THE Housing & Local Government Ministry recently introduced an online platform called Housing Integrated Management System (HIMS).
It is a single entry system to replace the existing BLESS, Idaman and e-Pemaju (these acronyms are now rendered redundant) where housing developers will have to submit their application for APDL (Advertising Permit and Developer’s License) online, and a host of other features that regulate, manage, receive, and gather data.
There is even a function under HIMS for an eSPA where shock waves were sent through the legal circle, especially law firms that monopolised the sale & purchase process of legal work from housing developers.
They will be sidelined and made redundant once eSPA is fully activated.
The HIMS system is meant to be an application and bipartisan reporting system between the government and developer; others are not included.
Actually, the eSPA is nothing more than facilitating the Housing Ministry’s job by identifying the buyers’ particulars and details of purchase.
As fantastic as the acronym eSPA may sound, it is merely a tool to allow the developers or their agents to key in details of purchasers: names; identity, address and details of the purchased property and its pricing, and so on.
It stops there, save and except “digital signing”?
Now comes the million-dollar question: If there is digital signing by the purchaser, who is to bear witness to formalise the contract of the Sale & Purchase Agreement (SPA) and the related Memorandum of Transfer (MoT)?
Who is to safeguard the “digital signature” of the purchasers without it being misused and exploited?
The completion of blanks in the statutory SPA does appear to be a clerical job and can be undertaken by the purchasers themselves.
If that is so, where’s the need for lawyers? Do you not know that the signing of the SPA is merely the beginning of a journey to a sale and purchase transaction?
I have, in fact, explained the “end-to-end conveyancing process” of real property transactions in an earlier published article titled: “Leave conveyancing to Lawyers (Part 2)”.
However, the government, by adding the eSPA function, makes the housing developer and government both responsible for the drafting of the sale and purchase agreement across the country.
According to HIMS, the developer will just fill in the blanks and generate the sale and purchase agreement from it.
No value-added service to the purchasers
Is it really that simple? What purpose does it serve for the government to be involved in drafting sale and purchase agreements in the first place, save and except regulating the terms and conditions in the statutory SPA in schedules G (Landed property), H (Stratified property), I (Landed property BTS 10:90 concept) & J (Stratified property BTS 10:90 concept)?
How does it help the buyers? It does nothing for purchasers but helps developers produce sale and purchase agreements without the need of a lawyer. But in any event, eventually, the purchaser will still need to engage a lawyer for property transfer.
It is a prerequisite requirement under Section 211 (Fifth Schedule) of the National Land Code, 1965 (revised 2020) that the transferor(s) and transferee(s) in an MoT (Form 14A) and all dealing instruments have to be attested and witnessed by those persons designated under the land code; of which lawyers are listed amongst others.
Bank officers, developers’ managers, Housing Controller, Oaths Commissioner, and clerks cannot attest and witness signatories to the MoT and related dealing instruments.
The government should leave the conveyancing of property to lawyers as they have always been the check and balance between developers’ rights and purchasers’ entitlement.
The government should continue its role as regulator and custodian of the law, ensure that developers have sufficient funds to complete a project, resolve disputes and effectively monitor, police and enforce obedience and compliance with housing laws and policies, and not get involved in developers’ business.
If this is implemented, the government could be biased against the purchaser in protecting the integrity of the eSPA function and HIMS as a whole.
Is the Housing Ministry playing the role of a repository?
It seems that after eSPA is stamped, a copy must be uploaded to HIMS for data collection by the Housing Ministry and “subsequent management” between it and the developers.
I wonder what “subsequent management” means in its implied term?
Does the ministry wish to be the “repository data collection centre” where they keep all purchasers’ data for “safekeeping” like the current MySejahtera – where citizens are tracked?
Will its repository maintain a complete record of all movement of purchasers’ sales and sub-sales?
Will the information be made available when a developer goes belly up and information can be easily retrieved by “court-appointed” private liquidators for a repository and custodian fee?
Will all information be stored and conducted digitally and online, thereby reducing the risks of different kinds of theft and fraud?
However, the current Housing Development (Control & Licensing) Act (HDA) legislation does not provide for the need to register and process purchasers’ information. It also does not further regulate nor afford any protection to the processing of purchasers’ data.
The HDA and its regulations only prescribed the standard form and contents of SPA but did not require such SPA with purchasers’ information to be generated from any systems operated by the Housing Ministry.
Therefore, the application of HIMS shall not be extended to the collection and generation of purchasers’ and potential purchasers’ personal data or information, as well as generation of SPA, and termination for generation of new SPA with purchasers’ information.
The ministry contends that eSPA is mere “secara pentadbiran” (administrative initiatives) only. Is that argument tenable?
Why does the HIMS eSPA module allow the Housing Ministry to amend and vary the SPA’s standard terms and conditions?
The validity of the Housing Controller and minister’s approval of “extension of time” (EoT) has been a contentious issue in the courts of law.
It has been ruled by the Federal Court in Ang Ming Lee and others v Menteri Perumahan (2020) 1 MLJ 281 that the EoT is ultra vires (ad initio).
Hence, the validity of the ministry’s discretion to amend and vary the prescribed SPA, especially the completion date from 36 months (in SPA Schedule H) to 48/54 months is an issue. Any exemption or variation from HDA must be by way of regulations and gazetted required under Section 2(2) read with Section 24(2)(a) of the HDA and not merely by surat lanjutan (letter of extension) or surat pindaan (letter of variation) to the statutory SPA.
When exercising the minister’s discretion, can the minister assume and exclude the voices of a housing development’s purchasers, who are directly affected by his action or inaction?
On what premise can a minister assume that they are well aware of all the plights and voices of end purchasers? If a developer takes risks when materialising, is it reasonable or logical for a minister to modify the scheduled SPA to exonerate the developer from all financial risk at the sole and exclusive burden of end purchasers with the stroke of a pen?
What about the issue of “Privity of Contract” when the minister or the Housing Controller is not even a party to the SPA and is allowed to intervene?
Would it be within reason and logic for the minister to hear all voices of the end purchasers to consider and devise all available or different remedies that would advance the protection of end purchasers?
What if the discretionary power is abused and exercised in biases against the weaker party?
Who adopts the “check and balance” here? Surely the affected end purchasers must be accorded the right to be heard?
The minister and Housing Controller cannot pretend to be omniscient and assume “he knows all and sees all”, and can purportedly feel the pulse of each end-purchaser who falls victim to their decision.
Hence, the application of HIMS to issue letters of extension and variation whether by the minister or their charge i.e. Housing Controller should not be implemented as it would seem to be in defiance of the celebrated Federal Court ruling.
We hope the Housing Ministry will revisit these contentious issues and not launch something that is merely administrative, with no legal standing – or in their term, “mana punca kuasa” (where is the source of legal jurisdiction)?
Nevertheless, the National House Buyers Association (HBA) will continue to monitor these contentious issues that relate to eSPA. HBA will also observe to ensure the identity of purchasers and their digital signatures are not misused, abused, or exploited for whatever reasons. – The Vibes, June 28, 2022
Datuk Chang Kim Loong is secretary-general of the National House Buyers Association (HBA), a non-governmental and not-for-profit organisation manned wholly by volunteers
