Since there's so many questions about lawyers in this forum, I took the liberty to list down a few links for those who want to find out more about lawyers practising in West Malaysia as a member of the Malaysian Bar. It is important that you know that the lawyer who is handling your matter is fit and properly admitted as an Advocate & Solicitor of the High Court of Malaya and possesses a valid Practising Certificate for the year 2011.

If you want to see if your lawyer is a member of the dreaded Hall of Shame (disciplinary order has been issued against him/her), go here:
http://www.malaysianbar.org.my/disciplinary_orders/

If you want to check if your lawyer is indeed a lawyer registered with the Bar Council and who possesses a valid Practising Certificate for the year 2011, go here:
http://www.malaysianbar.org.my/find_a_lawyer.html

If you want to check if the law firm handling your matter is registered with the Bar Council, go here:
http://www.malaysianbar.org.my/find_a_law_firm.html

Check out this link for a very simple yet informative info on buying and selling property:
http://www.malaysianbar.org.my/sale_purchase_of_houses.html

..and for general info on the law on other matters:
http://www.malaysianbar.org.my/public_awareness.html

For any direct enquiries – call Bar Council at 03-2050 2050.

To calculate legal fees for SPA (and stamp duty on MOT/DOA):
http://www.elawyer.com.my/legal_calculator_info.php

OR

http://www.e-properties2u.com/loanlegal.html

To download a copy of the Solicitors' Remuneration Order 2005 - which details the scaled fees for SPA and loan documentation approved by the Bar Council for lawyers to charge:
 SRO_2005.pdf ( 71.22k ) Number of downloads: 761


If you want to know how to file an official complaint against an Advocate & Solicitor with the Disciplinary Board, go here:
http://www.asdb.org.my/procedures.html


This thread is also for those who want to pose legal queries - especially on procedure on sale and purchase of property, loan documentation, tenancy, etc. Any other queries on other aspects and areas of the law are also welcomed

Please do not PM me for any legal advice, nor ask for any recommendations for law firms. I do not give out any advice via PM. Please post your legal query at this thread so that everyone can benefit from an answer.


Cheers.

This post has been edited by dariofoo: Jul 15 2011, 06:46 PM

Great thread here, good for public infos. The phone number : For any direct enquiries – call Bar Council at 03-2013003.


Why are there only 7 digits, is this done deliberately ?

Frankly, I have seen important law documents which carry the simplest of mistakes, hence, are these simple mistakes backdoors for possible technical errors in order to avoid legal actions ?

Okay - then I get apologies saying they are honestly careless mistakes.

thanks for this topic. I think it would be good for all new home buyers (which i think will be more after the budget )

The phone number ought to be 03-20313003. Sorry about that

With regard to your query whether mistakes in law documents are backdoors for possible technical errors in order to avoid legal action, I think what you're trying to ask is whether clerical or typographical errors can be raised as an objection by the other party to get the lawsuit struck out.

Well, there's Order 1A, Rules of the High Court, 1980, which states:

Order 1A. Court or judge shall have regard to justice.

In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.

and

Order 2, Rule 3. Preliminary objection for non-compliance of rules not allowed (O 2 r 3).

A court or judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of noncompliance of any of these Rules unless the court or judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice.

and also

Order 20, Rule 11.Amendment of judgment and orders. (O. 20 r. 11)

Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court by summons without an appeal.


Therefore, as long there is no prejudice on the other side, clerical errors and typos can be amended.

Hope that answers your query.

---

Added on October 19, 2010, 12:15 pmCheers. I replied to your topic on lawyers' fees. Which one did you appoint?

This post has been edited by dariofoo: Oct 19 2010, 12:15 PM

Dario, thank you for your time to extract all of those information and posting them here. I won't bother to counter-debate in any way, but I would just like to day this : if the judge feels lazy on the hearing day, he will just strike out the case and that's it. That's the risk.

Judges are humans too.

Haha. Looks like someone had a bad experience in Court recently? Take it up on appeal,bro. Don't give up. Lawyers who object to technicalities are just, well, *tsk tsk*

It's not me, but you are right - lawyers who object on technicalities are certainly not holding up justice as the main point, generally, but the problem is the judges listened to them. Hence, it's all back to the judges.

Anyone who has legal queries should pose them here for the benefit of all.

Any questions on legal procedure when buying or selling property, on gains tax, on loan documentation, etc. Feel free to ask.

Any lawyers out there are welcome to impart their knowledge here as well.

After I've paid my S&P, and whatever fees - my lawyer said they will deal with bank for Letter of Undertaking and nothing more from my side.

So, after signing S&P, loan agreement and such..I should only wait for my copy of Letter of Undertaking? that's it?

FYI, my property need 2 years to complete?

Would need more info on this:

1) Are you the vendor or purchaser? I'm taking a wild guess and saying that you're the Vendor as you would have to execute a letter of undertaking to refund the purchase price (in other terms, the loan sum released by the bank) in the event the Memorandum of Transfer cannot be registered (for
property with title) or Deed of Assignment cannot be perfected (for property without title) for any reason whatsoever.

If you're the purchaser, which solicitor is this - for the S&P or bank loan documentation?

2) Is the property still encumbered (i.e. is there still an existing loan with the bank) ?

3) Is the property leasehold or freehold?

Give me more info and I can advise you further. Cheers.

If you're the purchaser, which solicitor is this - for the S&P or bank loan documentation?

My solicitor for S&P is the developer. Any document I should expect from them after I signed my S&P?

I've appoint another lawyer for bank loan documentation. Any document I should expect from them after I signed my S&P?
According to them, they will deal with bank for Letter of Undertaking and I will have a copy by then. Is that all?

2) Is the property still encumbered (i.e. is there still an existing loan with the bank) ?

New Property with New loan under my name

3) Is the property leasehold or freehold?

Freehold and I received a document from developer mentioning MOT title transfer

I'm currently overseas after I settle all payment to respective firms both developer, solicitor and etc.


I only has doubt on what Im suppose to do after I paid my downpayment, solicitor fees, and got all documentation signed.

<- first time house buyer here

Sounds like a straightforward deal to me.

Besides the S&P, you need to sign your loan agreement with your financier as well.

If the developer mentioned MOT, that would mean that the property would have been subdivided into individual titles (which is really good news) and you can execute the Memorandum of Transfer in order for an individual title to be registered in your favour.

Once individual title is out, the bank may want you to execute security documents as well, i.e a charge created in favour of the Bank over the property as security for the loan granted to you.

If individual title is not out, you would need to execute a Deed of Assignment, which is another form of security documentation as well.

So, don't worry about it.

Hope the above helps.

Ok! got it. Thank!

i book an condo which going to start construction and plan to completed in Dec 2013. Below is my question.Thanks.

How can we know the valid expected date to complete,in case if after over the expected date, we can sue developer for their delay to deliver project?

If i sign SPA on 1.11.2010 , means on 1.11.2013 the condo need to be completed ?Is that start counting 3 years from the date on signing SPA? If not, i can take legal action for them right? since the sub-divided is for 3 years period from what i understand.

Is the 3 years period include get the CF and key?

Is there any advantage to use developer own appointed panel solicitor for both developer side and financier side? Is that compulsory to use their service?

Do any law now to protect buyers in case the construction project stall in the middle?

If my bank financier no transfer money to developer after 14 days they recieve Letter of Undertaking, is that my faults to enable them to penalty me on interest?

Normally how long it takes to transfer master title to strata title?If i not mistaken, for newly built condo it is master title right?

Sorry,

This post has been edited by Seremban_2: Oct 29 2010, 09:04 AM

The developer free S&P for legal fee and stamp duty . But for loan agreement side not free.
What you mean for " If the developer free S&P and Loan fees then you are at disadvantage to use developer own appointed panel solicitor. "

Sorry had a busy day.

Look at your agreement to determine the completion date. If vacant possession is handed to you after the completion date, the developer has to pay late penalty interest.

Yes the completion date starts running from date of execution of the agreement.

Vacant possession is the right term to be used. You will be given the keys, as well as a checklist of all the items included in the sale. A checklist for defects would also be needed to be filled up and returned to the developer for their action.

It is not compulsory to have a common solicitor with the developer. You must remember that the solicitor acts for the developer and not you. As such, don't expect any calls to the solicitor for follow up and complaints against the developer to be entertained. You are deemed to be unrepresented. If you choose to appoint your own solicitor, it would be good in the sense that your lawyer can keep a check and balance on things. The drawback is that you would have to fork out fees? At what price is your piece of mind? Ask yourself that.

With regard to abandoned projects, it's a sticky situation. You can file a lawsuit in Court to compel the developer to complete the project, or sue for losses, but in most events, the developer would've long gone and buried, if not already wound-up or with plenty of creditors chasing after them. So at the end of the day, it'll be a paper judgment for you even if you win the case.

What interest are you talking about? Why would you say the Bank won't tranfer the money to the Developer? If all is in order, and if there is no delay on your part, of course the money would be disbursed. Don't worry about things that haven't, or may not, happen.

With any new development, it would be a huge master title at first. The developer has the duty to apply for subdivision. The agreement ought to provide the timeline for the Developer to subdivide the title, and if i'm not mistaken, it's 24 months from the date of the agreement.

You'll be surprised that some developments already have individual titles when launched. It's one of the perks of the packages thrown in. The faster individual titles come out, the better it is. In your case, it'll be a strata title.

Hope the above helps. Cheers.

Thank you very much for your detail explaination.
My concern for late disbursement from bank to developer, is because i had heard some case really happen on penalty being charge on buyers,due to the bank late disburse the money to developer after receive the letter of undertaking.

Is it compulsory for developer to state black and white regarding the maintenance fee per square feet and sinking fund inside SPA? To prevent they change the rate once construction completed.

The solicitor for developer side is their own panel.So they free us the SPA. For loan agreement side, the developer also their appointed back end financier. I think the solicitor for bank side may also their "own people".

Won't be the housing ministry safe-guide our buyers interest in case housing project stalled? As the ministry need make sure the progressive payment made to developer must use to fund the project?

Another things is will bank private caveat our property on our behalf? Or we need to do it ourself?

Not too sure about whether it's compulsory but I don't think they would dare to overcharge. In any event, once a Joint Management Body is set up, the residents take over from the Developer and maintenance fees can be dictated by the residents themselves. So don't worry.

There is nothing free. All legal fees are already factored in the price of the house. It would've been marked up according to the legal fees incurred, which is scaled according to the price of the property.

Yes the Ministry ought to be more responsible by conducting thorough checking and vetting of developers. I'd rather not comment too much on that.

To safeguard yourself, it would be prudent to buy from established developers, but even that is not totally foolproof. But better the devil you know than the one you don't, right?

When it comes to a master title you, as a lone purchaser of a parcel, can't lodge a caveat over a master title. The developer would not allow that. A deed of assignment created over that particular parcel identified as yours is sufficient security. Keep your fingers crossed that the developer would follow up with subdivision in order for a strata title to be registered in your favour.

Cheers

This post has been edited by dariofoo: Oct 29 2010, 12:43 AM

Normally,in newly built-up condo ,how long it takes to setup a joint management body?

When the Deed of Assignment is going to signed?

The document to sign when master title divided to strata title is called MOT?

Thank you.

According to Section 4(1)(b) of the BUILDING AND COMMON PROPERTY (MAINTENANCE AND MANAGEMENT) ACT 2007:

A Joint Management Body shall be established consisting of the developer and the purchasers upon the convening of the the first meeting not later than twelve months from the date of delivery of vacant possession of the parcels to the purchasers.

Deed of Assignment is executed together with your loan documentation.

Yep it's called the Memorandum of Transfer (MOT). Also known as Form 14A or Borang 14A.

Just curious to know what happen if a leasehold property really come to end likes 99 years??will be be demolished? or penalty?

The word lease in leasehold can be loosely translated to mean 'rent/borrow'. Strictly speaking, the ownership of the property would revert to the State Authority upon expiration of the lease. In other words, you would have to surrender the property back to the Govt.

In REALITY, and in fact, in political reality, it would be ridiculous and controversial for the Govt to insist for the property to be surrendered back to them upon expiration of the lease.

What would be practical would be to EXTEND the lease for another 99 years. Or just convert it to freehold. Wouldn't that be a really good political move as well?

If I may add, one must remember that freehold is not actually more secure than leasehold as most people would think. Freehold land is still subject to compulsory land acquisition by the Govt. What it means would be that the Govt would gazette the land as being compulsorily acquired by the Govt and the owner would be given compensation.

You can't challenge the acquisition and you can only challenge the quantum of the compensation.

So at the end of the day, ownership of your land is at the pleasure of the Govt.

For the Loan Agreement, can the stamp duty be discounted 50% now even before 1.1.2011? Or stamp office must follow government after 1.1.2011.

Is that up to solicitor's decision to give how many discount on Loan agreement's Legal Fee? In some new project, the SPA legal fee is given free, can we request to free the Loan Agreement's legal fee as well?

If the developer solicitor and bank solicitor is the same person, will it offend the law or conflict of interest?

Thank you....

From the what the PM announced in the budget (which doesn't make it official), it did sound like only stamp duty on the Memorandum of Transfer or Deed of Assignment will be given a rebate of 50%. Am not sure if the ad valorem stamp duty on your Facilities Agreement will be entitled to a rebate or otherwise. It is best to wait for an official announcement and guideline. In any event, I don't think you would be entitled to any rebate now itself.

Your legal fees for the S&P may appear to be free, but trust me, it has been factored into the purchase price of the house already. Like I said earlier, there's no such thing as a free lunch. There's no reason why the Developer must absorb the fees for you.

Certain Developers would also promote 'free' legal fees for loan documentation as well. You would have to check with them with that. Normally if that is offered, you would have to take one of their panel law firms who, of course, act for one of their panel banks.

When you say Developer lawyer - do you mean the lawyer for the S&P who represents the Developer and where you are deemed unrepresented? And when you say Bank solicitor, it is the solicitor who is handling the loan documentation for you?

Or do you mean the Bank solicitor who is handling the end financing fo the Developer? As you must remember that the Developer normally has an end-financier as well who provides borrowings to the Developer to run the project.

yes..what i mean is lawyer who represent developer to prepare SPA. and lawyer who represent bank to provide loan agreement for buyers.
If these two lawyer are same person, will it conflict of interest?

Here are some situations that might occur:

1) Developer 'absorbs' legal fees but in the S&P, the solicitor is listed as acting on behalf of the purchaser. In such situations, that same solicitor can act for the bank in the subsequent financing of the property purchased from the developer. There is no conflict;

2) Developer 'absorbs' legal fees but in the S&P, the solicitor is listed as acting on behalf of the developer. The purchaser is deemed to be unrepresented. In such situations, that same solicitor cannot act for the bank in the the subsequent financing of the property purchased from the developer. There is a conflict, and I think this is the scenario you had in mind.

However, don't be overjoyed if you are in situation (1). Although legally speaking the solicitor is listed as acting on your behalf, realistically speaking, don't expect him to chase or harass the developer if there is a complaint, or delay whatsoever. This is because the paymaster is essentially the developer, and this firm is definitely on their panel. In reality, they would most probably just push the blame to the developer and insist that you deal direct with the developer in cases of complaints,etc.

Sad, but that's how it is in reality.

According to Land Laws, what is the timeline for a developer to conclude an MOT process ?

Is it within the three years while the highrise is being constructed, or two years for a landed property ?

The problem becomes complicated if the Land Proprietor (LP) is a separate party and the developer needs to get the LP to sign on the Form 14 too, if the LP delays.

Hansel,

Can you please enlighten us as to where you got the information that the developer has to obtain separate titles within 2 years and strata titles within 3 years?

According to Reg 11(2), Schedule G to the Housing Development (Control and Licensing) Regulations 1989, upon issuance of the individual titles, the developer shall execute, or cause the proprietor to execute (as the case may be) the MOT within 21 days from the said issuance, and shall thereafter hand the said MOT over to the purchaser.

As such, it is the duty of the developer to get the LP to execute it within the time period. It has nothing to do with the purchaser. If the Dev fails to do so within the prescribed period, they are opening themselves up to be penalised.

This post has been edited by dariofoo: Oct 31 2010, 11:47 PM

Dario, apologies, I just saw this posting.

No, I'm afraid I don't think it is as simple as : it is the duty of the Dev to 'get it executed within the prescribed period (21 Days)'. I distinctly recalled seeing in the SPA and in the MOT too, I think, that the Dev asked for this and that which gave a lot of problems to the purchasers, hence forcing the purchasers into a corner.

Then the process of MOT gets dragged over 2 or 3 years, instead of, sorry to disagree politely, that 21 Days that you mentioned. It is not as simple as that.

There were very specific terms in the SPA and in the MOT that "caught the purchasers". If such terms are already in the SPA and in the MOT, how is it that the Dev is open to penalisation ? Appreciated your opinions.

Hansel,

Here's the provision of the law:

HOUSING DEVELOPMENT (CONTROL AND LICENSING) REGULATIONS 1989
Section 11. Contract of sale.

11. (1) Every contract of sale for the sale and purchase of a housing accommodation together with the subdivisional portion of land appurtenant thereto shall be in the form prescribed in Schedule G and where the contract of sale is for the sale and purchase of a housing accommodation in a subdivided building in the form of a parcel of a building or land intended for subdivision into parcels, as the case may be, it shall be in the form prescribed in Schedule H.

[emphasis own]

Here's the explanation:

The Developer must follow the template agreement in Schedule G or H, as the case may be, and cannot amend or modify the template agreement. That is why when they say that agreements are 'standard' documents, it doesn't ring much true when it comes to property purchased from developers.

The word 'shall' is mandatory. It is as simple as that

Coming back to your situation, are you sure that there is such a clause, as it would amount to a variation/modification of the template agreement, and that is clearly contrary to law. Not only will the developer be in hot soup, but the lawyer as well.

That is why I think the situation in your case is not probable. The risk is too high. Why would the developer want to risk themselves by modifying the clause, when at the end of the day, then can just delay applying for the individual title? So many projects are still without individual titles after even 20 years, with the developer still very much active in other projects. Any action taken against them? Your guess is as good as mine.

Are you sure of the facts of the case or are you second guessing. Try to get a copy of the agreement and post it here.

Would make for interesting reading.

Thanks for contributing to the thread.

This post has been edited by dariofoo: Nov 4 2010, 03:11 AM

Dear Dario,

Firstly, I too would like to thank you for your great perspective in this great thread started by none other but yourself.

I think what we are doing here will greatly benefit the public, whereby by reading our discussion, they will know more about how to look after themselves in future whne they come into contact with this type of issues.

I like your very factual way of conducting and immersing yourself into a discussion.

Hence, I agree that we should talk factually. I will borrow a copy of the said S&P (and the MOT, if possible) by today and post up those concerned clauses here for further discussions and rebuttals.

---

Added on November 4, 2010, 11:52 pmDario, I have provided below the clause which is talking about the title transfer :-

Clause 10 : Separate Document of Title / Transfer of Title

(1) Upon the execution of this Agreement, the Vendor shall, at its own cost and expense and as expeditiously as possible, obtain the separate document of title to the said lot.

(2) Upon the issue of the separate document of title to the said lot and subject to the payment of the purchase price by the Purchasers to the Vendor in accordance with (the payment clause) and the observance of all terms and conditions herein provided, the Vendor shall, within 21 Days execute a valid and registrable memorandum of transfer of the said property to the Purchasers.

As you can see from the above clause, the Dev here wanted the Purchaser to observe ALL the T's and C's in the S&P before the Dev will complete the transfer.

Otherwise, the Dev can always delay signing the MOT, right ?

Is the above clause in accordance with the main template agreement that you mentioned earlier ?

This post has been edited by Hansel: Nov 5 2010, 12:03 AM

Hansel,

Even with this thread, the response doesn't seem to be very encouraging. There has not been many enquiries. Or maybe some people want to start their own threads rather than posting it here.

Different folks different strokes, i guess.

It's good to have you around though. Cheers.

---

Added on November 5, 2010, 2:07 amComing back to the discussion, here's the Schedule G which I stated earlier:

http://hba.org.my/laws/housing_reg/2002/Schedule_G.pdf

As you can see in Clause 11, it does seem similar to the one in the agreement in your case.

Now, when you say subject to the purchaser being in "observance of all terms and conditions herein provided" , it is limited to the T&Cs contained in the agreement itself, and not any other T&Cs imposed by the developer upon the buyer which is outside the scope of the agreement.

With regard to observance by the buyer, it would mostly be referring to the buyer (through his financial institution who granted him the borrowing facility) making the progressive payments to the developer as and when same is duly requested by the developer. I don't think the buyer has anything much to do apart from that.

Well, maybe avoid being declared bankrupt in the interim perhaps?

What do you think? Can the developer still twist the buyer's arm with the above clause?

I, for one, doubt so.


This post has been edited by dariofoo: Nov 5 2010, 02:07 AM

haih... im currently working as a clerk in a firm... at the same time trying to pass my final part 2 for the 3rd time!!!!!

haih... stressed

Don't worry, bro, it is always to start from the bottom and work ourselves up. Only then when we reach the top, will we appreciate the perilous yet worthwhile journey to get there.

Don't worry about trying to pass it for the 3rd time. I recall a famous advocate (still in practice) who took more than 5 years to pass his law degree at NUS way back in the 60s. In the end he merely scraped through with 3rd class honours.

Many thought he would never last the course. He sure did. And he has not only lasted the course, he's a trailblazer in the legal fraternity. In fact, he's an institution by itself.

His name?

Karpal Singh

This post has been edited by dariofoo: Nov 5 2010, 02:43 AM

Glad that I found this thread. I have some doubts on lawyers fee that need the assistance of sifus' here.

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?
2. Pertaining to the above, is it advisable for me opting for the developer lawyer so as to save on the s&p charges?
3. Can i choose not to appoint the developer lawyer for the S&P? I understand that the offset is that i got to pay for the S&P charges.
4. May I know what legal fees is impose in purchasing a property? S&p fee, stamp duty on s&p, loan agreement lawyer fee + stamp duty & disbursement charges? Mot? Other than the listed, is there any other charges that I miss out?
5. Can some clarify whether the rate for both S&P and loan agreement fee are the same that are 1% for the first 150k and 0.7% for the following and so forth?

Thanks.

This post has been edited by yiivei: Nov 5 2010, 06:27 PM

Dario, thank you.

Pertaining to your comment in the above as highlighted, I was informed that the Dev does and is indeed twisting the buyer's arm. How ?

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.

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.

How did the Dev stop processing ? They just kept the MOT after receiving it from the buyer's lawyer and refused to sign it and refused to forward it to the LP too.

This is arm-twisting, wouldn't you think so ?

Welcome,bro.

With regard to Qs 1,2 and 3, can you check out my reply to a query on the first page of this thread. I think I addressed a similar question. If you still need further enquiries, feel free to ask again here.

With regard to Q4, it depends on a lot of factors - legal fees for buying from developer is different from subsale - with title more disbursements compared to without title.

There's also legal fees for entry and withdrawal of private caveat (if with title) and also for filing CKHT 2A (for purposes of notice to the Inland Revenue Department)

With regard to Q4, yes it is the same, but as stated above, when you purchase from developer - the scaled fees are different (much less).

Helpful?

Does that mean we will eligible for lower fee if we appoint the lawyer assign by the developer? Like 70% out of the total? Correct me if I'm wrong.

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.

This post has been edited by dariofoo: Nov 5 2010, 09:46 PM

[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.

[/quote]

So does that mean as long as I purchase directly from developer them I can enjoy the lower fees?
[/quote]

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.

---

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!

Hi,

I'll answer 1) and 2) together:

As a vendor, you have three options:
1) Appoint a solicitor to act on your behalf, whereby the solicitor will charge FULL SCALED FEES and will peruse the draft S&P for you and advise you accordingly. Your solicitor will assisting you in discharging the charge, and obtain the unencumbered original title from the bank for onward transmission to the purchaser's financier's solicitor (let's assume the purchaser will be taking a loan). They will also assist you by filling up the CKHT1A (and CKHT3) and proceed to file same at LHDN. Your solicitor will also keep check as to the completion date and would exert some pressure on the purchaser's solicitors to complete the S&P within the stipulated time and pay up the late penalty interest, if applicable.

2) Act totally in person. This means that you would have to run around to your financier, apply for a redemption statement, collect it, prepare a discharge of charge, get the cheque for the redemption sum from the purchaser's financier, get your financier to execute the discharge of charge, serve it to the purchaser's financier, fill up the CKHT1A and CKHT3 and file it yourself at LHDN.

3) Authorise the purchaser's solicitor to act on you behalf ONLY in respect of assisting you in discharging the charge, and obtain the unencumbered original title from the bank for onward transmission to the purchaser's financier's solicitor (let's assume the purchaser will be taking a loan). They will also assist you by filling up the CKHT1A (and CKHT3) and proceed to file same at LHDN. You will not be charged full scaled fees, but the fees for Discharge of Charge : RM300 and CKHT 1A: RM300 are fixed and is normally charged in this kind of situations.
NOTE: There is no conflict of interest here as the solicitor is merely ASSISTING you to redeem the property and discharge the charge. All this has nothing to do with the purchaser


Your current position would be no (3).

Benefits: You save on solicitor's full scaled fees. You only pay a minimal amount for discharge of charge, CKHT 1A and disbursements.

Cons: You must read and understand the S&P yourself, do not expect any preferential treatment from the solicitors as they are acting for the purchaser and thus, you would have no avenue should there be any delays, etc. In fact, you may not even be updated very often as to the progress as the solicitor is not obliged to CC any correspondence to you. In the event of any late penalty interest, you would have to do the calculation and claim for it yourself from the purchaser's solicitors.

The clause "the seller chose not to be represented by a lawyer" means that you are deemed to be unrepresented.

With regard to the draft note of charges, there are a few 'unnecessary charges' in my opinion:
Statutory Declaration: RM100
* What SD is this? That you're not a bankrupt? Tell them that you will bring it to a Commissioner for Oaths yourself to be affirmed - RM8 only.

Change of Ownership (DBKL): RM100
Change of Ownership (mgmt office) : RM100
* This is ridiculous. All this can be done on your own accord and will not take more than a few hours of your time, especially M'Ment Office, which is located on the same premises (am assuming this is a condo/apartment). Better still, insist on this clause in the agreement:

NOTIFICATION OF CHANGE OF OWNERSHIP
The parties hereto hereby agree that the Purchaser shall immediately upon completion of this Sale and Purchase notify and file with the local council and such other relevant authorities or utility service providers regarding the change of ownership of the said Property. The parties hereby agree that it is neither the duty of the Purchaser’s Solicitors nor the Vendor to attend to any of the foregoing matters.

Stamping Fee for Discharge of Charge: RM10
*justified
Discharge of Charge & Noting of PA: RM100
*justified
Affiming & Stamping Fee for Statutory Declaration: RM30
*justified, although it should be roughly RM18.00, if you do it yourself

Land Search: RM60
This should be borne by the purchaser, not you! Why on earth do you need to do a land search? This is obviously a case of passing the buck to you to save the purchaser some money.
OA Search: RM50
This should only cost RM12

Transport charges: RM100
* justified
Miscellaneous: RM50
* justified

FINAL ADVICE: The fees for discharge of charge [RM300] and Filing CKHT1A [RM300] is fixed and is proper. However, there are several unnecessary charges which ought not be borne by you. Think twice and weigh the pros and cons before making a final choice. You may want to get a second quote from another lawyer.

This post has been edited by dariofoo: Nov 9 2010, 04:06 PM

Hi Dariofoo,

many many thanks! really appreciate it!! If i understand correctly, the reasonable cost would be around RM1000 instead of RM1345 rite?

Correct me if im wrong, by FULL SCALED FEES, it means that on top of the costs quoted i would have to pay 1K plus bcoz i sold me house for 150K, then the total cost would be more than 2K, rite?

Thanks for the advise, i would get the clause on Notification of Change of Ownership that you suggested to be inserted into the S&P, but wud you explain to me the clause in layman term and its implications, pls? many thanks!

This post has been edited by dreamadream: Nov 9 2010, 11:02 PM

It is a bit expensive for your cases. Check with your lawyer is there any "change of name".

RM800 to RM900 should be reasonable bill. Make it RM1K so that the law firm feel nicer to do your cases.

If would be better use the same lawyer with the purchaser since a small case.

Correct if I am wrong.

Your full scaled fees would be RM1,300 [1% of RM130K] as prescribed by the Solicitors' Remuneration Order 2005

The clause is very simple - the purchaser has the duty to apply on his own effort and cost any change of ownership with TNB, Syabas, Indah Water, DBKL, M'ment Office, etc etc etc. Neither you nor his lawyer has the duty to do it. If his lawyer wants to amend it, let him have the duty imposed on the firm, but NOT YOU. As the vendor, you are not responsible for all of this. Don't even pay a single cent for it.

All the best

---

Added on November 9, 2010, 11:07 pmThere is no such thing as a small case or a big case. Every S&P is important irregardless of the cost of the property.

Can you promise that a "small case" will not have any problems? Some people would not mind spending money on legal fees just to have that peace of mind and security, while some just think of it very lightly and just use a common solicitor, to save money.

If all goes well, then it is money well saved. But when cracks appear? When there is a delay? Then the unrepresented vendor would have to do all the running around himself to solve the problem. He will be like this ->

At the end of the day, it is up to the individual to decide for themselves, what is the best for them. We can only give them the pros and cons of each choice, in order for them to make an informed decision.

This post has been edited by dariofoo: Nov 9 2010, 11:09 PM

Hi many thanks!

Sorry the prop value is RM150K instead of 130K, so that means if i opt to appoint my own lawyer, my total cost will be RM1500+RM1345 = RM2845? or i only pay RM1500？

Pls correct me if i'm wrong, does it mean that if the purchaser fails to fulfill his obligations, i would hv to perform all necessary for e.g to remove caveats (if any) lodged on my own???? Can i then appoint a lawyer to do it??

There's legal fees:
Scaled fees for perusing S&P - RM1,500
Discharge of Charge - RM300
CKHT 1A - RM300
5% service tax

Then you get the total..

...and there's disbursements:
* as discussed above. It would come to about RM900-1000, I think. Different firms have different billings.

If the PURCHASER fails to perform any of his obligations, and agreement is subsequently aborted, then PURCHASER'S SOLICITORS has to do all the work - your job is just to count ways to spend the 10% which you have just forfeited

You're the vendor so you don't need to lodge any caveats. What has to be done by you as the vendor has already been explained in detail in situation (1) above in my first reply to you. Please look at it again.

Honestly, to act on your own is 'pennywise, poundfoolish' - either authorise purchaser's solicitor as common solicitor or appoint your own solicitor.

This post has been edited by dariofoo: Nov 10 2010, 12:06 AM

Hi Dariofoo,

many many many thanks!!!!! really appreciate your help!!!
The lawyer has sent me the 1st draft of SNP today (so efficient) and i managed to get some charges off the bill.
will try to look at the SNP and see how it goes
thanks again !!!!!!!

No problem. Can you share with all of us here what are the charges which you manage to get off the bill as you said?

Good luck perusing the S&P on your own. I must let you know in advance to not request for us to read the draft and check if it is ok for you to sign it. It is your own choice not to engage a solicitor to act on your behalf, so you must take the responsibility to peruse and understand it on your own.

Hope you understand the situation.

If we start checking and perusing S&Ps here for you, lawyers will be out of business in no time!

Good luck

Dear Sifu,

just recently pay a booking fee of my very 1st own house.

i went to the dev solicitors office and have the SPA back to my own view.
in the end got some doubts on it, hope sifu here can help help t clarify it. many thanks in advance 1st.

heres some basic details:

- is a 1.5 storey townhouse, which is completed 3 years ago, still under master title with the dev.

- according to the agent from the dev, they already submitted to apply from master to strata and approx issuance will be 2 years after.

- the solicitor are also act upon the bank loan which i currently apply.

my question as follow: (many thanks to sifu in advance for answering it)

1. is it normal that dev to charge us for the transfering of the strata title to my individual title after 2 years when they have the strata,
and if its normal, approximately how much they will charge on the SPA price of rm168500?

as the agreement stated like this.

- Upon the issuance of strata title to the said parcel and subject to the payment of the purchase price by the purchaser to the vendor in accordance with clasue 4 (which is manner of payment) and the observer of all the terms and condition herein provided, the vendor shall, within 21 days , execute a valid registrable MOT of the said parcel to the purchaser.



many many thanks.
if the question are anser, i deeply appologies, coz im still viewing back right now.

This post has been edited by maxwongsauwei: Nov 11 2010, 02:07 PM

Dario, great advice you are providing to the people in this thread.

Pertaining to the above matter again, would just like to know about the standard cost factors. How much would it cost :-

a) to file an Originating Summons - OS (Saman Pemula) in the High Court - payment to the Court ?

b) if the Senior Assistant Registrar (SAR) is later required to do the Dev's work, how much do we need to pay the SAR ?

c) on the lawyer fees involved : filing the OS, obtaining the order, disbursements, any others ?

d) on other things that I may have missed, eg exchanging of affidavits ?


Secondly, based on this earlier statement : 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"?

I am aware that there is actually a legal and proper way to discharge the current lawyer and find another one if the client feels the current lawyer is not good enough - ie not able to discharge his duties well, or being caught in a situation of conflict-of-interest, perhaps because rpresenting the opoenent too.

How do we go about discharging the current lawyer ? Is there a possibility that the current lawyer may not want to be discharged and will just hold-on to a case that he does not want to perform well for ?

What are the costs involved in discharging a lawyer ?

And finally, do we need to inform the Bar Council of this discharge too ?


Thanks again, Dario.

Hi Max,

Thanks for dropping by.

You really don't need to worry about anything. The dev has the duty to apply and bear the cost of subdividing the master title into individual strata titles. The term "subject to the payment of the purchase price by the purchaser to the vendor" only refers to progressive payment of the purchase price and nothing more. Your bank will do the needful to release the money as and when work is done and the claim is made.

Your current solicitor will bill you some disbfor registering the MOT and remember that you would also need to pay stamp duty on the MOT. That's about all.

I think you should be happy that you'll be getting your individual title. Go do a dance like this ->

Hope the above helps. Cheers.

---

Added on November 12, 2010, 11:43 amPertaining to the above matter again, would just like to know about the standard cost factors. How much would it cost :-

a) to file an Originating Summons - OS (Saman Pemula) in the High Court - payment to the Court ?
RM80 for OS, RM8 for affidavit-in-support

b) if the Senior Assistant Registrar (SAR) is later required to do the Dev's work, how much do we need to pay the SAR ?
No fees involved. The Court order will direct the SAR to execute it if the Dev fail to do so within a certain number of days.

c) on the lawyer fees involved : filing the OS, obtaining the order, disbursements, any others ?
Lawyers fees for litigation matters is not fixed and not scaled. There would be legal fees as well as disbursements. Breakdown as to disbursements differ from law firm to law firm.

d) on other things that I may have missed, eg exchanging of affidavits ?
Yes in an OS application there would be exchange of affidavits. There would be no calling of witnesses, unless one of the parties puts in an application to cross-examine the deponent of an affidavit, but that is a rare situation.

Secondly, based on this earlier statement : 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"?

I am aware that there is actually a legal and proper way to discharge the current lawyer and find another one if the client feels the current lawyer is not good enough - ie not able to discharge his duties well, or being caught in a situation of conflict-of-interest, perhaps because rpresenting the opoenent too.
If you want to appoint a solicitor to sue the developer for penalty due to late delivery of vac possession, you need not discharge your S&P lawyer. Suing is a diff matter altogether from the procedure in the S&P, and you can appoint a new solicitor without any hassle.

How do we go about discharging the current lawyer ? Is there a possibility that the current lawyer may not want to be discharged and will just hold-on to a case that he does not want to perform well for ?
Your new solicitor has to write to the current lawyer asking if the latter has any objections to the former taking over conduct of the matter. It is a rule of courtesy. No solicitor can refuse to be discharged. A client has the ultimate choice as to the solicitor of his choice. Even in the event where there are outstanding fees, the solicitor cannot hold on to the file when there is another solicitor waiting to take over the matter, and that solicitor has given notice in writing to the previous solicitor of his intent to do so.

The previous solicitor has to release the file, subject to an undertaking by the new solicitor that the latter will hold a sum as a lien, and thereafter remit that sum to the previous solicitor as outstanding fees.

Example: Outstanding fees: RM10,000.00. New solicitor takes over conduct, wins the case and obtains judgment for RM50,000.00. The new solicitor must set aside RM10,000 a lien and remit that sum to the previous solicitor as outstanding fees.

What are the costs involved in discharging a lawyer ?
There are no fees. It's just settlement of outstanding fees to the previous lawyer, or having an undertaking by the new solicitor to hold a lien.

And finally, do we need to inform the Bar Council of this discharge too ?
No need to inform the Bar Council, but for civil litigation cases, you would have to file what is called a Notice of Change of Solicitors - filing fees RM10

---

Added on November 12, 2010, 11:48 amGood to see you back, Hansel. Cheers.

This post has been edited by dariofoo: Nov 12 2010, 11:48 AM

Dear Sifu,

i own one rubber land inherit from parent less then a year

have a buyer want to buy at cost rm400k, my question are

1, who should keep the 10% deposit, me or the lawyer?

2, how much legal fee should i pay?

3, since less then a year of owning the land, how much the RPGT charge
?

4, i'm first time selling a land, any others matter i need to look into it?

appreciate Sifu can answer my question.

Dario,... as per your usual great and detailed reply,... thank you and brilliant words there,... and am glad to be back too,....

Hmm,.. you mentioned lawyer fees for litigation is not fixed and not scaled. Can you kindly,... perhaps provide a ballpark from a similar case whereby it only involves specific performance matters,.... how much would the lawyer charge ?

Disbursements - I think that would be a standard of RM350.00, right ?

1, who should keep the 10% deposit, me or the lawyer?
The 10% deposit is for you to keep and must be paid to you upon signing the S&P.
2, how much legal fee should i pay?
If i'm not mistaken, you would have the original title free from any encumbrances. In that case, you don't need to discharge any charge over the land. So you can act in person.

The only thing you need to prepare is a letter of undertaking by you to refund the balance purchase price to the purchaser in the event the MOT cannot be registered for any reason whatsoever. You can get a sample copy from the purchaser's solicitor, or if they are nice enough (well, they should be) they can just prepare it for you.

The other thing is to pass the original title to the purchaser's solicitor once the purchaser's financier's solicitor gives you an undertaking that they will release the loan sum to make up the balance purchase price to you OR, if the loan sum is not 90%, a confirmation that the differential sum has been deposited with the purchaser's solicitors as stakeholder.

You would also have to file a CKHT1A and CKHT3 form. This, you can do on your own, or you can ask the purchaser's solicitor to assist you. The legal fees for this will cost RM300, plus a bit of disbursements, maybe RM50.

Other than that, there's nothing much to do on your side.

3, since less then a year of owning the land, how much the RPGT charge ?
It's 5% of your nett gain. For a detailed explanation and example, go here:http://forum.lowyat.net/topic/1612349/+20


4, i'm first time selling a land, any others matter i need to look into it?
Make sure that you pay your quit rent as you would need to forward the receipt to the purchaser's solicitors. Nothing much other than that. Remember that you are still the owner of the property, so if it is an active rubber estate, you can still tap rubber until the completion date of the property.

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Added on November 12, 2010, 3:06 pm[quote=Hansel,Nov 12 2010, 02:48 PM]
Dario,... as per your usual great and detailed reply,... thank you and brilliant words there,... and am glad to be back too,....

Hmm,.. you mentioned lawyer fees for litigation is not fixed and not scaled. Can you kindly,... perhaps provide a ballpark from a similar case whereby it only involves specific performance matters,.... how much would the lawyer charge ?

Even ballparks differs in shape and size, my friend.

I like to tell people that choosing a litigation lawyer is like going to a car showroom - if you have a budget for a Proton, you don't step into a Honda showroom. If you have a budget for a Toyota, don't even dream of stepping into an Audi showroom. So your selection of lawyer would greatly depend on your budget, and not the legal fees that the lawyer will charge.

Don't make the common mistake - big firms may not necessarily be good, and small firms may not necessarily be bad.

Most lawyers would charge according to the complexity of the case, total sum of the claim involved, and also, according to the expertise of the lawyer involved.

It's really a touchy question which is difficult to answer, simply because, paying more doesn't mean you're getting better service! But paying very low also is dangerous, as the lawyer may just be taking up the file to 'cari makan'

But remember, if it's too low, then it's too good to be true. And TOO good to be NOT good in the end! Haha

Ask for recommendations from family and friends. Surely someone can recommend a good litigation lawyer!

Good luckDisbursements - I think that would be a standard of RM350.00, right ?

There's Court filing fees, service of documents, postage, papers, stationery, courier, telephone, facsimile, travelling to Court and other expenses incurred. I don't think RM350 cuts it. Surely more.

Some lawyers charge appearance fees for each time they appear in Court. Some don't. Depends la.

This post has been edited by dariofoo: Nov 12 2010, 03:06 PM

Thank you very much! Dariofoo.

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Added on November 12, 2010, 4:57 pmBy the way, you can calculate your legal fees here:
http://www.elawyer.com.my/legal_calculator_info.php

This post has been edited by dariofoo: Nov 12 2010, 04:57 PM

Hi Sifu,

Question on Strata title.

This is a freehold property.
Developer inform that the strata title is ready. Lawyer has prepared the documentation and submitted it to land office.
How long will the land office take to issue the strata title?

Thanks

Referring to this questions, I have some questions to further understand this process as I am in the midst of planning to purchase a new unit from the developer whom will be bearing the cost of the legal fee. I'm also trying to understand the whole process in order to minimise my risk and also for planning of budgetting.

1) Could someone let me know the process of legallity involved when purchasing the unit? (ie : step 1 - pay deposit to developer, step 2 - sign S&P, getting of bank loan and etc).

2) Developer will be bear the cost of SpA fees? In this case, does it mean the legal fees between me and the developer or the entire complete transaction(me/developer and bank)?

3) Would there be any legal cost involved in the loan agreement? Do I have to engage my own lawyer (or it's covered by the developer since they

Please kindly advice on the whole process and do really appreciate it.



ps: pls don't be angry if it has duplicated questions.

Reply to icecoolman:1) Could someone let me know the process of legallity involved when purchasing the unit? (ie : step 1 - pay deposit to developer, step 2 - sign S&P, getting of bank loan and etc).
Can you be more specific? Freehold or leasehold? Landed or high-rise?

2) Developer will be bear the cost of SpA fees? In this case, does it mean the legal fees between me and the developer or the entire complete transaction(me/developer and bank)?
You would need to check with the developer on this,but MOST, if not all of the latest developments launched, the developer would market it as free legal fees. In truth, of course, the legal costs would've been incorporated in the purchase price itself. If the legal fees are absorbed by the developer, then they would insist that you use of their panel firm of solicitors.
With regard to the legal fees for your loan documentation, you would also need to check this with the developer. They may offer to absorb the legal fees upon the condition that you obtain your loan from one of their panel banks AND appoint their panel firm of solicitors.

3) Would there be any legal cost involved in the loan agreement? Do I have to engage my own lawyer (or it's covered by the developer since they

Yes there are legal fees involved, unless it is absorbed by the developer, as explained in the answer to question (2) above. If you insist on taking your own solicitor, the developer would most likely decline to pay for the legal fees involved. Same rule would apply when you elect to appoint your own solicitor for the S&P.

With regard to the pros and cons of using a developer's panel firm of solicitors - please go through the earlier posts and replies in this thread. If you have any enquiries, do ask.

Please kindly advice on the whole process and do really appreciate it.
ps: pls don't be angry if it has duplicated questions.
No problem. Cheers.

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Added on November 14, 2010, 2:27 amHey there,

This is a really tough question. I wish I had a crystal ball to help you out on this one, but I don't.

Some land offices are efficient, some are not. Some have hardworking staff, and some don't. There's a lot of factors involved, to be honest.

But as long as the documents have been presentation for registration, it should be alright. It is already on record that the documents have been presented, but not registered. So, to be honest, I wouldn't be so worried.

If you're still curious, perhaps you can ask you lawyer to give you a timeframe. Perhaps he has dealt with that particular land office for other transactions. He would perhaps be in a better position to answer your query for the time being.

Come back here with his answer and share it with us.

Cheers.

This post has been edited by dariofoo: Nov 14 2010, 02:27 AM

can someone advise for me this legal fee?
is it reasonable? the sub-sale house is rm140k

Thanks in advance

S&P agreement = 1400
letter of declaration = 100
5% Gov tax = 75
=================
sub total = 1575


disbursements
stamp duty on S&P agreement = 40
letter waiver = 10
stamp duty on transfer = 900
MOT registration fee on transfer (2 titles) = 100
title and caveat search = 60
printing of documents = 70
postage/courier/telephone/other expenses = 50
incidentals = 100
================================
sub total = 1330

TOTAL = 1575 + 1330 = 2905

This post has been edited by fazlittc: Nov 14 2010, 03:00 AM

Hey there,

Was wondering when you were gonna post it here. Let' see:

...the sub-sale house is rm140k

S&P agreement = 1400
letter of declaration = 100
5% Gov tax = 75
=================
sub total = 1575

S&P fees are standard and alright. Please find out what this letter of declaration is please. Funny how your solicitor forgot to quote you for filing CKHT 2A, which ought to cost RM200/purchaser.
Lucky you then!

disbursements
stamp duty on S&P agreement = 40
letter waiver = 10
What is this letter waiver? Please seek clarification from the lawyer.stamp duty on transfer = 900
MOT registration fee on transfer (2 titles) = 100
title and caveat search = 60
printing of documents = 70
postage/courier/telephone/other expenses = 50
incidentals = 100
================================
sub total = 1330

TOTAL = 1575 + 1330 = 2905

Disbursements look alright except for that letter waiver thingy. Am surprised you're not being billed for bankruptcy search [usually around RM30] and affirmation fees [also around RM20-RM30]

Perhaps if you want to save a bit more you can ask what incidentals are - because postage/courier/telephone/other expenses sounds like incidentals to me. If they say it's miscellaneous fees - then you're being taken for a ride coz the Solicitors Remuneration Order states that miscellaneous fees cannot exceed RM50.

Check with them and let us all know here how it went. Good luck

This post has been edited by dariofoo: Nov 14 2010, 02:42 AM