you cannot accept the refund of the 2% as you would be deemed to have acquiesced (agreed) to the cancellation of the letter of offer and accept the refund of the deposit, thus restoring parties to their original position.

If you had accepted the money, then I'm afraid you've severely weakened your chances to enforce the letter of offer (i'm assuming there's one as there's an agent involved, and agents would have a standard form)

If you want to proceed to sue for specific performance, then yes, go ahead and instruct your lawyer to lodge a caveat.

On another note, your lawyer shouldn't charge you full scaled fees if the sale got aborted. I know certain lawyers only charge a token sum ranging from RM200 - RM500 for merely preparing a draft SPA, and perhaps disbursements incurred, i.e land search. That's all.

Jessy,

So now you're saying that your letter of offer contains a term which states that if the transaction is aborted, the vendor has to refund to you the 2% paid plus another 2% being compensation? Why didn't you state that earlier?

Well, in that case then go ahead. Take the refund and sue for the 2%. My earlier advice would not be applicable in your case as you have stated that there is a separate clause which states for the vendor to pay you 2% as compensation.

As far as I know, if the vendor fails to proceed, the 2% deposit will be refunded to the purchaser and parties will have no further claim against the other. I think that is a common clause. Guess i'm wrong.

If the purchaser fails to proceed, the 2% will be forfeited by the vendor and parties will have no further claim against the other. Is that what is reflected in your letter of offer?

With regard to the caveat, if you're suing for RM25k, you still CAN'T lodge a caveat over the property. You still do not have a caveatable interest over the property. It's different if you want to enforce the letter of offer and go for specific performance. Then yes, your intention to caveat the property is because if they transfer it to a third party, it will defeat your claim and render it academic and redundant.

Your lawyer ought to know better of the dangers and pitfalls of caveating a property without due reason. You can be sued by the proprietor for damages. Perhaps you should ask her more about this and be certain about it before deciding to caveat or otherwise.

If it is merely to put pressure on them to pay you 25k, it's a gamble which I would seriously advise against.

This post has been edited by dariofoo: Feb 28 2011, 11:46 AM

Hello,

You did not mention whether the vendor is represented by a lawyer. So i'm assuming that he's not.

Option (1) is alright and it has been done before.

Option 2(a) is the normal procedure whereby the SPA will be handed over together with the cheque. Courier should be alright, provided it is with a reputable company. It has been done before. If fly-by-night courier company, then I would advise against it.

Option 2(b) cannot be done as the vendor is entitled to collect the deposit once the SPA is signed. The SPA will state the clause that the vendor hereby acknowledges receipt of the deposit. So if you don't give him the cheque now, you can't expect him to execute the SPA as he will be shooting himself in the foot

Option 2© would be the most prudent thing to do. But it depends if the vendor is willing to travel. How far away is he?

You have two options - sue for specific performance, ie to enforce the letter of offer OR to have the deposit refunded together with a sum equivalent to it as compensation. So if the vendor fails to pay you the compensation (which is clear from the facts), then go ahead and file a civil suit to claim the RM25K.

You have a good case and you can obtain summary judgment without the need for the matter to go for trial.

As to how long it will take, it depends on the Court, the efficiency and aptitude of your lawyer, etc. But things move fast nowadays thanks (or no thanks) to the fast-track system. Wouldn't take more than a year, I'd say.

Go for it. Teach the buggers a lesson. Don't lick wounds or anything else for that matter. When you have your RM25K you can buy better things to lick.

PS: Don't get any naughty ideas. I was thinking of a really really expensive lollipop