Comparative legal analysis on the viability of judicial management on insolvent residential developer companies in Malaysia, The Republic of Singapore and The United Kingdom

Md Dahlan, Nuarrual Hilal (2015) Comparative legal analysis on the the viability of judical management on insolvent residential developer companies in Malaysia, The Republic of Singapore and The United Kingdom. Malayan Law Journal, 2 (20). pp. 1-15. ISSN 0025-1283

Abstract

Recently, the corporate law reform committee (‘CLRC’) operating under the companies commission of Malaysia (‘CCM’) has recommended that judicial management (‘JM’) be introduced in Malaysia as one of the ways to deal with corporate insolvency matters. The application for appointment of judicial manager may be made by the company itself, the directors or the creditors. The judicial manager is armed with a moratorium power against any action taken which may be commenced by the creditors and others to ensure that he can effectively carry out his duty. The moratorium power will enable him to prepare and implement the approved restructuring plan for the benefits of the insolvent company and its creditors.This paper aims to elaborate the CLRC’s recommendations on JM and study its strengths and weaknesses particularly in dealing with the problems of failed residential projects of insolvent residential developer companies. This paper is also a result of research conducted through a comparative legal research methodology. Two jurisdictions, viz the Republic of Singapore and the United Kingdom have been selected for comparative analysis over their respective laws and practices on JM. Further, this comparative study is to investigate, identify and find the respective jurisdictions’ strengths and weaknesses on JM, which Malaysia can learn from particularly in the face of the failed residential projects’ problems. This paper finds that the recommendation by the CLRC for the appointment of judicial manager is commendable. Nonetheless, it is submitted that, in the insolvency management of insolvent residential developer companies with failed residential projects, the judicial manager who is armed with certain statutory and legal powers still cannot fully provide comprehensive solution in dealing with the rehabilitation of failed residential projects and cater to the rights of the aggrieved purchasers. Equally, this paper suggests certain proposals to improve the corporate rehabilitation mechanism carried out by the judicial manager in insolvency Administration involving insolvent residential developer companies whose residential projects failed.In the course of carrying the JM, this paper also suggests certain ideas on how to protect the rights and interests of the aggrieved purchasers in failed residential projects.

Keywords: Failed Residential Projects; Judicial Management (‘JM’); Rights of Aggrieved Purchasers; Rehabilitation; Malaysia.

Legal issues and prospects in the protection and assistance of internally displaced persons (IDPs) in Nigeria

Ekpa, Shedrack and Md Dahlan, Nuarrual Hilal (2016) Legal issues and prospects in the protection and assistance of internally displaced persons (IDPs) in Nigeria. Journal of Law, Policy and Globalization, 49. pp. 108-116. ISSN 2224-3240

Abstract

Internally displaced persons (IDPs) lived within the borders of their own country thus the responsibility for their protection and assistance rests on their national government. IDPs are not so privileged like refugees whose protection is guaranteed in international law. The protection and assistance of IDPs is encumbered by series of legal and institutional constraints in Nigeria. These concerns are interminable and preponderates all phases of internal displacement such as pre-displacement, displacement and post displacement. This paper aims at exploring into these bulging challenges with a view to bringing to the fore their intractable influence on the protection needs of IDPs.The paper also delves in examination of laudable efforts of Nigerian Government in a bid to ameliorate these challenges either by way of statutory interventions or policy initiatives. The paper as a conceptual analysis relies on primary sources such as international legal instruments, Nigerian domestic legislations, case law, and secondary sources such as textbooks, journal articles and other library based sources. This study is significant as it brings to the fore the imperative needs to address the prevailing difficulties faced by internally displaced persons as a result of unending surge in internal crises in Nigeria At the end of this discourse, the paper founds inter-alia that good laws and policies without the appropriate political will to implement them for the betterment of IDPs as part of the entire citizenry would remain dead letters. The paper recommends the adoption and implementation of relevant instruments and policies on IDPs’ protection in Nigeria and review of extant laws and policies as a way of bridging the gaps in the protection cycle of IDPs in Nigeria.

Keywords: Displacement, Persons, Protection, Responsibility, Challenges, Nigeria

Alienation of land for housing development projects in Malaysia and New South Wales, Australia: A comparative legal analysis

Md Dahlan, Nuarrual Hilal (2016) Alienation of land for housing development projects in Malaysia and New South Wales, Australia: A comparative legal analysis. Malayan Law Journal, 1 (xliii). pp. 1-19. ISSN 0025-1283

Abstract

The state authority in Malaysia has an absolute power in the alienation of lands as prescribed in List II to the Federal Constitution and the National Land Code 1965 (‘the NLC’). The state authority is not obliged to refer to the technical agencies and professional parties for views before making any decisions to alienate land or otherwise. Due to the absoluteness of their power to alienate land, there have been cases where the state authority has failed to carefully carry out this power to the detriment of the housing projects’ developers.This failure to the extreme may contribute to the occurrences of many abandoned housing projects in Malaysia. This paper analyses this issue through a combination of qualitative case study, conventional legal research and comparative legal research methodologies. In respect of comparative laws, the author compares the laws and practices that are applicable in Malaysia and New South Wales, Australia concerning the alienation of lands, to determine the advantages of that of the New South Wales’, that can be learned and adopted in Malaysia to avoid the occurrences of abandoned housing projects.

Keywords: Alienation of Lands; Abandoned Housing Projects; Legal Issues; Malaysia; New South Wales, Australia

Kewajipan menanggung nafkah anak tak sah taraf: Satu kajian kes di Negeri Kedah

Ahmad, Abd Ghani and Md Dahlan, Nuarrual Hilal (2016) Kewajipan menanggung nafkah anak tak sah taraf: Satu kajian kes di Negeri Kedah. Kanun: Jurnal Undang-Undang Malaysia, 28 (2). pp. 214-244. ISSN 0128-2670

Abstract

These days, the births of illegitimate child are on the rise and have raised a great concern among the society.The issue at hand is who will be responsible to provide maintenance to these children? This maintenance issue, if not addressed properly, may cause injustices to illegitimate children.The objective of this writing is to discuss the actual parties responsible for providing maintenance to illegitimate children based on Islamic Law and the current legal provisions.This writing is a socio-legal and qualitative nature based on primary and secondary data sources. Library research also constitutes a principal data source used in this writing by way of inductive and deductive analysis through references from the Holy Quran, al-Sunnah and laws.The outcome if this research is that the mother is the person responsible in providing maintenance to her illegitimate child.If the mother is incapable to do so, the responsibility is then shifted to the mother’s heirs and if none, it will then be the responsibility of the government.There is no corresponding responsibility on part of the father.This situation may cause injustices towards the mother’s part and the children.Thus, a refined mechanism should be adopted in dealing with the issues of welfare and maintenance of illegitimate children to ensure dispensation of justice to all parties.

Keywords: Illegitimate Children, Maintenance, Welfare, Islamic Law, Law

Some drawbacks in the Australian Buying Off the Plan

Buying off the plan means buying property with the advance of some deposit (usually at 10% of the purchase price), while the remaining 90% will be paid after the developer completes constructing the property together with the necessary certificate of completion/fitness which warrants delivery of vacant possession and occupation. This can protect purchasers against losses due to incomplete project or abandoned property project.

Nonetheless, there are some drawbacks of this plan. This is revealed in an article entitled “in Asking the right questions pays off when buying off the plan” appeared in Herald Sun written by Neelima Choahan in Herald Sun Real Estate – http://www.heraldsun.com.au/realestate/news/asking-the-right-questions-pays-off-when-buying-off-the-plan/story-fni0ckoj-1226910382891.

“New data from property consultants Charter Keck Cramer reveals the number of off the plan apartment releases soared 103 per cent from just over 7000 to more than 14,000 between 2009 and 2013.
But the biggest gains have been in the outer suburbs of Melbourne where off the plan releases increased a whopping 2350 per cent from 42 to 1029 apartments, a whopping 2350 per cent jump.
Charter Keck Cramer director Sam Nathan said Melbourne’s apartment sector had matured significantly in the past five years.

“Melbourne’s favourable planning strategy, dynamic private development sector and supply opportunities have driven the new releases,” Mr Nathan said.

However, he said the apartment market in the city fringe, inner and middle regions was still in its infancy.

Property group 360° director John Meagher said buying off the plan held a lot of financial advantages for well-informed buyers.

But for the uninformed there were many hazards that could turn the expectation of a great investment into a financial and emotional headache.

“Buying off the plan is a literal term for purchasing property that has not yet been built,” Mr Meagher said.

“In other words, it is making a decision to buy an apartment or house based on the documentation available prior to construction.”

Mr Meagher, who has just released a guide to buying off the plan, said buyers must consider the financial, technical and legal requirements before signing on the dotted line.
“Buyers should ask how much deposit needs to be paid, when the balance of purchase price is due to be paid under the contract of sale,” he said.

Mr Meagher said buyers in Victoria should investigate how much stamp duty they would have to pay on settlement.They should also find out the due date for payment and the sunset clause, Mr Meagher said.
“The sunset clause is the date by which the developer has to deliver the property to the purchasers,” he said.

“If the developer doesn’t deliver the property within the timeline, the purchaser is entitled to a reimbursement of the deposit and can walk away from the contract of sale. “Alarm bells should ring if the sunset clause is too long.”

Being aware of important technical information when buying off the plan made all the difference between a good and bad investment, he said.

“Some agents will quote room sizes using measurements taken to the exterior of the building,” Mr Meagher said.

Other things to look out for were high rental guarantees used to set prices above market value and if car parking and air conditioning were included in the price.

Remember to ask the question, ‘What is included in this price?’, he said. “Don’t always assume you are buying what you see in the developers’ sales centre or brochure,” Mr Meagher warned. “Additional priced upgrades may be shown in the display.”

Buyers should check the developer’s background, obtain proof of progress and keep the contract handy during final inspection to double-check before settlement.

He urged buyers to go with experience. “You don’t want to be guinea pig, buying in a development where the developer is going through the processes for the first time and learning at your expense,” he said.
“The bottom line is you can never ask too many questions or have too much information about a property you are interested in buying.”

Practical planning pays off

BEFORE buying her new off-the-plan apartment, Euphie Rong made sure she asked all the right questions.
Despite that, the end product wasn’t quite what the financial markets client specialist imagined.
In fact, the one-bedroom abode in the CBD surpassed all her expectations.

“Thankfully, it was even better than my expectations,” Ms Rong said. “It has very good views of the city and lots of sunlight.”

Ms Rong, who has entered into the off-the-plan market for the first time, said doing her homework was the key to success.

“I looked at the plan carefully and I got as much information as I could,” she said.

“I also researched the developer and the builder to see what their track record was in terms of delivering on time and the quality of their project.”

Ms Rong also compared the established one-bedroom apartments in the CBD on offer before making her choice.

She said buyers should consider the “hard” and “soft” elements of the development before making a decision. “The hard (elements) are the construction, the quality, the material, the location — so the property itself,” Ms Rong said.

“The soft (elements) are the pricing and your own requirements.

“No one knows the project 100 per cent — either the sales person or the project manager. But if you ask the questions, you’ll get the answers.”

Email on issue of rehabilitation of abandoned housing project by liquidator

The email reads as follows:

Assalamualaikum

I have read many articles from you blog with regards to abandoned housing development. I am writing to seek your advice regarding my situation and also on behalf of the to other purchasers.

If you don’t mind, let me explain the brief story. We bought a semi D house in mukim … in 2008. There are only 10 houses in the development called taman … and the developer was …. Subsequently the developer was liquidated and …. has been appointed as the liquidator. At this juncture the houses were completed up to 75% except for electrical , water pump house and roadwork.

It has been more than a year but the liquidator has not made any progress. Latest news we heard that the liquidator is now  applying to the court for a scheme to revive development but with the condition that we need to top up almost RM 30 000 on top of the original purchased price. Some purchasers are not able to do so due to financial constraints.

In such a scenario, do we have any rights to demand that the liquidator complete the houses without any additional payments required from purchasers? Should they refuse , what other options do we have ?

I apologize that this email may disturb you but we would be very grateful to hear your opinion

wassalam

Dear Dr

Thank you so much for the prompt reply. I have another few questions if you don’t mind. If the S and P is terminated , I am not sure whether the liquidator will return our money because the title has been transferred .

If the liquidator terminate and give us the half completed house (as is where is basis) , I am not sure how to continue the development on individual basis since it is a Semi D.  I would appreciate your knowledge sharing on such case.

Wassalam

My answer:

Waalaikum salam

I sympathize with your fate.

My advice is this:

If you have an option, you should terminate the sale and purchase agreement and request the liquidator to repay all your moneys paid to the wound up developer. You can apply to the court to terminate sale and purchase agreement and ask the liquidator to repay all you moneys paid to the previous developer. Buy a new completed house. Full stop.

I think the liquidator has no source of money to rehabilitate the project. So that he asked you to top up. He also needs to get profit from the project as fees. If you think that you have adequate patience, please bear with the liquidator to complete the rehabilitation. If not, ie if your feel that this is not worthwhile, terminate the sale and purchase agreement and ask the liquidator to repay back all your moneys.

 This email is my personal opinion and made on without prejudice basis.

All the best.

Assoc. Prof. Dr. Nuarrual Hilal Md Dahlan, UUM, Kedah

If you want the completed house, you have to add up RM 30 k. You have to cooperate with the liquidator in order to complete. Nonetheless, you will be required by the liquidator to sign a waiver letter which states that the liquidator will not be responsible to any liability and faults of the wound up developer company. The waiver letter also may contain a statement that you waive all damages/compensations arising from the losses you suffered due to the abandonment. New S&P agreement may need to be entered into between you and the liquidator. The terms may be different from the original S&P and that your rights may be marginalized in order to protect the interests of the liquidator.

Question: Whether this new S&P has been approved by the Ministry of Housing?

If you are not agreeable to have your abandoned unit be revived due to complications and other troubles, you can/may terminate the S&P and claim for all the moneys paid to the developer, including damages until full settlement. In this case, you also need to file proof of debts and submit it to the liquidator. You will be considered as an unsecured creditor of the wound up housing developer company and may entitle to a refund of all your moneys and other damages.

The question whether the land has been transferred into your name does not matter as the contract imposes the developer to complete the house with vacant possession and with the CCC obtained. Even though the title has been transferred into your name, the developer is still in breach of the contract in that he has not yet completed the house, deliver vacant possession and provide the CCC.

I think in certain circumstance, it is appropriate for you to terminate the S&P and claim for refund and ask for damages. All these must be supported with court judgment.

This advice is made on a without prejudice basis.

 

A New Email on the Grievances of an Abandoned Housing Project Purchaser

Dear En. Hilal,

I read your articles on abandoned housing project. Being very convincing with your expertise in this field, here I would like to get your brilliant  and tips.

Background

My name is…. In 1998, I purchased a unit of apartment in…. This project was ran by …. (the developer) I get into a contract with … (the bank) to finance my purchase of the apartment unit. …had released the 1st 10% of my loan to …(the developer).

In Dec.2002 this project was declared abandoned by KPKT (Ministry of Housing and Local Government). Few years later … (the developer) was declared bankrupt. Few years after the declaration that this project was abandoned, I had requested …(the bank) to close my loan account as I would like to settle all the 1st 10% which was disbursed to…(the developer), envisaging that I want to avoid paying the interest for that 10% for good. The bank told me that was not possible.

In 2006, I went oversea to further study and till now still in oversea. I did not have any contact with the bank anymore. The interest from my housing loans kept on accumulating plus all legal fees, late payment fees and other related fees.

This month Jan 2014, by chance I had contacted the organizing committee of purchasers of…(the developer) project and he told me that the project was taken over by another developer but my unit fall under cancelled project, whereby the developer had received the approval from the court to cancelled the project of my unit and will reimburse all the money the purchasers had spent to buy the unit in that parcel, they will reimburse ONLY the amount that the bank had released to…(the developer) and the 10% down payment, other related cost like lawyers fees for the bank and the developer and related fees will not be included.

I have contacted the related persons from the new developer, and they had informed me that they had released the cheques under my names to…(the bank) and the cheque was cleared in Nov 2013. The bank did not contacted me, I understand because I was not contactable. Then I contacted the person in-charge from the Loan monitoring unit in…(the bank) and they admitted that they had received and cleared the cheque.

I have requested the Bank to reconsider and recalculate the settlement of my debt to…(the bank), and I have also requested them to minus the 5 years waiver exemption of paying the interest for that abandoned project as announced by the Government, and I requested the bank to minus all legal fees too during the 5 years waiver / exemption of paying the interest.

My Questions

  1. Am I correct to request all those 3 issues to be reconsidered for the settlement of my loan with…(the bank) for this abandoned project? If not, could you please advise or suggest me what actually the correct thing to do or to request?
  2. Do I have to provide the Bank with the necessary docs related to this issue? If yes, what are the documents would be?
  3. I have also requested the bank to remit all the balances from that settlement amount to my personal account.

 Below is the draft of my email to the person in-charge in …(the bank). I really appreciate if you could have a look on my drafted email below and please feel free to amend or add any wording if you think necessary/appropriate. I really appreciate if you could give me the feedback ASAP so that I could contacted those persons accordingly ASAP too.

Assalamualaikum …,

As per our discussion on the phone this morning, could you please proceed with the necessary for my below requests pertaining to the settlement of my HL with …(the bank) for the abandoned project under…(the developer).

The Request

  1. I would like to request the waiver of interest exemption as announced by the government for any abandoned project. this waiver should be commenced from the date the project was declared abandoned by KPKT (Kementerian Perumahan dan Kerajaan Tempatan/ Pihak berkuasa yang berkenaan with maximum terms of 5 years.
  2. I would like to request the waiver of all legal fees imposed on this account during that waiver period too with the reasons explained in my previous email.
  3. I would like to request that all the balances from this settlement to be refunded to my …(my bank) account no…………………………………………..

Thanks and kind regards

 My answer…

Assalamualaikum…

I feel sorry for the disaster that strikes you.

This is an opinion regarding your case. Nonetheless, my advice/opinion below is subject to without prejudice basis.

Your housing developer went bankrupt and wound up, leaving the housing project abandoned. In Malaysia, the normal and general possibility that the abandoned housing project can be revived is remote. At the end of the day, you may not get the duly completed house and that you may have to settle the loan that had been advanced to the defaulting abandoned housing developer. Even if you sue the wound up housing developer, this may not help you either. As the remaining funds may not be adequate to compensate you for all the losses you suffer. In this situation, legally, you may apply to the court to lift the corporate veil, requesting the court to order the directors to pay compensation and be liable to you.

On the other hands, you could report to the police for the fraud that the company/director committed. Further, a report should be lodged to KPKT, so that KPKT can take action in accordance with the provisions under the Housing Development (Control and Licensing) Act 1966 (Act 118) against the defaulting directors of the abandoned housing developer company.

In short and by and large in Malaysia, there is no law that governs abandoned housing project, its rehabilitation and that can protect the aggrieved purchasers’ interests today (including obtaining damages and compensation).

As regards your problem (in 2002) on…(the bank) for releasing some percentage of the loan, it is a law that you as the customer has a right to order …(the bank) not to release the loan to the defaulting developer (see Hoo See Sen & Anor v. Public Bank Berhad & Anor [1988] 2 MLJ 170, (Supreme Court)). The act of the bank in releasing the first 10% to the developer, despite your request to them not to do so, was wrong in law and knowing that the project was declared abandoned by KPKT. On this, I think you should provide proof of their negligence and breach of duty as the bank. You should also report this to Bank Negara Malaysia to take action and can sue them for their breach of duty of care/negligence. You may also claim damages/compensation for the losses you suffered.

You are also entitled to get an endorsement and certification from KPKT on your right to have the calculation of the interests of your loan be stopped from the date the housing project has been declared abandoned by KPKT. As regards your right to get back all legal fees and related fees, I think, you have to personally sue the wound up housing developer and by lodging Proof of Debt (POD) to the liquidator and you will become an unsecured creditor who may entitle to the balance moneys that the wound up company left.

In 2013, you said …(the bank) released some loan to the new developer. I cannot imagine, how could the bank release the money to the new developer, if your house has been cancelled for further development? In this case, I think …(the bank) was negligent and breached their duty. You can ask them to cancel the payment made and make a statement that you shall not be liable (to repay/settle the loan) to the wrongful release of that loan to the new developer.

Finally, you are entitled to the requests (waivers) you made to…(the bank). If they still hesitant to entertain your request, you may report to Bank Negara Malaysia for further action. Provide all proof as well.

Before I end this email, I have a question:

Is there any court order regarding the rehabilitation of the project and on the handing over of the project from…(the developer) to the new rehabilitating developer? The court order should provide certain terms as regards the rights of the purchaser to proceed or not to proceed with the rehabilitation, terms that protect the purchasers’ interests etc and the duties of …(the bank).

Good luck

Associate Professor Dr. Nuarrual Hilal Md. Dahlan ACIS, Institute for Governance and Innovation Studies, Universiti Utara Malaysia, Sintok, Kedah Darul Aman.

Isu Gharar Dalam Pembelian Rumah Melalui Bay’ Bithaman al-Ajil (BBA)

Minat dunia Islam untuk menubuhkan Perbankan Islam telah menunjukkan bibit-bibitnya sekitar tahun 1960an dan 1970an kesan daripada semangat kebangkitan Islam pada awal kurun ke-20. Mementum ini pada awalnya telah dipelopori oleh ilmuan-ilmuan Islam Mesir seperti Muhammad Abduh, Rashid Reda, Hassan al-Banna dan Jamaluddin al-afghani. Perbankan Islam telah mula diperkenalkan di Malaysia dengan penubuhan Bank Islam Malaysia Berhad pada tahun 1983. Pembangunan kemudahan pembiayaan Perbankan Islam telah berkembang baik bagi memenuhi keperluan pelanggan awam. Produk-produk perbankan Islam termasuk Bay’ Bithaman al-Ajil (BBA), mudarabah – skim pelaburan deposit umum dan khusus dalam bentuk perkongsian keuntungan antara pendeposit/pelanggan dan pihak bank sebagai pengusaha dan musharakah (perkongsian).Isu projek perumahan terbengkalai memang merupakan isu besar dalam industri perumahan di Malaysia yang masih belum dapat ditangani dan diselesaikan sepenuhnya oleh pihak kerajaan. Terdapat pelbagai sebab yang membawa kepada projek perumahan terbengkalai. Antara tiga(3) sebab utama adalah:

1)  Kegagalan pada pihak kerajaan untuk memperkenalkan secara berkesan konsep ‘bina kemudian jual’ ke atas pemaju perumahan;

2)         Ketiadaan syarat untuk mendapatkan insuran pemajuan perumahan pada pihak pemaju perumahan di Malaysia;

3)  Ketiadaan undang-undang khusus bagi menangani pengurusan pemulihan projek perumahan terbengkalai sehingga selesai sepenuhnya.

Pada pandangan penulis, walaupun dengan kehadiran perbankan Islam di Malaysia, produk-produk perbankan Islam juga tidak menyediakan peruntukan-peruntukan khusus bagi menangani permasalahan projek perumahan terbengkalai dan gagal untuk memberi perlindungan yang sewajarnya kepada para peminjam pembeli rumah. Walhal, prinsip Islam menekankan keadilan, menghindari gharar (ketidakpastian) dan riba.

Apa yang sebenarnya berlaku di dalam produk Bay’ Bithaman al-Ajil (BBA) dalam pembiayaan perumahan Islam adalah seperti berikut:

1)  Pembeli memasuki kontrak jual beli dengan pemaju dan membayar sejumlah deposit, biasanya 10% daripada harga belian;

2)  Pembeli memohon pembiayaan BBA daripada perbankan Islam bagi menampung baki jumlah harga beli yang belum dilunaskan kepada pemaju perumahan.

3)  Perbankan Islam bersetuju untuk membiayai baki jumlah itu dengan syarat pembeli memasuki suatu perjanjian dengan pihak perbankan Islam iaitu perjanjian Perjanjian Pembelian Hartanah – Property Purchase Agreement (PPA). Secara ringkasnya, melalui perjanjian ini, pembeli dikehendaki menjual kepentingan benefisial ke atas hartanah yang dibeli daripada pemaju itu kepada perbankan Islam. Melalui perjanjian ini, pembeli menjadi penjual, manakala perbankan Islam menjadi pembeli akan hartanah tersebut. Selanjutnya, pembeli dikehendaki memasuki suatu lagi perjanjian dengan pihak perbankan Islam iaitu perjanjian Perjanjian Pembelian Hartanah – Property Sale Agreement (PSA).

4)    Dalam PSA ini, pihak perbankan Islam bersetuju untuk menjual semula hartanah benefisial itu kepada pembeli dengan harga yang telah ditetapkan. Biasanya harga ini adalah dua kali ganda daripada harga belian asal hartanah tersebut antara pembeli dan pemaju pada awal tadi. Pembeli dikehendaki membayar secara ansuran jumlah harga belian ini dalam tempoh yang ditetapkan.

Persoalan yang timbul dalam BBA ini adalah:

1)      Apakah peranan perbankan Islam apabila hartanah yang terlibat dalam PPA dan PSA itu menjadi terbengkalai?

2)      Apakah pihak perbankan Islam bertanggungjawab sepenuhnya?

3)  Adakah BBA itu menepati undang-undang Islam yang menekankan keadilan, menjauhi gharar dan riba’?

Apa yang jelas, BBA tidak memberi perlindungan yang sewajarnya kepada para pembeli peminjam. Terdapat banyak kes yang membuktikan perkara ini. Sekiranya projek perumahan terbengkalai, pihak perbankan Islam tidak bertanggungjawab untuk memulihkan projek tersebut, sedangkan di dalam PSA dan PPA secara jelas, bank telah menjadi penjual. Penjual perlu bertanggungjawab bagi memastikan unit rumah yang telah dibeli oleh pembeli peminjam dapat disiapkan sepenuhnya. Apa yang jelas, sekiranya pembeli peminjam gagal untuk melunaskan ansuran bulanan, bank akan mengambil tindakan undang-undang ke atas pembeli peminjam mungkir itu termasuk membankrap pembeli itu. Persoalannya adalah berikut: adakah ini adil? Menurut undang-undang Islam sesuatu transaksi itu mestilah adil, tidak berunsur riba’ dan tidak melibatkan gharar.

Apa yang jelas di dalam BBA terdapat unsur gharar yang dilarang oleh Islam. Gharar di sini bermaksud ketidakpastian tentang kewujudan sesuatu perkara yang telah dipersetujui. Perkara penting dalam sesuatu jual beli rumah adalah unit-unit rumah yang siap sepenuhnya dan sedia diduduki serta boleh didaftarkan ke atas nama pembeli. Di dalam projek perumahan terbengkalai, jelas unit-unit rumah tidak dapat disiapkan oleh penjual (vendor) iaitu Perbankan Islam. Namun perbankan Islam meminta para pembeli peminjam tetap membayar ansuran bulanan yang telah ditetapkan. Bukankah ini merupakan suatu contoh gharar. Sepatutnya, perbankan Islam perlu memastikan unit-unit rumah itu dapat disiapkan sepenuhnya sebelum meminta pembeli peminjam membuat bayaran bulanan.  Maksud siap sepenuhnya itu adalah rumah itu siap menurut kehendak undang-undang – Akta Bangunan Seragam 1984, Akta Jalan, Parit dan Bangunan 1974, memperoleh Sijil Layak Menduduki atau Sijil Siap dan Pematuhan (CCC), bangunan itu sedia untuk diduduki dan hakmilik hartanah itu boleh didaftarkan ke atas nama pembeli.

Bagi mengelakkan daripada terjatuh dalam praktis gharar, penulis berpendapat, perbankan perlu melibatkan diri dalam projek perumahan yang telah siap sepenuhnya. Bukan separuh siap. Sekiranya, perbankan Islam masih lagi mahu  meneruskan praktis melibatkan projek perumahan yang masih belum siap sepenuhnya, terma-terma di dalam BBA perlu meletakkan tanggungjawab ke atas Perbankan Islam selaku pemilik rumah itu untuk memulihkan projek itu sekiranya projek tersebut menjadi terbengkalai, bukan menuding jari menyalahkan pembeli rumah. Secara alternatif, sekiranya projek itu gagal untuk dipulihkan, perbankan Islam perlu sedia untuk memulangkan kembali segala wang yang telah dibayar pembeli. Secara tidak langsung ini memberi keadilan kepada para pembeli dan meletakkan kedudukan di mana Perbankan Islam adalah suatu sistem perbankan yang boleh dipercayai dan adil.

New Email Regarding Grievances of the Abandoned Housing Project’s Purchaser

I received a new email last week.

The email reads as follows:

Salam Tuan Nuarrual Hilal Md. Dahlan ,

I read your weblog. I would like to seek your advise on the following matter. Facts I had a current situation which the facts are briefly layout below :-

(i) Project abandoned;

(ii) Subsequently project revive with appointment of a white knight to take over the development. One of the condition in the revival scheme is that the purchaser is to pay additional top up i.e 25% from the original purchase price;

(iii) Notice on the revival and the top up is issued via letter to registered address of the purchaser and the bank and it is published in the major newspaper in Bahasa Malaysia, English and Chinese.

(iv) If the purchaser fails to adhere to request for the top up the white knight is entitled to redeem the unit from the bank and to resale the unit. (v) Out of those only 4 purchasers have not responded to the white knight, resulting the termination of the SPA.

(vi) The white knight has requested for the redemption statement from the Bank. Current Scenario :- One of the purchaser has turned up and informed the Bank that he is not aware of the revival. The notice on revival does not reach him as it was sent to his previous correspondence address. The Bank have informed him verbally that nothing much that the Bank can do as the unit has been sold. Note, the white knight has sold the unit. Hence, they will not entertain further request from borrower for reinstatement and white knight will refund him a sum of money less the redemption sum. Now the purchaser intent to demand from the Bank the amount that he has paid for 14 years towards the loan.

Question :-

(i) Is the bank at fault of not giving a formal letter to borrower to inform the borrower on the revival and the top up issue?

(ii) Can the bank rely on the notice published by the white knight on the revival conditions? As the notice clearly specified the name of borrower and bank. Thus notice is to both parties.

(iii) What is the remedial action / steps that the bank can take to solve the issue?

(iv) Can the borrower sue the Bank for negligence and demand for full compensation up to the current value of the property?

Hope the above is suffice for you to advise. Looking forward for your advise.

Thank you.

Regards,

Salam Aid al-Adha

Salam Aid al-Adha

dan

Selamat Menyambut Hari Raya Korban 1434 Hijrah

Daripada:

Profesor Madya Dr. Nuarrual Hilal Md. Dahlan ACIS