THE Housing & Local Government Ministry (KPKT) recently introduced an online platform called: Housing Integrated Management System (HIMS), a single entry system to replace the existing BLESS, IDAMAN and e-Pemaju (these acronym are now rendered redundant – pun intended) where housing developers will have to submit their application for the Advertising Permit and Developer’s License (APDL) online.
The system also hosts of other features that regulate, manage, receive and gathering of data. There is even a function under Housing Integrated Management System (HIMS) for an eSPA, where shock waves occurred in the legal circle, especially those law firms that monopolised sale & purchase legal work from housing developers where they will be sidelined, redundant and be “out-of-jobs” once the eSPA is fully activated.
In essence, 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 KPKT’s job by identifying the buyers’ particulars and details of their purchase.
As fantastic the acronym eSPA may sound, it is merely a tool to allow the developers or their agents to key in the details of the purchasers such as names, address and details of the property purchased, which includes its price. It also includes digital signing.
Now comes the million-dollar question: If there is a digital signing by the purchaser, who is to bear witness to formalise the contract of Sale & Purchase Agreement (SPA) and the related Memorandum of Transfer (MOT)?
Who is to safeguard the “digital signature” of the purchasers so as to prevent its abuse?
The completion of the blanks in the statutory SPA does appear to be a clerical job and can be undertaken by the purchasers’ themselves. If that is so, why need lawyers? Do you not know that the signing of the SPA is merely the beginning of a journey to a sale and purchase transactions?
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 responsible for the drafting of the SPA drafting for the whole country. According to HIMS, the developer will just fill in the blanks and generate the SPA from HIMS.
No value-added service to the purchasers
Is it really that simple? What purpose does it serve for the Government to be involved in the drafting of the SPA in the first place, save and except regulating the terms and conditions in the statutory SPA in Scheduled ‘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 the purchaser but helps the developer to produce the SPA without the need of a lawyer. In any case, the purchaser will still need to engage a lawyer eventually to transfer the property to them.
It is a pre-requisite requirement pursuant to Section 211 (Fifth Schedule) of the National Land Code, 1965 (revised 2020) that the transferor(s) and transferee(s) in a 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 one of them amongst others.
Bank officers, developer’s managers, Controller of Housing, Commissioner for Oaths and clerks cannot attest and witness the signatories to the MOT and those related dealing instruments.
In a nutshell, the government should leave the conveyancing of property to lawyers as the latter act as a check and balance between the rights of the developer and entitlement of the purchaser. The Government should continue their role as regulators and custodian of the law, ensure that the developers have sufficient fund to complete a project, resolve disputes and effectively monitor, police and enforce obedience and compliance of the housing laws and policies and not get involved in the business of developers.
If this new system is implemented, the Government could be bias against the purchaser in protecting the integrity of the eSPA function and HIMS as a whole. – 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.
