What is a Sales And Purchase Agreement
A sales and purchase agreement (SPA) is a legal contract that obligates a buyer to buy and a seller to sell a product or service. SPA’s are found in all types of businesses but are most often associated with real estate deals as a way of finalizing the interests of both parties before closing the deal.
While purchasing a property, one will not feel secure by merely signing only the Letter of Offer and Letter of Acceptance, notwithstanding the vendor or the purchaser. This insecure feeling of will persist until the signing of the formal agreement – Sale and Purchase Agreement (‘SPA’). SPA is the main contract governing both parties and setting out the details like the agreed purchase price, conditioning precedents to be fulfilled, the payment manner, the details of the property, loan, the manner of delivery of vacant possession and any other arrangement in this buy sell event. Therefore, it is utmost important to understand every detail in the SPA because you are bound by whatever you sign.
This article will focus on the salient items in a SPA. There is no such thing as a standard SPA as the spirit of an agreement is to set out the terms mutually agreed by the parties. The purchase price is fixed upon signing the Letter of Offer, but the bargaining process continues during the period before the SPA is signed. The good news for homebuyers in Peninsular Malaysia is where the lawmakers have laid down a set of SPA terms for the Developers to adopt in the Housing Development (Control and Licensing) Regulation 1989. The developers may only amend the stipulated SPA if they are offering better terms, ie. shorter delivery of vacant possession period or longer defect liability period. Although this set of SPA is only applicable when one buys residential properties from developers, it also serves as a good guideline for all other SPA terms to follow, ie. buying commercial property from developers, buying any property from sub-sale market. As a result, it will absolutely cut down the people who go to court due to the ambiguity of the SPA signed.
The most important factor in the SPA will be the manner of payment, regardless the vendor or purchasers. Purchasers must know the manner of payment of purchase price not only to manage his/her finance but also not to incur penalties by accidentally/unintentionally breaching the terms in the SPA. Purchasing a residential property from developers, the billing stages are stipulated clearly in schedule 3 of the SPA. The manner of payment in a sub-sale agreement will be less complicated as the transaction period is shorter and the property is usually ready for delivery. The common process will be the first 2-3% as a booking fee upon signing the Letter of Offer, the remaining 10% deposit is due during the signing of the SPA, then the remaining purchase price of 90% to be settled within 3 months after signing the SPA. In some events, it may be automatically extended for a further 1 month by incurring late payment interest. As mentioned, there is no standard SPA, one may decide to deviate from the norm if it is agreed by both parties.
What purchasing a property, your next major concern will be the time you can get the vacant possession. Vacant possession is a legal term that means the property is in a state fit to be occupied. In simpler words, this means the delivery of access keys and cards to your newly purchased property. For residential development by developers, vacant possession has to be delivered within 24 months for landed property and 36 months for high rise stratified building. On the other hand, delivery of vacant possession for sub-sale is usually 3 – 5 working days after the purchaser settle the full purchase price. The SPA is subjected to the tenancy when the purchaser is purchasing a tenanted unit. The purchaser will be getting the legal possession as the owner of the property but not the keys to the unit. Effectively, the rental and deposits shall be delivered to the purchaser by way of assignment of tenancy.
If you have purchased a house in secondary market, you will not notice the ‘Defect Liability Period’ clause in the SPA. A defects liability period is the warranty period which the Developer is contractually obliged to repair the defects which have appeared within the period of time due to defective in construction works and material. Contrary to the privilege of having developer’s warranty, the purchase of sub-sale properties requires sufficient due diligence of the purchaser when viewing and inspecting the property before entering into the SPA. Due diligence includes checking every part of the house especially sewage, piping, leakage, electrical appliances, rooting and any other fixtures and fittings to prevent any undesirable situation arise. Should the purchaser require the repair of anything prior to vacant possession, the purchaser shall make sure his/her lawyer inserts this in the SPA.
Be meticulous, be scrupulous. Do not make assumptions but make sure. No purchaser will want to jeopardize his/her deal or ruin your happiness due to your own carelessness. It is always prudent for the parties to inform their lawyer accordingly of their intentions and to enquire the available protection for anything that matters in the sales and purchase transaction during the drafting of the SPA, not after signing on the dotted line.
Signing the Letter of Offer, Sales & Purchase and Loan Agreement
Signing the Letter of Offer
Upon selecting the bank which provides the best offer, the borrower will then need to sign the Letter of Offer. Both parties will need to agree on the price, and upon agreeing to sign the Letter of Offer, the borrower will then need to pay a deposit of 2% to 3% of the purchase price.
The deposit of 2% to 3% is usually paid to a neutral party, often an agent as a stakeholder account. The agent is often referred to as an escrow agent – a grantee.
The remaining amount of the purchase price, which adds up to 10%, is usually paid after the Sales & Purchase Agreement is signed.
Signing of the Sales & Purchase Agreement
Following the Letter of Offer, the purchaser will next need to sign the Sales & Purchase Agreement (SNP/SPA). The property buyers are usually given a period of between 2 to 3 weeks to sign the S&P agreement, otherwise they will need to ask the bank for an extension of the Letter of Offer.
Within the time period allocated, the property buyer’s lawyer will need to draft the SNP, conduct the relevant title searches, and get both the buyer and the seller to agree to the various clauses. Upon both parties reaching an agreement, the SNP will then need to be signed in front of the lawyers. A few copies of the SNP will be created, which the purchaser will need to sign all the copies.
It is during this period that the remaining of the downpayment will need to be paid. So if the purchaser has already paid the 2% or 3% during the Letter of Offer stage, they will now need to pay the balance.
The typical causes of delay in this stage is when the money for the balance is stuck in a Fixed Deposit account, or is located overseas. In these situations, there might be delays in transferring the money back to Malaysia to make the payment.
Upon receiving the balance of the money, the purchaser will then need to sign all the S&P copies. However before signing, the purchaser will first need to ensure that all the salient details are accurate. The details that should be checked and must be correct .
Signing the Loan Agreement
Upon signing the S&P which dictates the terms between the buyer and seller, the next document that the purchaser will need to sign is the Loan Agreement. The Loan Agreement is the agreement that is signed between the purchaser and the bank. This document will state all the terms of the loan. The Loan Agreement is usually skewed to the bank’s interest, protecting the bank.
The costs of creating this document will however be borne by the purchaser.
If necessary, a Deed of Mutual Covenant will also have to be signed. The Deed of Mutual Covenant (DMC) is an agreement that is usually applicable only to multi-unit or multi-storey building. It regulates the rights of the owners, and all the subsequent owners of the unit.
Another document that the purchaser may need to sign is the Memorandum of Transfer (MOT). The MOT is a document that is signed to change the ownership of the unit from the previous owner to the next owner.
Purchasers of completed sub-sale developments will be able to sign the MOT immediately – which will require payment – while purchasers of developments still under construction will need to wait for the development to complete, and wait for approximately 6 months before they will be able to sign the MOT.