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 Lawyer's Corner v2, One-stop centre for any legal queries

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TSdariofoo
post Nov 29 2012, 03:04 PM

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QUOTE(mimi1986 @ Nov 29 2012, 02:00 PM)
1. what are the 'different set fees" in the case the MOT is ready later? (for condo still under construction up to 30%).

2. so there won't be any other legal fee for MOT in this case rite? like u mentioned legal fees are for loan n SPA only am i right?
*
1. Legal fees for MOT is not more than 25% of scaled fees if you use the same SPA lawyer, and not more than 50% of scaled fees if you appoint another lawyer to do it.

2. If MOT together with SPA, then there is no separate fee for the MOT.
TSdariofoo
post Nov 29 2012, 03:23 PM

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QUOTE(mimi1986 @ Nov 29 2012, 03:11 PM)
Thanks for the clarification!

1) So it's advisable to stick to the same SPA lawyer even I dislike the lawyer service am i rite?  doh.gif

2) "not more than 25% of scaled fees" - meaning this fee is negotiable but not more than 25% ?

3) MOT together with SPA is the scenario of a sub-sale with strata title already issued, am i rite?

4) what are the disbursement items if i use back the same SPA lawyer for MOT?
*
1. You decide yourself whether you want cheap fees or good service. They rarely go hand-in-hand.

2. Yes, but the minimum is RM200. See the SRO which you can download at page 1/

3. Yes.

4. Transport, photocopying, paper, courier, etc. Title search. Nothing much, really. I doubt if it will cost more than RM200-300 for disb.

This post has been edited by dariofoo: Nov 29 2012, 03:23 PM
TSdariofoo
post Nov 30 2012, 12:18 PM

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QUOTE(b|ue @ Nov 29 2012, 06:27 PM)
Hi Dario, my foreign tenant is terminating the lease contract earlier (18 months into the 24 months contract) due to diplomatic reasons (company sending him back to home country). As I have applied for Unifi under my name as requested by him before the move, and now I have to get hit with a penalty for the early exit from the unifi contract, who should be liable to pay the penalty? the landlord or the tenant?
*
What is stated in your tenancy agreementt? Did you do a supplementary agreement when you applied for Unifi? What was agreed between the parties. If nothing was agreed my opinion would be that you provided the Unifi service as a courtesy without any further terms attached. So, you bear the penalty and not him.
TSdariofoo
post Nov 30 2012, 02:51 PM

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QUOTE(jackychuah @ Nov 30 2012, 02:38 PM)
Hi Dariofoo,

I have some issues on my MOT (Strata Title). The developer claims that my condo square feet is actually more that what it stated in SPA. I bought my house direct from the developer. Now the developer actually asking for additional money on the additional square feet.

Can I know the developer have the right to demand money for this additional square feet?
*
No such thing. It should follow the terms of the SPA where all the terms, price and size have been agreed upon. How can they demand for more now? They are amending the purchase price. Have they shown any proof to you about this? Or did they sold you a bigger unit by mistake, ie signed wrong SPA?
TSdariofoo
post Nov 30 2012, 03:27 PM

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QUOTE(jackychuah @ Nov 30 2012, 03:18 PM)
Thanks for your reply. They are actually demand for more money now.

I didn't signed wrong SPA and they didn't proof to me on the extra square feet. They are now request me to make payment, else they will not sign the MOT.

I ask around my friends, this is the first time they heard about this! and I don't feel like being an idiot...
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Why did you not put in the attachments earlier?

A reading of that seems quite clear that you have to pay. Request for a copy of the title and plan to ensure that the measurement stated is correct. If it is in order and the calculation correct, then you have to pay as it is stated in the SPA.

Do it fast to prevent further delay in the MOT.
TSdariofoo
post Nov 30 2012, 04:03 PM

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QUOTE(jackychuah @ Nov 30 2012, 03:48 PM)
Sorry for not attached the attachments earlier.

Is it normal that in SPA the clause stated that way? or that is an additonal clause in my SPA?

Can I argue on the said issues? as our all 4 blocks of condo having the same issue....
*
With regard to your SPA, it should follow the Schedule H template in the HD Act.

The relevant section is as follows.

Position and area of Parcel
13. (1) No error or misstatement as to the description of the area of the said
Parcel shall annul the sale of the said Parcel or entitle the Purchaser to be discharged
from the purchase.
(2) Any error or misstatement as to the description of the area of the said
Parcel shall give the Purchaser an entitlement to an adjustment of the purchase price
in accordanc e with the provisions of this clause.
(3) If the area of the said Parcel as shown in the strata title when issued is
less than the area shown in the Building Plan, there shall be an adjustment of the
purchase price for the difference (if any) in excess of three (3) per centum of the area as
shown in the Building Plan calculated at the rate of Ringgit Malaysia
…………………………………… (RM………………..) only per square metre shall
be adjusted accordingly.
(4) The Vendor shall not be entitled to any adjustment of the purchase
price if the area of the said Parcel as shown in the strata title exceeds the area shown
in the Building Plan.
(5) Any payment resulting from the adjustment and required to be paid by
the Vendor shall be so paid within fourteen (14) days of the issue of the strata title.

If you look at subclause 4, it does say that the Vendor is not entitled to request from the Purchaser the excess, if the area in the strata title exceeds the area shown in the plan.

So, your argument would be that the provision in your SPA is in contravention of the template in Schedule H, and it thus void.

The developer's argument would be that you had signed the SPA with that clause in it, so you would be bound by it.

I think, bearing in mind the provisions of Schedule H - the law would be in favour of the Purchaser.

If you can rally all the purchasers together, perhaps via the JMB, then a collective voice against the developer would have a better effect.

Sorry for the conflicting advise with my previous post. I should've checked the Schedule H template before advising you further.

This post has been edited by dariofoo: Nov 30 2012, 04:04 PM
TSdariofoo
post Dec 1 2012, 01:32 PM

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QUOTE(nookie188 @ Dec 1 2012, 12:25 PM)
i would like to write to them officially and what should i state in the letter that will give me an option to go after them later should the place is left in a mess and
or the airconds as provided by me are missing or they left behind unpaid utility bills and also the early termination compensation?  i have not seen the shop yet and will do so once i get back to KLnext week.
*
I can only provide general advice and if you want to ask about how to draft letters I would suggest that you appoint a lawyer to do it on your behalf since your intention to enforce the tenancy against them anyway.

Then you play 'good cop bad cop' la. Tell them that your lawyer advise you to sue them but you personally want to settle and reach a compromise.
TSdariofoo
post Dec 1 2012, 02:02 PM

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QUOTE(nookie188 @ Dec 1 2012, 01:44 PM)
rclxms.gif
thanks for the advice..

how much you reckon i need to spend on legal fee to draft the letter?  just a rough indication so that i know what i am up against..
*
Cheapest might be RM100 while highest up the scale would be above RM1000.00 if big firm.
TSdariofoo
post Dec 1 2012, 11:24 PM

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QUOTE(Mlchoo @ Dec 1 2012, 05:08 PM)
Hi dariofoo,

I am asking on behalf of a friend.

He bought a condo for his son as investment (condo under son's name). He is now afraid that his son might sell the condo and spent all the money. He is thinking if there is a way to stop this from happening such as making a power of Attorney? Will this prevent his son from having the power to sell? Or if cannot, any other way?

Appreciate your advise. Thanks.
*
With or without title? Encumbered or not?
TSdariofoo
post Dec 2 2012, 01:18 PM

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QUOTE(amway for life @ Dec 2 2012, 12:24 PM)
Nye I just buy a new house...now in process..however there is problem with valuation by land office as the valuation price is lower than the market price.is it going to effect my buying process?
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Valuation by LHDN (not land office) is small matter. They will take the highest sum between the SPA price n valuation price so in your case, they would pick the SPA price.
TSdariofoo
post Dec 2 2012, 11:30 PM

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QUOTE(amway for life @ Dec 2 2012, 01:40 PM)
my prop is freehold with strata title.how long this process going to take until I can get the unit?
*
Best person to ask is your lawyer as he would know the exact stage of the progress.
TSdariofoo
post Dec 2 2012, 11:38 PM

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QUOTE(Mlchoo @ Dec 2 2012, 02:16 PM)
its without title although the management says they are in the process of obtaining this.

what do you mean encumbered? the unit still has some bank loan.

tks.
*
Encumbered means there is a charge/assignment over the property as security for a loan. Essentially, it means ther eis an existing loan which is not redeemed.

Well, if there is no title and if property encumbered, then there would have been a PA executed in favour of the bank, so the bank gets first priority. So, the father can't insist on another PA from his son to him now as it cannot supercede the PA in favour of the bank.

As such, I can't see any other way. If he didn't trust his son then he ought to have just kept it in his name and then execute a deed of trust in favour of his son. That would maintain his intention while keeping it out of the reach of his son at present.
TSdariofoo
post Dec 3 2012, 03:18 PM

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QUOTE(beauwlf @ Dec 3 2012, 12:13 PM)
Good day Dario,

i(vendor) have signed the s&p already last week with 10% depo, and the purchaser lawyer updated me that they have stamped the Sale & Purchase Agreement. They are now asking me to execute Vendors' Undertaking Letter and the Memorandum of Transfer. I should wait for the remaining (90% - loan balance) before doing this ? . Because on that day of signing they also brought few more documents for me to sign such as land title transfer . But i insisted on signing of the s&p only .
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Why are you refusing to execute the letter of undertaking and MOT (which I assume is that you meant by 'land title transfer')?

Are you even aware of the contents of the SPA which would stipulate the docs which you have to execute? Any delay from your side will extend the completion date for the purchaser.

Don't simply refuse to sign documents. Find out what it is first.

If you're so unsure of the procedure and don't trust the purc's lawyer, why didn't you get your own lawyer?
TSdariofoo
post Dec 3 2012, 03:24 PM

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QUOTE(treyston @ Dec 3 2012, 02:36 PM)
Good day everyone, need your advice here.

I just bought a service apartment few months ago. Last month when I went to the management office to pay the maintenance fee, i found that the prior owner still have 1.8k outstanding balance and now this amount is under my statement.

I went to question my lawyer and she said based on the consent letter from developer (or management office), they confirmed the vendor already settled this amount.

So I went to the management office, showed them the letter and ask for resolution. They informed me this amount not yet settled by vendor, the reason why they issued the consent letter was to fasten the process. And  asked me to check with my lawyer to chase back the money from vendor. now my lawyer said the consent letter explained everything and asked me inform the management accordingly. and the management said they need the recepit...

my question is ... the consent letter, can this be used to prove that i have no responsibility to pay that O/S? what should i do now?

Thanks.
*
It is not your lawyer's duty to chase the payment from the vendor, not is it yours. It is for the developer to do so. They can't confirm one day that all dues have been cleared and then state that it has not.

The excuse by management that "this amount not yet settled by vendor, the reason why they issued the consent letter was to fasten the process" is ridiculous and cannot be accepted.

However, you have to consider if they terminate your utilities or block your access card (if applicable). You can stand by the letter of confirmation but at the end of the day, if they terminate/block, you have to go to Court to enforce your rights. Are you willing to cough up more money for that?

It is a matter of convenience vs principle. For convenience and to put things to a close (between you and m'ment), pay the sum and then claim from the vendor (or ask him for proof of payment). As a matter of principle, then you don't pay and stick to your guns.

It's up to you, ultimately. What does your lawyer have to say about it?
TSdariofoo
post Dec 5 2012, 11:47 PM

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QUOTE(itanium2 @ Dec 4 2012, 04:34 PM)
Hi Dario,

Appreciate your reply regarding below query:

1. For a subsale leasehold condo with Master title, the S&P lawyer has included the stamp duty for Transfer or Deed of Assignment.
Isn't the stamp duty payable only when the strata title is out?
If I pay now, what happens if I sell the condo later when the strata title is still not out yet?
Does it mean the money I've paid for the stamp duty is wasted?

2. For a subsale leasehold condo with Master title, who pays for the application for state consent?
Buyer or Vendor? Vendor did not appoint any lawyer.

Thank you!
*
1.you pay full stamp duty now for the deed of assignment. When the title is out, you only pay nominal sum of RM10 upon the MOT. There is no double stamp duty.

2.vendor bears the cost.

icon_rolleyes.gif
TSdariofoo
post Dec 5 2012, 11:50 PM

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QUOTE(chongmelvin2238 @ Dec 4 2012, 08:59 PM)
If buy a condo ( residential ) under a commercial title, CAN I rent out my unit like service apartment? Lie short term, weekly? Monthly or daily..
*
Legally, you can even rent it daily or weekly or for any duration, but you would need a proper tenancy agreement to show that the relationship is a genuine landlord-tenant one and not where you're running an unlicensed budget hotel. Check your deed of mutual covenants as well which you have agreed. See if it prohibits such arrangements.
TSdariofoo
post Dec 6 2012, 11:20 AM

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QUOTE(Ziv @ Dec 6 2012, 09:25 AM)
Hi Dariofoo,

I bought a property on year 2009. Bad vendor refuse to sell / disappear after received 10%, refuse to receive any letter that send by my lawyer by hand.
Due to both of us appointed same lawyer because that time i thought same lawyer wil more easier and faster. But my lawyer said very hard to sue the seller because seller don't answer call and don't want acknowledge receive letter, my lawyer ask me look for another lawyer if i wan to put tis to court, he can't help. Sigh~

I tried to look many other lawyers, but none of them want to accept my case, because it was messed up by previous lawyer, they need study the matter, and i wil blame them if they failed to fight for me.
So the case pending about a year.. even i also went to MCA about this, MCA said just think positive money can earn back as long i healthy should thanks god ady.

After a year...
I managed found a good lawyer, after he viewed my case he very confidence he accepted the case and fight for me. We summon the seller ask him attend court...end up seller turned up and agreed ti sell. The property price increased ady but ofcuz we stil follow the S&P price which is signed on one year ago.
So everything start over again, inform bank lawyer that this case reopen and continue. My lawyer on hand got other many cases and his staff resigned..so my case pending and delayed but he did request seller to extend the complete time. Seller lawyer extended once to me ady, so is excited 3+1 mths ady.
On mth 4 nearly mth 5, bank panel lawyer oni infromed me tat she found my loan oni valid for one year frm te day i purchase the property (one year ago) now no longer valid, need to reapply/resubmit again!! But this time seller rejected to sell, he said follow S&P i can't complete the transaction on time n he gt right to forfeit my 10%..:'( sob sob.

One month later...
my lawyer start chase me lawyer fees 10k, he said he done his job ady, juz the bank panel lawyer found my loan expired too late…

Hope u can advise me n sorry on my poor english n grammer.
*
Well, the problem seems to lie between the bank and/or the bank lawyer, from what little you have told me here.

What you need to do is to prepare a proper chronology of events from the commencement of your SPA (recent one) until the date of termination by the vendor.

Few things which you would need to seek clarification from the bank/bank's lawyer or from the documents in your possession:

1. Where is it stated that the letter of offer is valid for only one year?
2. Did you sign the loan documentation (facility agreement, charge, etc) ? Did the bank's attorney sign it too?
3. When was the bank lawyer appointed to prepare the documents (letter of instruction)?
4. Did you receive a letter in writing informing you that the approval for your loan has lapsed after one year and that you need to resubmit? Did they indicate it to you earlier at any time?

Any delay from your SPA lawyer's side? You need to gather evidence from their side as well to ensure that they did not slip up at any time and did not contribute to the delay.

Once you confirm which party is at fault - only then can you file a formal complaint against the law firm (via a complaint to the A&S DB) OR the bank (via their internal complaint mechanism and to BNM).

If you can show that the bank acted in such a way to lead you to believe that they would release the loan, then you can claim that they have misrepresented and breached their contract against you (via the letter of offer) - and that you can seek compensation from them.

If SPA is aborted, the lawyer normally charges only 50% of the scaled fees as the entire work has not been done. You would still need to pay your SPA lawyer but perhaps you can ask for a 50% waiver as mentioned.
TSdariofoo
post Dec 7 2012, 11:48 AM

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QUOTE(itanium2 @ Dec 7 2012, 11:36 AM)
Many thanks Dario.

One more question - I was told for the state consent in KL, there are 2 types - consent to transfer (fees paid by vendor) and consent to charge (fees paid by buyer). Is this correct?
*
Correct nod.gif
TSdariofoo
post Dec 8 2012, 02:06 PM

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QUOTE(beauwlf @ Dec 7 2012, 03:06 PM)
Good day Dario,
Thank you for the reply. I was being careful , and didn't know it was standard to sign the other documents also on that same day.

Regards
*
Ok no worries. Just a humble advice to you to be careful as the purchaser's lawyer might not point out to you that any delay from your side extends the completion date, as that benefits his client. Be vigilant when acting in person, and always follow what is stated in the SPA. Good luck. icon_rolleyes.gif
TSdariofoo
post Dec 8 2012, 02:14 PM

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QUOTE(wongmunkeong @ Dec 7 2012, 01:37 PM)
G' afternoon Dario Foo,

Something off-properties a bit.

Background Info
I'm a divorcee with a child (joint custody) that my ex spouse is having "daily operational care" for. They are now in Singapore. Ex spouse says she wants to take the option of converting to be a Singaporean after 2 years of PR and wants my consent for my daughter to relinquish her Malaysian citizenship & be Singaporean.

Assuming i agree and my daughter is a Singaporean:
a. What are the legal impact to my Will, with my daughter as a beneficiary, even if i state her SG identity card?
Especially properties (foreigners aren't allowed to blah blah below RMXXXK, etc.?), stocks, bonds, mutual funds, gold, etc.

b. What are the legal impact to the contract of divorce?
eg. do i lose all my legal rights to ensure my daugther's growth is ok or have a say in it? ie - joint-custody in divorce contract hangus?

c. Any further experiences/thoughts to "watch out" for when relinquishing citizenship?

Thank U in advance sir.  notworthy.gif
*
No prob. Any query in any topic is welcomed here, not just on properties., icon_rolleyes.gif

A. There is no difference as to the nationality of a beneficiary, so there should not be any problems n the future. The condition on foreigners placed by the FIC is only with regard to purchases. This would be inheritence, and it does not matter even if the beneficiary is a foreigner.

B. The Court order would still be valid and the terms would not hangus, as you put it. Perhaps some variation to the order can be made to reflect the new SG ic number, just in case. Consult the lawyer who handled the divorce proceedings, whether it should be done now or later. My opinion would be now, as later, when there is a problem and you want to enforce the order, the IC no may be different and it COULD (emphasis added) lead to s problem as you mit appear before a nut judge who insists on the actual latest SG IC no.

Other terms of joint custody, visitation rights, etc ought to remain.

C. I cannot think of any other complications which could occur.
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