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New doesn't mean perfect
01/6/2004
Published in Malaysian Business - Housing & Property By National House Buyers
Association of Malaysia
Complaint One;
`WHEN the house was handed to us, we found some cracks etc. We made a report
listing all the defects. When we checked again after a few months, not all
the defects were rectified. What do we do now?'
Complaint Two:
`I received the keys to our dream home a day prior to Chinese New Year, and
to our dismay, the property had many defects, ranging from minor problems to
major misalignment of the walls and beams. The developer is rectifying the
minor defects but is not willing to align the walls or beams that have been
placed improperly. I wish to seek your advice on how I can have the process
for rectification expedited as we have paid in full and are still unable to
occupy the house.'
Complaint Three:
`I got the keys to my house last year and rented it out. After a few months,
my tenants complained that their water bills are as high as RM900 per month.
I checked and noticed that the underground pipe was leaking. I made a
complaint to the developer, but as of last month, the problem has yet to be
fixed.'
Complaint Four:
`The floor tiles in my apartment's living room were not properly fixed. When
one walks over them, they give a certain hollow, quaky sound. There are at
least 30 floor tiles with this problem. Also, the edges of the walls where
the tiles meet were not properly done. I submitted a complaint form, but the
developer has not done anything to rectify them. Now, it's been almost 12
months, and every time we call to enquire about the repair work, they tell
us they could not find the right colour tiles to match. We
were told that the only alternative is for us to change all the tiles. The
developer will only bear the cost of the workmanship!'
Over the years, the HBA has recorded thousands of complaints from house
buyers who were not satisfied with the condition of their new homes or the
way defects were rectified. Construction defects range from very complex
structural issues, which threaten the integrity of buildings, to simple
items relating to aesthetics. After receiving the keys to their houses,
these buyers' smiles soon fade when they are caught in a situation of
getting the multiple defects in their homes rectified satisfactorily.
The new generation of house buyers expects their homes to be defect-free.
The quality of houses, which although has improved over the past decade, has
not kept pace with buyers' expectations in terms of both design and
finishes. There is also a lack of a set of industry quality standards that
are compatible with public interests and expectations. This has resulted in
many disputes over the rectification of defects as developers, contractors
and house buyers have different expectations.
Defect Liability Clause
The pre-determined `Defect Liability Clause' in the sale and purchase
agreement (SPA) states that the developer is required to repair and make
good, at its own cost and expenses, any defects, shrinkage or other faults
that become apparent within a period of 18 calendar months after delivering
vacant possession and which can be attributed to defective workmanship,
materials or a failure to construct the property in accordance with the plan
and description appended to the SPA within 30 days of having received
written notice from the purchaser.
The second part of the clause states that the purchaser shall, at any time
after the expiry of the 30-day notice, notify the developer of the cost of
repairing and making good of the said defects by giving the developer a
grace period of 14 days.
What to do
In layman's language, this is what a buyer has to do if he finds defects in
his new home:
a) List all defects in writing as soon as they are apparent; take pictures
of them if possible.
b) Make sure the developer receives the defects list either by registered
post or acknowledgement of receipt.
If the developer is responsive:
a) The developer has 30 days
from the date of receipt to do the rectification works.
b) Go through the list of defects with the developer, for a discussion on
the rectification work schedule.
c) Be prepared to spend time or appoint someone to be around for the
appointed contractors to do their work.
If the developer is unresponsive:
a) Get a quotation from a
reputable independent contractor for the cost of repairing and making good
the defects.
b) Give the developer a second notice and a stipulated 14-day grace period
to do the rectification work.
c) Recover the cost (any sum) of the repair from the developer's
stakeholder lawyer after having given written notification to require the
stakeholder to withhold release of the stakeholder sum.
What next?
Besides the legal steps, buyers should band together. Contact neighbours who
have similar difficulties in getting defects rectified. You may have more in
common than you think. There is power in numbers, and you can share tasks to
lighten the load. The main objective is to convince the developer that you
are serious in getting the defects rectified properly.
Remember that the quality of construction in your neighbourhood will affect
your resale value and possibly your safety.
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