IT is mandated in the preamble of Schedule G (Landed Property) of the standard sale and purchase agreement, pursuant to the Housing Development (Control and Licensing) Act 1966 and Housing Development (Control and Licensing) Regulations 1989, sub-regulation 11(1), that the vendor known as the “developer” to the masses has to provide as part of the legal documents, among others, the “approved” layout plan (to be annexed as the First Schedule) and approved building plan (to be annexed as the Second Schedule).
Similarly, Schedule H (Stratified Property) requires attachment of the “approved” site plan, layout plan, floor plan of the said parcel, storey plan of the said building (delineation of the said land comprising the said parcel), accessory parcel plan, common facilities plan (to be collectively annexed as the First Schedule), and approved building plan (to be annexed as the Second Schedule).
This mandatory requirement has been entrenched within the Housing Development Regulations and the statutory sale and purchase agreement, but seems continuously unchecked by the regulatory bodies, i.e. the Housing and Local Government Ministry and its enforcement agencies.
Why is it important for approved drawings to be made part of contract obligation and condition?
There has been no shortage of complaints from purchasers over the years on deviations found in their end-products, i.e. their completed units of stratified apartments/condominiums or landed residential houses and their surrounding habitat, from those represented in the sales brochure, flyers, and even plans attached to the standard sale and purchase agreement signed between them and the developer.
The importance of these documents are best described through the following scenarios.
Development of open space
Purchasers ought to be aware that modern living these days involves more than purchasing a piece of subdivided land/strata apartment/condominium in the air in a scheme.
What one is actually purchasing is a concept of living style which applies to all ends of the market, from low and medium cost to the high end, which means the surrounding environments such as open parks/fields, green lungs, community halls, and clubhouses, i.e. all common property and facilities, are actually an inseparable part of the neighbourhood one buys.
From time to time, you will read in the news of purchasers/residents of a housing scheme taking the developer to task for developing over a green lung/common open spaces they deem their communal common property, something the developer would contend otherwise and that these green open spaces are part of their land reserved for future development.
How can you tell whether the developer has the right to do so?
Just imagine an open field next to your house in which you do your daily jogging and which serves as a playground for your kids suddenly making way for a towering condominium right at your doorstep after a few years!
Not an uncommon sight in some housing schemes. Just imagine having paid an extra RM10,000 premium for the fronting of a green lung (unintended for development) which turns out to be a retention pond, now infested with rodents, a mosquito-breeding ground, and occasional drain water pond with smelly water discharge.
This is when the approved layout plan annexed in the First Schedule will lend credence to the disputing arguments.
The layout plan (provided it is an approved copy by the local authority) is the approved development proposal which contains, among others, the following vital information:
i) Density: In planning terms, this refers to the number of houses or apartment units allowed to be constructed for a proposed development. For example, if 60 units of apartment per acre has been approved for a scheme, where such density quota has been used up, i.e. the exact units of apartments per acre has been constructed – the developer is not allowed to build extra units even if there is ample land left in the scheme. The tabulation on the approved layout plan will be able to clarify the exact density and unit approved by the authority for development.
ii) Use of land and building: An approved plan will show the development mix approved by the local authority. When a scheme has been approved for purely a residential neighbourhood, for example, a developer is not allowed to build, say, an office block if the scheme has been approved for 50 units of semi-detached and 100 units of terrace houses, without first applying and obtaining an approval from the authority for such a deviation.
Thus, a mixed development comprising office towers and shop-houses in a residential scheme will need to be tabled for local authority approval before they can be developed and the same shall be required to be reflected in the approved plans.
iii) Provision of open and green spaces: The approval governs how these open spaces allotted for the designated community activities such as playground for children, communal park and hall, places of religious worship, etc, are to be used. Hence, once these communal facilities such as an open park are designated for public use, they cannot be converted to, say, another block of condominium or office tower. Thus, the importance of the layout plan comes to bear.
By the same token, if these open spaces have been designated for green lungs, communal parks, halls and facilities, and even utility reserves for roads, drains, water retention and electrical works, etc, then it cannot be developed.
So, you should get inquisitive when you intend to buy a landed property next to an open land marked “future development” either in the brochure, architectural model, and development plan of the scheme at the showroom, if you want to avoid a condominium tower built right at your doorstep as the worst scenario illustrated above.
You won’t know if you don’t ask
As your first line of your standard checking procedure, ask the sales staff for the approved layout plan from the relevant authority. They ought to have no reason to turn down your request as such approval would have been obtained by now, or else they would not have been allowed to launch a sale, for such an approval forms part of the requisite condition for their sales permit. Why should such approved plans be shrouded with secrecy unless one has ulterior motives?
These approved plans/drawings attached in the schedules must be a duplicate copy of the actual approved plan bearing the appropriate authority’s seal and signature of approval normally in the form of a stamp. Stamps like “Diluluskan oleh Majlis Bandaraya Subang Jaya” should be visibly available on the top-right corner of each of such plans.
Run through these approved plans against those represented in the advertised medium and your expectations to ensure indeed they are duly “approved” for the development you have been led to believe. This will allow you to make an informed decision.
You ought to practise the same checking steps for the same plans that shall be annexed in the first schedule of the sale and purchase agreement, before signing on the dotted lines in the contract. When in doubt, please check with your own appointed independent lawyer. – The Vibes, January 30, 2023
Datuk Chang Kim Loong is the honorary secretary-general of the National House Buyers Association, a non-profit, non-governmental organisation manned by volunteers. To learn more, visit www.hba.org.my
