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

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.

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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

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*

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.

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.

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.

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.

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

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.

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.

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.

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.

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

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

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.

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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

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

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?

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

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?

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.

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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