Please bring this to the attention of your SPA lawyer. He can advise you further in this. I've advised you as best as I can. Thank you.

1 week is good and fast. Normally 10 working days max is granted to the vendor's financier. As you are unrepresented, the burden is on you to call the bank and push them to rush it. I can't see any other way, though as I said, 1 week is fast enough.

Why you afraid of late penalty interest (LPI)? If delay from your side, normally completion date will be extended only. Interest only accrues from your side if you receive the balance purchase price in full and do not surrender VP to the purchaser within 3 working days (normally). So you read up the terms of the SPA and do your calculation accordingly. If the delay is from the purchaser, then he has to pay LPI to you, not the other way around.

Your SPA will reflect what happens to the tenancy at the end of the transaction. Your lawyer would've been alerted as to the tenancy and would've sorted it out with the vendor. Do read up your SPA and see what is stated there with regard to the tenancy. If nothing is mentioned then it is the duty of the vendor to get rid of the tenant and surrender VP to you upon receipt of the balance purchase price, thus completing the transaction. If he does not surrender VP to you then he has to pay you penalty.

So, the law is up to what is stated in the your SPA. Do dig it up and read the terms.

Have you checked with your lawyer on this also? Please do that as well.

In a tenancy agreement there would usually be a clause which provides for continuation of tenancy despite sale/transfer of the property to another party. Something like this:

SALE OF THE DEMISED PREMISES BY THE LANDLORD

The parties hereby covenant and agree that in the event that the landlord sells and/or assigns the demised premises, the landlord shall subject such sale and/or assignment strictly to the tenancy herein and to the terms and conditions of this agreement and the tenancy herein shall not be terminated by reason of such sale and/or assignment.

So when you buy it, you buy it with the tenancy.

The above is just an example. For your real life case - do read your SPA as I've advised above.

Cheers.

As I advised you earlier, do appoint another lawyer (who specialises in litigation matters) to study the documents and advise you if it is viable to sue the vendor for damages (compensation). I doubt if you can rescind the transaction based on the factual situation. That is my opinion. Best if you get professional independant advice.

No need. With regard to CKHT 3:

1) If you've owned it for more than 5 years - no further docs required apart from copy of previous SPA.
2) If you've owned it for less than 5 years are you're using your one time exemption - you need to submit utility bills or copy of CF to show that the property is used for residential. That's about it.

No need. That would only be required when submitting it for adjudication to LHDN - where a notice will be issued exemption you from paying any stamp duty.

For submission of CKHT that is not required.

You can use a sample from a real estate agent. The ones agents use are quite standard, differing only in minor details.

Alternatively, you can draft one out yourself with your own terms and conditions. Better still.

Wouldn't the car park be marked in the plan annexed to the SPA? Did you check the whole SPA before you signed it? Or did they just give you one single page to sign?

Anyway, you've signed it, the developer will sign it, and get it stamped for RM10. Even if there were missing pages they can just insert it now that you've 'raised the alarm'.

Yes it is standard for them to stamp it first before giving a copy back to you.

There's a binding contract already. You can't back out of it at this stage, unfortunately.

This post has been edited by dariofoo: Sep 20 2011, 02:28 AM

Whether there are restrictions placed on transferring or assigning the property would depend on the principal SPA. That is the only way of ascertaining. Without the benefit of a copy of the SPA, I can't advice you any further in this.

What your friend meant was probably a deed of trust. But it would work if you're buying by way of cash only. Such agreements would be null and void as it contravenes the principal SPA (if the principal SPA indeed contains a clause which prohibits it).'

So if there is such a clause, you bear the risk of it if you decide to proceed to "purchase" it. Do more research before taking the big plunge.




This post has been edited by dariofoo: Sep 20 2011, 02:33 AM

Dear all,

Thank you for your patience.

Shall answer the rest of the queries tomorrow.

Nites.

This post has been edited by dariofoo: Sep 20 2011, 02:34 AM

The document you are referring to is the letter of disclaimer.

Letter of disclaimer is where the end-financier disclaims all rights over your particular unit. When there is a charge on the master title, and subsequently when the strata title is issued, all strata title units will have the charge registered upon it as well. Basically one charge has split into 200-300 'small' charges. As such, when there is a letter of disclaimer, a discharge of charge would be executed by the end-financier, thus releasing the strata title from any encumbrances entered due to the master charge. This will allow the purchaser to obtain a loan and charge it to his financier in exchange for a loan.

Now, after execution of SPA, your lawyer will write to the developer and the end-financier for a redemption statement (RS). The RS will state as to how much is due and owing to the end-financier by the developer with regard to your unit. The developer may also state therein to forward xxx amount to the end financier with regard to part of the progressive payment as their end-financing has to be paid off first before any money can be paid to them directly.

As such, perhaps the following 30% (example only) would go to the end-financier to redeem the end-financing with regard to your unit. Upon full settlement, the end-financier would issue the letter of disclaimer. Sometimes, a statement with the effect of a disclaimer is already issued in the redemption statement - and it will state that the Bank would disclaim all rights over the unit subject to receipt of payment of xxx amount by the purchaser. So once full payment has been made and there's evidence of same, the disclaimer comes into effect immediately.

I do not understand why the lady in that case did not obtain the disclaimer from the bank. There is no reason why the bank ought to withhold same.

In your case, there is no need for a LOU as there would be a clause in your SPA to this effect:
Separate strata title and transfer of title
11. (1) The Vendor shall, at its own cost and expense and as expeditiously as
possible, apply for subdivision of the said Building so as to obtain the issue of a
separate strata title to the said Parcel under the Strata Titles Act 1985.
(2) Upon the issuance of the strata title to the said Parcel and subject to the
payment of the purchase price by the Purchaser to the Vendor in accordance with
subclause 4(1) and the observance of all the terms and conditions herein provided, the
Vendor shall, within twenty-one (21) days, execute a valid and registrable memorandum
of transfer of the said Parcel to the Purchaser, his heir or nominee or lawful assign, as the
case may be.

That is good enough to protect your interests, so don't worry.

The bank (if you take a loan), on the other hand, does not have any contractual relationship with the developer. The bank is not privy to your SPA. If the MOT cannot be perfected later, the charge in favour of the bank would also not be able to be registered. The bank's position would not be secured. As such, the bank would require a LOU from the developer initially in order to protect its interests at a later stage.

Hope the above helps.

Of course different professionals will have different opinions. You must also bear in mind that my opinion is given without the benefit of perusing through documents and is based on the piecemeal information given by you from time to time.

Most of the time the clients wants someone who shares the same opinion with them. If you feel strongly that you can sue the vendor for breach of contract and rescind (cancel) the contract, perhaps you need to seek out another opinion which is same as yours, then perhaps he/she can take up your case and proceed from there.

Good luck ya

Check whether are they representing the developer or representing you. Sometimes it is stated as representing the purchaser. In that case, that lawyer can write to the developer and end financier.

Otherwise, it would be prudent to appoint your own lawyer as I doubt if you can write the relevant letters on your own.

Yes. The letter of disclaimer is quite standard and straightforward. Most banks issue you the disclaimer immediately in the redemption statement - i.e. the disclaimer is subject to settlemenet of redemption sum of XXXX. So there's no need to wait for another letter after that.

No. You can just issue your own cheque paid out directly to the developer as and when the progressive payments are due and the notice for same is issued to you.

There's a link to a site where you can just key in the purchase price and the scaled fees would appear. The SRO takes a bit of getting used to sometimes. For a property worth RM350K, scaled fees are RM2900.00. Since this is a HDA transaction the max charge allowed is 70% of scaled fees, so it is RM2030.00. There might be some slight disbursements incurred - for transport, papers, fax, courier, tel, misc. Differs from firm to firm but should not be more than RM200.00

The above fees included vetting and preparation of SPA as well. Since that has already been done, your solicitor would need to write the relevant letters and assist you to forward the cheques to the developer as and when same is due. That's about it.

You need to appoint a lawyer who will prepare a simple letter confirming the intent to transfer with love and affection as consideration. Then the MOT will be submitted for adjudication of stamp duty.

There won't be any stamp duty as it is a transfer with love and affection as consideration.

Once transferred, a new title will be issued.

Quite straightforward.

It depends - is the redemption sum more than your loan sum? If more than loan sum of course your differential sum will be used to as top up to cover the redemption sum.

If redemption sum less than your loan sum then loan sum will be disbursed first. Diff sum will be paid in the end with the balance purchase price.

billytong:


What you can or cannot do will all be stipulated in the tenancy agreement. Yes there would usually be a clause that in default of rent (usually when it falls on the 7th of each month), the landlord has to give notice of default to the tenant, and if the tenant still does not make payment, the landlord has the right to re-enter the premises and take vacant possession of same.

However, the right of re-entering the premises is difficult to execute in reality as there would be a padlock at the gate/main grill. The landlord's right does not go up to the point where he can cut the padlocks to effect entry. That, in my opinion, would amount to trespass to property.

As such, if you serve a notice of eviction (with 1 month's notice) and if the tenant does not move out, you have two choices:

1) Straight way - instruct the lawyer to file a writ of distress - to obtain vacant possession and claim for double rent (mesne profits). This may take time - depends on the efficiency of your lawyer as well as the Court.

2) Not-so-straight way - cut off utilities, place another padlock and chain at the grill/gate, instruct management to block/cancel access card, etc etc. The list is endless. This may be instantaneous in its effect, but this is self-help and is contrary to law.

With regard to penalty for late payment of rental/utilities and other measures in relation thereto, do check out the discussion in this thread. The points by bro Hansel are worth a read:

http://forum.lowyat.net/topic/2027543



This post has been edited by dariofoo: Sep 20 2011, 09:51 PM

Sorry bro, if I do not have sight of the charge, I can't tell you what discrepancies your lawyer is referring to. What I can tell you is that if there are discrepancies (or mistakes), surely the charge would not have been registered successfully and the existing financier would not have disbursed the loan sum in the first place.

You would be better off to meet your lawyer personally and get more details off what he is trying to say.

Of course, if the discharge of charge cannot be registered, it will be a delay on the vendor's side to complete the transaction and as such, the completion date would be extended in favour of the purchaser.

You didn't mention which side of the fence you are on, so I hope you're on the right one.

Cheers.

No no your English is more than fine. The suggestion by bro Hansel in that thread is to disconnect the electricity when payment by the tenant with regard to same is overdue. That is provided for in the tenancy. In a way, it is a penalty, although not in monetary form. The thread was just to point out another option for you.

No worries.

Back to your queries:
1. Yes you can. How much is between you and the tenant. As long as both parties agree, why not? It is legal. No, I've never seen such a late payment penalty being imposed on the tenant. It is not a usual term which is inserted. The usual term basically gives the right to the landlord to terminate the contract in the event of late payment of rent.

Bear this in mind - if you want to impose a penalty on late payment, would it make a difference if the tenant still refuses to pay? The amount will just accumulate. That is why bro Hansel's idea of having a clause which permits the landlord to instruct TNB to disconnect in the event of late payment of bills does sound like a good idea, provided you can find the time to track your account online and write the necessary letters to TNB.

2. Yes, you can. Once again, this is the term which both parties agree. However, you must be careful with drafting of the terms as what amounts to non-payment of utilities must be properly defined. The line must be drawn clearly. This is also not a common term which is inserted in tenancy agreements. Most of the time, the deposit shall be forfeited in the event of any outstanding utility bills at the end of the tenancy period.

1.Yes, the court will order the defendant (tenant) to pay costs to you but it will not be the exact sum which you paid your lawyer. Let's say the fees paid are RM5K. The Court may just decide to award RM3K. With regard to other expenses, what do you mean? Any examples?

2. Yes , you can still claim for any oustanding sum due and owing by him and you have to do it by way of a civil suit in Court.

webber:


1) If the SPA is aborted, the letter of offer is of no effect. By right, the bank ought not charge you anything. Check if anything is stated in the letter of offer. If nothing, check with your mortgage agent.

2) Normally if SPA is aborted then half of professional fees is charged and disbursements incurred only (which is not much - perhaps the relevant searches, letter of confirmation,etc). Some solicitors are gracious enough to just waive whatever fees on the condition that you still appoint them for the next purchase (as you would still need a lawyer then). Some are more "demanding" and would demand to be paid for work done. But don't be fooled into paying them in full.

3) You did not even pay a single cent to the vendor? In that case, there is no consideration (in monetary form) passing from you to him, and thus, it would be difficult to establish a contract to sell. Any booking form/letter of offer to purchase?

Any other factors? Any correspondence by the vendor to your lawyer with regard to the draft SPA? At least something to acknowledge his intention to sell.

If there were correspondence between your lawyer and him, then he can't deny that you have taken steps to prepare the SPA with the intention to create legal relations. As such, that would be a point in your favour.

I can't suggest more as I do not have all the facts before me.

4) If he still refuses to sell you have the option to send him a letter of demand to compel him to do so, or in the alternative (if you just want to give up and move on), claim for damages for costs incurred (legal fees, bank penalty [if any]) .