“abandoned housing development”, “certificate of fitness”, “Controller”, “Housing
Development Account”,
“housing lot”, “Local
Authority”, “Minister”, “officer and servants”, “purchaser”,
“stakeholder” and “Tribunal”,
4, PART II, 5(1), (3), (4), (5),
/akn/my-12/state_enactment/1978/housing-development-control-and-licensing-enactment-1978
Housing Development Control And Licensing Enactment 1978
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- Type
- State Enactment
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- Enacted
- 1978
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About this state enactment
Housing Development Control And Licensing Enactment 1978 is Malaysia State Enactment, cited as State Enactment 1978 1978, currently marked in force and first recorded in 1978.
Part I
PART I, 1, 2, 3 (definitions of
Part III
PART III, 7 (7A), 8, 8A, PART
IV, 10(1), (1A) & (3), 10A, 10B,
10C, 10D, 10E & 10F, PART V,
11, 12A, PART VI, PART VII,
Part VIII
PART VIII, 20, 21, 21A, 22, 23,
24, 25, 25A, 25B, 25C & 25D, 26.
2, 3, New section 5A, 7, New section 8B, 12A, New section 13A, 17, 19B, 19N, 19Q, New section 20A, New sections 21B and 21C, 26, Schedule.
17-7-2025
[G.N. 256/2025]
3
An Enactment to provide for the control and licensing of housing developers and for matters connected therewith.
[28 December 1978]
Part I
PART I
PRELIMINARY
Short title.
Section 1
This Enactment may be cited as the Housing Development (Control and Licensing)
Enactment 1978.
Saving and exemption.
Section 2
(1)
Nothing in this Enactment shall apply to any body or agency established and incorporated by statute and which is under the control of the Minister.
(1A)
The Minister may, by order published in the Gazette, exempt any other body or agency established and incorporated by statute and under the control of the Government or
Government of Malaysia from any or all of the provisions of this Enactment and such exemption may be granted for such duration as may be specified in the order, and may be made subject to such limitations, restrictions or conditions as the Minister may specify in the order.
(1B)
The Minister may, by order published in the Gazette, revoke any exemption granted by him under subsection (1A).
(3)
The provisions of this Enactment which relate to a company shall be construed as in addition or supplementary to, and not in derogation from, the provisions of any written law relating to companies.
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Interpretation.
Section 3
In this Enactment, unless the context otherwise requires —
“abandoned” means a housing development in respect of which a licensed housing developer has refused to carry out or delayed or suspended or stopped or ceased works continuously for a period of six months or more or beyond the stipulated period of completion as agreed under a sale and purchase agreement;
“bank” means a bank which is in possession of valid licence granted under the Banking and Financial Institutions Act 1989 [Act 372] or under the Islamic Banking Act 1983
[Act 276];
“body of persons” means a group of persons, not being an incorporated body or group;
“certificate of fitness for occupation” means any certificate issued under the various
Enactments or Ordinances or By-laws for the purpose of certifying that the housing accommodation has been completed and is safe and fit for occupation;
“Company” means any company incorporated, formed or registered under any written law for the time being in force in Malaysia relating to companies, and includes any body corporate established under any written law in force in Malaysia;
“Controller” means the Controller of Housing or the Deputy Controller of Housing appointed under section 4;
“estimated cost of development” means cost of development of a housing development and includes the cost of land, financial costs, overhead costs, and all other expenditures necessary for the completion of the housing development;
“finance company” means a finance company which is in possession of a valid licence granted under the Banking and Financial Institutions Act 1989 [Act 372];
“firm” means an unincorporated body of persons (whether consisting of individuals or corporations or partly of individuals and partly of corporations) associated together for the purpose of carrying on business;
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“housing accommodation” includes any building, tenements or messuage which is wholly or principally constructed, adapted or intended for human habitation or partly for human habitation and partly for business premises;
“housing developer” means any person, body of persons, company, firm or society (by whatever name described), who or which engages in or carries on or undertakes or causes to be undertaken a housing development and in a case where the housing developer is in liquidation or receivership or under judicial management, includes a person or body appointed in accordance with a relevant law to be the provisional liquidator or liquidator, receiver or receiver and manager or judicial manager for the housing developer, as the case may be;
“housing development” means to develop or construct or cause to be constructed in any manner more than four units of housing accommodation and includes the collection of monies or the carrying on of any building operations for the purpose of erecting housing accommodation in, on, over or under any land; or the sale of more than four units of housing lots by the landowner or his nominee with the view of constructing more than four units of housing accommodation by the said landowner or his nominee; and for the purposes of this definition, “develop” means to construct or cause to be constructed, and includes the carrying on of any building operations for the purpose of constructing housing accommodation in, on, over or under any land with the view of selling the same or the land which would be appurtenant to such housing accommodation;
“Housing Development Account” means an account opened and maintained by a licensed housing developer pursuant to section 8A;
“housing lot” means any piece of land surveyed or otherwise to which a lot number has been assigned to it and which is subject to the category of ‘building’ in accordance with the Local Government Ordinance 1961;
“Inspector” means an Inspector appointed under section 4;
“licence” means a licence granted under section 5;
“Local Authority” means Local Authority as defined under the Local Government
Ordinance 1961;
“Minister” means the Minister for the time being charged with the responsibility for housing;
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“officers and servants” means officers and servants appointed under section 4 of the
Enactment;
“prescribed” means prescribed by the Minister under this Enactment;
“purchaser” means any person who purchases a housing accommodation or who has any dealing with a licensed housing developer in respect of the acquisition of housing accommodation and includes a person who has subsequently purchased a housing accommodation from the first purchaser of the housing accommodation;
“stakeholder” means any solicitor holding moneys as stakeholder for payment to a licensed housing developer pursuant to a sale and purchase agreement in respect of a housing development which the licensed housing developer is engaged in, carries on or undertakes or causes to be undertaken;
“Tribunal” means the Tribunal for Housing Purchaser Claims established under Section 19A;
“unit” means a horizontal stratum of any building or part thereof, whether such stratum is on one or more levels, and is intended for use in accordance with the provisions of any written law as a complete and separate unit for residential or commercial purpose.
Appointment of Controller, Deputy Controller, Inspectors and other officers and servants.
Section 4
(1)
The Minister shall, by notification in the Gazette, appoint an officer to be the
Controller of Housing who shall, subject to the direction of the Minister, perform all duties imposed and exercise all powers conferred on the Controller by this Enactment.
(2)
There shall be appointed a Deputy Controller of Housing and such number of
Inspectors of Housing and other officers and servants as are necessary to assist the Controller in the carrying out of his functions under this Enactment.
(3)
Without prejudice to subsection (1), the Controller may, in writing delegate any of his powers and functions in respect of investigation of offences and the enforcement of this
Enactment to any public officer or officer of a Local Authority.
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(4)
Any delegation under subsection (3) may be revoked at any time by the Controller and does not prohibit the Controller from exercising the powers or performing the functions so delegated.
Part II
PART II
LICENSING HOUSING DEVELOPERS
Prohibition against housing development except by virtue of a licence and provisions relating to the grant of a licence.
Section 5
(1)
No housing development shall be engaged in, carried on or undertaken or caused to be undertaken except by a housing developer who ―
(b)
has made a deposit with the Controller of a sum equivalent to five per cent of the estimated cost of the development in cash or in such other form as the Minister may determine:
(2)
Except with the written consent of the Controller, no housing developer other than a licensed housing developer shall assume or use in relation to his business or any part of his business the words “housing developer” or any of its derivatives or any other word or words indicating the carrying on of the business of housing development.
(3)
A housing developer who desires to engage in, carry on or undertake or caused to be undertaken a housing development may apply to the Controller for a licence and any such application shall be made in the prescribed form and in the case of any applicant listed in column (1) of the Schedule, the application shall be accompanied by the documents listed against him in column (2), every such document being verified by means of a statutory declaration made by the person listed in column (3) of the Schedule.
(4)
Upon receiving an application for a licence under this section, the Controller may grant or refuse to grant the licence, and in granting such licence, the Controller may impose such conditions as he may deem fit.
(5)
Subject to section 14, the Controller may at any time vary, cancel, or alter the conditions imposed under subsection (4) or impose any new or additional conditions; or,
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where the licence is not subject to any conditions, impose thereon such conditions as the
Controller may deem fit for carrying out the provisions of this Enactment.
(6)
There shall be a fee payable to be determined by the Minister upon the application of a licence or permit.
(7)
Where a housing development is to be undertaken in phases within a housing development area, a licence may be issued to the housing developer for each phase of such housing development.
Transfer or assignment of a licence
Section 5A
No licence or any right to the licence issued to a housing developer under this Enactment shall be transferred or assigned and any such transfer or assignment shall be void.
Conditions or restrictions for the grant of a licence.
Section 6
(1)
Subject to the exercise of power of waiver by the Minister under subsection (2), the licence applied for under section 5 shall not be granted —
(a)
unless the applicant has a capital issued and paid up in cash of not less than two hundred and fifty thousand ringgit, if the application is made by a company; or
(b)
unless the applicant makes a deposit with the Controller of not less than one hundred thousand ringgit in cash or in such other form as the Minister may determine, if the application is made by a person or body of persons or a firm or a society; or
(c)
unless the applicant is not himself nor is any member or partner thereof a person convicted of an offence involving fraud or dishonesty or an undischarged bankrupt, if the application is made respectively by a person, or a body of persons or a firm; or
(d)
unless no one who is convicted of an offence involving fraud or dishonesty or who is an undischarged bankrupt or who is or was a partner of a firm, shareholder or director of a company which was the subject of bankruptcy or winding-up proceedings or who is or was a partner of a firm, shareholder or director of a company which was involved in or has undertaken a housing development but such housing development has failed to be completed is
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holding office as director, manager or secretary or other similar office or position, if the application is made by a company or is holding office as president, secretary or treasurer or other similar office or position, if the application is made by a society; or
(e)
unless, at the time the application is made, the applicant or any member or partner of the applicant has not been involved in any housing development which has been declared abandoned by the Minister or has not, during his involvement in any housing development, failed to fulfil his obligations under a sales and purchase agreement for any housing development or if the applicant is a body of persons or a firm, or a director, manager or secretary of the applicant, or if the applicant is a company, has not been convicted of an offence under this Enactment; or
(f)
if the registration of the applicant’s architect or engineer has been cancelled and has not been reinstated under the Architects Act 1979 [Act 117] or the
Registration of Engineers Act 1967 [Act 138] at the time the application is made.
(1A)
For the purposes of paragraphs (1)(e) and (f), if the applicant is a company, the expression ‘applicant’ shall include the holding company of the applicant, or subsidiary of the applicant or a subsidiary of holding company of the applicant.
(2)
The Minister may in his absolute discretion waive any or all of the conditions set out in subsection (1) (a), (b), (d), (e) and (f) or substitute any or all of the said conditions for such other conditions as he may consider fit and proper for the purpose of carrying into effect the objective of this Enactment.
Part III
PART III
DUTIES OF A LICENSED HOUSING DEVELOPER
Duties of a licensed housing developer.
Section 7
In addition to the liabilities and duties imposed in sections 8 and 9, a licensed housing developer shall —
(a)
within four weeks of the making of any alterations in or to any of the documents submitted to the Controller under subsection (3) of section 5, furnish to the
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Controller written particulars of the alterations;
(b)
make available at all times in any office and branch office of the licensed housing developer and at any other place where a sale of housing accommodation is conducted a copy of his licence, advertisement and sale permit and a copy of his last audited balance sheet as soon as the same is available and such information as the present or former full name, usual residential address, nationality, nationality of origin (where the present nationality is not that of origin), business or occupation (if any) of each person who has the control and management of the business of the licensed housing developer and particulars of any other directorship held by that person;
(c)
keep or cause to be kept in his office in the State such accounting and other records as will explain the transactions and the financial position of the licensed housing developer and enable true and fair profit and loss accounts and balance sheets and any documents required to be attached thereto to be prepared from time to time, and shall cause the records to be kept in such manner as to enable them to be conveniently and properly audited;
(d)
every year appoint an auditor or auditors in the manner required under section 9;
(e)
within three months after the close of the financial year of the licensed housing developer in question, send to the Controller a copy of the report of the auditor prepared under section 9 together with a copy of his balance sheet and profit and loss account;
(f)
not later than the 21st day of January and the 21st day of July of each year, send to the Controller a statement in such form and containing such information as the
Controller may from time to time determine, on the progress of the housing development which, the licensed housing developer is engaged in, carries on or undertakes or causes to be undertaken;
(g)
where he considers that he is likely to become unable to meet his obligations to the purchasers at any stage of the housing development before the issuance of the certificate of fitness for occupation, forthwith inform the Controller of such fact;
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(i)
within twenty-one days from the date of receipt by the housing developer of the certificate of fitness for occupation, submit such certificate to the
Controller; and
(ii)
within twenty-one days after the date of handing over of vacant possession to the first purchaser of the housing accommodation in the housing development, inform the Controller in writing of the handing over;
(i)
inform the Controller of any refusal in the issuance of certificate of fitness for occupation;
(j)
ensure that the development of the housing accommodation has been carried out in accordance with any requirements prescribed under any law regulating buildings and has exercised all such diligence as may be required for the issuance of certificate of fitness for occupation and for the issuance and transfer of the titles to the housing accommodation to the purchasers; and
(k)
inform the Controller of the progress in the issuance of separate or subsidiary titles for the housing development and the distribution of the separate or subsidiary titles to the relevant legal firm to effect the transfer of such titles to the purchasers beginning from the date of the handing over of vacant possession to the first purchaser of the housing accommodation in the housing development until the separate or subsidiary titles for all the housing accommodation have been issued.
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Section 7A
(2)
Any company, firm, society, cooperative society, a body of persons or individual whose licence has expired may still be liable under sections 7, 8, 10, 11 and 12 of the
Enactment.
Arrangement or agreement affecting the business of a licensed housing developer.
Section 8
(1)
Where a licensed housing developer proposes to enter into an arrangement or agreement to sell, transfer, assign, dispose of or reconstruct his business or management relating to housing development either by amalgamation or otherwise, the licensed housing developer shall as soon as possible notify the Controller of the proposed arrangement or agreement and unless approved by the Controller under subsection (2), the licensed housing developer shall not proceed with that arrangement or agreement.
(2)
Where the Controller receives the notification of the proposed arrangement or agreement under subsection (1), the Controller may approve the arrangement or agreement or refuse to give approval thereto; and in approving the same he may impose thereon such conditions as he may deem fit and proper for the purpose of carrying into effect the provisions of this Enactment.
Housing Development Account.
Section 8A
(2)
Where a housing development is to be developed in phases, the licensed housing developer shall open and keep a Housing Development Account under subsection (1) for each phase of such housing development.
(3)
The licensed housing developer shall pay into the Housing Development Account of a housing development the purchase moneys received by the licensed housing
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developer from the sale of the units in the housing development and any other sum or sums of moneys which are required by rules made under this Enactment to be paid into the Housing
Development Account.
(4)
The licensed housing developer shall not withdraw any money from the Housing
Development Account except as authorised by rules made under this Enactment.
(5)
Subject to subsection (6)(b), all moneys in the Housing Development Account and all moneys held by the stakeholder shall, notwithstanding any other written law to the contrary, be deemed not to form part of the property of the licensed housing developer in the event —
(a)
the licensed housing developer enters into any composition or arrangement with his creditors or has a receiving order or adjudication order made against him; or
(b)
the licensed housing developer, being a company, goes into voluntary or compulsory liquidation.
(6)
Upon the happening of any of the events referred to in subsection (5) —
(a)
the moneys in the Housing Development Account and all moneys held by the stakeholder shall vest in the Controller to be applied for all or any of the purposes for which moneys in the Housing Development Account are authorised by rules under this Enactment to be withdrawn; and
(b)
any money remaining in the Housing Development Account and all moneys held by the stakeholder, after all payments have been made pursuant to paragraph (a) and all liabilities and obligations of the licensed housing developer under the sale and purchase agreements in respect of the housing development have been fully discharged and fulfilled, shall be held by the Official Receiver, trustees in bankruptcy or liquidator as the case may be as moneys belonging to the licensed housing developer to be applied in accordance with the law relating to bankruptcy or the winding up of companies.
(6A)
(a)
all moneys in the Housing Development Account shall be deemed not to
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form part of the properties of the licensed housing developer in the event the housing development is abandoned by the licensed housing developer or when the housing development has been declared abandoned by the
Minister;
(b)
all moneys in the Housing Development Account shall be vested with the
Controller in the event the housing development has been abandoned by the licensed housing developer or when the housing development has been declared abandoned by the Minister.
(7)
Notwithstanding any other written law to the contrary, all monies in the Housing
Development Account and all moneys held by the stakeholder shall not be garnished until all liabilities and obligations of the licensed housing developer under the sale and purchase agreements in respect of the housing development have been fully discharged and fulfilled.
(8)
Subject to the provisions of the Banking and Financial Institutions Act 1989 [Act 372] and the Islamic Banking Act 1983 [Act 276], the Minister may, if he thinks necessary, appoint an approved company auditor as defined in the Companies Act 1965 [Act 125] to investigate the books, accounts and transactions of a Housing Development Account and the licensed housing developer shall pay all the expenses incurred in and incidental to the investigation.
(9)
Any account opened by a licensed housing developer with a bank or finance company for the purpose of depositing purchase moneys received from purchasers in respect of a housing development remains to be completed on the date of coming into force of this section shall be deemed to be a Housing Development Account which has been opened pursuant to this section.
(10)
This section shall not apply to any housing development carried on by —
(a)
a licensed housing developer where all the units in the housing development will not be offered for sale and purchase before the completion of the housing development and the issuance of certificate of fitness for occupation;
(b)
a licensed housing developer who has furnished to the Controller a banker's guarantee of an amount equivalent to not less than 140% of the
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total estimated cost of development of the housing development as certified by the architect in charge of the housing development.
(11)
Any licensed housing developer who contravenes or fails to comply with this section shall be guilty of an offence and shall on conviction be liable to a fine not less than fifty thousand ringgit and not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.
Freezing of the Housing Development Account
Section 8B
(a)
a winding up petition against the licensed housing developer has commenced in court;
(b)
a receiver or a receiver and manager has been appointed for the licensed housing developer; or
(c)
the Controller has reason to believe that a licensed housing developer is carrying on his business in a manner detrimental to the interest of the purchasers or is contravening any of the provision of this Enactment, the Controller may in writing order a freeze on the Housing Development Account and direct the bank or finance company, as the case may be, not to part with, deal in or otherwise permit any withdrawal of any moneys from the Housing Development Account until the order is revoked or varied or unless in accordance with any conditions as may be imposed by the
Controller at his discretion from time to time during the currency of the order.
(2)
No bank or finance company, or director, officer or employee of the bank or finance company, as the case may be, shall be subject to any claim or demand by or liability to any person in respect of anything done or omitted to be done in good faith in pursuance of or execution or intended execution of or in connection with the execution or intended execution of an order of the
Controller under subsection (1).
(3)
Any person who fails to comply with an order of the Controller under subsection (1)
shall be guilty of an offence and shall be liable to a fine not exceeding one hundred thousand ringgit.
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Audit.
Section 9
(1)
Subject to subsection (2), every licensed housing developer shall every year or as often as the need arises appoint a firm of registered auditors to be auditors; and where a licensed housing developer fails to make the appointment or fails to appoint another firm of registered auditors in place of such a firm which have wound up or dissolved or whose appointment has been terminated, the Minister may appoint any firm of registered auditors which in his opinion are fit and proper to be auditors for the licensed housing developer in question and fix remunerations which shall be paid to the auditors so appointed and such remunerations shall be paid by the licensed housing developer for whom the auditors are so appointed.
(2)
The auditors of a licensed housing developer shall make a report to the Controller as to the annual balance sheet and profit and loss accounts of the licensed housing developer for whom the auditors are appointed and shall state in every such report whether or not in their opinion —
(a)
the balance sheet and the profit and loss accounts are properly drawn up and so as to give a true and fair account of the state of the licensed housing developer’s affairs;
(c)
if the auditors have called for an explanation or information from the officers or agents of the licensed housing developer, such explanation or information has been satisfactory.
(3)
The auditors of a licensed housing developer shall have a right of access at all times to the accounting and other records of the licensed housing developer and shall be
17
entitled to require such information and explanation as they desire for the purpose of audit from the officers of the licensed housing developer or from any other person who is in possession of the information or who could give the information or explanation.
(4)
In addition to the duties and powers under this section, the auditors of a licensed housing developer may also exercise the powers and perform the duties conferred or imposed upon the Controller and Inspectors under section 10 relating to the investigation into the affairs of a licensed housing developer or his accounting or other records and must report to the
Controller their findings.
Part IV
PART IV
INVESTIGATION AND ENFORCEMENT
Investigation.
Section 10
(1)
Either on his own volition or upon being directed by the Minister under subsection (2), the Controller or any officer authorised by the Controller may –
(a)
without the order of the Public Prosecutor exercise all or any of the special powers in relation to police investigations given by the Criminal Procedure
Code [Act 593] in any seizable offence under this Enactment;
(b)
exercise the special powers in relation to police investigations given by the
Criminal Procedure Code [Act 593] after obtaining an order to investigate from the Public Prosecutor in any non-seizable offence under this
Enactment.
(1A)
Any police officer may conduct an investigation under this Enactment in accordance with the Criminal Procedure Code [Act 593].
(2)
The Minister may direct the Controller or an Inspector to make an investigation under subsection (1) —
(a)
if he has reason to believe that the housing developer in question is carrying on his business in a manner detrimental to his purchaser; or has assets insufficient to meet his liabilities or is contravening any of the provisions of this Enactment; or
18
(b)
if an application for such an investigation is made to him, and every such application shall be supported by not less than five purchasers and accompanied with such evidence and such security as the Minister may require for the purpose of satisfying himself that the application is made in good faith, and of paying the costs of such an investigation.
Section 10A
(a)
arrest any person who he has reason to believe is about to commit or has committed an offence under this Enactment;
(b)
enter, search and inspect any premises, place or site which he has reason to believe that an offence has been committed;
(d)
take possession of, and remove from the premises any property, book or other documents;
(e)
take photographs, video or audio recordings or make sketches of the premises or any other things on the premises, place or site which he has reason to believe an offence has been committed under the Enactment;
(g)
stop, detain or search any vehicle or conveyance which he has reason to believe has been used in the commission of an offence under this
Enactment.
(2)
In effecting any entry, seizure and detention under subsection (1), the Controller or any other officer authorised by the Controller or any police officer may use such force as
19
may be reasonably necessary.
(3)
A person arrested under subsection (1) shall be brought to a police station or be produced before a Magistrate to be dealt with as provided under the Criminal Procedure Code
[Act 593].
List of things seized and detained.
Section 10B
(2)
The Controller or any officer authorised by the Controller or any police officer shall request the licensed housing developer, his agent or servant from whom the things or documents has been seized and detained under subsection (1), to acknowledge the list.
(3)
Except where the seizure and detention were made in the presence of the licensed housing developer, his agent or servant, as the case may be, the Controller or any officer authorised by the Controller or any police officer shall whenever possible post conspicuously a list of things and documents seized and detained at the premises, place or site.
Requirement to provide translation.
Section 10C
(2)
Any person who made an inaccurate translation of any book or document under subsection (1) shall be guilty of an offence and on conviction shall be liable to a fine not less than one thousand ringgit and not exceeding ten thousand ringgit.
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Offences committed by body corporate.
Section 10D
(2)
Any person who would be liable under this Enactment to any penalty for anything done or omitted if the thing had been done or omitted by him personally, he shall be liable to the same penalty if the thing had been done or omitted by his agent unless he proves that he took reasonable precautions to prevent the doing or omission of the thing.
Non-liability of Government, Controller and officers.
Section 10E
(2)
No suit shall lie against the Government, the Controller or any officer authorised by the Controller or any police officer for any damages caused to anything whatsoever seized and detained in the exercise of his powers and duties under this Enactment.
Presumption and proof.
Section 10F
Where in a prosecution for any offence under this Enactment in so far as it may be necessary to establish the offence charged, it shall be presumed until contrary is proved that any drawing, sketch, plan, form, book, agreement or document is accurate for the purpose of this Enactment.
21
Part V
PART V
POWERS OF MINISTER
Powers of the Minister to give directions for the purpose of safeguarding interests of purchasers.
Section 11
(1)
Where on his own volition a licensed housing developer informs the Controller or where as a result of an investigation made under section 10 or for any other reason the
Controller is of the opinion that the licensed housing developer becomes unable to meet his obligation to his purchasers or is about to suspend his building operations or is carrying on his business in a manner detrimental to the interests of his purchasers, the Minister may without prejudice to the generality of the powers of the Minister to give directions under section 12 for the purpose of safeguarding the interests of the purchasers of the licensed housing developer
―
(a)
direct the licensed housing developer in question to take such steps as he may consider necessary to rectify any matter or circumstances;
(b)
direct that a person be appointed or himself appoint a person to advise the licensed housing developer in the conduct of his business;
(c)
direct a company to assume control and carry on the business of the housing developer upon such terms and conditions as the Minister may determine;
(ca)
declare that the housing development has been abandoned;
(d)
direct that the licensed housing developer present a petition to the High
Court for the winding up of his business; or
(e)
take such action as the Minister may consider necessary in the circumstances of the case for carrying into effect the provisions of this
Enactment.
(1A)
In giving his direction or decision under paragraph (1)(a), (b), (c) or (e), the Minister may specify that any cost and expense reasonably incurred by such person in carrying out such direction or decision of the Minister be paid from the Housing Development
22
Account or from the moneys due to the account.
(2)
Every such direction of the Minister made under subsection (1) shall be binding on the licensed housing developer and the purchasers.
(3)
Where a company has, in pursuance of a direction of the Minister under subsection (1)(c), assumed control of and carried on the business of a licensed housing developer, the following provisions shall apply —
(a)
the licensed housing developer in question shall submit his business to the control of the company and shall provide the company with such facilities as the Controller may consider necessary for the purpose of carrying on the business of the licensed housing developer;
(b)
the company shall take over and become in control of and continue to carry on the business of the licensed housing developer until such time as the
Minister may in writing otherwise direct; and
(c)
every such assumption and cessation of control of the business of a licensed housing developer pursuant to a direction of the Minister made under subsection (1)(c) shall be published by the Controller in the Gazette.
Powers of the Minister to give general directions.
Section 12
The Minister may give to a licensed housing developer such directions as he considers fit and proper for the purpose of ensuring compliance with this Enactment, and to protect the interests of purchasers, and any such direction shall be made in writing and shall be binding on the licensed housing developer to whom the direction is made.
Termination of sale and purchase agreement by the purchaser.
Section 12A
(2)
For the purpose of paragraph (1)(b), no end financier shall unreasonably withhold its written consent to the termination of the sale and purchase agreement provided such consent by the end financier shall be granted without prejudice to their right of action against the purchasers.
(3)
In the event that the purchaser exercises his right to terminate the sale and purchase agreement under subsection (1), the licensed housing developer shall within thirty days of such termination refund or cause to be refunded to such purchaser all monies received by the licensed housing developer from the purchaser free of any interest.
(4)
Upon receipt of the refund under subsection (3), the purchaser shall immediately cause all encumbrances on the land to be removed and the cost and expenses for such removal shall be borne by the licensed housing developer and may be claimed as a civil debt from the licensed housing developer.
(5)
Any person who fails to comply with this section shall be guilty of an offence and shall, on conviction, be liable to a fine not less than fifty thousand ringgit and not exceeding two hundred and fifty thousand ringgit and to a further fine not exceeding five thousand ringgit for every day or part of a day during which the offence continues after conviction.
(6)
This section applies only to an agreement lawfully entered into between a purchaser and a licensed housing developer after the date of coming into operation of the
Housing Development (Control and Licensing) (Amendment) Enactment 2023.
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Part VI
PART VI
POWERS OF THE CONTROLLER
Revocation and suspension of a licence.
Section 13
If any licensed housing developer —
(a)
is carrying on his business, in the opinion of the Controller, in a manner detrimental to the interest of the purchasers or to any member of the public;
(d)
has ceased to carry on housing development in the State, the Controller may, subject to the provisions of section 14 relating to the giving of opportunity of being heard, revoke the licence issued to the licensed housing developer or suspend it for such period as the Controller may determine.
Controller to report the conduct of an architect, engineer or quantity surveyor.
Section 13A
Where the Controller is satisfied that the conduct of an architect, engineer or quantity surveyor of a housing developer has prejudiced the interest of the purchaser of the licensed housing developer, the Controller may report such conduct of the architect, engineer or quantity surveyor to the respective professional body.
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Opportunity of being heard to be afforded before revocation or suspension of a licence and in certain other cases.
Section 14
Before revoking or suspending a licence under section 13 or before varying, cancelling or altering any conditions imposed on a licence or before imposing thereon any new or additional conditions under section 5 (5), the Controller shall notify the housing developer who is affected by the action proposed to be taken by the Controller of the aforesaid proposed action and shall give the licensed housing developer an opportunity to submit reasons or an explanation why the aforesaid proposed action should not be carried out.
Individual not eligible to take part in management of the business of a licensed housing developer.
Section 15
(1)
Without prejudice to anything contained in any written law relating to companies, co-operative societies, societies and partnerships, any person who acts or holds office of a director, manager or secretary of a licensed housing developer or a similar office or position shall cease to hold that office or position —
(a)
if he becomes bankrupt or suspends payment or compounds with his creditors; or
(2)
No person who has been a director of, or been directly concerned in the management of, the business of a licensed housing developer which has been wound up by a court shall, without the approval in writing of the Minister act or continue to act as a director of, or be directly concerned in, the management of the business of any licensed housing developer.
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Refund or forfeiture of deposit under section 6.
Section 16
The Controller shall refund to the licensed housing developer the deposit made under paragraph (b) of section 6(1) at the expiry of the licence issued under section 5 or on the request of the licensed housing developer, earlier, if the Controller is satisfied that there is no housing development engaged in, carried on or undertaken by the licensed housing developer which remains to be completed and that the licensed housing developer does not intend to engage in, carry on or undertake any housing development for the remaining period of the licence:
Provided that the Controller shall not refund such deposit on the expiry of the licence if any housing development engaged in, carried on or undertaken by the licensed housing developer remains to be completed, in which event such deposit shall be deemed to be the deposit for the purpose of a new licence applied for by the licensed housing developer or if within one month of the expiry of the licence the housing developer has not made an application for a new licence, the Controller shall forfeit such deposit.
Refund or appropriation of deposit under section 5.
Section 17
(1)
Subject to subsection (2), (3) and (4), the Controller shall refund to the licensed housing developer the deposit made under paragraph (b) of section 5(1) on completion of the housing development in respect of which such deposit was made.
(2)
The Minister may, upon a certificate by the Controller and on being satisfied thereon, without prejudice to any other or any further remedy or penalty that the licensed housing developer may incur or be liable for, determine that any deposit made under paragraph
(b)
of section 5(1) or any part thereof be applied for all or any of the following purposes -
(a)
the remuneration of any auditor or auditors appointed by the Minister under section 9(1); and
(b)
any expenses incurred by any person other than the licensed housing developer in complying with or arising from or consequential upon any direction given by the Minister under section 11(1).
(2A)
Notwithstanding subsection (2) or any other provision in this Enactment, the
27
Minister may, upon a certificate by the Controller and on being satisfied thereon, without prejudice to any other or any further remedy or penalty that a licensed housing developer may incur or be liable for, determine that any deposit made under paragraph (b) of section 5(1)
or any part thereof be forfeited and be paid into the fund as specified by the Minister.
(3)
For the purposes of this section and preceding section, “completion of the housing development” shall mean the production of the Certificate of Fitness for Occupation in respect of and the delivery of vacant possession to the purchaser or purchasers of all units of housing accommodation comprised in the housing development and any grammatical variation thereof shall be construed as having reference to such meaning.
(4)
Notwithstanding subsections (1) and (3), the Controller may in his discretion retain and where necessary utilize such sum out of the deposit stipulated under paragraph (b) of section 5(1) which is deemed sufficient by the Controller to meet the obligations of the licensed housing developer under the terms of the sale and purchase agreement including but not limited to the procurement of the issue document of title to the purchasers’ respective land, lot or parcel.
Right of appeal to the Minister by an aggrieved licensed housing developer against the decision of the Controller.
Section 18
An applicant applying under section 5(3) or a licensed housing developer, as the case may be, who is aggrieved by the action or decision of the Controller -
(b)
in varying, altering or cancelling any conditions of his licence or imposing thereon any new or additional conditions under section 5(5);
(c)
in refusing to give approval to an arrangement or agreement proposed to be entered into by a licensed housing developer under sections 8, or in approving the same but subject to conditions being imposed thereon;
(e)
in forfeiting any deposit made under paragraph (b) of section 6 (1) in accordance with section 16,
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may, within fourteen days after having been notified of the action or decision of the Controller appeal against that action or decision to the Minister; and the decision of the Minister made thereon shall be final and shall not be questioned in any court.
Indemnity and protection against suit and proceedings.
Section 19
No action shall lie against the Government, the Minister, the Controller, Inspector or against any officer of the Government or any person acting under the direction of the Minister, the Controller or Inspector for damages in any civil court for anything bona fide done, ordered or omitted to be done pursuant to this Enactment; and all actions which may lawfully be brought in respect of anything done, ordered or omitted to be done pursuant to this Enactment shall be instituted within six months from the date of the act or omission complained of, and not afterwards.
Part VII
PART VII
TRIBUNAL FOR HOUSING PURCHASER CLAIMS
Establishment of Tribunal for Housing Purchaser Claims.
Section 19A
A tribunal to be known as the “Tribunal for Housing Purchaser Claims” is established.
Membership of Tribunal.
Section 19B
(a)
a Chairman to be appointed by the Minister from amongst members of the
State Legal Service or ex-officer who has served at least twelve years in the State Legal Service;
(b)
a Deputy Chairman to be appointed by the Minister from amongst members of the State Legal Service or ex-officer who has served at least twelve years with the State Legal Service or advocates and solicitors of the High Court in Sabah and Sarawak who have practised in Sabah for at least twelve years; and
(c)
not more than three other members to be appointed by the Minister if
29
necessary from amongst members of the State Legal Service or ex-officer who has served at least ten years with the State Legal Service or advocates and solicitors of the High Court in Sabah and Sarawak who have practised in Sabah for at least ten years or person who is a member of any registered professional bodies in Malaysia who has experience in the housing industry for at least ten years.
(2)
If the appointment under paragraph (1)(a) is made from ex-officer, he shall hold office for a term not exceeding three years and shall be eligible for reappointment upon the expiry of his term of office but shall not be appointed for more than three consecutive terms.
(3)
If the appointment under paragraph (1)(b) is made from ex-officer or advocates and solicitors of the High Court in Sabah and Sarawak, he shall hold office for a term not exceeding three years, and shall be eligible for reappointment upon the expiry of his term of office but shall not be appointed for more than three consecutive terms.
(4)
If the appointment under paragraph (1)(c) is made from ex-officer or advocates and solicitors of the High Court in Sabah and Sarawak or person who is a member of any registered professional bodies, he shall hold office for a term not exceeding three years and shall be eligible for reappointment upon the expiry of his term of office but shall not be appointed for more than three consecutive terms.
(6)
Any advocate and solicitor or any member of any registered professional bodies who has been appointed as member of the Tribunal shall cease his practice involving any housing development during the term of his appointment.
Temporary exercise of functions of Chairman.
Section 19C
Where the Chairman is for any reason unable to perform his functions or during any period of vacancy in the office of the Chairman, the Deputy Chairman shall perform the functions of the Chairman.
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Vacation of office.
Section 19D
The office of a member of the Tribunal shall become vacant –
(b)
upon the member resigning from such office by giving three months’ written notice to the Minister;
(d)
upon the member of the State Legal Service being transferred back to the State
Attorney-General Chambers or upon him reaching the age of compulsory retirement.
Revocation of member’s appointment.
Section 19E
The Minister may revoke the appointment of a member of the Tribunal appointed under section 19B(1) –
(a)
if in his opinion the conduct, whether in connection with his duties as a member of the Tribunal or otherwise, shall bring discredit to the Tribunal or the member has become incapable of carrying out his duties;
(i)
an offence involving fraud, dishonesty or moral turpitude;
(iv)
any other registrable offences under the Registration of Criminals and
Undesirable Persons Act 1969 [Act 7].
(f)
if he absents himself from three consecutive sittings of the Tribunal without leave of the Chairman.
Resignation.
Section 19F
Except for a member appointed from the State Legal Service, any member may at any time resign his office by giving three months’ written notice to the Minister.
Filling of vacancy.
Section 19G
Where a member ceases to be a member of the Tribunal, the Minister may appoint another person to fill the vacancy.
Remuneration.
Section 19H
The members of the Tribunal appointed shall be paid such fixed allowances and other allowances as the Minister may determine.
Secretary to Tribunal and other officers.
Section 19I
(1)
There shall be a Secretary to the Tribunal and such number of officers from the
State Public Service to be appointed for carrying out the functions of the Tribunal.
(2)
The Chairman shall have general control of the officers of the Tribunal.
Sitting of Tribunal.
Section 19J
(2)
The Tribunal shall where reasonably possible conduct the hearing in one continuous sitting until completion at such time and place convenient to the Tribunal taking into consideration the nature of complaint and administrative convenient.
(3)
A member of the Tribunal having an interest in any matter before it, shall as soon as the member is aware of his interest, disclose the fact and nature thereof to the Chairman and shall take no part or further part in the proceedings of the Tribunal and in such circumstances, the Chairman may appoint a replacement member.
(5)
If a member of the Tribunal presiding over any proceedings in respect of a claim, dies or becomes incapacitated, or is for any other reasons unable to complete or dispose of the proceedings, the claim shall be heard afresh by another member of the Tribunal, unless the parties agreed that the proceedings be continued by another member of the Tribunal.
Procedure of Tribunal.
Section 19K
Prior to the Minister making rules to prescribe the procedure of the Tribunal, the following procedures shall apply -
(a)
a party who intends to file a claim (hereinafter called the “claimant”) with the
Tribunal shall give a notice of the claim to the other party (hereinafter called the
“respondent”) in a prescribed form issued by the Tribunal;
(b)
the claimant upon filing a notice of claim with the Tribunal shall state the grounds of his claim and attach therewith all documents and evidence in support thereof;
(c)
the Tribunal may direct the claimant to submit within two weeks all documents and correspondences to substantiate the claim;
(d)
the Tribunal may direct the claimant to give written statement to substantiate his claim and may direct a copy thereof to be extended to the respondent;
(e)
the Tribunal may allow amendments to be made to the grounds of the claim or statement before the hearing and a copy thereof shall be extended to the
33
respondent;
(f)
within a period of time to be determined by the Tribunal, the respondent shall communicate his statement of defence in writing to the claimant and the Tribunal;
(g)
the respondent may enclose together with the statement of defence documents on which he lies on for his defence;
(h)
the respondent may make a counter-claim arising out of a sale and purchase agreement;
(i)
the Tribunal shall fix a hearing date and inform all parties concerned with necessary directions;
(j)
the hearing may be by way of written statement which may contain facts and law or orally or a combination thereof;
(k)
the Tribunal may allow expert witness to be called and such cost shall be borne by the party who called the witness;
(l)
the Tribunal may hear and determine the claim before it, notwithstanding the absence of any party to the proceedings, if it is proved to the satisfaction of the
Tribunal that a notice of the hearing has been duly served on the absent party;
(m)
the law of evidence shall not be applicable in a hearing before the Tribunal;
(n)
the Tribunal shall give its reasons in writing for its award within a period of two months after completion of the hearing;
(q)
before the Tribunal makes an award, it may refer any question of law of public importance to the High Court which has not been previously decided by any court and such question of law shall be accompanied by a summary of facts of the case and the Tribunal shall give its legal opinion regarding the question of law;
34
(r)
the decision of the High Court shall be binding on the parties and the Tribunal shall make its award in conformity with such decision;
(s)
one copy of the reference shall be served on the State Attorney-General and he may assist the Court in the reference;
(t)
any person who appears as a witness during a hearing is required to take an oath before the Tribunal;
(u)
the Tribunal may generally direct and do all such things as may be necessary or expedient for the expeditious determination of the hearing;
(w)
the Tribunal may, at the conclusion of the proceedings, order that any document, record, material or other property produced during the proceedings be delivered to the rightful owner or be disposed of in such manner as it thinks fit.
Fee for filing a claim.
Section 19L
The Minister may prescribe a fee for the purpose of filing a claim, pending which, the fee shall be fifty ringgit.
Scope of claim.
Section 19M
A purchaser may lodge a claim with the Tribunal for any loss suffered or any matter concerning his interests under a sale and purchase agreement.
Jurisdiction of Tribunal.
Section 19N
(2)
Any counter-claim shall not exceed the amount to be determined by the Minister, pending which, the amount shall be fifty thousand ringgit, unless agreed by the parties subject to section 19Q.
(3)
A claim before the Tribunal shall be filed at anytime before the certificate of fitness for occupation being issued or not later than twelve months from the date of the issuance of the certificate of fitness for occupation for the housing accommodation or before the expiry date of the defect liability period as set out in the sale and purchase agreement, whichever is the later.
(4)
Claims may not be split, nor more than one claim be brought, in respect of the same matter against the same party for the purpose of bringing it within the jurisdiction of the
Tribunal.
(5)
No claim shall be entertained by the Tribunal if there is already a suit filed in any civil court relating to the same issue in dispute.
(6)
The Tribunal has no jurisdiction to award a prohibitory, mandamus, declaration, specific performance or an injunction order.
(7)
No proceedings of the Tribunal or award shall be set aside or quashed for want of form.
(8)
The Tribunal shall have jurisdiction to hear a claim which arose prior to the setting up of the Tribunal subject to section 19M of this Enactment.
(9)
Subsection
(a)
the Tribunal may during the proceedings of any claim where necessary, give notice to any financial institution or any other third party affected by the claim to be a party to the proceedings.
(b)
for the purpose of paragraph (a) the Tribunal shall extend a copy of the claim, defence and a summary of the facts to the relevant party;
(c)
upon receipt of the document in paragraph (b), the financial institution or third party shall within two weeks file their explanation or defence with the
Tribunal; and
36
(d)
for the purpose of this section, the Tribunal may make an award against the financial institution or the third party.
Mediation.
Section 19O
The Minister may prescribe a mediation procedure to assist the Tribunal when conducting mediation, pending which, the following procedure shall apply –
(a)
the Tribunal may encourage parties to a claim to enter into a mediation process before a hearing, by having an informal preliminary conference with the parties either separately or jointly;
(b)
the parties shall be informed that the mediation shall be on a “without prejudice”
basis and the parties shall decide on the issues and reach their own settlement;
(c)
a Tribunal member who acts as a mediator shall assist the parties at building a consensus and agreement voluntarily, as to reach a mutual settlement;
(d)
a mediator shall not act as a judge as to how the parties should resolve their dispute or give advice or make recommendation, and shall maintain neutrality throughout the mediation process;
(e)
a mediation process may be conducted separately or jointly and it is encouraged to have a joint session –
(i)
to assist in identifying what caused the misunderstanding as to cause the dispute by asking the right questions and clarifying issues to draw the real underlying problem;
(iii)
to assist the parties to identify and explore options for settlement by asking the right questions;
(f)
upon the misunderstanding and underlying problem being identified, the mediator shall inform each party of the other party’s needs, point of views, concerns or problems;
37
(g)
upon a consensus being reached, the mediator may assist the parties to clearly summarize the agreement in writing or may prepare a summary of the agreement for both parties signature and the Tribunal shall then record the terms of the agreement as an award;
(h)
any outstanding issue which has not been agreed upon during mediation, may be brought for hearing before the Tribunal;
(j)
for the purpose of mediation, no evidence shall be recorded by the Tribunal and any matter raised during the mediation shall not be used against the parties in the proceedings of the claim;
(k)
a mediator or any party may terminate the mediation at any time after discussion and the Tribunal may proceed to hear the claim.
Limitation of jurisdiction.
Section 19P
(i)
the entitlement of any person under a will or settlement, or on intestacy (including partial intestacy);
(2)
The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action arising from a sale and purchase agreement entered into between the purchaser and the licensed housing developer.
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(3)
Notwithstanding subsection (2), no claim shall be affected or defeated on the ground that no sale and purchase agreement has been entered into between the purchaser and the licensed housing developer at the time when the cause of action accrues if there exists a previous dealing between the purchaser and the licensed housing developer in respect of the acquisition of the housing accommodation.
(4)
The Tribunal has no jurisdiction to hear in respect of any claim arising from personal injury or death.
Extension of jurisdiction by agreement.
Section 19Q
Notwithstanding section 19N(1), if agreed by both parties, the Tribunal may hear a claim not exceeding one hundred thousand ringgit.
Decision of Tribunal to be final.
Section 19R
(2)
An award of the Tribunal shall be registered by the Tribunal with a Magistrate
Court and shall be enforced as though it is a decision of a Court having jurisdiction in a place in which the award relates or in a place where the award was made.
(3)
The Magistrate Court upon receipt of the award from the Tribunal shall cause the award to be recorded in the court’s record.
Criminal penalty for failure to comply.
Section 19S
(2)
In the case of a continuing offence, the offender shall, in addition to the penalties under subsection (1), be liable to a fine not exceeding one thousand ringgit for each day or part of a day during which the offence continues after conviction.
(3)
Prosecutions in respect of any offence committed under this section may be
39
conducted by any public officer authorised in writing in that behalf by the Public Prosecutor.
Act or omission done in good faith.
Section 19T
No action or suit shall be instituted or maintained in any court against –
(c)
a person authorised to act for or on behalf of the Tribunal, for any act or omission done in good faith in the performance of its or his functions and the exercise of its or his powers under this Enactment.
Part VIII
PART VIII
MISCELLANEOUS
Offences relating to a licence under section 5.
Section 20
Any housing developer who -
(a)
in contravention of section 5(1) engages in, carries on, or undertakes housing development without having been duly licensed under that section;
(b)
in contravention of section 5(2) assumes or uses in relation to his business or any part of his business the words “housing developer” or any of the derivatives or any other word or words indicating the carrying on of the business of housing development: or
(c)
fails to comply with any of the conditions imposed on the licence granted under sections 5, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.
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Offences relating to abandonment of housing development by a licensed housing developer.
Section 20A
Any licensed housing developer who abandons or causes to be abandoned a housing development or any phase of a housing development which the licensed housing developer is engaged in, carries on, undertakes or causes to be undertaken shall be guilty of an offence and shall, on conviction, be liable to a fine not less than two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both.
Offences by a housing developer.
Section 21
Any housing developer who -
(a)
in contravention of any of the provisions of section 7 fails to perform any of the duties imposed by that section;
(aa)
enters into an arrangement or agreement in contravention of section 8 or fails to comply with any condition imposed pursuant to subsection (2) of that section;
(c)
after the Minister has, pursuant to section 11(1)(c), directed a company to assume control of and carry on the business of the housing developer, in contravention of section 11(3) fails to submit his business to the control of that company or fails to provide the company with such facilities as the Controller may consider necessary for the purpose of carrying on the business of the licensed housing developer;
(cc)
fails to comply with any direction given by the Minister under paragraph (a), (b),
(d)
in contravention of section 12, fails to comply with any direction given by the
Minister under that section, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both and shall also be liable to a further fine of five hundred ringgit for every day during which the offence is continued after the conviction.
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Withdrawal of money not related to the implementation of the housing development.
Section 21A
Any licensed housing developer or any other parties involved in the housing development who withdraw or cause to withdraw any money from the Housing Development Account for purposes not related to the implementation of the housing development shall be guilty of an offence and shall on conviction be liable to a fine not less than fifty thousand ringgit and not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.
Section 21B
Assignment
(2)
Subject to subsection (8), every notice of assignment given to the housing developer pursuant to subsection (1) shall be delivered by the assignor or his solicitors to the housing developer at or after the completion of the sale and purchase between the assignor and the new purchaser of the housing accommodation and shall be accompanied by –
(a)
duly stamped sale and purchase agreement between the assignor and the new purchaser of the housing accommodation, if any;
(b)
duly stamped deed of absolute assignment between the assignor and the new purchaser of the housing accommodation; and
(c)
full payment of all sums and outgoings due to the housing developer under the sale and purchase agreement.
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(3)
A housing developer shall keep and maintain an updated, proper and accurate register of all purchasers of the housing accommodation until separate or subsidiary titles for all the housing accommodation in the housing development have been issued by the appropriate authority and registered in the names of all the purchasers of the housing accommodation in that housing development.
(4)
The housing developer shall provide all necessary and accurate confirmation of the records in the register whenever requested by a purchaser of the housing accommodation or his solicitors or his financier or his financier’s solicitors subject to a payment of a fee not exceeding fifty ringgit or such amount as may be prescribed from time to time for meeting every request for the confirmation in respect of all of the following, and such written confirmation by the housing developer shall be conclusive evidence of the matters and information provided therein:
(e)
the total amount due to the developer under the sale and purchase agreement as at the date of the confirmation;
(f)
where the housing development is a development where the subsidiary titles is to be applied for, the total amount of the outgoings in respect of the housing accommodation including management contribution, sinking fund, insurance, annual rent, quit rent and assessment of the housing accommodation; and
(5)
Any person who requires any consent from a housing developer to any absolute assignment or assignment by way of charge in contravention of subsection (2) shall be guilty of an offence and shall, on conviction, be liable to a fine not less than fifty thousand ringgit and not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.
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(6)
Any housing developer who -
(a)
requires any consent to any absolute assignment in contravention of subsection (1);
(b)
imposes any condition to any absolute assignment or assignment by way of charge including requiring the new purchaser to execute any additional agreement or make any other payment in contravention of this section;
(4)
or imposes any condition or any other fee in respect of any matter arising from subsection (4), shall be guilty of an offence and shall, on conviction, be liable to a fine not less than fifty thousand ringgit and not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.
(7)
For the purpose of this section, references to “new purchaser” wherever appearing shall include a purchaser’s financier or any beneficiary under the estate of a deceased purchaser or an assignee under an absolute assignment whether with or without consideration.
(8)
The expression “completion of the sale and purchase” in subsection (2) in relation to a deed of absolute assignment executed in favour of a purchaser’s financier or any beneficiary under the estate of a deceased purchaser or an assignee under an absolute assignment whether with or without consideration not in pursuance of a sale and purchase agreement shall mean the date of that deed of absolute assignment, and in which case paragraph (2)(a) shall not apply.
(9)
This section shall apply to any housing accommodation where separate or subsidiary title for the housing accommodation has not been issued by the appropriate authority.
44
Progress certification and cost estimation
Section 21C
(a)
progress certification knowing that the works therein referred to have not been completed in accordance with the terms of the sale and purchase agreement; or
(b)
an estimated cost of development knowing that such estimation is false or not supported by any basis or shall be guilty of an offence and shall, on conviction, be liable to a fine not less than ten thousand ringgit and not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.
(2)
Any person who knowingly and wilfully aids, abets, counsels, procures or commands the commission of an offence under subsection (1) shall be liable to be punished with the punishment provided for the offence.
45
Offences by a director of or a person connected with the business of a licensed housing developer in certain cases.
Section 22
Any person who -
(a)
in contravention of section 15(1) continues to act as or hold office of a director, manager or secretary of a licensed housing developer or any similar office or position in the employ of the licensed housing developer notwithstanding that he has become bankrupt or suspended payment to or compounded with his creditors or is convicted of an offence involving fraud or dishonesty; or
(b)
in contravention of section 15 (2) acts as or holds or continues to act as or hold office of a director or is directly concerned in the management of the business of any licensed housing developer without the approval in writing of the Minister after the business of that licensed housing developer has been wound up by a court, shall be guilty of an offence and shall on conviction be liable to imprisonment for a term which shall not be less than twelve months but which shall not exceed three years and shall also be liable to a fine not exceeding fifty thousand ringgit.
Penalty for offences not otherwise provided for.
Section 23
Any housing developer guilty of an offence against this Enactment for which no penalty is expressly provided shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both.
Liability of director, manager and other officials for offences committed by companies and liability of a person for acts done by others.
Section 24
(2)
Any person liable under this Enactment to any punishment or penalty for any act or omission shall be liable to the same punishment or penalty for any such act or omission by
—
(d)
the clerk or servant of his partner or agent acting in the course of employment in circumstances that had the act or omission been committed by the partner or agent the aforesaid person would have been liable under this subsection:
Provided that nothing herein shall relieve the partner, agent, clerk, or servant or the clerk or servant of that partner or agent from liability to prosecution.
Prosecution.
Section 25
Any person authorised in writing by the Public Prosecutor pursuant to section 377 of the
Criminal Procedure Code [Act 593] may conduct prosecution for offences under this
Enactment or the rules made thereunder.
Power of the Minister to declare any licensed housing developer to be incompetent.
Section 25A
Any licensed housing developer who contravened any of the provisions of this Enactment shall be deemed to be an incompetent developer and shall not be allowed to carry out any housing development until the Minister declares otherwise.
47
Public servants and public officers.
Section 25B
The Controller, Deputy Controller, every Inspector or authorised officer and all members and officers of the Tribunal shall be deemed to be public servants or public officers for the purpose of the Penal Code [Act 574], Criminal procedure Code [Act 593] or any other written law.
Application of Public Authorities Protection Act 1948.
Section 25C
The Public Authorities Protection Act 1948 [Act 198] shall apply to any action, suit, prosecution or proceedings against the Minister, Controller, Deputy Controller, any Inspector or authorised officer, any member or officer of the Tribunal in respect of any act, neglect or default done or committed by him in such capacity.
Compound.
Section 25D
(2)
Where the amount specified in the offer is not paid within the stipulated period, prosecution for the offence may be instituted at any time thereafter against the person.
(3)
Where the amount specified in the offer is paid within the stipulated period, no prosecution shall thereafter be instituted in respect of such offence against the person to whom the offer to compound was made.
Powers to make rules.
Section 26
(1)
Subject to this section, the Minister may make rules for the purpose of carrying into effect the provisions of this Enactment.
(2)
In particular and without prejudice to the generality of the foregoing power, the rules may -
48
(b)
regulate the use of names of housing estates developed by a licensed housing developer;
(c)
prescribe the form or forms of contracts which shall be used by a licensed housing developer, his agent, nominee or purchaser both as a condition of the grant of a licence under this Enactment or otherwise;
(d)
regulate payments (under whatever name these may be described) which may be made by a purchaser either before, during or after the construction of the house, flat or other accommodation for which that purchaser is required to make the payments, including the amount of the payments, the time when the payments become due and conditions that shall be fulfilled by a licensed housing developer before he may ask for the payments;
(e)
prescribe for and regulate the modification and waiver of the terms and conditions of any contract of sale between a licensed housing developer, his agent or nominee and his purchaser and the grant of any extension of time to the completion of a housing development;
(g)
prescribe the period within which the Controller shall decide whether to grant or refuse to grant a licence applied for under section 5;
(gg)
prescribe the monies which shall be paid into or withdrawn from the
Housing Development Account and the conditions for such withdrawals;
(h)
prescribe that any act or omission in contravention of any of the rules shall be an offence and provide for the penalties therefor either by way of fine or imprisonment or both; and
(i)
provide for any matter which under this Enactment is required or permitted to be prescribed or which is necessary or expedient to be prescribed to give effect to this Enactment:
Provided that any fine so provided shall not exceed five thousand ringgit and a term of imprisonment so provided shall not exceed three years, and in addition thereto may also
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provide for the cancellation and suspension of a licence issued under this Enactment.
(3)
A copy of all rules made under this section shall be published in the Gazette and laid before the Legislative Assembly as soon as possible after they have been made.
Schedule
(Section 5 (3))
(1)
(2)
(3)
Applicant
Documents to be submitted
By whom document to be verified
Person …
1.
A copy of the latest audited balance sheet, if any, relating to all housing developments undertaken by that person.
That person himself.
Body of persons 1.
A copy of an agreement between or amongst persons forming that body.
Any of the persons forming that body.
2.
A copy of the latest audited balance sheet, if any, relating to all housing developments undertaken by that body of person.
Company ….
1.
A copy of memorandum of association.
A director, managing director, general manager, secretary or any senior officer of the company.
2.
A copy of articles of association.
3.
4.
A copy of the latest audited balance sheet.
A copy of personal guarantee by the directors of the company
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Firm …..
1.
2.
A copy of the partnership agreement.
A copy of the latest audited balance sheet.
A partner.
Society ….
1.
2.
A copy of the rules or by-laws of the society.
A copy of the latest audited balance sheet.
President or secretary.
Common questions
- What is Housing Development Control And Licensing Enactment 1978?
- Housing Development Control And Licensing Enactment 1978 is Malaysia State Enactment, cited as State Enactment 1978 1978, currently marked in force and first recorded in 1978.
- Is Housing Development Control And Licensing Enactment 1978 still in force?
- Yes — Housing Development Control And Licensing Enactment 1978 is currently in force.
- When did Housing Development Control And Licensing Enactment 1978 take effect?
- Housing Development Control And Licensing Enactment 1978 was first recorded in 1978.
- How many sections does Housing Development Control And Licensing Enactment 1978 have?
- Housing Development Control And Licensing Enactment 1978 contains 66 sections.
- Where can I read the official version of Housing Development Control And Licensing Enactment 1978?
- The official text of Housing Development Control And Licensing Enactment 1978 is published at sagc.sabah.gov.my.