KUALA LUMPUR – The government’s online platform for housing development approvals and property transactions, introduced earlier this year, is being panned as a bureaucratic inconvenience to developers who face multitudes of technical issues – including being unable to amend information keyed into the system.
The Housing Integrated Management System (HIMS) is touted as a “single entry system” for developers to submit their applications for the Advertising Permit and Developer’s Licence (APDL) via an online platform.
It also enables the electronic sale and purchase agreement (eSPA), while hosting other features that regulate, manage, receive, and gather data.
However, according to the Malaysian Bar’s Conveyancing Committee, the government should first put in place proper legal provisions or amendments to the Housing Development (Control and Licensing) Act 1966 (Act 118).
The committee’s chairman Datuk Roger Tan said that one of the factors that has alarmed legal practitioners is that there is no legal provision under Act 118 and its regulations to empower the features under the system called HIMS.
Another critical concern is related to the generation of eSPA under HIMS.
While the process seems to be a simple clerical step, Tan stressed that SPA requires a lawyer to bear witness to ensure that the rights of the purchasers are safeguarded.
“The idea of the government – at least this is what some of the developers told me – is ‘why must you get lawyers, you don’t have to pay any more fees’.
“But that is not correct because a buyer is entitled to legal representation,” Tan said.
After signing the sale and purchase agreement (SPA), you still have to do the memorandum of transfer (MoT). You still need to apply for loans, so you need a lawyer so that they can advise you,” he said.
While the SPA can be signed in the presence of a lawyer, including one employed by the developer, buyers often prefer to have their own legal representation who will protect their interests, he added.
However, the HIMS does not allow it, he stressed.
“As a buyer, I may not want to use your lawyer. I have the right to my own lawyer.
“So how? Because under the constitution I have the right to legal representation, I have the right to the choice of my lawyer.”
Tan said that despite nearly 60% of Malaysia’s 22,000 lawyers being involved in conveyancing work, the industry was not properly engaged by the government in the implementation of HIMS,
Currently, only developers and the government are given access to HIMS, said Tan.
No force of law to regulate
HIMS was fully implemented in January of this year and has replaced previous reiterations of the housing and developer management system, such as Bless, Idaman and e-Pemaju.
The Housing and Local Government Ministry had often reiterated that HIMS would enable developers to refer to Act 118 and other related regulations on a single platform.
HIMS is also a mechanism meant for the government to collect housing data for the purpose of managing, monitoring and reporting on home ownership.
In a brief interview with The Vibes, National Housing Department director-general Datuk N. Jayaselan said HIMS would allow the government to have real-time data on the state of home ownership in the country.
“This ultimately would give a better picture to the government and how they can formulate a much more effective policy,” he said
In response, Tan pointed out that there are no legal provisions under Act 118 to empower HIMS to act as a repository to collect information.
The system does not come with the force of law and power to regulate administratively, he added.
Of course, they (the government) have to use the licensing provisions to try to discipline the developers. But whatever it is, there is the rule of law. The bar council always believes in the rule of law.
“You have to get the rule of law right first. You must have the enabling legal provisions,'” he said.
Government acting like ‘Big Brother’
Tan also stated that the government would already have the necessary information on hand and does not require another system such as HIMS to collect information.
“The developers can always update the necessary information by submitting reports.
“In any event, you (the government) are the one that issues licences, you are the one that issues the advertisement permit, and you are the one that controls the money in the housing development account (fund).
“So why do you still need this?” he asked.
The veteran lawyer is concerned that HIMS could also be used to monitor Malaysians, especially from a taxation perspective, as all house owners’ information is uploaded on the system.
For instance, the system could be linked to the Inland Revenue Board, and allow greater monitoring from the government, which could harm citizens’ rights to privacy, said Tan.
“That is the other side of the argument – you (the government) are acting like a Big Brother.
“When you talk about tax, you talk about fundamental rights, then your law must be specific. Without a specific law, it cannot be enforced.
“You cannot do that quietly and secretly. That is not good governance,” he said.
Tan’s concerns were also previously echoed by National House Buyers Association secretary-general Datuk Chang Kim Loong.
Chang had questioned the legality of HIMS and the possible danger of eSPA to the consumers. – The Vibes, July 13, 2022
