IN this second part of the article, the National House Buyers Association (HBA) would like to talk about how developers subtly “arm-twist” unsuspecting house buyers into signing “waivers” and how one can maneuver themselves out of the situation.
Having said the above, however, house buyers are strongly advised not to sign waiver letters to avoid possible undesired delay or outcome in their claims and unnecessary legal battles with unscrupulous developers who will raise whatever issues possible to avoid or simply delay the legitimate claims from the house buyers.
“But what can I do if the letter contains a waiver? I don’t have a choice. I want my keys and the developer says I must sign then only can give me the keys.”
Sign “UNDER PROTEST” is one way. The house buyer can write a note on the letter that he does not agree to waive LAD or that he does not agree to waive his rights or that it is “WITHOUT PREJUDICE” to his/ her rights under the SPA.
Alternatively, he can delete the offending words or sentences and initial his/her signature at the deletion.
If the developer refuses to give the keys unless the house buyer signs without adding or deleting anything from the letter, the house buyer can still sign and collect the keys but should immediately after that, write to the developer to state that he was not given a choice/ but was “arm-wristed” and that he does not agree to waive LAD or other rights.
A complaint then should be immediately lodged with the Enforcement Division of the Housing Ministry (www.kpkt.gov.my) and a claim can be filed at the Housing Tribunal, both of which should be done expeditiously.
Even if the purchaser signs away his rights because the developer is withholding the keys to the house the purchaser has paid for, it is not a valid waiver of his rights because it was done under duress.
The purchaser needs only to produce his claim to the developer made before the purported waiver and the document prepared by the developer as evidence of the so-called waiver to restore his rights to his claim.
There is an English case which held that a person who gives up his rights under duress is still entitled to his claims whether the language of the written law allows waiver or not.
The law is concerned only with waiver in honorable, voluntary circumstances not involving arm-twisting tactics, lies or misleading, self-serving advice from the party who stands to benefit from the waiver.
Case Laws
Readers who want a more in depth understanding of this area of the law will profit from reading the following cases:-
(1) City Investment Sdn Bhd V Koperasi Serbaguna Cuepacs Tanggungan Bhd [1985] 1 MLJ 285 wherein the Federal Court said that:-
“Having regard to the policy and objective of Housing Developers Act 1966 and the 1970 Rules made thereunder the protection afforded by this legislation to house buyers is not merely a private right but a matter of public interest which Parliament has intended to protect from being bargained away or renounced in advance by an individual purchaser”
(2) Kimlin Housing Development Sdn Bhd (Appointed Receiver And Manager) (In Liquidation) V Bank Bumiputra (M) Bhd & Ors [1997] 2 MLJ 805, another Federal Court decision. The principle in relation to waiver of a statutory right was summarized by the Federal Court as follows:-
“The question whether a person entitled to the performance of a statutory duty can effectively waive performance of the duty by the person bound and the latter can effectively contract out of performing the duty, depends on the language of the particular statute and, if this is not clear, on the overall purpose of the statute and whether this purpose would be defeated by permitting waiver and contracting out. Trietel on Contract (at p 782) has correctly pointed out:
Difficult questions can arise where a person attempts by contract to waive a right conferred on him by statute. Although there is a general principle that a person may waive any right conferred on him by statute (quilibet potest renunciare juri pro se introducto), difficulties arise in determining whether the right is exclusively personal or is designed to serve other more broad public purposes. In the latter situation, public policy would require that the right be treated as mandatory and not be waivable by the party for whose benefit it operates. Whether a statutory right is waivable depends on the overall purpose of the statute and whether this purpose would be frustrated by permitting waiver.” – May 3, 2022
Datuk Chang Kim Loong is the honorary secretary general of the National House Buyers Association (HBA).
DISCLAIMER: This article is intended to offer an insight of the case authorities and is not intended to be or should it be relied upon as a substitute for legal or any professional advice.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
