Vacant possession not an issue

Malay Mail 22/10/2004

KUALA LUMPUR: Vacant possession was not an issue in a ruling made by the House Buyer Claims Tribunal on Sept 29.

This was pointed out by the Housing and Local Government Ministry following a call by the Consumers' Association of Penang (CAP) on Oct 17 for the Ministry to clarify why developers do not have to hand over the keys to buyers to deliver vacant possession.

In a statement yesterday, the Ministry's public relations head, Abdul Halim Mohd Sharif, said the ruling was for a case in which the claimant sued the developer for Liquidated Ascertained Damages (LAD) for late delivery of vacant possession of a house bought in June 2001.

The claimant, he said, claimed LAD had to be calculated until the handing over of the house keys, on Dec 17, 2003.

The developer, he said, argued that there was no late delivery as notice of delivery of vacant possession was issued on May 7, 2003, well within the 24 months stipulated by the sale and purchase agreement.

He said: "Water and electricity could only be ready for connection on Oct 20, 2003 at the very least. Thus, the tribunal opined that vacant possession could only be delivered to the claimant on or after Oct 20, and allowed LAD to be calculated until that date."

He said that LAD was to be calculated until Oct 20 and not Dec 17 as the claimant wanted.

"In a 1997 case, Salmah Sulaiman and Others versus Metroplex Development Sdn Bhd, LAD was calculated until the date of delivery of vacant possession which was earlier than the actual date of handing over keys."

He said although the decision of the tribunal was final, the claimant could still appeal to the High Court for a review of the tribunal's decision within 40 days from the date of the award.

CAP president S.M. Mohd Idris had said that CAP was unhappy that the tribunal ruled that it was not necessary for developers to hand over the keys to effect vacant possession.

The tribunal had stated that such was the law after the 1994 amendments to the Housing Developers Act.

He had said that developers should strictly adhere to the provisions of sale and purchase agreements and not place an unfair burden on buyers.

Furthermore, they should hand over possession to buyers only when water and electricity supplies are connected.

He said developers should also send notices to buyers requesting them to take possession within 14 days, based on the sale and purchase agreement, instead of expecting them to do so.