LETTER | We refer to the article by Chang Kim Loong of the National House Buyers Association (HBA) under the title “Baffled over eSPA” dated June 10, 2022, in the Edge property.
The article indirectly raises questions about the direction and purpose of HBA. It raises questions and doubts about a system that benefits buyers and the housing industry and appears to be standing up for legal fraternity.
Victims Malaysia (VM) had hoped HBA would support the Ministry of Housing and Local Government (KPKT) initiative as it benefits buyers and boosts the current sluggishness in the housing industry.
In a nutshell, e-SPA is an electronic contract platform created by KPKT where Sales and Purchase Agreements (SPAs) between developers and buyers are concluded on an electronic platform.
The content of the contract remains essentially unchanged in accordance with the existing timetable in HDA118. It is not extended beyond the limits of HDA118 to cover undersales.
If before we used pen and paper for writing, then the typewriter came along followed by MS Office, e-SPA is just another evolutionary step in writing and documentation. It benefits the buyer because it lowers the total cost of owning a home.
For clarity, the existing contract and the e-SPA are the same. It is legal because it is an integral part of the HDA118, which means that it cannot be modified by buyers, developers or their legal representatives. Buyers and developers cannot develop any additional agreement to the SPA as it can be easily voided by a court.
Since the agreement is statutory, lawyers no longer need to draft, evaluate and structure the terms of a contract for the best benefit of their clients. Therefore, the point pointed out that the lawyers providing the necessary checks and balances as claimed in the article are not qualified.
This essentially raises questions about the value lawyers bring to buyers in formalizing the contractual relationship between the parties. In fairness, the exorbitant cost imposed does not justify standard administrative work with very little legal value.
The work can be done by anyone with some degree of knowledge. In the real world, buyers’ legal services are almost unheard of after the formalization of the SPA.
Malaysian laws do not prevent two or more parties from signing an agreement without legal representation. Self-representation is a standard in any contract and is even practiced in court.
Any agreement must be stamped by the stamp office to make it legally enforceable. This can be done by runners or self service and it only costs the buyer RM10 stamping fee.
Regardless of the form of the agreement (paper or electronic), the government is never a party to the SPA. The position of the government is and always has been that SPAs are private matters between developers and purchasers.
He created a standard SPA for the good of the industry. The government’s role is to ensure that all parties comply with the HDA118. This does not change with the introduction of e-SPA.
The positive aspect of the e-SPA should not be ignored. It will boost the housing industry by reducing the total cost of ownership. Essentially, it formalizes existing marketing practices by developers where they provide a “free legal fee” package in their offerings at a low cost for everyone.
The MOT attestation concerns raised in the editorial do not arise. In Section 211 (Fifth Schedule) of the National Land Code 1965 (Revised 2020), a list of several other persons who can perform the attestation is provided.
Do not confuse the MOT certificate (Form 14A) and the SPAs, as they are two separate documents. In the housing industry, developer lawyers can easily provide these services.
KPKT’s role has been to ensure a sustainable housing industry and this includes ensuring that developers have sufficient funds to carry out their projects.
With the proposed revision of HDA118, VM has made numerous contributions to further boost buyer interest with minimal impact on developers to ensure that Malaysia has a sustainable and vibrant housing industry that would be attractive to buyers. local and foreign.
The goal is to ensure that the consumer can buy homes with confidence with minimal risk of loss.
With or without e-SPA, the promoter is required to provide buyer information to the regulator, either voluntarily or via court order.
Under e-SPA, this process is now streamlined so that the housing controller would have easy access to the information when needed and use the information for the benefit of the industry.
In writing, HBA compared the information gathered under e-SPA with MySJ with the aim of linking issues related to MySJ with e-SPA. It is simply irresponsible.
The question of monitoring buyers does not arise because the data has little value once the project has been completed and the promoter has discharged its responsibility. The data has no long-term value to anyone other than the government, as they can use it for analytical purposes to develop new policies.
Collecting and tracking information on undersales naturally does not arise as it falls outside the scope of the HDA118. The government, including KPKT, collects a lot of data on Malaysian on a daily basis and must ensure that there is no data breach.
It’s not something new. Data stewardship and data security are an integral part of data custody accountability and all data holders are subject to the PDPA.
HBA raised a valid point about the government changing the terms of the SPA and that case was ruled illegal by the Federal Court.
VM has raised its objection to the modification of the relevant section to empower the data controller to modify the terms of the SPAs and will be jointly and severally liable with HBA. This shouldn’t happen. However, we must be clear that this is a separate issue from the evolution of the e-SPA.
The legal fraternity’s concerns about the impact of e-SPA on their business are understandable as they are on the verge of losing the golden goose. However, it must be understood that the cost imposed by lawyers is exorbitant compared to the value and the services provided.
In conclusion, e-SPA will help boost the sluggish housing industry. It creates value for the entire ecosystem. Buyers will benefit from reduced legal costs and it will also help the regulator in policy making.
The legal fraternity must also evolve and find a value-added business for its clientele.
The author is the president of Victims Malaysia.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.