©The
Sun (Used by permission)
by Andrew Wong
ON Dec 1, 2002, the Tribunal for Homebuyer Claims was established to hear and determine a claim for any loss suffered or any matter concerning his interests as a homebuyer under the Housing Development (Control and Licensing) Act, 1966 (Act 118). Since its inception, the Tribunal has played a major and vital role in the adjudication of disputes between homebuyers and housing developers. A homebuyer here includes a person who has subsequently purchased a housing accommodation from the first purchaser of the housing accommodation.
The Tribunal has provided an informal and appropriate venue for a dispute between the homebuyer and the housing developer to be heard and determined. There are no rigid rules on procedure and the Tribunal may adopt such procedure as it thinks fit and proper. No proceedings of the Tribunal or award or other document of the Tribunal may be set aside for want of form. Further, the Tribunal is now empowered to rectify or correct clerical mistakes in any ward or errors arising therein from any accidental slip or omission, at any time.
Legal representation is not permitted unless the Tribunal is of the opinion that the matter in question involves complex issues of law and one party will suffer severe financial hardship if he is not represented by an advocate and solicitor. If one party is allowed to be legally represented, then the other party shall also be so entitled.
Filing fees are kept to a nominal sum of RM10 for each pleading.
Under Act 118, the Tribunal is required to make its award without delay and, where practicable, within 60 days from the first day of hearing before the Tribunal. Generally nowadays, a claim is heard within two months from the date the claim is filed by the homebuyer and an award is usually made between two to four weeks after conclusion of the hearing. Hence, much time and cost are saved by homebuyers who choose to bring their claims before the Tribunal.
Although the claim is required to be based on a cause of action arising from the sale and purchase agreement between the homebuyer and the housing developer, any claim lodged may include loss or damage of a consequential nature. However, the Tribunal is not empowered to award any damages for non–pecuniary loss or damage and the Tribunal is not authorised to deal with a claim arising from personal injury or death.
The homebuyer is required to bring his claim before the Tribunal not later than 12 months from:
(a) The date of issuance of the certificate of completion or compliance (CCC) for the housing accommodation or the common facilities, whichever is later;
(b) The expiry date of the defects liability period; or
(c) The date of termination of the sale and purchase agreement by either party and such termination occurred before the date of issuance of the CCC for the housing accommodation or common facilities, whichever is later.
A homebuyer may bring a claim against a housing developer even though no sale and purchase agreement has been entered into between the homebuyer and the housing developer. However in such a case, the homebuyer is required to show, perhaps by means of other documentaryevidence, the existence of a previous dealing between the homebuyer and the housing developer in respect of the acquisition of the housing accommodation.
It is to be noted that the Tribunal has no jurisdiction in respect of any claim for recovery of land and in which there is a dispute concerning entitlement under a will or on intestacy, or concerning good will or chose in action or concerning any trade secret or intellectual property right.
The jurisdiction of the Tribunal relating to the amount or value of subject matter claimed or in issue was recently increased from RM25,000 to RM50,000. Even then, if a claim exceeds RM50,000, the Tribunal may hear and determine the claim if the parties agree in writing to submit to the jurisdiction of the Tribunal. If no agreement in writing can be reached, the claimant may abandon so much of a claim that exceeds RM50,000 to bring the claim within the jurisdiction of the Tribunal.
An award made by the Tribunal shall be final and binding on all parties to the proceedings, and shall be deemed to be an order of the Magistrate’s Court or a Sessions Court, as the case may be, and beenforced accordingly.
The criminal penalty for failure to comply with the Tribunal’s award was recently increased. Any person who fails to comply with an award within the period specified by the Tribunal commits an offence and shall on conviction be liable to a fine which shall not be less than RM5,000 but which shall not exceed RM10,000 or to imprisonment for a term not exceeding two years or to both. An additional fine of up to RM1,000 for each day or part of a day during the offence continues after conviction may be imposed on the offender.
Non–compliance of awards made by the Tribunal has been a sore issue with homebuyers and it is hoped that the increased penalties and vigilant enforcement on the part of the authorities will deter housing developers from noncompliance of any award.
Andrew Wong is the deputy chairman of the Conveyancing Practice Committee, Bar Council, Malaysia (www.malaysianbar.org.my)
Note: This column is brought to you by the Malaysian Bar Council for your information only. It does not constitute legal advice. You should therefore seek professional legal advice for your specific needs. Neither the Malaysian Bar nor the Sun Media Corporation Sdn Bhd shall be liable to any reader who suffers losses as a result of relying on this column.