While purchasing a property, one will not feel secure by merely signing only the Letter of Offer and Letter of Acceptance, notwithstanding the vendor or the purchaser. This insecure feeling of will persist until the signing of the formal agreement – Sale and Purchase Agreement (‘SPA’). SPA is the main contract governing both parties and setting out the details like the agreed purchase price, conditioning precedents to be fulfilled, the payment manner, the details of the property, loan, the manner of delivery of vacant possession and any other arrangement in this buy sell event. Therefore, it is utmost important to understand every detail in the SPA because you are bound by whatever you sign.
Before committing into the purchase of the property, a prudent buyer will always make an effort to view and inspect the property that will form the main cast of the SPA. This is not different from purchasing from Developers where one will view the showroom to get a rough idea of what to be expecting in the near future. Nevertheless, do not expect that the unit you actually get will be exactly the same with the showroom unit. Showroom is nothing more than a display unit for you to get the idea of the selling. It is no difference from the scale model of the whole development which is usually display in the middle of the sales gallery which is not stipulated in the SPA – you will not be getting the same at the end of the SPA transaction. Thus, if the specifications like ceiling height, fixtures and fittings, parking, building material are of a concern, details like these should be inserted specifically in the SPA. This is applicable notwithstanding if you are purchasing from a secondary market or not.
This article will focus on the salient items in a SPA. There is no such thing as a standard SPA as the spirit of an agreement is to set out the terms mutually agreed by the parties. The purchase price is fixed upon signing the Letter of Offer, but the bargaining process continues during the period before the SPA is signed. The good news for homebuyers in Peninsular Malaysia is where the lawmakers have laid down a set of SPA terms for the Developers to adopt in the Housing Development (Control and Licensing) Regulation 1989. The developers may only amend the stipulated SPA if they are offering better terms, ie. shorter delivery of vacant possession period or longer defect liability period. Although this set of SPA is only applicable when one buys residential properties from developers, it also serves as a good guideline for all other SPA terms to follow, ie. buying commercial property from developers, buying any property from sub-sale market. As a result, it will absolutely cut down the people who go to court due to the ambiguity of the SPA signed.
The most important factor in the SPA will be the manner of payment, regardless the vendor or purchasers. Purchasers must know the manner of payment of purchase price not only to manage his/her finance but also not to incur penalties by accidentally/unintentially breaching the terms in the SPA. Purchasing a residential property from developers, the billing stages are stipulated clearly in schedule 3 of the SPA. The manner of payment in a sub-sale agreement will be less complicated as the transaction period is shorter and the property is usually ready for delivery. The common process will be the first 2-3% as a booking fee upon signing the Letter of Offer, the remaining 10% deposit is due during the signing of the SPA, then the remaining purchase price of 90% to be settled within 3 months after signing the SPA. In some events, it may be automatically extended for a further 1 month by incurring late payment interest. As mentioned, there is no standard SPA, one may decide to deviate from the norm if it is agreed by both parties.
What purchasing a property, your next major concern will be the time you can get the vacant possession. Vacant possession is a legal term that means the property is in a state fit to be occupied. In simpler words, this means the delivery of access keys and cards to your newly purchased property. For residential development by developers, vacant possession has to be delivered within 24 months for landed property and 36 months for high rise stratified building. On the other hand, delivery of vacant possession for sub-sale is usually 3 – 5 working days after the purchaser settle the full purchase price. The SPA is subjected to the tenancy when the purchaser is purchasing a tenanted unit. The purchaser will be getting the legal possession as the owner of the property but not the keys to the unit. Effectively, the rental and deposits shall be delivered to the purchaser by way of assignment of tenancy.
If you have purchased a house in secondary market, you will not notice the ‘Defect Liability Period’ clause in the SPA. A defects liability period is the warranty period which the Developer is contractually obliged to repair the defects which have appeared within the period of time due to defective in construction works and material. Contrary to the privilege of having developer’s warranty, the purchase of sub-sale properties requires sufficient due diligence of the purchaser
when viewing and inspecting the property before entering into the SPA. Due diligence includes checking every part of the house especially sewage, piping, leakage, electrical appliances, rooting and any other fixtures and fittings to prevent any undesirable situation arise. Should the purchaser require the repair of anything prior to vacant possession, the purchaser shall make sure his/her lawyer inserts this in the SPA.
Be meticulous, be scrupulous. Do not make assumptions but make sure. No purchaser will want to jeopardize his/her deal or ruin your happiness due to your own carelessness. It is always prudent for the parties to inform their lawyer accordingly of their intentions and to enquire the available protection for anything that matters in the sales and purchase transaction during the drafting of the SPA, not after signing on the dotted line.