News and Views

Study the ‘approved plans’ before buying the house, says HBA

March 24, 2024
MALAYSIA

Provision of open and green spaces govern how these spaces are allotted for designated community activities such as playgrounds for children, communal parks and etc. are to be used.

It is mandated in the Preamble of Schedule G (landed property) of the standard sale and purchase agreement pursuant to Housing Development (Control and Licensing) Act 1966 and Housing Development (Control and Licensing) Regulations 1989, sub-regulation 11(1) that the vendor which is known as the “developer” to the masses has to provide as part of the legal documents, among others, the “approved” layout plan (to be annexed as the First Schedule) and approved building plan (to be annexed as the Second Schedule).

Similarly, Schedule H (Stratified Property) requires attachment of the “approved” 1: Site plan, 2: Layout plan, 3: Floor plan of the said parcel, 4: Storey plan of the said building (delineation of the said land comprising the said parcel), 5: Accessory parcel plan, and 6: Common facilities plan (to be collectively annexed as the First Schedule) and approved building plan (to be annexed as the Second Schedule).

This mandatory requirement has been entrenched within the Housing Development Regulations and the statutory sale and purchase agreement but has seem continuously unchecked by the regulatory body i.e. the Housing and Local Government Ministry and its enforcement agencies.

Why is it so important for these approved drawings to be made part of the contract obligation and condition?

There has been no shortage of complaints from the purchasers over the years on the deviations found in their end-products i.e. completed units of stratified apartment/condominium or landed residential house and their surrounding habitat differ from those represented in the sales brochure, flyers and even plans attached to the standard sale and purchase agreement signed between them and the developer.

The importance of these plans/ drawings document are best described through the following scenarios.

Development of open space/future development

Purchasers ought to be aware that modern living these days involves more than purchasing a piece of subdivided land/ a piece of strata apartment/ condominium in the air within a scheme.

What one purchases is a concept of living style which applies to all spectrums of the market, from low-medium cost homes to high-end accommodations.

This means surrounding environments such as open parks/fields, green lungs, community halls and clubhouses are all common property. Facilities are an inseparable part of the neighbourhood we buy.

From time to time, we read news that the purchasers/ residents of a housing scheme are taking the developer to task for developing some green lung/ common open spaces which purchasers/residents had deemed to be their communal space/common property.

Where else the developer would contend otherwise and claim that these green open spaces are part of their land reserved for future development.

How can you tell if the developer has the right to do so?

Imagine a piece of green lung – an open field – next to your house in which you do your daily jogging, which serves as a playground for your kids.

A few years down the road, you are asked to make way for a towering condominium right at your doorstep! This predicament is not an uncommon sight in some housing schemes.

Imagine paying an extra RM10,000 premium for the fronting of a green lung (unintended for development) which subsequently turned into a retention pond with smelly discharge and slug, now infested with rodents and an ideal breeding ground for mosquitoes.

This is when the approved layout plan annexed in the First Schedule will lend credence to the disputed arguments.

The layout plan (provided it’s an approved copy by the local authority) is the approved development proposal which contains, among others, the following vital information:

i) Density: In planning terms, density refers to the number of houses or apartment units allowed to be constructed for a proposed development. For example, if 60 units of apartments per acre have been approved for a scheme where a density quota has been used up, i.e. the exact unit of apartments per acre has been constructed.

Hence, the developer is not allowed to build extra units even if there is ample land left in the scheme. The tabulation on the approved layout plan will be able to clarify the exact density and unit approved by the authority for development.

ii) Use of land and building: An approved plan will show the development mix approved by the local authority. When a scheme has been approved for a purely residential neighbourhood, for example, a developer is not allowed to build an office block in an approved scheme of 50 units of semi-detached and 100 units of terrace houses without first applying and obtaining an approval from the authority for such a deviation.

Thus, a mix development comprising office towers, shop-houses in a residential scheme will need to be tabled for the local authority's approval before they can be developed and the same shall be required to be reflected in the approved plans.

iii) Provision of open and green spaces: The approval governs on how these open spaces are allotted for the designated community activities, such as playgrounds for children, communal parks and event halls, places of religious worship and etc. are to be used.

Therefore, once these communal facilities such as an open park are designated for public use, they must not be converted to say another block of condominium or office tower. Thus, the importance of the layout plan comes to bear.

For the same reason, if these open spaces have been designated as a green lung, communal park, event hall and facilities and even utility reserves for roads, drains, water retention and electrical works, then development is prohibited.

The takeaway is you should get inquisitive when you intend to buy a property next to an open land marked “future development” either in the brochure, architectural model or development plan of the scheme at the showroom if you want to avoid having a condominium tower built right at your doorstep as per the scenarios illustrated above.

Never ask, never know

As a first query in your line of questioning, do ask the sales staff for the approved layout plans from the relevant authority. Inform them they ought to have no reason to turn down your request as such approval would have been obtained by now, or else they would not have been allowed to launch a sale.

Such approval forms part of the requisite condition for their sales permit. Any refusal raises the question; why should such approved plans be shrouded with secrecy unless one has ulterior motives to hide?

These approved plans/ drawings attached in the schedules must be a duplicate copy of the actual approved plan bearing the appropriate authority’s seal and signature of approval which is normally in the form of a stamp.

Stamps usually appear as “Diluluskan oleh Majlis Bandaraya Subang Jaya” should be visibly evident on the top right corner of each plan.

Then run through these approved plans against those represented in the advertised medium and your expectations to ensure indeed they are duly “approved” for the development you have been led to believe. This will allow you to make an informed decision.

You ought to practice the same due diligence for similar plans that shall be annexed in the first schedule of the sale and purchase agreement, before signing on the dotted lines in the contract. If in doubt, do consult with an independent lawyer you have appointed.

This article is written by Datuk Chang Kim Loong, the Honorary Secretary-General of the National House Buyers Association: www.hba.org.my, a non-profit, non-governmental organisation (NGO) manned by volunteers. He was also a Councillor with the then Subang Jaya Municipality Council (now conferred Subang Jaya City Council status) from year 2008 – 2018.

Disclaimer: Any opinions expressed are entirely the author’s own and do not necessarily reflect the views of PropertyGuru and its entities.

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