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This post has been edited by Cheras Wong: Sep 19 2011, 07:45 PM
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Sep 19 2011, 07:19 PM
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This post has been edited by Cheras Wong: Sep 19 2011, 07:45 PM |
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Sep 19 2011, 07:43 PM
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Dear dariofoo
Much appreciate your advice on my scenario: I have recently bought a condo which was just launched. I signed the S&P in May 2011 and expect to complete in 2014. The S&P is based on the usual Schedule H format. The land is still under master title and is charged to Bangkok Bank by the developer. I have paid 10% upon signing the S&P and intended to use my own cash (without any loan) to pay balance 90% purchase price thru progress payments. I have read recently in the paper that a lady, who is also a cash buyer, is unable to sell her shops as she did not obtain the letter of release from the developer's finanacier when she fully settled the purchase price. In order to protect my interest as a cash buyer, what actions should I take? What is a letter of release? Normally a purchaser's financier will request a letter of undertaking from the developer to refund in the event the MOT cannot be resistered in favour of the purchaser. Can I, as a cash buyer, request a similar letter of undertaking? If the developer refuses to give such a letter of undertaking, what should I do to make sure the title (strata) will be registered in my favour if I have settled in full all the progress payment as provided in the S&P? Thanks in advance. |
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Sep 20 2011, 12:39 PM
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QUOTE(dariofoo @ Sep 20 2011, 11:59 AM) The document you are referring to is the letter of disclaimer. Hi dariofooLetter 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. Thanks a lot. Your advice is very informative. Just few more queries. The laywer who prepared the S&P was the developer's lawyer, ie a common solicitor. In this case, should I get another lawyer to write to the developer and end-financier to obtain the RS and subsequently the letter of disclaimer? Based on your advice, my interest should be well protected with this letter of disclaimer after I settled the redemption sum to the end-financier? Also, do I need to pay the remaining 90% purchase price to this lawyer as a stakeholder who will release to the end-financier and developer respectively or, I could handle the progress payment myself and the lawyer just need to help me to write to the developer/end-financier to request the RS & letter of disclaimer? What is the pros and cons of these two options? How much will be the legal fees (just an indication) if my purchase pirce is RM350k? (note: I have downloaded the SR2005 that you posted earlier but I could find any clue from there) Once again, thanks. |
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