Malaysia legislation
Section 8A
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of the purposes for which moneys in the Housing Development Account are authorised by rules under this Enactment to be withdrawn; and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