It is not uncommon for buyers to be given vacant possession of their newly-built houses, only to find that their developer has yet to even apply for the Certificate of Fitness for Occupation (CF). The National House Buyers Association often receives feedback from buyers regarding this.

After receiving their keys, buyers often have to spend the next 18 months chasing developers to comply with any breaches they may have caused and rectify defects. Until CFs are approved, they will not be able to move into their houses, even though the full purchase price has been disbursed and they have started servicing their bank loans.

Remedies, when available, are also often slow in happening. While the Housing Development (Control and Licensing) Act and the Housing Developers’ Regulations are aimed at safeguarding the interests of buyers, they lack the bite. And this is largely because of poor enforcement.

The Housing and Local Government Ministry's Monitoring and Enforcement Division has been given the task of overseeing the activities of developers and enforcing the law.

However, this division's workload is extremely heavy and it cannot keep a constant vigil on developers. But this is vital as laws can only do so much.

Pre-determined terms and conditions in the statutory contract of sale, which is the Sale and Purchase Agreement (SPA), bind those who buy houses from a developer.

However, there are no provisions in the SPA for purchasers to get out of the contract and get a refund of the money paid should a developer commit any breach or fails to perform or observe any material term of the agreement, goes bankrupt or goes into liquidation.

Over and above this, buyers face many other risks under the existing practice of housing supply, which is ‘buying-off-the-plan' or the sell-then-build method.

To mitigate the risks, buyers are often advised to “check the financial strength and capability of the developer”, meaning they should check its reputation, honesty, goodwill, track record and most importantly, its financial resources. But this task is beyond the capability of the average house buyer.

For one, there is nothing to inspect. Potential buyers rely on advertisements, write-ups, architects’ plans and specifications, artists’ drawings and projected returns. Bridging financiers and end financiers also do nothing to protect the interests of buyers.

When a sale is completed, that is when a purchaser has made full payment on the house. They would still not be able to occupy the house until the CF is issued.

All this while, construction remains a ‘no-risk’ venture for the developer. If a project fails, it is buyers who suffer. A developer typically cites financial problems when they fail to complete and deliver a project on time.

They also find other excuses, such as bad weather, government policies, building material shortage, stop-work orders by authorities and even disputes with land owners, consultants or contractors.

In any other business, a company involved in a contract that fails to deliver the specific product required on time, would shoulder the risks and not pass them on to its customers.

However, in the case of housing, if a project is abandoned and then revived, buyers would end paying more – and the government would lose revenue.

Such was the case in the Majestic Heights saga that played out in Penang.

In the case, the first phase of the development comprising RM75,000 medium-cost apartments were launched in 1995 and were due to be completed in 1998. However, the project was abandoned early that year.

On Oct 16, 2001, the High Court in Penang ordered the developer to be wound up; this eventually led to the formation of an action panel, in which the buyers were also involved, that resumed construction.
Each buyer had to pay RM7,500 more and the units were finally completed with the CFs issued early this year.

If these buyers could claim late delivery compensation, each of them would have been paid RM45,000 for all the bank payments that they had made over the years. The statutory charges waived by the Penang Island Municipal Council, Tenaga Nasional Bhd and Indah Water Konsortium alone came up to RM3.62 million.

So, in reality, it is an even more expensive affair to revive an abandoned project, not only for buyers but also for the Government and other authorities.

HBA maintains that despite amendments and re-amendments to housing laws, weaknesses remain. One way to tackle these problems is to have another comprehensive review of the Housing Development Act – and to push for the mandatory building of housing units before selling them.

This is our continuing saga of why the build-then-sell or 10:90 system of sale and purchase should be embraced mandatorily

The National House Buyers Association (HBA) is a voluntary, non-governmental organization manned by unpaid volunteers. For more information, check out their website at http://www.hba.org.my