Trust in the tribunal

The Sun Daily

Posted on 31 October 2014 

WHEN Viannie Lim, bought her dream house in Selayang two years ago, she had not anticipated the nightmare it would turn into. "I could only move in five months ago, instead of the original handover date in October 2013. I also had to fork out RM18,000 for rental due to this delay by the property developer," she informs.

Scenarios like this are ubiquitous, leaving homebuyers victimised by additional and unnecessary costs, for years. While taking errant developers to court is an option, many aggrieved buyers struggle later, when pursuing the legal route as property developers often have a host of savvy lawyers at their disposal. As court cases can take months, if not years, to resolve and with money and time an issue, who can a homebuyer turn to for dispute resolution?

The solution

Established on Dec 1, 2002, the Tribunal for Homebuyer's Claim (tribunal), was set up by the Ministry of Housing and Local Government. Its main purpose is to hear out homebuyer's claims on losses and other related matters pertaining to purchase of a home, in a fast, inexpensive and direct manner.

"This is done in accordance with the Housing Development (Control and Licensing) Act of 1966 (Act 118)," says lawyer Andrew Wong. "Since its establishment, the Tribunal for Homebuyer's Claims has played a significant and effective role in the adjudication of disputes between housing developers and homebuyers. As an informal venue for these disputes, the tribunal observes no hard-pressed procedures and can adopt the procedure it thinks is most appropriate for a case."

To keep the process affordable to all homebuyers, the filing fee is kept at RM10. "Legal representation is also not allowed unless the tribunal feels that the matter involves complex issues of law or that one party will suffer severe financial hardship if he is not represented by an advocate and solicitor. If one party is allowed to have legal representation, then the other party will also be entitled," he adds.

The claims
"Once a claim is filed with the tribunal, the hearing date will be fixed within 21 to 30 days," says Tribunal for Homebuyer's Claim deputy chairman Jamhirah Ali. Unlike court cases which can take years to resolve, the tribunal is different. "Cases are resolved within 120 working days from the date of filing," Jamhirah says. The efficacy of the tribunal is also seen in its promising statistics. Until Sep 30, 2014, 37,635 cases have been filed in the tribunal. Of these, 37,388 cases have been resolved. The balance (247 cases) are still pending for hearing," Jamhirah reveals.

There are two types of claims that can be filed at the tribunal - technical and non-technical.

Technical claims cover:
* defective workmanship,
* defective materials and
* properties that are not constructed in accordance to the approved plans stated in the S&P agreement

Non-technical claims comprise:
* late delivery and
* refund of deposit concerns.

"Late delivery of vacant possession is the most common reason for a case to be filed," Jamhirah adds

The sooner the better

The tribunal official website states that a house buyer must bring the claim before the Tribunal no later than 12 months from:

Ø The date of issuance of the certificate of completion or compliance (CCC) for the housing accommodation or the common facilities, whichever is later;

Ø The expiry date of the defects liability period; or

Ø The date of termination of the S&P agreement by either party and such termination occurred before the date of issuance of the CCC for the housing accommodation or common facilities, whichever is later.

The decision makers
"Cases filed with the Tribunal will be heard by members of the tribunal, as appointed by the minister, under the Housing Development (Control and Licensing) Act 1966 [Act 118]," says Jamhirah. This includes a chairman, deputy chairman and presidents.

After the hearing
The decision of the tribunal is called an award. "Under Act 118, the tribunal is required to make its award without delay and where practicable, within 60 days from the first day of hearing. Hence, much time is saved by homebuyers," explains Wong.
However, the maximum claim amount for cases heard by the tribunal is usually kept at RM50,000. Claims exceeding RM50,000 may be heard and determined by the tribunal, only if both the parties agree in writing to submit to the jurisdiction of the tribunal. If not, the case can be filed with the sessions court.

"An award made by the tribunal is considered final and binding on all parties It is deemed to be an order of the magistrate's court or a sessions court accordingly. Any person who fails to comply with an award within the period specified by the tribunal, commits an offence and shall on conviction be liable to a fine which shall not be less than RM5,000 but which shall not exceed RM10,000 or imprisonment for a term not exceeding two years or both. An additional fine of up to RM1,000 for each day or part of a day during the offence, if it continues after conviction, may be imposed on the offender," he adds.

Sidebox 1
Filing a claim at the tribunal

The homebuyer has to file four copies of the Statement of Claim (Form 1) at the Tribunal's Registry and pay a fee of RM10.
• The amount and particulars as stated in Form 1 has to be signed or thumb-printed by the homebuyer.
• The following documents have to be attached to Form 1:
i) A copy of sale and purchase agreement - Non-Technical & Technical Claims
ii) A copy of Letter of Vacant Possession - Non-Technical & Technical Claims
iii) A copy of certificate of completion and compliance Claims (CCC) - Non-Technical & Technical Claims
iv) Quotation from contractor - Technical Claims
v) Photographs of the defects - Technical Claims
• A copy of Form 1 should also be served on the developer and an acknowledgment from the developer has to be obtained as proof of service.

The developer will then have to file a defence in Form 2 (four copies) along with the prescribed fee of RM10 within 14 days after the service of Form 1, which has to be served to the homebuyer.
Source: www.kpkt.gov.my

Sidebox 2
Limitations of the tribunal

The Tribunal has no jurisdiction or claims for recovery of land and in which there is a dispute concerning entitlement under a will or on intestacy, or concerning goodwill or choice in action or concerning any trade secret or intellectual property right.
Source: www.kpkt.gov.my

Sidebox 3
Did you know?

Previously the tribunal could only hear cases involving licensed property developers. In order to help aggrieved homebuyers seek redress with less hassle, an amendment has been made, that also allows the tribunal hear cases involving sale and purchase agreements between homebuyers and unlicensed housing developers.

Source: [Retrieved from National Housing Policy (NHP)]