OPT:


Greetings.

Basically you didn't ask a question at the end of the long story, but I'm assuming that you want to know if you have to pay the late penalty interest since the transaction is completion within the extended completion date.

The answer is yes, as it is provided for in your agreement. However, I noted that you mentioned that there was a delay on the part of the vendor to forward the original title to your SPA solicitor. Now, your SPA would give a time period for the vendor to do so. Usually 10 working days. Check with your lawyer if the vendor took longer than that. If he did, then the completion date would be automatically extended vis-a-vis the delay. Naturally, the extended completion date would be extended as well. This would also apply for delay to submit the quit rent receipt, vendor's letter of undertaking and any other doc as requested by your SPA lawyer.
Your SPA lawyer ought to know how to calculate this.

With regard to the problem with the caveat form, this is what I can gather from my understanding of the facts:

1. SPA lawyer prepared the entry and withdrawal of caveat form for your execution;
2. SPA lawyer then forwarded the withdrawal of caveat form with the filing fees for same to the loan lawyer, as ultimately, it is the loan lawyer who will withdraw the caveat, register the title, and register a charge over the property in favour of the bank.

The error as to the NRIC No and caveat no. would be from the SPA lawyer's side, as it is their duty to fill up same, and when the official receipt is given to them, they ought to double-check the particulars.

However, the SPA lawyer would have left it to the loan lawyer to sort out the mess for themselves purely for the reason that at the end of the day, it is the loan lawyer who will withdraw the caveat, etc (as I had stated above).

Any delay from the land office or the bank still counts as a delay from your side, so you can't extend the completion date. It would be deemed to be part and parcel of the 3 month completion date period.

Perhaps what the SPA lawyer ought to have done was to write to the vendor's lawyer, detailing the problem, and request for the vendor to exercise his disrection to waive any late penalty interest in the event that the transaction wades into the murky waters of the extended completion period. Some vendors would oblige.

Keep us updated on how it went in the end.

Of course it is legal. Don't worry. You can put in additional clauses as well, eg how many days are given to you to apply for a loan and execute the SPA. It's up to you and put it in, and get the vendor to agree.

In the meantime, sort out your loan applic and appoint a solicitor as well. Don't delay.

Thanks a lot dariofoo. Having countless sleepless nights because of this.

Below my comments based on the above answer given:
1. The delay from the vendor side with regards to the 10 working days, yes, I read about it in the SPA (This I could do as I have the documents). The thing is, the SPA still haven't come back to me on this. Each time I call, they'll ask me to give them more time as they're busy, etc. Let's see.
2. It's interesting that you point out the caveat form as this enlightens me. The loan lawyer did point this out to me initially, but when I called up the SPA lawyer, they said the mistake is beyond their control since the mistake is on the land office side. I amde few calls to both party, and later I got to know from the loan lawyer that the SPA lawyer should have checked the particulars in the official receipts (My answer to the loan lawyer was "Does the SPA lawyers have a copy of the caveat form/receipts? Because I don't have."). The loan lawyer pointed out the mistake by the SPA lawyer side, but when I call up the SPA lawyer they kept on insisting it's something beyond their control. (OMG!) I decided not to aggravate the situation at that time and ask them to speed up teh whole process. Now, I think it's quite clear that the SPA lawyer did an error by not double-checking the particulars. WHAT SHOULD I DO NOW?
3. The SPA lawyers are now writing to the vendor lawyer to explain the situation (this I was informed) as well as to waive the penalty (I think). I'm not sure whether the vendor will oblige. But if they insist, do I have to bear the interest? If I want an avenue to complain, what choices do I have?

Thanks a lot dariofoo.

Dariofoo,

What if the vendor and purchaser same lawyer? can the lawyer extend the completion date as he/she like with conditon of reasonable reason?

If the vendor lawyer extend the duration of the completion date, can the vendor disagree even there is a reasonable reason behind.

This post has been edited by Seremban_2: Feb 22 2011, 12:36 PM

OPT:


Sleepless nights? How much is the property price? And how much was the balance purchase price?

Avenue to complaint? Advocates & Solicitors Disciplinary Board @ Lembaga Tatatertib Peguam-Peguam.

A mere mention of the name and lawyers would go ->

Property price is RM 345k, balance of purchase price is RM 264k, I think.

Questions:
1. About the complaint, looking at my scenario above, do you think it's my fault for the exntension? If it isn't, do I have to bear the interest? But looking at it, I would look like it's my side's fault, I mean either it's me or my SPA lawyers.
2. If it's the SPA lawyers fault, can I ask them to bear the interest?
3. I don't want to really go to the Advocates & Solicitors Disciplinary Board @ Lembaga Tatatertib Peguam-Peguam to lodge a complain. but if I feel that I'm not fairly treated, I would definitely go if I'm asked to bear the interest. Is there any charges imposed if I lodge a complaint to the board?
4. If I lodge a complain, wbut while not paying the interest, I still won't get the keys to my house because there's a provision in the SPA saying so as well as I got to know that the vendor lawyer is saying the same thing. How long do I have to wait? Any suggestions?

Thanks a lot, dariofoo.

There is no such thing as same lawyer. There's only an arrangement called common solicitor. In such cases, the solicitor will be acting for either vendor or purchaser, with the other party 'tumpang' that party's solicitor - mostly for purposes of filing CKHT, applying for redemption statement and preparing discharge of charge.

More often than not, it is the purchaser who appoints, and the vendor who 'tumpang'.

The solicitor will, and must act in the interest of the party for which he is representing. If there is any conflict, the solicitor must uphold his client's interests.

That is what a lot of people do not understand. They think that they are 'sharing' lawyers.

In conveyancing, sharing is not caring,mate!

Delay is delay. If you follow strictly the terms of the SPA, it does not discriminate whether reasonable or unreasonable, whether intentional or unintentional.

When there is a delay, it will be extended automatically. Perhaps one of the solicitors will write to the other to confirm xxxx days of extension by virtue of the delay.

No argument/disagreement would normally be entertained.

Hi,

Any answer to my question no.2, no.2 and no.3?

Thanks

Wait la. I'm having my lunch la. Lots of people at the air mata kucing stall. Busy la.

Sorry. Haha. Not to interrupt but...air mata kucing? I kind saw your comments in the Nadayu 92 discussion that you stay in Kajang and you work in Bangsar. So...

Wa lan eh, you stalking me ah?

Are you suggesting that Bangsar cannot open air mata kucing stall meh?

Your late penalty interest (LPI) would be RM57.90/day.


It's your SPA lawyer's fault. Ask them to persuade the vendor to waive the interest la. How many days delay?


Can. Whether they want to entertain your request or not is another issue la. If they don't, what is your remedy?

See another lawyer and send 'love letter' to them to pay up. You'll have to fork out fees for the new lawyer to send the letter.

RM100 processing fee to file a complaint. That's all.

How can your lawyer allow that clause to be in?

LPI is a separate issue from vacant possession. Normally keys will be surrendered when balance purchase price is paid. LPI can be paid with another cheque later on.

Worst case scenario for you is to just pay the LPI yourself, collect keys and forget this whole episode and take it as a lesson next time not to engage that particular law firm again la..

And then perhaps you can get some rest at night

Heh-heh. Actually accidentally saw it while I was browsing around (You see, mind cannot focused because of all the past sleepless nights)

But then again, my vision is kind of blurry right now, maybe it was a different dariofoo

I'm using same S&P lawyer as seller.
I think it's easier to list out in point form:

1. Initially just wanted to pay deposit for the house at seller's lawyer office. Then lawyer said she refuse to accept deposit, so must immediately pay 10% sign S&P if want to buy.

2. Lawyer did mention, land title's name is not seller's name. Still ex-house owner's name (Mr B). We did ask if seller have the right to sell the house. Lawyer said they have all the required document to prove that seller (Mr A) have all the right to sell the house. Mr A caveat Mr B's properties as Mr B owes him money. They already asked Mr B to sign all relevant document such as title transfer form, etc stuff before Mr B move away to other state.

3. S&P signed on 4th Oct 2010, deposit paid 10%

4. Proceed with bank loan, bank agent wants a copy of letter of attorney, to prove Mr A have the right to sell the house. Call lawyer's office, they said have, faxed a copy to bank. Bank called back to me, asking why my S&P lawyer fax them a copy of S&P (signed on 2008) between Mr A & Mr B. S&P lawyer keep telling bank agent that the S&P is good enough to prove Mr A hv the right to sell the house. Bank stop all loan process immediately, until seller able to come out with the letter or the title change to seller's name.

5. We demand 10% back as lawyer unable to prove Mr A have the right to sell the house. She said the property caveat by Mr A, so Mr B unable to sell to anyone else. Mr A promise to settle the remaining housing loan own by Mr B, get the title from bank and submit to land office for name transfer. They can't get Mr B to sign letter of attorney as he refuse to cooperate. So lawyer refuse to return back 10%, ask us to wait for name transfer (took 2 months)

6. Before title change to Mr A's name, lawyer office called me to sign CKHT form 2A, but i refuse, until they able to prove the property belong to Mr A.

7. After 2 months bank call for proof of ownership on 22th Dec. They can accept land search, lawyer said no problem but next day fax to bank a land office receipt (dated 23 Dec), with no mention of name. Bank agent called lawyer asking for land search document not receipt. Lawyer insist receipt can be used as well. End up both arguing. At the end lawyer office unable to confirm when can pass me the land search document, so i told them I will do it myself, they don't have to search for it. Land search at 28 Dec 2010 shows Mr A as the owner of the property.

8. Bank loan process smoothly, letter offer signed, loan agreement signed with different lawyer on 14th Jan 11.

My problem is, form CKHT 2A suppose to sign and submitted in 60 days from S&P date. I understand that seller needs to pay 2% tax cos sell his property in less than 5 years. But infront of CKHT 2A form mentioned:

" Kenaikan cukai sebanyak 10% dikenakan sekiranya pemeroleh gagal
membayar 2% daripada jumlah nilai balasan atau kesemua wang itu
mengikut mana-mana yang lebih rendah kepada Ketua Pengarah Hasil
Dalam Negeri dalam tempoh 60 hari selepas tarikh pelupusan"

and

"CKHT 3 yang diterima daripada pelupus perlu dikemukakan bersama-sama Borang CKHT 2A dalam
tempoh 60 hari selepas tarikh pelupusan harta tanah / syer dalam syarikat harta tanah supaya
pemeroleh tidak perlu membuat bayaran 2% daripada jumlah balasan atau kesemua wang berkenaan
yang mana lebih rendah kepada Ketua Pengarah Hasil Dalam Negeri"

Permeroleh/Buyer need to pay 2% also?

In my case, CKHT form will only be submitted after 150 days from S&P date. Buyer will bear the penalty or seller? Most important is, buyer need to pay 2% also?

In lawyer's pricelist, there is CKHT inside, but lawyer said forgot to put the amount in, so I need to pay another RM350 for form 2A. Lawyer also insist I pay RM80 of land search, which I did it myself. She said by standard procedure, they need to search twice.

By the way, lawyer office totally forgot about the CKHT document until i mention about it.

As per last Saturday, I found out, S&P lawyer not yet post the original S&P agreement and other relevant info to loan lawyer.

Please, what can I do to ensure all document is complete so that bank can release the loan asap?

Thanks!

p/s: all the while I only deal with lawyer's assistant as lawyer refuse to answer call. Many times I told lawyer's assistant to get Lawyer herself to call back to me, but she never call back. So I get all info through her assistant.

jady:
Very sad sad situation. If I were you I'd have backed out when the search revealed that the vendor was not the registered proprietor of the property.

Anyway, the question is this - how can the current vendor [A] have the right to sell the property to you on xxx date when, at that xxx date, he was not the registered proprietor of the property?

What does your SPA say about that? Or does it mention that he is the beneficial owner of the property.

And why waste 2 months to transfer the title in favour of A when A can consent for B to execute a direct transfer to you!?

Well, to answer your questions:

Is the seller now exercising his right for the one-time exemption which he is entitled to? If he is asking for exemption, then he will execute and submit Borang CKHT 3 to you. If there is CKHT 3, then you need not retain 2% of the purchase price (from the deposit) and forward it to LHDN.

It is your solicitor's duty to retain 2% and forward it to LHDN in the event there is no CKHT 3 by the vendor. So the money is actually the vendor's,not yours. You are merely paying on his behalf.

It is your duty to make the payment to LHDN. You are the pemeroleh. If you had released the whole of the deposit (10%) to the vendor, you need to instruct the solicitor to obtain 2% from him and make the payment.

With regard to the penalty, actually the vendor (pelupus) would have to pay the penalty, but if you had negligently failed to make the 2% payment within 60 days to LHDN, then most probably the vendor will demand that you pay the penalty (if any) on his behalf.

There is no such thing as sharing lawyer. Who is your lawyer representing? You or the vendor. It's as simple as that.

If she is on record for the vendor, then you are deemed to be acting in person. And vice versa.

CKHT 2A is only RM200, not RM350. The lawyer is trying to make a quick buck out of you.

RM80 for search which you did yourself is ridiculous. Why does she have to do it twice? The second search, if any, would be done by the loan solicitor at the end.

Check when the SPA is dated. Probably it's dated only after the property has been transferred from B to A. In that case, you would be safe as it would still be within 60 days right?

Good luck

Contacted the loan lawyer, she said their SPA also stating that key only given when all payments released.

Also received from the loan lawyer and they verbally told me that it's the SPA lawyers delay that has caused all this. I've contacted the SPA lawyer and he told me now I'm at the discretion of the vendor lawyer in terms of the interest charged...

The SPA lawyer asked me to wait for the vendor lawyer's reply, probably in a few days time. He also mentioned that i can go ahead and file a complaint as I have my rights...

Now, I'm at a loss again. Don't think tonight can sleep well again.

Take it easy bro. Your case some how will end and no point get yourself suffer.

The chronological of events (according to loan lawyer):
25/10/10 loan document executed by borrower
1/11/10 received SPA from SPA lawyer
25/11/10 forwarded bank's letter of undertaking to vendor lawyer
8/12/10 received reply from vendor lawyer
10/12/10 received reply from SPA lawyer (MOT not given, and pursued with SPA lawyer)...a delay here between SPA and loan lawyer
13/12/10 received original title from vendor lawyer
21/12/10 informed SPA that original title already received
30/12/10 received MOT from SPA lawyer (as you can see, a delay of ca. 20 days here, it not all already settled)
3/1/11 request vendor lawyer to forward Quit Rent and Assessment receipts again (since it's a already new year)..another delay here but by vendor
5/1/11 received Purchasers' Withdrawal of Private Caveat, registration fees, etc from SPA lawyer
10/1/11 reminded vendor lawyer to forward Quit rent, etc
14/1/11 reminded vendor lawyer to forward Quit rent, etc
17/1/11 received Quit Rent from vendor lawyer (ca. 14 days delay here)
19/1/11 informed SPA lawyer of error in private caveat ..another delay here by SPA lawyer
24/1/11 reminded SPA lawyer to amend
25/1/11 SPA confirmed amendment done
26/1/11 Found amendment not done. Informed SPA lawyer
27/1/11 Remind SPA lawyer to amend
28/1/11 Remind SPA lawyer to amend. Request SPA lawyer to provide copy of land search to confirm amendment done (here comes CNY break..)
7/2/11 SPA lawyer confirmed amendment done and will provide document the next day (ca. 18 days wasted)
8/2/11 Received copy of land search. presented MOT at land office
9/2/11 Advised bank to release loan
11/2/11 Bank released full loan sum
14/2/11 Sent full loan sum to vendor lawyer


So, dariofoo, any comments?

1. B owe A money. A use this same lawyer to caveat B's properties. B also signed a S&P to agree selling the property to A in 2008, and signed all relevant document in title transfer etc stuff. A don't want to change the property to his name, as it will subject to tax if he sell the property. This lawyer gurantee that A can sell the property away by just direct transfer B's name to buyer. BUT lawyer didn't give B to sign power of attorney letter, so A don't have any legal right to sell B's property. I asked if can just call up B to sign the letter, but lawyer said it's impossible to do so cos B will not cooperate anymore, as B said he already signed whatever document needed and will never entertain any request from A.

2. Yes we asked lawyer about it. Legally A don't have any right to sell the property. How can she execute the S&P?
When bank asked for letter of attorney, she promise to give, but at the end unable to provide any (drag 2 weeks on this) She refuse to refund 10% and said her S&P is valid, or else she won't dare to do it. She said cos A already caveat B's property and have S&P agreement between them. So that makes A beneficial owner. At that time, we are not sure the property hv how many caveat. SPA's Name and description of Vendor = Mr A's name. No mention of beneficial owner.

So at the end, A pay balance mortgage to bank and proceed to transfer name from B to A. Lawyer said if they fail to do that within 3 months, then only refund my 10%. She did add an extra clause in S&P mention 3 months completion date will start after property transfer to A's name. So land search in 28th Dec shows Mr. A as the rightful owner. Bank and loan lawyer proceed everything smoothly after that.

Just now lawyer's assistant demand me to pay the RM80 & RM350 CKHT Form A, which i refuse. I questioned her back why you need to perform twice land search? She said one copy need to pass to loan lawyer. I told her don't bullshit, before I signed loan agreement, loan lawyer already did the land search. I also told her, the pricelist given to me, already have CKHT printed inside (it's a list of few item with lump sum). Therefore I will not pay extra to them.

As for the land search, I did it myself, after lawyer office unable to give me an exact date as they keep saying no one go to JB land office. That's why I told her firmly and repeated few times, you don't have to do it, i will do it myself and get it printed out tomorrow. After few days lawyer assistant call back and told me, they also went to do the land search & ask me want a copy or not (cos i need to submit to bank), i nearly got heart attack.

Now, S&P lawyer still holding everything loan lawyer need.

I already paid for stamp duty and misc expenses but still holding:
1. Lawyer's professional charges + tax
2. Land search RM80
3. Registration Fee for Transfer RM600.

Lawyer assistant request me to settle all payment before they can proceed to submit doc to loan lawyer. I told the assistant due to their bad service, I will only pay whatever they need to use first. Lawyer's legal fee will only be paid after everything settle nicely.
Do you think I need to pay all the fee at once or keep on holding until everything complete? I'm really scare of their bad service, telling a lot lies and keep dragging.

dariofoo: thank you so much for your explanation. relief to know I don't have to pay for tax. As for the 10% penalty, seller A unable to get his name transfer within 60 days and before that I told lawyer office I will only sign extra things after A is the registered owner of the property. Lawyer office didn't contact me about CKHT 2A after that. I asked about it last Saturday when i paid for stamp duty, then only she said forgot to charge.

Can I fill in the CKHT 2A form myself? (if lawyer still insist me to pay RM350?) LHDN office is just opposite of lawyer office haha.
-----------------
added:
S&P stamp date: 4 Oct 10
A's name on land search: 28 Dec 10
Sign CKHT 2A on 19 Feb 11

This post has been edited by jady: Feb 22 2011, 11:18 PM

Hi,

Looking through the details again, do you think I have a case here?:-

"A letter was sent to vendor lawyer on 02/11/2010 requesting for the documents, undertakings, etc. If the information is correct, the letter from vendor lawyer is only received by the loan lawyer on 08/12/2010. (All in should be 36 days, the SPA didn't state whether it's working days, so I assume it's not). The original Title is only received by loan lawyer on 13/12/2010. This is another 5 days delay.

I was told the full loan sum to vendor lawyer released on 14/02/2011. From original completion date of 25 Jan 2011, that's 20 days delay. In the SPA, period exceeding 14 days will be excluded from the completion date. Therefore 36-14 = 22 days. (This is not counting the extra 5 days for the Title).

Does this means I didn't exceed the delay and thus do not have to pay for any late charges interest?

And if there wasn't any delay, does that mean it ended up that the vendor side is delaying as they're supposed to hand over vacant possession within 5 days from release of full sum?"

Hope to hear reply from you soon.

Thanks.