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Tell it to the Judge
01/05/2004 Malaysian Business-Housing & Property By National House Buyers Association of Malaysia
How to bring your case up to the
Tribunal for Homebuyer Claims
I signed a sale and
purchase agreement (SPA) with a housing
developer for a terrace house in January
2000. According to the agreement, the
house was supposed to be handed over to
me 24 months later. However I only got
the notice to collect the keys in
January 2003. I wrote to the developer
for compensation on the late delivery
claims but was given a verbal offer of
30% of what I was entitled to. The
company representative also told me that
it is their company policy to offer 30%
of late delivery claims and if I don't
accept it, I might not getting anything
at all. Of course, I did not agree after
having to pay both the rental for the
house I am staying and the monthly loan
repayment."
Sounds familiar?
Unfortunately, this buyer is not alone
in his frustration. There are many more
buyers like him who have, at one time or
another, felt cheated, confused and
helpless. This mental anguish is more
easily understood when you consider the
enormity of the occasion. Buying a home
still represents the single, largest,
financial obligation most people will
ever undertake. The last thing any house
buyer would want is to file a lawsuit
over his new home.
The Tribunal for
Homebuyer Claims is an avenue for
homebuyers to seek legal redress after
attempts to get the developers to remedy
breaches have been exhausted.
The Minister of
Housing and Local Government Datuk Seri
Ong Ka Ting recently revealed that as of
April 6, 2004, the Tribunal had received
5,178 'reports' from house buyers, of
which 2,025 cases have been resolved.
The minister also said that most cases
involved complaints relating to late
delivery claims, defects during the
liability period and failure to abide by
promises made in the SPAs.
Here are some basic
considerations should you choose to seek
redress at the Tribunal:
Claimant
The claimant must be a
homebuyer who bought a property or had a
previous dealing with a licensed housing
developer. This also includes the second
purchaser who purchased the property
from the first purchaser under a
sub-sale. The Tribunal will not hear
claims brought by subsequent purchasers
thereafter. All claims must be lodged
through a Statement of Claim form
(Form 1) together with a fee of RM10.
Developers are not entitled to initiate
or file any claim in the Tribunal, but
they can raise a counter-claim when
responding to the claims filed by the
homebuyer. The Tribunal will still hear
the counter-claim even if the
homebuyer's original claim is later
withdrawn or struck off.
Time Limit
The jurisdiction of
the Tribunal shall be limited to claim
that is based on a 'cause of action'
arising from the SPA or a previous
dealing entered into between the
homebuyer and a licensed housing
developer. It must be brought up by a
homebuyer pursuant to Section 16N(2) of
the Housing Development (Control &
Licensing) Act 1966 under the following
circumstances: a) Not later than 12 months from the
date of issuance of the certificate of
fitness. b) Not
later than 12 months from the expiry of
the date of the defects-liability
period, which is 18 months from date of
vacant possession. This means, a
homebuyer has to lodge a claim at the
Tribunal not later than the 30 months
from the date of vacant possession.
c) Where there exists a
previous dealing between the homebuyer
and the licensed housing developer in
respect of the intended acquisition of
property. Claim
Limit The
Tribunal only hears claims where the
monetary amount does not exceed RM25,000
per cause of action. There is no lower
limit. The following are some instances
of 'cause of action' arising from a SPA.
- Compensation for
late delivery
- Damages for
deviation of plans
- Compensation for
adjustment in land area as compared
to the measurement in the SPA
- Omission of works
- Refusing/neglecting to remedy
defects, shrinkage or other faults
to the building
- Incomplete or
non-availability of common
facilities (in part or in whole)
- Loss of damage of
a consequential nature
In cases where the
claim exceeds the limit, the homebuyer
is not allowed to split the claim in
order to fall within the limit. However,
he can choose to waive the excess amount
to bring the claim within the
jurisdiction of the Tribunal.
Awards of the
Tribunal
The Tribunal shall
make its awards without delay and,
where practicable, within 60 days
from the date of first hearing of
the dispute. An award of the
Tribunal may consist of one or more
of the following:
a) That a party to
the proceedings pay money to any
other party b) That the price or other
consideration paid by the homebuyer
or any other person be refunded to
the homebuyer or that person
c) That interest be
paid on any sum or monetary award at
a rate not exceeding 8% per annum,
unless it has been otherwise agreed
between the parties.
No legal
representatives
No party shall be
represented by a lawyer at a hearing
unless, in the opinion of the
Tribunal, the matter in question
involves complex issues of the law.
In the event that one party is
subsequently allowed to be
represented by a lawyer, then the
other party shall also be entitled.
Proceedings
All proceedings
before the Tribunal are opened to
the public.
Criminal penalty for
failure to comply
Section 16AD of the
Housing Development Act states the
following:
- Any person
who fails to comply with an
award made by the Tribunal
within the period specified
therein commits an offence and
shall on conviction be liable to
a fine not exceeding RM5,000 or
to imprisonment for a term not
exceeding two years, or to both.
- In the case
of a continuing offence, the
offender shall, in addition to
the penalties under subsection
(1), be liable to a fine not
exceeding RM1,000 for each day
or part of a day during which
the offence continues after
conviction.
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