IT seems that, after the eSPA is stamped, a copy must be uploaded to HIMS for data collection by the Housing and Local Government Ministry (KPKT) and “subsequent management” between the developers and KPKT. I wonder what “subsequent management” means in its implied term?
Does KPKT wish to be the “Repository data collection centre” where they will keep all data of purchasers for safekeeping like the MySejahtera where the citizens are tracked? Will KPKT’s repository maintain a complete record of all movement of sale and sub-sales of the purchasers?
And will the information be made available when a developer goes belly up and data easily retrieved by the “court appointed” private liquidators for a repository and custodian fee? Will all information be stored and conducted digitally online thereby reducing changes of different kind of theft and frauds?
However, the current Housing Development (Control & Licensing) Act (HDA) legislation does not provide for the need to register and process information of purchasers and further does not regulate and afford any protection to the processing of purchasers’ personal data.
The HDA and its Regulations only prescribed the standard form and contents of SPA but does not require any such SPA with purchasers’ information to be generated from any system operated by KPKT.
Therefore, the application of HIMS shall not be extended to collection and generation of personal data/ information of purchasers and potential purchasers, as well as generation of SPA and termination for generation of new SPA with purchasers’ information.
KPKT’s contentions are that eSPA is merely “secara pentadbiran” (administrative initiatives) only but is that argument tenable and can “hold water”, legally speaking? Why does eSPA module of HIMS allow KPKT to amend and vary the standard terms and conditions of the SPA?
The validity of Controller of Housing and Minister’s approval of “Extension of Time” (EOT) has been a contentious issue in the court. 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 KPKT’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)(ia) 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, whether the minister can assume and exclude the voices of the purchasers of a housing development, who are directly affected by his action or inaction? On what premise can a minister make the assumption that he is well aware of all the plights and voices of end purchasers?
Minister knows best?
When a developer takes risks and fails, 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 Controller of Housing is not even a party to the SPA and 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 biasness 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 Controller of Housing cannot be an omniscient literally and assume that “he knows all and see all” and can purportedly feel the pulse of each of the end-purchasers who fall victims to his decision.
Hence, the application of HIMS to issue letters of extension and variation whether by minister or his charge, i.e Controller of Housing should not be implemented as it would seem to be in defiance of the celebrated Federal Court ruling.
We hope KPKT will revisit the contentious issues and not launch something that is merely “administrative” in nature with no legal standing or in their term “mana punca kuasa” (source of legal jurisdiction).
Nevertheless, the National House Buyers Association (HBA) will continue to monitor the contentious issues that relates to eSPA and that the identity of the purchasers and their digital are not misused. – July 10, 2022
Datuk Chang Kim Loong is the honorary secretary general of the National House Buyers Association.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
Main photo credit: EdgeProp
