This article is penned as continuity to our previous one: “Of Redemption Sums and Disclaimers – PART 1” that was published in last month’s issue.
The HBA has complained to the Minister and those under his charge about purchasers becoming victims in losing their homes as a result of foreclosure proceedings taken against them by banks to recover loans taken by developers secured by purchasers’ houses bought from the same developers, because the said developers did not settle the loans taken by them.
The crux of the problem is that the Housing Ministryprescribed Sale & Purchase Agreement (SPA) allows the developer to build the purchaser’s house with the installments of the purchase price paid by the purchaser from the day the SPA is signed. On top of this, and even more seriously, the developer is allowed to borrow from the developer’s banks on the security of the purchaser’s property. The purchaser’s consent to any additional, post-sale loans is taken for granted. In fact, the purchaser cannot withhold his consent as long as the purchaser receives some fig-leaf protection from the developer’s Bank in the form of an undertaking not to fore close.
THE DEVELOPER’S LOANS AND THE DEVELOPERS BANK – THE PURCHASER’S RISK
By almost a sleight of hand as it were, it has come about that the purchaser who goes to the developer to buy a house ends up handing over his property to the developer to create a Charge (Mortgage) on it for the developer’s benefit with all the attendant risks to the purchaser; losing it if the developer does not settle the developer’s loan. And the purchaser is completely helpless to do anything against it. Is there any justice?
THE DEVELOPER’S PRE-SALE LOAN AND NONDISCLOSURE
The developer is allowed by the SPA to borrow on the security of the entire housing estate including the purchaser’s, as yet un-subdivided and undeveloped. The developer does this for the first time before the property is sold to the purchaser; (‘the pre-sale loan’). At this stage, the developer borrows on the security of the entire housing estate land to meet the initial expenses of developing the housing estate; this is understandable, perhaps even necessary, under the sell-and-build (STB) system. This is referred to in the recitals: “AND WHEREAS the said land is charged to………….as security for the loan granted to the vendor (developer).”
As a result the purchaser buys encumbered property, and is forewarned about it but the total amount of the loan taken by the developer (the developer’s redemption sum) is not disclosed to the purchaser, and more importantly, neither is he told about the redemption sum per lot; the resulting sum if the total amount borrowed by the developer is divided equally among all the subdivided lots; (redemption sum per lot).
The pre-sale loan taken by the developer should be enough to enable the developer to meet all the initial expenses of housing development. As soon as the SPA is signed the developer will receive the deposit and payments progressively from the purchaser at each stage of construction which will be enough to pay off the pre-sale loan and to meet the expenses of construction, and after the end of the construction period no more payments will accrue to the developer from the purchaser; hence, clause 2(1) concludes: “The proprietor and the vendor hereby undertakes (sic) that the said Property shall be free from encumbrances immediately prior to the Purchaser taking vacant possession of the said Building.”
This simple arrangement gives the developer the comfort of using the purchase price to meet construction cost and other related expenses as governed under the Housing Development Account, and gives the purchaser the assurance that the developer’s Charge is going to be removed.
The settlement of the developer’s Charge is achievable though there is no mechanism to ensure it happens; developers are expected to and do in a majority of instances use a portion of each installment of the purchase to clear the pre-sale loan and the Charge they had created on the purchaser’s sub-divided lot and achieve a safe position for the purchaser. If this happens, then it is serendipity.
New Clause 3(4) of the Schedule G – SPA (as provided by the HD Regulations, amended 2015), was introduced when HBA vehemently insisted the redemption sum to be quantified, in no uncertain terms, and disclosed in ‘Dollar and Cents’ in the preamble to the standard SPA to ensure that ‘naïve cash purchasers’ especially, must know that a sum is payable for redemption purposes. We have received numerous complaints that their developers failed to redeem from the onset but instead pay off the redemption sum at the last stages of the Schedule of Payment. Some developers do not even redeem when delivering vacant possession and buyers are left to fend for themselves.
New Clause 3(4) is reproduced below for easy reference:
Clause 3(4) – A proportion of such part of the instalments envisaged in items 2(a), (b) and (c) of the Third Schedule as may be agreed between the Developer and its financier (taking into account the redemption sum) and which proportion shall be informed to the Purchaser separately in writing shall be applied towards settlement of the redemption sum in full. In the event the redemption sum is greater than the said instalments, the redemption sum shall be fully settled by the Developer to its financier with the consent of the Purchaser before payment by the Purchaser of monies in excess of 50% of the purchase price.
We believe that this Clause 3(4) was instead drafted by Attorney-General Chambers (AGC), in lieu thereof, to ensure that the redemption sum for the property in question does not exceed 35% of the purchase price. Hence, the provision that items 2(a), (b) and (c) of the 3rd Schedule, which total 35% of the purchase price, are to be utilized for payment of the redemption sum.
HBA has taken the view that any purchase price in excess of 45% (10% upon signing which is paid to the developer plus the said 35%) should not be payable by the purchaser until the property is fully redeemed. In other words, if the redemption sum is more than 35% of the purchase price the developer will have to ‘top up’ to redeem the property before any further payment beyond the first 45% of the purchase price can be claimed from the purchaser (or the purchaser’s financier). Unfortunately, Clause 3(4) now provides for monies in excess of 50%, instead of 45%, to be not payable until the redemption sum is fully paid by the developer. It is very obvious that the expression “in excess of 50%” is a mistake as it should be 45%. We are hopeful that AGC will advise the Minister of Housing accordingly and that he will do the necessary change in the very near future. In the meantime, what is clear to us is that there should be no payment beyond 50% of the purchase price until and unless the property is fully redeemed by the developer. In cases where the redemption sum is not more than 35% of the purchase price there is of course no issue. Where the redemption sum is more than 35% however, parties may have to agree separately for a further sum of up to 5% only to be paid by the purchaser (or the purchaser’s financier) towards the redemption sum, any redemption sum beyond that will have to be paid by the developer since the purchaser is not obliged to pay beyond 50% until the property is fully redeemed by the developer. Until the necessary amendment is made it is our hope that developers will cap redemption sums to a maximum of 35% of the purchase price and also that lawyers will advise them to do so.
Then, the requirement of “with consent of the Purchaser” causes much confusion to the developer as well as purchaser and financier. My view is there is no need for consent from the Purchaser when the Developer is paying the redemption sum. What is necessary is for the Developer to procure the written confirmation from the Bridging Financier to the purchaser and the purchaser’s financier that the redemption sum has been settled in full and until such confirmation is received by the Purchaser or the Purchaser’s financier no further purchase price is due or payable by the Purchaser.
WHY PLAY WITH SEMANTICS?
We have written to the Housing Ministry (www.kpkt. gov.my) seeking their rationale and how the AGC came up with this confusing clause. Why pussy foot around, with semantics, when a redemption sum can be quantified on a per lot basis? Ask any experience banker.