Hi, Im seeking for opinions.

As stated in S&P agreement, all payment of outgoings must be settled by seller including sinking fund prior to vc.
The purchaser will pay apportioned as at the date of delivery of possession.

Therefore, do buyer need to refund to seller for unutilized sinking fund for the past few years? As this cost were incurred prior to vacant possession and falls under payment of outgoings, and therefore apportioned as to the date of vc; which is for the latest month only.

Looking forward for your opinions and experiences..

Reference :
Malaysian Bar

YP Cheong Advocates & Solicitors

Propertyguru

This post has been edited by animegod: Jul 26 2018, 08:19 AM

Hi, can please forward me the clause from any acts or regulations which stated this? I need this for reference and to contribute to HBA if they needed this info because it has not been documented anywhere.

This post has been edited by animegod: Jul 24 2018, 08:25 AM

Yup.. that is the common understanding.

But somehow there are lawyers that include the clause for refund of unutilized sinking funds incurred by seller for a few years prior to vc. It is up to the buyer's lawyer competancy to dispute such clause, while some just proceeded blindly.

After gathering much info, here is the conclusion.


Selller's lawyer writes to the JMB/MC and request for the amount of unutilized sinking fund. However, this has nothing to do with refund by JMB or buyer.
However, seller's lawyer could add the unutilized sinking fund into the payment of apportionment table, asking for a refund. There is nothing wrong with that, however buyer has no obligation to pay the amount. It just takes a simple letter from buyer's lawyer to revoke the undertaking as there is no provision in the S&P or housing development act & Regulations for the refund of outgoings incurred by the seller. Instead, there is a clear clause on seller's obligation to pay his or her own outgoings in full prior to posession by buyer, while the buyer takes over the obligation starting on the date of possesion or earlier depending on their agreements.

Hope this helps for buyers of subsale property.

Yup.. voluntary or mutual agreement on the refund of past unutilized sinking fund is fine. But I doubt any buyer would want to pay for that unless he/she is getting a very good deal on the property price.

I've faced this personally where the seller's lawyer included it into the SPA without my acknowledgement, and my lawyer just blindly follow through and told me to settle the payment. After discussion with my lawyer, she finally agree that since I have not agreed to the refund, and it is not my obligation by law to refund, we just fax a letter to the seller's lawyer to strike it off. There is nothing that the purchaser's lawyer can do as it is not required by law, and there is no mutual agreement. In fact the seller was not even aware of it.

So buyers must be aware of this and raise your concerns to your lawyer.

This post has been edited by animegod: Jul 26 2018, 07:26 PM