FOR years, housing developers would seek an extension of time (EOT) from the Controller of Housing who would then unilaterally grant an EOT by using Regulation 11(3) of the Housing Development (Control and Licensing) Regulations 1989 in favour of the developers usurping the buyers’ rights for redress.
It seems that the Executive branch, under political pressure, often pandered to certain recalcitrant developers and certain lobbyist.
However, after a long battle initiated by a group of pro-bono lawyers from HBA, balance was struck when the Federal Court decided in the case of Ang Ming Lee & others v Minister of Housing and others (2020) 1 CLJ 162 on 26th November 2019 with unfettered wisdom, that the Controller of Housing had no right in law to grant “extension of time” to developers and the use of the regulations to grant “extension of time” was an abuse of power and ultra vires of the intent of the HDAct.
The battle continues
The Federal Court again has in the decision of the PJD Regency Sdn Bhd v TTPR & others (2021) 2 MLJ 60 case re-emphasised that the Housing Development (Control and Licensing) Act 1966 (HDAct) and its subsidiary legislation, ie the Housing Development (Control and Licensing) Regulations 1989, were social legislation intended to safeguard home buyers.
Now, notwithstanding the strong message sent repeatedly by the Federal Court in a few cases on interpretations of Statutory Contracts and Social Legislation such as the HDAct, there seems to be now a renewed attempt by the Government in usurping the rights of buyers that has been guaranteed by the Federal Court.
The move by the Government includes an attempt to amend the legislation to give the Controller of Housing unfettered power to amend / remove the element of “certainty” guaranteed and provided by statutory contracts within Schedule G and H of the HDAct and HDReg, as enumerated by the Federal Court.
In short, the Government seemingly wants the unilateral power to amend housing contracts which is predicated on the concept of Sell and Built funded by the house buyers. What is dumbfounding is that the move does not take in to account in granting the house buyers reprieve from paying an additional premium (in the form of bank interest) to the agreed initial purchase price (in the form of interest to the banks).
In conclusion one can only ask the following questions;
- Why should the Housing Minister be guided by the select wisdom of the Controller of Housing, who is not a party to the contract be given the power to intervene on behalf and for the benefit of the housing developers?
- Why is the Government of the day trying to circumvent the wisdom and protection of house buyers interest granted by the Federal Court?
- Why are we still recalcitrantly regressing to enabling absolute power to the executive branch of Government to alter the “element of certainty” in a “consumer contract”?
- Why do we still refuse to accept that “power corrupts and absolute power corrupts absolutely?
- Do they not know that discretionary power will somehow lead to abuse and biasness in decision against the weaker party?
When contemplating the answers to these policy questions, let me remind the esteemed Housing Minister and those under his charge of two crucial points; the first being that in the next general election, about 4.5 million registered voters from the ages of 18 to 21 years would be prospective house buyers and the bulk of voters on the next general election would be that of those who are below the age of 35, all of whom would undeniably be impacted by these regressive moves.
The second crucial point is that there are recent studies as in 2021 that shown that “Corruption Can Drive up Costs of Property Developments by Almost 15%’. – Feb 20, 2022.
Vicknaraj Thanarajah is a legal adviser of the National House Buyers of Malaysia.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
