All steady on the home front in Penang residential properties

Sales done: According to Knight Frank Malaysia, there are pockets of success by some developers reporting bookings and sales for their affordable homes during the movement control order period despite the fact that physical viewings were disallowed.

DEMAND for residential properties in Penang is expected to remain steady during the second half of 2020, especially if the homes are from renowned developers with good quality products.

Knight Frank Malaysia executive director Mark Saw says there are pockets of success by some developers reporting bookings and sales for their affordable homes during the movement control order (MCO) period (from March 18 to May 3), despite the fact that physical viewings were disallowed.

“In this challenging environment, developers with a strong brand name and good delivery of quality products should still achieve decent returns and the gap between higher and lower quality properties will become more evident with better sales for those able to deliver.

“These factors will play a critical role in determining the success of developments. It has become a buyer’s market and many deals are being offered by developers to attract first-time buyers as opposed to investors who have been temporarily sidelined, ” he tells StarBizWeek.

Due to the Covid-19 pandemic, Saw says buyers’ preferences and timings may change, with decisions being put on hold due to job security, ample choices and rentals being more competitive.

CBRE|WTW director Peh Seng Yee says the pandemic’s impact has been softened in the second half of the year with the recovery MCO (which was implemented from June 10).

CBRE|WTW director Peh Seng Yee says the pandemic’s impact has been softened in the second half of the year with the recovery MCO (which was implemented from June 10).

“As housing is a necessity and with the bank loan moratorium, the residential property sector has been cushioned from the worst impact.

“Hence, the residential market is expected to remain resilient for the second half of 2020. Significant growth is not expected yet as the issue of property overhang, lack of spending confidence by consumers and stringent lending policies by banks are expected to still linger for the remainder of the year.”

Additionally, both Saw and Peh agree that the reintroduction of the Home Ownership Campaign (HOC) was a much-needed boost to the local property market. The government reintroduced the HOC in June under the Short-Term Economic Recovery Plan (Penjana).

 

Mark Saw: In this challenging environment, developers with a strong brand name and good delivery of quality products should still achieve decent returns and the gap between higher and lower quality properties will become more evident with better sales for those able to deliver.

Peh says the HOC is expected to continue to spur the buying momentum for residential properties in Penang over the short term.

“Developers are experiencing a pick-up in bookings by buyers compared with the first half of 2020, which was mainly affected by the MCO.

“However, the encouraging bookings have yet to be fully translated into good actual sales, due largely to stringent lending policies by the bank and the challenges and uncertainty in the economy and job market.”

Saw also believes the HOC will be a short-term reprieve for the local property market.

“The HOC initiatives will only be a temporary measure. For the long term, developers should carry out proper feasibility studies to determine the marketability of their products before commencing developments and ending up with unsold units.”

According to Saw, the volume of residential transactions in Penang decreased 19.7% to 2,748 units in the first quarter of 2020 compared with 3,422 units in the fourth quarter of 2019.

“The value of transactions in the residential sub-sector during the first quarter (RM1.06bil) indicated a drop of 17.2% compared with RM1.28bil in the fourth quarter of last year, ” he says.

Under the HOC, stamp duty exemption will be provided on the transfer of property and loan agreement for the purchase of houses priced between RM300,000 and RM2.5mil.

Meanwhile, the exemption on the instrument of transfer under the HOC is limited to the first RM1mil of the home price, while full stamp-duty exemption is given on loan agreement effective for sales and purchase agreements signed between June 1 and May 31,2021.

The government has also announced real property gains tax (RGPT) exemption for Malaysians for the disposal of up to three properties between June 1,2020 and Dec 31,2021.

The HOC was kicked off in last January to address the overhang problem in the country. The campaign, which was initially intended for six months, was extended for a year.

It proved successful, generating total sales of RM23.2bil in 2019, surpassing the government’s initial target of RM17bil.

Meanwhile, Knight Frank in its Real Estate Highlights Research for the first half of 2020 says that amid the current global recession, Invest Penang has revised downwards its foreign direct investment (FDI) target for 2020 to RM5mil.

“This will be supported by the shift towards Industry 4.0 and the various tax incentives and reinvestment allowances as announced under Penjana that seeks to promote Malaysia as a choice destination for FDIs.”

To clear RM2.6bil worth of 3,043 overhang units in the state, Knight Frank says the Penang local government, housing, town and country planning committee has announced that the state will reduce the minimum price threshold for foreign property ownership by up to 40% starting from June 11,2020.

“Ceiling prices for stratified properties on the island will be reduced by up to 20% from RM1mil to RM800,000 and on the mainland, from RM500,000 to RM400,000.”

In the high-end condominium segment, Knight Frank says IJM Perennial has put on hold the development of The Light City.

“Prior to the Covid-19 pandemic, the group had indicated that it would resume development in August 2020. To be developed over a period of more than four years, Phase 1 will feature a mall with 680,000 sq ft net lettable area, the Penang Waterfront Convention Centre, a four-star hotel with 500 rooms, offices and the ‘Mezzo’ residential condominiums.

“Meanwhile, for Phase 2, there are plans for a 300,000-sq-ft mall, a five-star hotel with 250 rooms, offices, the ‘Essence’ residential condominiums and possibly an experiential theme park. It is worth noting that the commencement of Phase 2 will be determined by the sales of the Mezzo condominiums and the occupancy of the mall.”

As for the office sub-sector in Penang, Knight Frank says the average occupancy rate for four prime buildings monitored in George Town remained stable at 89%.

“According to the latest National Property Information Centre report, the average occupancy rate in the state continued to hold steady at 81.4% in the first quarter of 2020 (compared with 81.3% in the fourth quarter of 2019).”

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Too good to be true? Think twice

HAVE you ever grabbed an offer without any hesitation, simply because the price is too cheap to resist?

Many of us have this experience especially during sales or promotional campaigns. We tend to spend more at the end or buy things which we are uncertain of their quality when the deal seems too good to say no.

It may be harmless if the amount involved is insignificant. However, when we apply the same approach to big ticket items, it can cause vast implications.

Recently, I heard a case which reinforces this belief.

A friend shared that a property project which was selling for RM300,000 a few years ago is now stuck. Although the whole project was sold out, the developer has problem delivering the units on time.

The developer is calling all purchasers to renegotiate the liquidated and ascertained damages (LAD), a compensation for late delivery.

One of the homeowners said he is owed RM50,000 of LAD, which means the project is 1½ years late. When we chatted, we found that he purchased the unit solely due to its cheap pricing without doing much research in the first place.

The incident is a real-life example of paying too low for an item which can leave us as losers, especially when it involves huge sum of investment, such as property.

To many, buying a house maybe a once-in-a-lifetime experience, a decision made can make or break the happiness of a family.

A good decision ensures a roof over the head and a great living environment, while an imprudent move may incur long-term financial woes if the house is left uncompleted.

Nowadays, it is common to see people do research when they plan to buy a phone, household item, or other smaller ticket items.

Looking at the amount involved and implication of buying a house, we should apply the same discretion if not more.

It is always important for house buyers to study the background of a developer and project, consult experienced homeowners regarding the good and bad of a project before committing.

I have seen many people buy a house merely based on price consideration.

In fact, there are more to be deliberated when we commit for a roof over our heads. The location, project type, reputation of a developer, the workmanship, the future maintenance of the property etc, are all important factors for a good decision as they would affect the future value of a project.

Beware when a discount or a rebate sounds too good to be true, it may be just too good to be true and never materialised. If the collection or revenue of a housing project is not sufficient to fund the building cost, the developer may not be able to complete the project or deliver the house as per promised terms. At the end of the day, the “price” paid by homeowners would be far more expensive.

In general, the same principle applies elsewhere. It is a known fact that when we pay a premium for a quality product from a reliable producer, we have a peace of mind that the product could last longer and end up saving us money. Some lucky ones will end up gaining much more.

For instance, when we purchase a car, we should consider its resale value as some cars hold up well, while others collapse after a short period. Other determining factors include the specifications of the car, the after sales service, and the availability of spare parts.

Quality products always come with a higher price tag due to the research, effort, materials and services involved.

In addition to buying a house or big ticket items, other incidents that can tantamount to losing huge sums are like money games, get-rich-quick scheme, or the purchase of stolen cars or houses with caveats.

When an offer or a rebate sounds dodgy, the “good deal” can be a scam.

Years of experience tells me that when what is too good to be true, we should think twice. I always remind myself with a quote from John Ruskin (1819-1900) who was an art critic, an artist, an architect and a philosopher. “It’s unwise to pay too much, but it’s worse to pay too little. When you pay too much, you lose a little money – that’s all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing it was bought to do.

“The common law of business balance prohibits paying a little and getting a lot – it can’t be done. If you deal with the lowest bidder, it is well to add something for the risk you run, and if you do that you will have enough to pay for something better.”

Food for thought by Alan Tong

Datuk Alan Tong has over 50 years of experience in property development. He was the world president of FIABCI International for 2005/2006 and awarded the Property Man of the Year 2010 at FIABCI Malaysia Property Award. He is also the group chairman of Bukit Kiara Properties. For feedback, please email feedback@fiabci-asiapacific.com.

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Too good to be true? Think twice

HAVE you ever grabbed an offer without any hesitation, simply because the price is too cheap to resist?

Many of us have this experience especially during sales or promotional campaigns. We tend to spend more at the end or buy things which we are uncertain of their quality when the deal seems too good to say no.

It may be harmless if the amount involved is insignificant. However, when we apply the same approach to big ticket items, it can cause vast implications.

Recently, I heard a case which reinforces this belief.

A friend shared that a property project which was selling for RM300,000 a few years ago is now stuck. Although the whole project was sold out, the developer has problem delivering the units on time.

The developer is calling all purchasers to renegotiate the liquidated and ascertained damages (LAD), a compensation for late delivery.

One of the homeowners said he is owed RM50,000 of LAD, which means the project is 1½ years late. When we chatted, we found that he purchased the unit solely due to its cheap pricing without doing much research in the first place.

The incident is a real-life example of paying too low for an item which can leave us as losers, especially when it involves huge sum of investment, such as property.

To many, buying a house maybe a once-in-a-lifetime experience, a decision made can make or break the happiness of a family.

A good decision ensures a roof over the head and a great living environment, while an imprudent move may incur long-term financial woes if the house is left uncompleted.

Nowadays, it is common to see people do research when they plan to buy a phone, household item, or other smaller ticket items.

Looking at the amount involved and implication of buying a house, we should apply the same discretion if not more.

It is always important for house buyers to study the background of a developer and project, consult experienced homeowners regarding the good and bad of a project before committing.

I have seen many people buy a house merely based on price consideration.

In fact, there are more to be deliberated when we commit for a roof over our heads. The location, project type, reputation of a developer, the workmanship, the future maintenance of the property etc, are all important factors for a good decision as they would affect the future value of a project.

Beware when a discount or a rebate sounds too good to be true, it may be just too good to be true and never materialised. If the collection or revenue of a housing project is not sufficient to fund the building cost, the developer may not be able to complete the project or deliver the house as per promised terms. At the end of the day, the “price” paid by homeowners would be far more expensive.

In general, the same principle applies elsewhere. It is a known fact that when we pay a premium for a quality product from a reliable producer, we have a peace of mind that the product could last longer and end up saving us money. Some lucky ones will end up gaining much more.

For instance, when we purchase a car, we should consider its resale value as some cars hold up well, while others collapse after a short period. Other determining factors include the specifications of the car, the after sales service, and the availability of spare parts.

Quality products always come with a higher price tag due to the research, effort, materials and services involved.

In addition to buying a house or big ticket items, other incidents that can tantamount to losing huge sums are like money games, get-rich-quick scheme, or the purchase of stolen cars or houses with caveats.

When an offer or a rebate sounds dodgy, the “good deal” can be a scam.

Years of experience tells me that when what is too good to be true, we should think twice. I always remind myself with a quote from John Ruskin (1819-1900) who was an art critic, an artist, an architect and a philosopher. “It’s unwise to pay too much, but it’s worse to pay too little. When you pay too much, you lose a little money – that’s all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing it was bought to do.

“The common law of business balance prohibits paying a little and getting a lot – it can’t be done. If you deal with the lowest bidder, it is well to add something for the risk you run, and if you do that you will have enough to pay for something better.”

Food for thought by Alan Tong

Datuk Alan Tong has over 50 years of experience in property development. He was the world president of FIABCI International for 2005/2006 and awarded the Property Man of the Year 2010 at FIABCI Malaysia Property Award. He is also the group chairman of Bukit Kiara Properties. For feedback, please email feedback@fiabci-asiapacific.com.

Related posts:

If it's too good to be true, something's wrong

Cars are more expensive than houses? A house can buy how many cars?

Our cars are costing us our homes!

Leaving a legacy by buying a house first before a luxury car ... 

Malaysian income: bread and butter, affordability of owing a house

A challenging year ahead 

Can Malaysia's household debt at 87.9% in 2014 be reduced to 54% ?

Rising tides of currencies globally cause inflation, money worthless! 

Bankers and lawyers should know better

8 million more houses needed in Malaysia 

Is having a car still a symbol of freedom? 

Malaysia needs to produce more houses to achieve 20/20 by 2020 

Housing affordability is an income issue, what's with the fuss?

 

Success story: The Pinnacle@Duxton, a HDB public housing estate, in the Tanjong Pagar district of Singapore. The HDB programme provides the government with an effective means to ensure targeted housing supply meant for community dwelling. – Bloomberg

Best practices from from HDB should be carefully studied

IT is increasingly a cause for concern to see the rising cost of living leading to a significant erosion of income. This results in more youths and job entrants unable to afford decent dwelling, be it in urban or sub-urban areas.

Therefore, it has become a pressing policy matter to find an effective solution to keep real estate prices in check. Many governmental agencies have been set up, but affordability remains a problem.

> Current state of health

From property developers to banks offering mortgages, the real estate sector supply chain has a high correlation with domestic economic performance.

According to the National Property Information Centre (NAPIC), the Malaysian House Price Index growth has been moderating since 2014.

The index had eased to 7.2% in the fourth quarter last year, down from a 7.4% expansion in the previous quarter. It is the fifth consecutive quarter of slower pace of growth.

Similarly, Malaysia’s gross domestic product (GDP) growth had tapered to 4.0% in the second quarter this year, down from 4.2% in the previous quarter.

Notwithstanding the current sluggish economic conditions, the pertinent issue surrounding the real estate segment is affordable housing.

>Severely unaffordable

Even though broad property prices growth have plateaued, the high absolute price to own a house continues to be out of reach for the common Malaysian.

According to the report “Making Housing Affordable” by Khazanah Research Institute, the overall Malaysian housing market is ‘seriously unaffordable’.

Using the “median-multiple ratio” standard by the United Nations Centre for Human Settlement at the World Bank, a housing market is considered “affordable” if the house price to household income ratio is below 3.0 times.

The study conducted by Khazanah Research Institute, following the latest available data by the Department of Statistics, indicated that the overall Malaysian median-multiple in 2014 was 4.4 times.

More worryingly, the median multiple ratio for Kuala Lumpur (5.4 times), Penang (5.2 times), Terengganu (5.5 times) and Sabah (5.1 times) are considered to be ‘severely unaffordable’.

According to NAPIC data in the first quarter of the year, the median residential property sale transaction price in Kuala Lumpur was within the range of RM400,000 to RM500,000.

Assuming that the property price is RM450,000, after paying the 10% down payment deposit and taking a 35- year tenure housing loan at 4.5% interest per annum, the monthly mortgage repayment comes up to slightly over RM1,900.

Meanwhile, the surveyed salary of a four-to-five-year experienced sales manager with a university degree was reportedly at between RM5,000 and RM8,000 per month, according to a local recruitment specialist report.

Effectively, this means that the manager is looking at a house-to-individual income ratio of 4.7 to 7.5 times if he or she were to purchase the Kuala Lumpur property on his or her own capacity.

 

Property price and value to Income per country in SEA 20014

Moreover, given Department of Statistics’ expectation of 1.2% annual population growth rate between 2016 and 2020, Malaysia’s demography will have to accommodate a projected 1.6 million more people by the end of the decade.

Housing is a pressing socioeconomic issue for the long term not only in Malaysia but also worldwide. It has to be sustainable and affordable.

 >Focus on sustainable supply side dynamics

Fundamentally, housing affordability is an income issue.

Given the high absolute value of real estates, household income – at a much lower base – would have to multiply much higher to catch up to the affordability threshold.

To extrapolate it further, even with higher income growth, would real estate ever be considered ‘affordable’?

A conventional profit maximisation motive could mean that property developers would eventually price their units in tandem with income growth rates, therefore creating the ever elusive ‘affordability’.

Keep in mind that there is no lack of demand for housing in Malaysia in light of the relatively young demographic.

In 2016, the estimated age group younger than 24 years old of around 13.4 million people makes up 43% of total population.

Besides, the average household size is expected to shrink from 4.6 people in 2000 to an estimated 4.0 people by the end of the decade, according to Khazanah Research Institute.

>More residential units would be required for dwelling.

Essentially, policy makers should focus more on the supply side dynamics to tackle the issue of home ownership and also on sustainable policies to ease the cost of ownership – especially for first- time home buyers.

Under the 11th Malaysia Plan, the government has already outlined the need for affordable housing – especially for the bottom 40% of households – to alleviate the increasing cost of living.

The government targets to provide 606,000 new affordable houses during course of the 11th Malaysia Plan spanning from 2016 to 2020, introduce an integrated database to match supply and demand dynamics and also establish a land bank for future affordable housing projects.

This would be a continuation of the Program Perumahan Rakyat 1Malaysia (PR1MA), Ruman Idaman Rakyat and Rumah Mesra Rakyat initiatives.

The government looks set to establish a land bank for houses and an integrated database for all relevant stakeholders to match demand and supply dynamics.

Across the straits, the Singapore Housing and Development Board (HDB) is often cited as a success story in providing affordable and quality homes.

The HDB programme is a comprehensive nationwide strategy that aligns the government’s legal powers to acquire land for public housing purposes, act as a central authority on township development, while leveraging on the Central Provident Fund as a financing means to ensure affordability.

Moreover, there is a holistic township planning whereby the development of physical HDB flat infrastructure is complemented by socioeconomic integration that promotes a cohesive society.

No doubt there are studies that indicate Singapore’s median multiple ratio is around 5.0 times in 2015, thereby classified as ‘severely unaffordable’.

The scarcity of land in the island state limits the potential for competitive supply of land.

Nevertheless, the comprehensive central planning that the Singapore government employs allows it to have a firm grip on keeping property prices in check.

In short, the HDB programme provides the government with an effective means to ensure targeted housing supply meant for community dwelling.

Given that Singapore’s home ownership rate has increased from 29% in the 1970s to close to 90% in 1990 and a vibrant resale market for the private sector, it is a considerable success story for providing quality living standards for the nation.

While it would likely be a gigantic task for other countries to emulate Singapore’s public housing policy from scratch in light of the legal matters of land and elements of socioeconomic welfare distribution, the best practices from HDB should be carefully studied.

>Housing matter should be top on policy priority

In Malaysia, land matter is a state matter. For a comprehensive public housing plan to take off, the government would have to put up an economically viable proposal to develop new townships across the nation with a cost effective structure.

The Urban Wellbeing, Housing and Local Government Ministry is mulling over the idea of developing a ‘Youth City’ township to cater to the young population.

Perhaps that could be a platform for the government to walk the talk and deliver value-added townships for affordable housing.

On the other end of the equation, besides providing dwelling space, real estate is also an asset class that yields cash flow from rental and also capital appreciation through time.

Therefore, it is imperative that the housing market price should never be trapped in an asset class bubble.

The 2008 United States’ sub-prime mortgage crisis serves as a grave reminder of the dire consequences and the impact on the real economy.

Fortunately, Bank Negara has already in place various macro-prudential policies since 2010 such as limiting loan-to-value ratio to 70% for home financing, and increase in real property gain tax to 10% for sales of real estate within two years to stem real estate market speculation activities.

In light of these, the recent consideration to allow property developers to offer home buyers financing at a much steeper financing cost of 12% interest rate per annum should be deliberated properly.

It is one matter to provide easier credit facility to own a property but it is an entirely different matter to compromise on the people’s capabilities to service the loan in the longer run and the spillover impact on real estate prices.

In short, housing is a necessity and it is imperative for authorities to have a policy interest in the issue.

The policy challenges going forward would only be more challenging as demand for housing continues to surge. It would be interesting to take stock of the plan that government has in mind come Budget 2017 on 21 October.

By Manokaran Mottain

Manokaran Mottain is the Chief Economist at Alliance Bank Malaysia Bhd

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Building more homes, the only long term-way to bring house prices down

Building more homes may be one of the most practical ways to bring prices down

WHILE flipping through a business magazine, I saw an interesting chart illustrating the average household size of various countries including Malaysia.

At one glance, our number of 4.4 people per household is among the highest in the world, even in the Asia Pacific region with many developing countries.

We are far behind compared to developed nations such as United Kingdom and Australia, which have 2.3 and 2.6 people per household respectively. Our number is also higher than two nations with high population in our region, China and Indonesia, which recorded 3 and 3.9 people for their average household size respectively.

What do these numbers tell us? Other than giving us information on our demographic structure, it also offers an important insight which could address the issue of home prices in our country.

The Governor of the Bank of England (BoE) Mark Carney once said, the only long-term way to effectively bring home prices down is to build more homes. This may be one of the most practical ways for us to address the issue too.

According to National Property Information Centre(NAPIC), we had 4.9 million homes in the fourth quarter of 2015. As NAPIC does not track rural homes, we assume that only urbanites were taken into account in the survey. This accounts for about 70% of our 31 million population or 21.7 million people. Therefore, on average, there is about4.4 people per household in the urban areas of our country.

The above figure is a poorer ratio than Australia in 1927. If we are to match the same ratio as Australia today, we need 8.3 million houses instead of 4.9 million houses. It means we need additional 3.4 million houses to meet the standard in Australia.

With our current rate of housing production, which is about 70,000 new units launched a year according to NAPIC, we need 48 years to build 3.4 million homes, and it would still be a long distance for us to catch up with UK and Australia, given the rapid growth of population and urbanisation in our country.

Our Statistics Department estimates that our population will reach 38.5 million by year 2040. If we maintain the ratio of 70% urban population by then, we would need another 5.5 million houses to reach the ratio of 2.6 people per household in 2040. This literally means we need to build 230,000 houses per year for the coming 24 years!

Basic economic principle says, when demand is higher than supply, prices will go up. And when supply exceeds demand, prices will go down. Equilibrium is met when demand equals supply.

This is well reflected in the world oil market. From 2010 until early 2014, oil prices had been fairly stable at around US$110 per barrel. However, since mid-2014, prices have dropped by more than half due to a surge in production and a drop in demand in many countries.

United States production has nearly doubled over the last few years. Saudi, Nigerian and Algerian oil that once was sold in the United States have to compete for Asian markets, and the producers are forced to drop prices. Canadian and Iraqi oil production and exports are rising every year. Russians also manage to keep pumping at record levels. All these contribute to the oil prices which are hovering around $50 per barrel today.

It works the same in the real estate market. Imagine if we are having 8.3 million houses today instead of 4.9 million, our house prices would be much more affordable due to sufficient supply.

The key factor here is, we need more houses, especially affordable homes. The relevant authorities need to streamline the delivery system to encourage the number of homes built every year. Government and various local authorities should also pool resources together in filling the gap by speeding up approval process, and building more affordable homes.

Rick Jacobus, an expert in affordable homeownership in United States shares his view in his article “Why we must build?”– the answer for hot-market metro areas is simply to build. Build more. Build now. Build anywhere. Even when we build high-end housing for the rich it adds to the overall supply and pushes rents down.

I particularly like a quote in his article, “We can’t build our way out of the housing crisis but we won’t get out without building.”

It is an interesting point for us to ponder when it comes to the challenge of housing the nation in our country, especially the need for affordable homes.

 By A;an Tong

Datuk Alan Tong has over 50 years of experience in property development. He was the World President of FIABCI International for 2005/2006 and awarded the Property Man of the Year 2010 at FIABCI Malaysia Property Award. He is also the group chairman of Bukit Kiara Properties. For feedback, email feedback@fiabci-asiapacific.com.

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House buyers' traps: purchasers lose their homes because of defaulting developers

WHY does this keep happening to house buyers in Malaysia?

This incident happened two years ago in Taiping where a laid-back community of mainly retirees found the roof over their heads nearly, and in some cases, actually, blown away. The purchasers had paid the developer and had moved into their houses and lived there for 10 years. Problem was that the purchasers paid the developers in cash remittance without taking out end-financing loans.

Unknown to the purchasers, the developer did not pay the developer’s bank to settle the developer’s loan vide bridging loans. The developer’s charge remained and grew into bigger indebtedness to the bank.

Apparently, the developer’s bank had not been collecting payment of the loan from the developer, even as the developer was collecting the instalments of the purchase price from the purchasers, as provided in the sale & purchase agreement (S&P) schedule.

Having waited for 10 years for the developer to settle his loan, the bank realised that the developer was not going to pay; that foreclosure was unavoidable.

The bank had a problem. Apart from the developer’s loan having ballooned over the years because of the bank’s laxity in not insisting on the developer paying promptly, there was also political repercussion. There are a few issues here, namely, the destruction of a settled community in a pleasant location, the injustice of the S&P; the solicitousness for developers in preference to purchasers on the part of the powers that be; and the embarrassment resulting from the bank’s philanthropic ramifications.

Has the bank breached the fiduciary duty of care to the purchasers as the bridging loan financier to the defaulting developer?

The crux of the problem is that the Housing Ministry-prescribed S&P allows the developer to build the purchaser’s house with the instalments of the purchase price paid by the purchaser from the day the S&P is signed. On top of this, and even more seriously, the developer is allowed to borrow from the developer’s banks on the security of the purchaser’s property.

Where a purchaser has paid the purchase price in full to the developer, and the developer does not pay the developer’s loan secured by the purchaser’s property, the developer’s bank may foreclose, auction off the purchaser’s property to recover the developer’s loan.

The developer suffers nothing. It has received the purchase price and pocketed it. The developer borrowed from its bank and gave the purchaser’s property as security, and with foreclosure the developer’s bank recovers its loan, and so the developer owes no money to the bank. It takes no risk, suffers no loss.

Purchasers the victims

It is the purchaser who loses. He loses his house and he has to settle the loan he took to buy the house with increasing interest on it. He is blacklisted, which means he can never borrow again. He may never buy a house again! Is this fair to the buyer who never did anything wrong to the developer or to the developer’s bank? In the Taiping housing fiasco, some of the purchasers had to buy their houses again at prices bloated by 10 years’ arrears of interest (i.e. pay the developer’s debt) to stave off foreclosure.

Who is to blame for this sad state of affairs? We will consider each one in turn. The most obvious candidate is, of course, the developer. Not so. It is the Housing Ministry for providing a standard form S&P that allows this to happen. Firstly, the S&P allows the developer to borrow money from a bank with a charge on the whole housing development land before it is sub-divided and sold. This pre-sale loan is referred to in the recitals to the S&P. This is understandable as the developer needs money before sale. The result of this is that the purchaser buys an encumbered property but the purchaser is not told how much of the developer’s loan, if apportioned equally, is borne by each purchaser’s sub-divided land (the redemption sum). After sale, the developer collects money from the purchaser from the day the S&P is signed, and should be able to make use of it to meet all the expenses of the development. However, after the sub-divided land is sold, the developer keeps borrowing, and no effort is made to keep the purchaser informed about the increasing amount of the developer’s loan/ the redemption sum.

The purchaser’s consent to the additional, post-sale loans is taken for granted. In fact, the purchaser cannot withhold his consent as long as the purchaser receives some fig-leaf protection from the developer’s bank in the form of an undertaking not to foreclose.

What is the use to the purchaser of the developer’s bank’s undertaking not to foreclose? What the purchaser needs is the absolute undertaking by the developer and the developer’s bank that a purchaser who has paid the purchase price will not face foreclosure vis-à-vis the disclaimer(s). This would have helped the Taiping purchasers. It is, therefore, a matter between the developer’s bank and the developer, with the Housing Ministry playing the proper protective role required of it by law, to ensure that such an undertaking/ disclaimer is given by the developer’s bank to the purchaser. This and other issues arising from the S&P have been raised by HBA with the Housing Ministry which continues to procrastinate.

To the developer’s bank, the loans to the developer on the security of the purchaser’s land is regarded as if it is the developer’s property entirely; it is of no concern to the developer’s bank that some of the purchasers have paid the developer and the developer may or may not have forwarded some of these payments to the developer’s bank.

The developer’s bank’s concern is whether the whole loan has been settled by the developer-borrower. If not, the developer’s bank feels secure in the knowledge that the entire housing development land is available to the developer’s bank to recover its loan/s. In so far as the developer’s bank is concerned, payments made by each purchaser to the developer is of no consequence. The transaction between the bank and the developer is the one that matters.

Under the then S&P, there is also no control over how much the developer should be allowed to borrow, for what purpose and by when it should be settled. Each loan to the developer increases the risks to the purchaser.

In the recent past, developer’s borrowed only for the purpose of meeting the expenses of the housing development. The developer was allowed to borrow twice only – once before sale and once after sale. Although the developer was not required to disclose the redemption sum, there was a very important safeguard. And that is, the developer had to settle the redemption sum to the developer’s bank before completion of construction so that at the end of the 24- or 36-month construction period, as the case may be, the property was free from the developer’s encumbrances and safe from foreclosure, even if the property was not transferred to the purchaser just as promptly. It was at least safe from foreclosure.

Bank initiatives

Banks/financial institutions should take the initiative to recover progressively the loan it had given the developer. Banks should stipulate as a condition for giving loans to their customers (developers) that the latter open its Housing Development Account (HDA), a statutory requirement, with the same bank and require the instalments of the purchase price be paid into it, and authorise the bank to deduct the developer’s loan by instalments from the HDA so that when the purchaser completes payment, the developer’s loan is also settled.

There is no such statutory requirement in the S&P so that if it happens at all, it’s serendipity!

HBA had meetings with the Housing Ministry to propose changes to the law and S&P with the view of giving greater protection to purchasers within the framework of the sell-and-build (which Rehda defend so fervently) but some pertinent ones had been objected by Rehda.

As if that is not enough, the ministry too have rejected those proposals vis-a-vis pre-determination of redemption sums in the S&P transaction. And that notwithstanding the Housing Development Act 1966 stating that it is inter alia for “the protection of the interests of purchaser.”

The next continuing article will dwell on the new “protection” or whatever in lieu thereof approved by the Attorney-General’s Chambers vis-à-vis “redemptions and disclaimers”.

Buyers beware by Chang Kim Loong

Chang Kim Loong is secretary-general of the National House Buyers Association: www.hba.org.my, a non-profit, non-governmental organisation.

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