19.04.2013 When Is The Effective Date of an SPA - SPK Homes


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Yeah I saw this when I was researching online.

But when I called Tribunal, they say since I paid the first part of the deposit..therefor my first payment date is not valid..have to be based on SPA date..

it still depends on how the tribunal president rule it. no point relying on their officer's information.

Ah okay..thanks!

Yoi need to fully pay the 1st 10% to be considered as purchase the property and therefore the date thereon.

The only time the date started from booking fee is when the developer will cover the rest of money for the 1st 10% deposit.

If you paid the full 10% earlier than spa date, the former shall prevail. Make sure you have official receipt.

Of course there will be different opinions here on the effective date to claim LAD.

i never did cases for an award from KPKT but i had enforced a judgment against developer before which is basically the same process as any court judgment. so long as the developer as still operating its easy to enforce the order.

but there are cases where the developer just prolonged the matter.

Thanks. Can you please advise what is the best way to enforce the judgement?

Submission the report 1 to KPKT needs to take how long time? A full day time?

This property I just paid booking fee and get the rest... 10% DP is actually after discount/rebate given.

Hi bro...
I don't understand this [LAD up to 14 days + VP date]
For example my VP date given by the developer is 24/6/2019
But VP letter notice posted to my home mailbox is 24/5/2019
Which date shall I choose?

The compensation should be calculated from S&P date rite?

Journey to deny the EOTs via the courts:

AT the stroke of a pen, monies payable to a group of aggrieved house buyers are taken away by the Controller of Housing.
We are talking about a group of house buyers who had suffered losses due to a delay in completion of their homes by their developer and the very ministry that is supposed to protect them “signed away” their rights and remedies. We are talking about such rights and remedies being taken away from them for the benefit of the very culprit developer who caused them the loss and suffering.
What is happening to the Housing Ministry? The ministry many an aggrieved house buyer turns to in times of developer defiance of the law, the ministry house buyers rely on for protection and for all the desperately needed interventions and assistance when a housing project is delayed or abandoned? Does the Housing Controller know the ramification and repercussion of his action and inaction?
Under the terms of the sale and purchase agreement (SPA) between a housing developer and the house buyer, the developer has to complete and hand over the house within 24 months (for landed properties) or 36 months (for stratified properties). If the developer fails to deliver within this period, it has to compensate the house buyer by paying liquidated damages (LAD) of 10% per annum on the purchase price for late delivery.

Extension of time (EOT)
What does it mean when an “extension of time” (EOT) for delivery of vacant possession is given by the Housing Controller?
Effectively it means breaking the developer’s contract and delay in completing construction is excused and the house buyers cannot claim compensation for late delivery. Rights and protection given by Parliament are extinguished by the Housing Controller with a stroke of his pen: that is what it means. The developer who committed the breach stands to benefit hundreds of thousands or even millions of ringgit at the pain and suffering of the purchasers, thatis what it means.
I had, on numerous occasions, highlighted the issues to the Housing Ministry and have even in 2015 published articles in the media about such unjust unilateral granting of EOTs to developers at the detriment of house buyers but it seems to have fallen on deaf ears.
Housing Development Regulation 11(3) has to be quashed
What is the section of the law that was invoked against house buyers? Regulation 11(3) of the Housing Development (Control & Licensing) Regulations 1989 (HDReg) reads:
“Where the Controller is satisfied that owing to special circumstances or hardship or necessity, compliance with any of the provisions in the contract of sale is impracticable or unnecessary, he may, by a certificate in writing waive or modify such provisions: Provided that no such waiver or modification shall be approved if such application is made after the expiry of the time stipulated for the handing over of vacant possession under the contract of sale or after the validity of any extension of time, if any, granted by the Controller.”
Hence, only the Housing Controller has the power to waive or modify the provisions of the SPA. So what is wrong with the Housing Controller giving an extension of time? Is he not entitled to exercise his power under this HDReg 11(3)? Has “granting of extension” been exercised in a just manner? Were the affected buyers accorded the “rights to be heard” since it affected them?
No reasonable minded person, let alone the Housing Minister and those under his charge, can possibly imagine that the powers given under HDReg 11(3) are meant to be used against house buyers let alone blatantly and unilaterally take away rights which are expressly given to them by Parliament, rights which are expressly stated to be for their protection and created to serve and protect public interest.
If discretionary powers are not exercised with prudence, perhaps it is time for these powers to be removed or the minister replaced.

Seeking legal remedies
Alas, the National House Buyers Association (HBA) had to embark on a journey to attempt to nullify the EOT through the Court of Law. Our volunteer lawyers, working on a pro bono (free legal fees) basis took up the challenge on a public interest litigation. The class action was commenced by 71 aggrieved buyers in challenging the grant of the EOT by the Controller of Housing which has denied, against unit owners, the rights for entitlement of compensation in lieu of the one-year delay in delivery of vacant possession of the buyers units. Another group of 36 owners, represented by another of HBA’s friendly law firm, also had their case heard on the same date. The common target was on the issue of EOTs.
Below is the sequence of events leading to the Federal Court’s landmark decision:
Kuala Lumpur High Court, 9.8.2016: HBA volunteer lawyers have successfully obtained leave from the Appellate & Special Powers Division of the High Court to pursue with the application for Judicial Review against the decision of the Minister of Urban Wellbeing, Housing & Local Government and the Controller of Housing in a condominium project developed by BHL Construction Sdn Bhd.

Kuala Lumpur High Court, 27.2.2017: The High Court case was heard and written submissions made before Justice Datuk Hanipah Farikullah and decision ruled that the Minister acted ultra vires his power under HDA and HDR 11(3). She granted the applicants (104 affected house buyers) an Order of Certiorari to quash the decision of the Minister of Urban Wellbeing and Housing pertaining to its letter dated 17.11.2015 to amend the time period for vacant possession from 36 to 48 months in respect of the Sale & Purchase Agreement between BHL Construction Sdn Bhd in the Sri Istana condo, Jalan Kuchai Lama, Kuala Lumpur. The granting of the EOT to the defaulting developer makes a mockery and defeats the intent and object of the Housing Act which is “for the protection of house buyers”. It was a landmark decision.

Putrajaya Court of Appeal, 31.3.2018: The Court of Appeal case was heard and the appeal was allowed in part held as follows:
a) That Regulation 11(3) is not ultra vires the Act:
b) That the letter dated 17.11.2015 purportedly allowing the EOT was null and void;
c) That the decision made by the minister is null and void as the purchasers were denied their rights to be heard.

Putrajaya Federal Court, 10.10.2018: The Federal Court granted leave (to appeal) to the purchasers and the developer on the following questions of law:
Purchasers’ Questions of Law
1.
Whether the Housing Controller has the power to waive or modify any provision in the Schedule
H Contract of Sale as
prescribed by the minister
under the Housing Development
(Control & Licensing)
Act, 1966 (HDA)?
2. Whether Section 24 of
the HDA confers power
on the minister to make
regulations for the purpose
of delegating the power
to waive or modify the
Schedule H Contract of Sale
to the Housing Controller?
3. Whether regulations 11(3) of
the HDReg is ultra vires the
HDA ?

Developer’s Questions of Law
4. Whether the minister could
delegate his duties (signing
of the letter granting the extension
of time) to an officer
in the then Urban Wellbeing,
Housing and Local Government
Ministry; and
5. Whether the minister is
obliged to afford the purchasers
with a hearing prior
to the minister granting the
EOT, albeit there is no such
provision or requirement
in the HD Act or the HD
Regulations.
Putrajaya Federal Court,
14.5.2019: Having heard arguments
and written submission
from lawyers for the purchasers,
developers and the attorney
general chambers, the Apex
Court reserved judgment. Chief
Justice Tengku Maimum Tuan
Mat, who led a 5-member panel
reserved its decision to an unspecified
date.

Putrajaya Federal Court,
26.11.2019: The Federal Court
ruled that the Controller of
Housing does not have the power
to grant extension of time (EOT)
to housing developers. This
means that, without the EOT,
developers will have to deliver
vacant possession within the
prescribed statutory period of
36 months failing which they
will have to compensate house
buyers LAD that is equivalent to
10% per annum of the purchase
price.
The Federal Court’s decision
was delivered by Chief Justice
Tan Sri Tengku Maimum Tuan
Mat leading a panel consisting
of Chief Justice of Malaya Tan
Sri Azhar Mohamed, and Federal
Court judges Tan Sri Idrus Harun
and Datuk Nalini Pathmanathan.
In their conclusion, the Federal
Court judges unanimously
answered the questions posed
as follows:
Purchasers’ Questions 1 and
2 – Negative;
Purchasers’ Question 3 – Affirmative;
Developer’s Questions 4 and
5 – no necessity to answer.
The landmark decision has
been extensively reported in the
news media and online portals
even in FocusM issue of Nov
30-Dec 6, 2019 entitled: Federal
Court verdict on EOT a welcome
relief for home buyers. The written
court judgment of the Federal
Court is now available in all the
law journals for all to understand
our judges’ rationale in upholding
the primacy of house buyers’
interest under the law.

This post has been edited by malaysiathegreat: Dec 27 2019, 03:15 PM

Developer: BHL Construction Sdn Bhd.

Development: Palace Court Condo @ Kuchai Lama (Sri Istana)

Issue: Housing Ministry granted Developer the EOT from 36months as stated in the SPA to 48 months to avoid Developer from being paid the LAD to buyers.

Delay: 12 months from original date of VP.

Solutions: Matters has been fight and brought from High Court to Appeal Court and ultimately to Federal Court. Final decision made in favors to buyers whereby Developer has to pay the LAD to buyers.

Lesson Learnt: This can be acted as good law reference in any future dispute case.





This post has been edited by malaysiathegreat: Dec 27 2019, 03:17 PM

Hi All,

Do LAD applies to subsales houses? Thanks.

subsales already completed claim what lad

Yes, true that the unit is completed. however, due to the process, i am only manage to get the unit after more than a year after signing the SPA.
so, i am wondering if this clause actually implies to this kind of situation or not.

Claiming lad from owner of house 😵

N/A

can intro a LAD lawyer for me . Thanks in advance.

I paid with bankdraft, and have Lawyer receipt acknowledge received booking fee. OK?

Hi Sifu,

If claim LAD from developer after obtained VP letter, around how long we can win court case thru hire lawyer, and get full LAD?
How much lawyer will charges?

Thanks in advance if you got tips/tricks to share with me.

Start the nego with developer and see their 'offer'. If the sum is reasonable (likely wont be exact full amount), then accept and close case. Better if you can gather all owners.

Dont forget you still have DLC claim.

Your claim is because of delay due to mco and how much is the amount ?

Court cases normally take some years to finally settle and that also whether the developer has the money to pay then.

not so fast.. seems like there a new development on this...

https://www.edgeprop.my/content/1901860/cou...cant-possession