my parents just renovated our house.. v actually totally demolished the house and rebuilt it, from single strorey house to an 1 1/2 storey house..

v paid the contractor's fees accordingly and the house finished a month ago.. the house was supposed to finish within 3 months but it took 4 months.. the main problem is that till now v didn't get the CF and TNB just fixed the 3 phase electricity just a few days ago.. because of the CF and TNB delay v haven't pay the 10% of the payment.. by the way v r staying in the house already.

when my bro called the contactor today, he said since v delayed the payment he is taking legal action on us. he is going to sue my parents and bring the case to court. he asked us to pay the money where v suppose to.. he meant at the court. is it our fault? i need some advice



NOTE:

(+) the agreement was signed by the contractor and my dad only.. comisionner of oath isn't involved
(+) he said v delayed for the payment for 55 days but in the "contract" such thing not written
(+) v paid the 90% right at time without any problems
(+) CF not received yet, TNB fixed 3 phase wiring wiring just a couple of days ago
(+) the contaractor's company, ES**R*N MAINTANCE, JALAN BURUNG SIN**R, TAMAN BUKIT MALURI, KEPONG, KL (An Indian Company)

to anyone practising law, i need some useful advice.. feel cheated, and frustrated

please do not be cheated by such contractors

krishnath_87@yahoo.com
krishnath_87@hotmail.com

This post has been edited by krishnath: Nov 21 2007, 09:56 AM

17th november 2007

my parents just renovated our house.. v actually totally demolished the house and rebuilt it, from single strorey house to an 1 1/2 storey house..

v paid the contractor's fees accordingly and the house finished a month ago.. the house was supposed to finish within 3 months but it took 4 months.. the main problem is that till now v didn't get the CF and TNB just fixed the 3 phase electricity just a few days ago.. because of the CF and TNB delay v haven't pay the 10% of the payment.. by the way v r staying in the house already.

when my bro called the contactor today, he said since v delayed the payment he is taking legal action on us. he is going to sue my parents and bring the case to court. he asked us to pay the money where v suppose to.. he meant at the court. is it our fault? i need some advice



NOTE:

(+) the agreement was signed by the contractor and my dad only.. comisionner of oath isn't involved
(+) he said v delayed for the payment for 55 days but in the "contract" such thing not written
(+) v paid the 90% right at time without any problems
(+) CF not received yet, TNB fixed 3 phase wiring wiring just a couple of days ago
(+) the contaractor's company, ES**R*N MAINTANCE 77, JALAN BURUNG SIN**R, TAMAN BUKIT MALURI, KEPONG, KL (An Indian Company)

to anyone practising law, i need some useful advice.. feel cheated, and frustrated

please do not get cheated by such contractors


18th november 2007

the agreement about payment was only one page.. i will summarize the agreement..

-date of agreement between contractors and my parents (name and i/c number included)
- the purpose of the agreement is to the renovation (address of my house is included)
- the total cost of completion is RM*** ***
- the payment will be made in progressive
First payment - 30% on the starting work
Second payment - 30% on the completion of the upper storey concrete platrform/wiring/roofing
Third payment - 30% starts of plaster ceiling/ painting/ all fittings
Final payment - 10% on finishing of the whole job and handling of key
- the statement of that both parties agreed with terms.. ( contractor, and my parents signed the agreement)
- the rest pages of agreement is about the "rules and job agreement by contractor and landlord", "materials and work involved-interior,kitchen,
and etc"


after flipping through the agreement pages, under one title ELETRICITY its written
- main connection from TNB poles is 3 phase supply to meter board..

[] how should v suppose to pay the money when the TNB just fixed the meter only a few days ago?
[] is the work considered "complete" even before the meter is fixed?
[] he wants to bring the case to court not us... he doesn't want the money..
[] and also the staircase which was built isn't the same as as what drawn by the architect.. the spaces between the steps r the same as the rest of
the steps.. the drawn space is 7 inches but the contractor made 8 inches, 7 1/2 inches and some r less.
[] the front drain is partially clogged with cement and at the back, he didn't clean the debris after demolishing his makeshift toilet
[] in the "handling of keys" letter he didn't mention the date of completion and my parents didn't sign the letter


i appreciate all the replies.. thanks


19th november 2007

due to pressure and the scare that i can be sued for defamation and slander for vicious statement i decided to re edit certain details including the title and the contractar's details..
i feel very demoralized but i know have no better options..

need advice for everthing and everyone.. THANKS

20th november 2007

finally v got the letter.. i received the letter from the lawyer's office boy i think.. i was hoping for a suprise (maybe he thought of something big) but the letter was so normal.. the details of the lawyers notice:

{} the contractor shall not be responsible for any defects for reaons of your breach of the renovation agreement
{} the extra money is due within 7 days from receipt of this letter
{} extra work on good will basis that cost RM** *** upon our "request" which was not in original agreement agreement and renovation

all the good will work wasn't requested by us.. he gave the list of "good will" work that he did during the handling of the letter.. <the letter is about handling of the keys>.. v received the letter about 3 weeks back or nearly 2 weeks after v shifted in.. but my dad didn't sign or agree with the letter because he didn't mention about extra costs during or before renovation.. he did extra works which was unnecessary..

v have a list of defects which he didn't repair and he ignored them.. mostly the things in the notice isn't in black and white.. i don't see the hopes of him winning but i don't want to be over confident.. the money which he is requesting is double than the earlier 10% payment..

v r planning to repair the defcts and get the money from him..
the battle has just started..

what do u all think that v should do now?


krishnath_87@yahoo.com
krishnath_87@hotmail.com

This post has been edited by krishnath: Nov 20 2007, 11:49 PM

not valid in court case

unless the contract is signed and witnessed by a practising lawyer firm

and if it's not stipulated in the contract agreement, then it's a no-go. paymentwise or whateverwise.


edti: i am no laywer, but an engineer who deals with this kind of thing quite often. contractor an sub-con trying to threaten you if you withhold payment. so what?

This post has been edited by lucifah: Nov 17 2007, 11:19 PM

hmmm thought se7en is a lawyer?
would like to see wat's his opinion..
can learn something here..

hmmmm, what kind of contract did u use? standard form of contract or self draft?

ur trying to get CF for the building, did it have one before the works being carried out? btw, nowdays its called CCC if im not mistaken and there are alot of things need to be done to obtain this, a checklist of 21 item if im not mistaken.

contractually, did the agreement say anyting about the works to be carried out including obtaining CF by contractor part? are there any clause in the contract payment wise? how is it being done? according to progress? or lump sump? many things need to be cleared out first.

btw, worse case scenario, ur father is given court injunction to pay the contractor, plus losses because of u guys holding the money.

hope that clear things out a bit.

Does the contractor have finish his job considered you're already moved into the house?
Was the delay in part was due to the contractor's fault or is it because of TNB rendering the contractor powerless?

thanks for your reply bro.. actually v wanted the discuss the payment but he dropped the bomb..

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Added on November 17, 2007, 11:54 pm
yup v moved in already.. as a contractor he must finish the wiring and all.. its not our work right? what about the CF bro?

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Added on November 18, 2007, 12:02 ami'm new here, so i don't know how to get him.. need assistance..

This post has been edited by krishnath: Nov 18 2007, 12:02 AM

my old house did have CF, but once its demolished, v had to apply for CF again.. the CF inspectors has checked the house but v haven't get the CF yet.. according to the law, v can't stay in unless v get CF... its a self draft contract.. v paid according the process.. 30%, 30%, 30% and 10%.. v r holding the 10% now.. v said v delayed for 55 days.. but its not written in the "self contract".. r v at the losing side?

Look at the terms of your progressive billing.

for the 10%, what are the terms?

I am assuming that your progressive billing is the same as any other common progressive billing where 'x'% will be due when 'y' condition is satisfied.

Namqul: There will not be an injunction against krishnath to compel payment because there is a binding contract between his father and the contractor. An injunction is used in this sense to prevent his father or stop his father from doing something. The proper term will be an order for specific performance. You are right about the CCC(Certificate of Completion and Compliance) replacing the CFO(Certificate of Fitness for Occupation)


It is best if you seek proper legal counsel instead of relying on anonymous opinion on a public forum.

Important: The readers are hereby advised to seek proper legal counsel. I disclaim all liabilities and will not assume any responsibility whatsoever that may arise from my statement or advice. Should my exclusion of liability not be accepted in the jurisdiction for which my statement or advice is being relied on then my liability will be limited to a maximum of Ringgit Malaysia 1.00

This post has been edited by schizophrenic: Nov 18 2007, 01:11 AM

well, info provided are not clear enough, so as the terms....
how people going to help you?

better seek help from a professional lawyer ^^

This post has been edited by cherryblossom: Nov 18 2007, 01:06 AM

what more info u need miss? i hope i can send the self drafted agrement to u..
thanks anyway for your time..

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Added on November 18, 2007, 1:27 amcan i know the chances of us winning the case? for me, i feel that v didn't do any mistake.. in the self draft agreement, its written, that the 10% must be given upon on finishing of the whole job nad handing of keys.. its a real headache..

This post has been edited by krishnath: Nov 18 2007, 01:27 AM

but actually they did finish the job rite and hand over the house to u rite?? is they have the responsible about the CCC? or they just be responsible upon completiion of the house only?? u have to check that out.. might be they're on the right side..

This post has been edited by mutt: Nov 18 2007, 02:10 AM

you shouldn't have used a self drafted agreement in the first place.
since the mistake has been done, I shall not comment more on this.

what is the interest rate for overdue payments?
completion of the 'whole' job - is there a definition for this in the contract?
if no then you can always say that the certificate of completion and compliance has yet to be issued. Thus despite the keys being handed, the house is not completed pending the CCC. This is common practice for a house to be recognised as completed.

The purpose of a house is for occupation and if it is an offence to even occupy a house without CCC, could you consider it to be completed or even wholly completed? Where the contract is silent on this point, the courts will construe the ambiguous term(if the court finds this term to be ambiguous) '.....wholly completed....' against the party seeking to rely on it based on the Contra proferentem rule.

If he argues that the house has been completed and it must be completed before CCC can be issued. You can tell him that the completion for purposes of application is that he had supervised the erection and completion of the house and that to the best of his knowledge and belief the house has been constructed in accordance with the By-Laws. Until the CCC is issued, the house cannot be deemed to be wholly completed.

Anyway you are committing an offence by even staying in that house.

Building (Federal Territory Of Kuala Lumpur) By-Laws 1985
PART II - SUBMISSION OF PLANS FOR APPROVAL

By-Law 26. Occupation Without Certificate of Occupation.

(1) No person shall occupy or permit to be occupied any building or any part thereof other than a singly built detached house, unless a Certificate for Occupation, a Partial Certificate for Occupation or a Temporary Certificate for Occupation has been issued under these By-laws for such building.
(2) No person shall occupy or permit to be occupied any singly built detached house unless a Certificate of Completion and Compliance has been issued under these By-Laws for the singly built detached house and any failure to comply with this paragraph shall render such person liable to prosecution under the Act.


(nb)even if you're not in kl, the act below applies.

STREET, DRAINAGE AND BUILDING ACT 1974

PART V - BUILDINGS

Section 70. Notice of new buildings.
(27) Any person who-


(f) occupies or permits to be occupied any building or any part thereof without a certificate of completion and compliance,

shall be liable on conviction to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding ten years or to both.


I STRONGLY advice you to seek proper legal counsel. By seeking proper legal counsel, you will be able to assess your chances of winning the case albeit not always accurate as well as receiving a professional and qualified recommendation.


Important: The readers are hereby advised to seek proper legal counsel. I disclaim all liabilities and will not assume any responsibility whatsoever that may arise from my statement or advice. Should my exclusion of liability not be accepted in the jurisdiction for which my statement or advice is being relied on then my liability will be limited to a maximum of Ringgit Malaysia 1.00

This post has been edited by schizophrenic: Nov 18 2007, 02:36 AM

try ask this in realestate.net.my, there r some legal frens there...

Schizophrenic is right on this matter, as there is no proper agreement on the house constrution issue, so it is hard to tell who are right or wrong.
Whether the self drafted agreement is accepted by the court or not, we don't know.

Better seek for professional advice on this matter.

Hope you can let us know how the issue progress later on, as others also can learn something from it and prevent mistake being made in the future.

Cheers.

Move to property section.

bro, i have updated the topic.. can i know your opinion? v will be getting a lawyer ourselves later.. the contractor hasn't gave the legal letters yet.. he just told my bro via phone when my bro called him yesterday.. he also added that v haven't pay after 55 days of "completion". but in the self drafted agreement such 55 days is not written..

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Added on November 18, 2007, 9:51 amthanks for your concern bro.. will usually court accept such cases? how long will these type of cases will drag?

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Added on November 18, 2007, 9:53 amthanks for the useful website.. i'm forwarding my issue there as well..

This post has been edited by krishnath: Nov 18 2007, 09:53 AM

no worry on self drafted contract, it accept by the court, even verbal is consider a contract .......
but make sure u have the right legal consultant, why have to bring this to court ? u going to make huge lose on the legal fees, even u win the case ......

For the contractor, they have no problem with court cause they already pay the legal fees annually ...... no matter u win or lose the case, it going to hurt ur pocket ...... btw don't trust legal consultant word, they won't tell u 100% true and fact, they will ask u go for it and telling u have high chances to win the case .... (i kena kau kau before) .....

good luck ...

this is how i look at this matter:

1. no matter self drafted or standard form of contract, it doesnt matter since both are enforceable in the eyes of law.
2. there's no clause stating that u're liable for any delay/late payment, from what i understand
3. you said that 10% of the final payment must be made after completion and handling of keys - which i assumed has already taken place since u are living in the house
4. IMHO, obtaining CF is not the contractor's obligation, some planning authorities are.
5. is there any defects in the work? if there is, you could actually delay the payment until all defects are rectified, eventhough it's not stated in the contract, this is generally the practice of the industry.

so, IMHO, do not bring this to court...it will take u months or years perhaps. 10% final payment would not have cost a lot, so it would be better to cut the deal with the contractor privately rather than engaging any legal action. i'm not sure what is the real situation you or your hse are in, but what i understand is that you guys are delayed by one month, which again, IMHO, does not mean a hell lot. so, try to negotiate with the contractor, maybe you could offer a lower amount to the one initially agreed since the works were not completed within the agreed period. where are u staying anyway? kepong area? i noticed that the contractor is from TBM. i'm in kepong too.

just my 2 cents.
i'm in the construction industry anyway.

This post has been edited by kikurazz: Nov 18 2007, 10:04 AM

This the main problem of the TS has, the house hasn't get the CF or CCC as mentioned, if not mistaken, but TS already start to live in there, also wrong in the eye of the law.

I think the best way out of this issue is both party to sit down and having proper discussion and work the best out of it. If really go to court, both also are losing end. Legal firms are the ultimate winner. Even you have the case and have the right to win it, legal move is the last resort you want to take, as it just means hassle.

TS stated in the self-draft agreement : the last 10 is giving out 'whole job nad handing of keys.. '
While schizophrenic posted it it common practice


So how to define it? in the eye of the law, that's crucial if the self agreement is accepted.

The final 10% is worth how much?
They are probably just trying to scare you...
You don't have a CF yet probably means that your home is not completed.

Like cherroy said, it's probably better if everyone sat down and discuss the issue. If the final 10% is a small amount, it's probably not worth their time and money to go to court.