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rachelt26
post Aug 11 2011, 12:37 PM

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Hello.
I would appreciate any advice or suggestions.

I've just completed the purchase of a condo which comes with a parking lot A (Subsale, not from developer). To my horror, I discovered that the parking lot A was actually sold to 2 owners, myself and my new condo neighbour.
My neighbour informs me that for his case, the developer also screwed up his parking lot and gave him this lot A as a replacement. He has the S&P and supplement agreement for the parking lot to prove. He has been there for the past 3 years.

The vendor who sold to me the condo unit was unaware of the double sale of the parking lot A as he purchased the condo as investment and never stayed in the condo/ used the parking lot.
In fact, up until today, even the condo management office or developer had not updated the parking lot info to indicate it belongs to another condo unit.

Now I'm at a loss.
To me, I am being cheated as what I paid for is not according to the agreement. I look at the purchase as the condo + the parking lot as a whole package.
One of the reasons I purchased is because the parking lot is located near the entrance of the lift and on a lower floor.
Given the high occupancy of whole condo, if I were given a replacement parking lot, it would not likely been in or near the same sweet spot.

And if I had known right from the beginning, I may have decided not to purchase/ or negotiate further the purchase price, etc but now, being "nasi dah jadi bubur", who can I do?

Please advise. T.T


rachelt26
post Aug 13 2011, 01:25 AM

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QUOTE(dariofoo @ Aug 12 2011, 01:18 AM)
What I'm sure of is that you can't get that particular parking lot back as it was never owned by the vendor in your case in the first place. Nemo dat quod non habet - "he cannot give what he does not have".

If you were so particular about that parking lot you ought to have asked your lawyer to call the JMB or developer's office and make sure that the particular lot is the corresponding lot in the principal SPA with the vendor. Have you asked your lawyer with regard to the predicament you are in?

If you want to start suing your avenue is against the vendor, who will in turn sue the developer, etc etc etc. An utter waste of time and resource as you surely cannot get back that particular lot.

Best to just swallow the bitter pill and move on.  nod.gif
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Dear Dario,
Thanks for the reply.

In the SPA between vendor and I, the parking lot indicated attached with the condo is A
In the original SPA between vendor and developer, parking lot is also A
Up until today, the condo management office still indicates parking for this condo is A.

When my lawyer submitted the documents, the consent letter from developer to allow and confirm the subsale also indicates parking lot A.

Isn't this a basic breach of agreement? A fraudulent sale?
What are my rights?
Am I not entitled to a good parking lot just because they screw up?
Why should I be forced to swallow a bitter pill when I paid my part in good faith?

While I am more than open to accept an amicable solution and settlement out of court, I believe that the developer and vendor must be responsible.
Yesterday, when I called the developer's office and spoke to their assistant manager, asking how they could have sold one parking lot to two different purchasers, she just answered "I don't know" and push on the responsibility to other staff.
When I met with the senior manager at the developer's office today, they tried to fob me off with a replacement lot at a poor location, as I had feared and even implied that I was just there to stir trouble and try to get "benefits".

If I am truly forced to pursue the avenue of seeking damages, can you advise how I can start?
Thanks again.




rachelt26
post Aug 16 2011, 04:38 PM

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QUOTE(dariofoo @ Aug 13 2011, 04:01 AM)
Ok now the facts are clearer, although not 100%. So the Nemo dat quod non habet - "he cannot give what he does not have" - principle will be applicable in your favour as the developer cannot purport to sell it to another person (the neighbour) when it has sold it off to the vendor in the first place. So the purported sale to the neighbour would be null and void and of no effect. So my earlier advice would not be 100% applicable, in light of the factual matrix which you have just stated above.
It's breach of contract by the vendor against you. It is not fraud though. Don't merely use the word fraud as it is a bigger word than you think. It is not easy to prove fraud and in this case, from the basic facts stated, I doubt if the vendor is a party to fraud. I'm sure he is as ignorant about the purported subsequent sale as you are.
As explained earlier - you sue the vendor for breach of contract - the vendor will subsequently bring the developer in as a third party, and perhaps the neighbour as well. It's messy, and would cost you quite a bit of money in legal fees as well. Whether or not you can recoup the legal fees from the other parties in this case once it's over is another issue.

If you're going to reside in the unit after this, bear in mind that going on the warpath against the developer and your neighbour, albeit indirectly, may not be the wisest option.

However, if you are going strictly on the principle that you ought to get what you paid and contracted for, then by all means go all out to get that parking lot assigned in your favour.

From the facts presented herein, you do have a good case. The neighbour's remedy would be to sue the developer for damages only, as he can't get back the parking lot.

I'm going to pre-empt you at this stage before you ask me and inform you that legal fees for litigation (court) matters are subjective and differs from firm to firm. There's no market rate, usual rate, normal rate, etc etc etc. So if you want to find out, you need to see a litigation lawyer, set out your facts, and ask for a quotation for legal fees.

I wish you all the best.

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Dear Dario,

Thanks again for your reply.

Actually, I have no intention of "wrestling" the car park A from my new neighbour, that would not be fair to him as mentioned earlier in my post, he purchased his condo 3 years ago.
I have checked and the purchase dates show neighbour purchased condo + parking lot A in 2008 and my vendor in 2009.
So in all fairness, parking lot A does belong to my neighbour.

I am willing to accept the replacement parking lot if the developer/ vendor will compensate the damages.

I know that for many, I may sound petty, haggling over a simple parking lot.
But then again, I stand for what I have purchased knowingly.
The parking lot location is part of my consideration for the purchase, as I have elderly and a family member with knee conditions.
The replacement lot (B) is not only further away, it can only be accessible after a flight of stairs.
Can anyone guarantee the absolute safety of any condo/ parking areas at all times?
With the entrance further away, I will always have a niggling fear for my family's safety.

If everyone's considerations/ requirements are the same, surely there will no longer be any need for lawyers?

I've written to the developer in black/white, requesting for a reply to this matter.
My letter to them is very simple, I stated the facts that they have sold the same parking lot to 2 different owners and I requested that they reply formally with a suitable solution.
Today, their sales agent called and say that his boss is not willing to reply to my letter in black/ white and will only proceed to do up a supplementary agreement for the parking lot B.
With them hedging like this, I am not very comfortable and confident with their methods.

By the way, I also discovered that my vendor is actually the construction company for the developer. And the developer contra-ed this unit and a few other units to my vendor as payment.
And the developer had informed me that they have submitted the master title to the government to issue individual titles.

Please advise how I should proceed with this. How can I quantify the damages to claim?
Thanks again.









rachelt26
post Aug 21 2011, 10:26 PM

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QUOTE(dariofoo @ Aug 16 2011, 10:23 PM)
That's the thing - you can't quantify the damages as you did not suffer any actual loss. You need to prove your loss. If there was no parking lot available and you had to rent out another owner's lot, then yes, you can quantify the damage suffered, i.e. rental x number of days = loss suffered.

In this case another lot was offered to you, albeit at a further distance from the lift. What loss have you suffered which can be quantified? Hope you get my point. You can get a lawyer (and i'm sure there's a lot out there) who can promise you the world and convince you that you can get lots of damages, but at the end of the day, I'm of the opinion that if you can't quantify it, you can't claim for it.

Inconvenience, extra walking distance, anger, frust, stress, mental anguish, distress etc etc is all just hogwash and no judge will entertain a claim for that.

As such, your primary claim would have to be for specific performance, i.e. to assert for ownership of lot A. Damages would only be a remedy if specific performance is impossible.

That is all the opinion I can render. If you wish to go further in this you'd better seek proper legal advice from an actual lawyer  laugh.gif

All the best. Do keep us updated if you proceed further in this case.

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Dear Dario,

Thanks again for the reply.
Yes, will keep you updated when we've decided how to proceed.
Your feedback and advice much appreciated. rclxms.gif

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