[quote=dariofoo,Nov 5 2010, 09:44 PM]No,bro, the fees are lower (not necessarily 70% but depends on price of house) irregardless whether you appoint the developer's panel solicitor or your own solicitor.

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So does that mean as long as I purchase directly from developer them I can enjoy the lower fees?
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This post has been edited by yiivei: Nov 6 2010, 07:35 AM

Yes, and according to the First Schedule to the Solicitors' Remuneration Order 2005:

...in the case of any transaction governed by the Housing Development (Control and Licensing) Act 1966 [Act 118] or any subsidiary legislation made under that Act, the remuneration of the solicitor having the conduct of and completing the transaction, whether acting for the vendor or the purchaser, shall be-


(a) RM250, if the consideration is RM45,000 or below;


(b) 75% of the applicable scale fee specified, if the consideration is in excess of RM45,000 but not more than RM100,000;


© 70% of the applicable scale fee specified, if the consideration is in excess of RM100,000 but not more than RM500,000; or


(d) 65% of the applicable scale fee specified, if the consideration is in excess of RM500,000.

Helpful?

Thank you for the explanation dario.

My understanding as below (correct me if I'm wrong):-

1. My developer told me that they will absorb the s&p charges, but with the condition that my mortgage lawyers also need to be the same lawyer. Is this safe to do so?

Ans: What I understand is that we can appoint the same lawyer for both s&p n loan agreement provided that the solicitor is acting on my behaf for the s&p rite? Eventhou if they do, they less likely to entertain or act on my behalf if there is dispute in the future. Am
I right on this?

2. Pertaining to the above, is it advisable for me opting for the developer lawyer so as to save on the s&p charges?

Ans: as above, I need to evaluate the cost vs benefit. Since I purchase directly from developer, thus I am entitle to lower fee irregardless of the lawyers appointed. However, if the developer insist me to appoint their panel lawyer for s&p and I insist to appoint another lawyer for loan agreement. The developer panel lawyer could hav charge me a huge cost on the disbursement rite?


Thanks.

Dario, thank you, kindly assist with the sequence for the below transaction :-

1) leasehold
2) with title
3) unencumbered
4) vendor is a Land Proprietor (LP), but executor is a Dev
Hence; these two parties will need to sign on the MOT together, right ?
5) purchaser is buying with cash (similar to the above purchaser)

1) This thread is not to put down developer's panel solicitors or bank panel solicitors. It is not to suggest that they are incompetent or biased. It's to give you enough information to put things in perspective so that you can make an informed decision at the end of the day, after having weighed all the pros and cons.

The choice is ultimately yours at the end of the day.

Who can say for sure whether the developer's panel solicitors will actually (as you say) "less likely to entertain or act on your behalf if there is any dispute in the future"?

Unless you have a crystal ball which can predict the future, even you can't tell whether there's even going to be a problem or otherwise, right? For all you know, the developer's solicitor can be later kicked out of the panel, and to exact 'revenge', he may agree to act for you to file a civil suit for damages for late delivery, for instance, if the event occurs.

2) Disbursements for purchase from developer is really not much. How much of "huge cost" can they charge you anyway? If you're really worried about it, get a quotation from the solicitor and put it up here for us to take a look and advise you further.

---

Added on November 6, 2010, 2:37 pmHansel sorry for the late reply.

"Due to certain valid reasons, the buyer decided to redeem the loan from the bank in the middle of the construction, and gave an undertaking to the Dev to continue paying the progressive payments to the Dev as and when any stage of the construction has been completed and is certified by the Architect in-charge, as if the buyer is the bank now."

How is that possible? The buyer REDEEMED the loan?? Does that make him a cash buyer then? Are you sure of this fact?

"Guess what ? The Dev now stops processing the MOT though the buyer has been diligent enough to perform his part after receiving the MOT from the Dev, ie appointing a lawyer to process the MOT, and making the necessary payments as in legal fees and the Stamp Duties."

My question is, if the buyer has undertook to make the necesary payments as and when is due, why is the developer doing all this? They profit nothing from witholding from executing the MOT.

Arm-twisting it may be, but for what end is the developer seeking to achieve? They would've spent a lot of money applying for subdivision itself. Why pay for all that, but then leave it halfway? Might as well refuse outright to apply for subdivision.

Sorry to pose these questions back to you,but to me, it all just doesn't seem to add up.




This post has been edited by dariofoo: Nov 6 2010, 02:37 PM

Ok understood.

I being quote by a lawyer for a total of RM5,140 for S&P and loan agreements (property cost RM244k). I'm unable to get the breakdown from them at this moment.

Let say if i proceed with the loan first before signing the S&P.
1. Do i need to pay the legal fees for the loan agreement so as to get bank to proceed with the loan approval?
2. If yes, what if the loan got disapprove, is there any way for us to claim the lawyer fees back?

Thanks

This post has been edited by yiivei: Nov 6 2010, 03:43 PM

1) You can apply for a loan but technically, you can't execute the loan documentation before you execute the S&P. I think what you meant to say was sign the Letter of Offer from the bank,right? In that case, yes you can.

2) Hope you understand the flow from the above explanation, but let me try to reproduce it here again:

Sign Offer to Sell (pay booking deposit 2%) -> Sign S&P -> Sign letter of offer -> sign loan documentation

or

Sign Offer to Sell (pay booking deposit 2%) -> Sign letter of offer -> sign S&P -> sign loan documentation

The second scenario is more secure as there would be a problem if you sign the S&P but later, you can't secure a loan [eg due to insufficient income docs or low valuation]. In such cases, the S&P would have to be aborted (unless you can come up with cash to make up the shortfall), and the vendor actually has the right to forfeit the 10% deposit.

Thanks once again dario.

I have a clearer picture now.

When the S&P is aborted, the solicitor would normally charge half of the scaled fees, and refund whatever unused dibursements back to you. Same applies for loan doc.

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Added on November 7, 2010, 2:14 amIs this a subsale or purchase directly from a developer?

This post has been edited by dariofoo: Nov 7 2010, 02:14 AM

Good morning, Dario,

Sequence for :-

1) leasehold
2) with title
3) unencumbered
4) vendor is a Land Proprietor (LP), but executor is a Dev
Hence; these two parties will need to sign on the MOT together, right ?
5) purchaser is buying with cash (similar to the above purchaser)

And this is a : Purchase Directly from Developer.

Thank you.

" "Due to certain valid reasons, the buyer decided to redeem the loan from the bank in the middle of the construction, and gave an undertaking to the Dev to continue paying the progressive payments to the Dev as and when any stage of the construction has been completed and is certified by the Architect in-charge, as if the buyer is the bank now."

How is that possible? The buyer REDEEMED the loan?? Does that make him a cash buyer then? Are you sure of this fact? "

Yes, you are right : in the middle of the prolonged construction, the buyer REDEEMED THE LOAN with permission from the Dev, hence, making him a Cash Buyer. This buyer then paid-up the amount disbursed thus far with the bank and committed to pay the Dev by cash should the construction work be completed at each stage.

The Dev then said the buyer is now a Cash Buyer, and withheld signing the MOT.

Is this legal ?

I go with you that the Dev has more to lose by not completing the MOT, but the buyer shared with me that the Dev was afraid that the Cash Buyer would not pay the rest of the Staged Payments if the MOT has been completed.

How can that be Right or Fair ? - ie NOT fulfilling the S&P by holding-back the signing of an MOT just because of predicting a future event that might not take place, I would see it in that way.

Appreciate your opinions.

Hansel,

"...but the buyer shared with me that the Dev was afraid that the Cash Buyer would not pay the rest of the Staged Payments if the MOT has been completed."

That is a ridiculous concern (if true) by the developer. In a situation where the buyer pays by cash, the whole sum will be deposited with his solicitor and will be kept in the latter's client's account, and will by duly disbursed when same is due and owing. It would be preposterous to suggest that the buyer can withhold payment.

Two reasons for the above: First, the money is not in his hands, and second, he would've undertook to disburse the sum as and when is due to the developer. His solicitor acts on the undertaking and has no choice but to disburse the money as and when progressive payments are requested by the developer.

As you stated:
"...the buyer decided to redeem the loan from the bank in the middle of the construction, and gave an undertaking to the Dev to continue paying the progressive payments to the Dev as and when any stage of the construction has been completed"

This would also be provided for in the S&P. If the solicitor refuses to do so, he would open himself up for a complaint for misconduct. Therefore, he should advise the buyer against withholding payment to the developer.

Another reason why that would be improbable is that - there's no logical explanation why the buyer would even want to withhold payment. Wouldn't that provoke a reaction by the developer to further delay the completion of the project?

Coming back to the MOT predicament - yes it is not only unfair and not right, but also unlawful - the buyer can file a civil suit in court to compel the developer (or the LP) to execute the MOT.

However, I would advise the buyer to hold his hands first. Getting the individual title is not of paramount or imminent importance. The completion of the project would be more crucial. The buyer risks stirring the hornet's nest by instituting legal proceedings NOW just for the purpose of getting the individual title out. That can wait. He has to play the game - Make the necessary payments, get the project completed, wait for CF and then collect his keys. Then unleash hell upon the developer by instituting legal proceedings to compel the developer (or LP) to execute the MOT.

No point getting a title out for an uncompleted project anyway, right? What can you do with that piece of paper anyway right now? Charge it for a loan? Absurd, as the buyer would've spent bit redeeming his previous loan (the early settlement penalty would've killed him).

Food for thought on a Sunday morning eh?

This post has been edited by dariofoo: Nov 7 2010, 11:23 AM

Dear Dario, truely appreciated your points here, and the effort and time you put in to write out all these. Thought I just wanted to say this since I have just read it, and I don't want to wait till I have formed some opinions in my head.

Just to quickly express my appreciation first. Thank you.

I'm looking to buy service apartment around 250k. I dont have any lawyer yet. Could someone suggest any good and affordable lawyer firm?

Sorry bro, this thread is to provide information and legal advice in general, and it would not be proper for anyone to recommend lawyers here, or for lawyers to advertise or solicit for clients here.

I would advise you to ask your friends or family members who have used the services of a reliable conveyancing lawyers to hook you up.

Appointing a lawyer is not like walking into a grocery store. It's like going to a doctor or a mechanic. You have to know that the service will be good the moment you appoint the law firm, and to know for sure would be to ask family and friends who have used their services prior.

Every law firm is different. A big firm may not necessarily be good, while a small firm may not necessarily be bad.

Get a draft invoice (or Note of Charges, as they call it) and if you need advice on that, put it up here so that we can check if the law firm is overcharging or improperly charging you for anything.

Good luck

Dario, you are indeed principled, and certainly with policies - respect !

Anyway, can you please help me with the sequence for the below ?

1) leasehold
2) with title
3) unencumbered
4) vendor is a Land Proprietor (LP), but executor is a Dev
Hence; these two parties will need to sign on the MOT together, right ?
5) purchaser is buying with cash (similar to the above purchaser)

And this is a : Purchase Directly from Developer.

Sorry sorry Hansel have been pretty busy this past weekend. This scenario is quite straightforward:

1) Execute S&P - pay deposit;
2) Developer has to apply for consent from the State Authority for whole of master title (it's called blanket consent);
3) Developer obtains blanket consent - applies for subdivision;
4) In the meantime, purchaser makes progressive payments as and when same is due;
* purchaser need not bank in the whole of the balance purchase price into the client's account - purchaser can make payment on his own directly to the developer;

5) Developer obtains individual title and informs purchaser/ purchaser's solicitor of same. Solicitor will prepare MOT, execute same and forward same to the developer

* with regard to your query - it is only the LP who executes it, UNLESS the LP had previously executed a Power of Attorney (PA) in favour of the Dev, wherein the latter will execute it on behalf of the LP - it is more for the sake of convenience.

6) At this stage, the letter by the State Authority granting blanket consent to transfer will be copied and sent to all the purchasers.
7) MOT is sent for adjudication of stamp duty by LHDN;
8) Once notice from LHDN is out stating the duty payable, purchaser makes payment of stamp duty and MOT is duly stamped (or nowadays they just give out a Sijil Setem, instead of franking the document);
9) MOT can be presented for registration - issue document of title will be issued in favour of the purchaser;
10) Purchaser continues making progressive payments in the interim - once development completed and Architect's Cert has been issued as well as when the Developer obtains the CF, the Developer would finally hand over vacant possession of the completed unit to the purchaser

...and everyone lives happily ever after..

This post has been edited by dariofoo: Nov 8 2010, 12:30 PM

Hi Dario, many thanks again indeed.

I think in the case of the buyers that we have been talking about, the LP has given a PA to the Dev to do up everything.

And their process is NOW STUCK between Step 6 and Step 7, whereby, as per your Step 5, the MOT has been prepared by the buyer's solicitor, executed and forwarded to the Dev; BUT the Dev has no intention of signing it, nor forwarding it to the LP for signing.

Hence, the MOT CANNOT be sent to the LHDN for adjudication of Stamp Duty -> is this deduction correct ?

Anyway, like you said in an earlier posting, we can go after this last since the houses are still not ready yet.

But if the VP should come later, what would you advise the buyers do in order to make the Dev perfect the MOT and further forward the same to the LP for endorsement ?

Is it necessary to obtain a Court Order ? After all, this is a straight-forward case and should not need the courts to come in-between, right ?

Yes, the MOT must be executed by all parties involved before it can be sent for adjudication.

Very easy only. File an Originating Summons (Saman Pemula) in the High Court seeking, among others, an order for specific performance, i.e. that the developer (or LP, if there's no PA) executes the MOT and hands over same to the buyer within 14 days from the date of the Court Order, and in the event the developer fails to comply with the above, that the Senior Assistant Registrar of the High Court be given the authority to execute same.

Your argument would be based on the agreement itself, which provides for them to execute it within 21 days.

They would have no excuse for not complying with the provision of the agreement.

After obtaining the order and getting it executed, you can present the MOT for adjudication and proceed to present it for registration thereafter.

By way of Originating Summons will not take long as it will be heard immediately after affidavits are exchanged. There is no oral evidence as everything is based on documents.

You can get an order within a few months. Of course, this would depend on the efficiency of your lawyer. Haha.

Hope the above helps.

Hi, appreciate your advice, thanks in advance!

I just sold my apartment and was advised that it would be cheaper if both of us (seller and buyer) use the same lawyer. My questions are:

1 ) it is risky to use the same lawyer? what are the risks involved?

2) i received the 1st draft of S&P today and it mentioned that "the seller chose not to be represented by a lawyer" ? Does it mean that the lawyer only represents and hence will only look after the interest of the buyer?

2) Is the fee charged reasonable? How much does it cost if i appoint my own lawyer ?

A. Legal Fees:
Discharge of Charge : RM300
Statutory Declaration: RM100
CKHT 1A: RM300
Change of Ownership (DBKL): RM100
Change of Ownership (mgmt office) : RM100
5% service Tax
Subtotal: RM900+ 45 = RM945

B. Disbursements:
Stamping Fee for Discharge of Charge: RM10
Discharge of Charge & Noting of PA: RM100
Affiming & Stamping Fee for Statutory Declaration: RM30
Land Search: RM60
OA Search: RM50
Transport charges: RM100
Miscellaneous: RM50
Sub Total : RM400

Grand Total: RM1345

3) If we (vendor and buyer) use the same lawyer, what are the important clauses in the S&P that i as the vendor need to pay attention for??

4) in the S&P, it is mention about a retention sum of 2% of the sale price (for tax purposes) , is it a normal practise?

Many thanks!