Common Myths on Sale and Purchase of Properties
As a lawyer who sometimes deals with the sale and purchase of properties, I’ve come across a few common myths or perceptions people have before the enter into such transactions. With that in mind, these are some of the most common myths that people have when they are about to get themselves into the selling or the buying of a property:-
If I am selling, I don’t need a lawyer
Many sellers (I’ll describe them as Vendors) assume that if they are selling (and receiving money), there is no risk on their part and therefore, there is no need to spend money appointing a lawyer to act for them. Afterall, most if not all, buyers usually appoint a lawyer. So, they feel that it would be better to just let the buyer’s lawyer do the job and all they need to do is just to sign on the dotted line. That’s perfectly fine if the Vendor is capable of understanding the legalities of the terms and conditions in a sale and purchase agreement and, if the property being sold is free from encumbrances or restriction-in-interests. Otherwise, the Vendor would have to sort out the discharge of charge or obtain a receipt and reassignment (if there is an existing loan) or to apply for state consent (if the property is leasehold) by themselves.
If the Vendor has a lawyer, I don’t need a lawyer
Likewise, some buyers think that it is perfectly okay to just rely on the Vendor’s lawyers. The thing is, the Vendor’s lawyer’s interests and professional duty is to protect the Vendor and to draft the agreement favouring the Vendor. Unless the buyer knows what he is in for, it would be foolhardy for the buyer to be unrepresented.
I will get my keys as soon as I sign the sale and purchase agreement
No, you won’t. On the average, you will probably get your keys between 1 to 3 months after the signing of the sale and purchase agreement. The agreement needs to be stamped, the transaction needs to be valued by the Inland Revenue Board and monies need to be paid. Make that longer if the property is leasehold (where state consent is required), charged to a bank and or the purchase is to be financed by a bank.
Inflate The Purchase Price So That I Can Get A Better Loan
Buyers who need a full loan to purchase a property sometimes think that if the purchase price is inflated, the banks will grant them a loan which would cover the original purchase price. Eg. the property is to be sold for RM100,000.00 but the buyer can only qualify for a loan of RM90,000.00 (usually banks offer a maximum of 90% loan). So, the price is inflated to RM112,000.00 so that the buyer can get a loan of RM100,800.00. However, they fail to realise that the banks usually will conduct a valuation of the property to ascertain the market value and the loan approved usually is dependant on the market value or the sale price, whichever is the lower. By the way, as far as the Inland Revenue Board is concerned, stamp duty payable would be based on the market value or the sale price, whichever is the higher and that can add up to quite a lot.
Inflating the Sale Price would be good for the Vendor
Some buyers persuade the Vendor to inflate the selling price for the reason described in the immediate paragraph above and pay the Vendor a little bit extra to cover any “inconveniences”. Vendors better think twice because pursuant to Budget 2010 culminating with the Finance (No. 2) Bill 2009 which was gazetted via the Real Property Gains Tax (Exemption) Order 2009 effective 1st January, 2010, Vendors will have to pay tax on the chargeable gains. And inflating the sale price would increase the chargeable gains.
Step by Step Guide To Buying A House – The Agreement
This is the long awaited sequel to the Step by Step Guide to Buying A House. In our previous article, I have discussed the pre-purchase steps which a buyer of a house should take. In this article, I will share with you what are the common understanding between the vendor and the buyer which are reduced into writing in the form of a Sale and Purchase Agreement.
A Sale and Purchase Agreement (SPA) will contain salient information like the vendor and the buyer’s personal details as well as a detailed description of the house being sold. It will also stipulate the total purchase price which is made up of the deposit payable and balance purchase price. The timeline for payment of the total purchase price is also stated in the SPA and it is not uncommon for the timeline to be based on 3 months plus an extension of a further 1 month.
Apart from the identities of the parties, description of property, pricing and timeline, the SPA will also include the rights and obligations of both parties during the course of the SPA. There are many things which the parties may need to do. Taking our earlier example wherein the house is currently charged (mortgaged) to a bank, the vendor will be obliged to obtain a Redemption Statement cum Undertaking from his bank in favour of the Purchaser or the Purchaser’s Bank. This Redemption Statement will indicate the amount which is payable to redeem the property by reason of the loan taken by the Vendor. The SPA will also include various warranties by the Vendor eg, that the property is not subject to any acquisition by the relevant authorities, that the quit rent and assessment has been duly paid and that the Vendors are not undischarged bankrupts.
With so many terms and conditions present on the SPA, it is highly advisable that each party appoint his own solicitor to look after his interests. As explained in one of my earlier articles on the scale legal fees for sale and purchase of properties, a solicitor may not act for both vendor and purchaser in the same transaction.
After the vendor and buyer are satisfied with the terms of the SPA, the SPA is then executed by the parties and subsequently stamped at the Stamp Office. Time begins to run and the parties would be guided by the SPA on what they need to do before the property is ultimately registered in favour of the buyer’s name and keys are passed.
