SPA review

Sale and Purchase Agreement (SPA) in real estate is a legally binding contract between a buyer and a seller that outlines the terms and conditions of a property sale. Here are some key elements typically included in an SPA:

  1. Purchase Price: The agreed-upon price for the property.
  2. Property Description: Detailed information about the property being sold.
  3. Contingencies: Conditions that must be met for the sale to proceed, such as financing approval or satisfactory home inspections.
  4. Closing Date: The date when the property ownership is officially transferred from the seller to the buyer.
  5. Earnest Money Deposit: A deposit made by the buyer to show their serious intent to purchase the property.
  6. Title and Deed: Information about the transfer of the property title and deed to the buyer.
  7. Disclosures: Any known issues or defects with the property that the seller must disclose to the buyer.

 

Once a Sale and Purchase Agreement (SPA) is signed, both the buyer and seller have specific commitments to fulfill.

 

Commitment of the buyer

  1. Payment of Purchase Price: The buyer must pay the agreed-upon purchase price by the closing date.
  2. Securing Financing: If the purchase is contingent on financing, the buyer must secure a mortgage or loan.
  3. Property Inspections: The buyer may need to conduct inspections and address any issues within the agreed timeframe.
  4. Closing Costs: The buyer is responsible for paying closing costs, which may include fees for appraisals, inspections, and legal services.
  5. Adherence to Contingencies: The buyer must meet any contingencies outlined in the SPA.

 

Seller Commitment

  • Transfer of Title: The seller must provide a clear title to the property, free of any liens or encumbrances.
  • Property Condition: The seller must maintain the property in its current condition until the closing date.
  • Disclosures: The seller must disclose any known defects or issues with the property.
  • Closing Costs: The seller may also be responsible for certain closing costs, such as real estate agent commissions and transfer taxes.
  • Adherence to Contingencies: The seller must meet any contingencies outlined in the SPA, such as completing agreed-upon repairs.

Both parties needs work together to ensure all conditions and contingencies are met for a smooth transaction. If either party fails to meet their commitments, it could result in delays, penalties, or even the cancellation of the sale.

 

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 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, i.e.. 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.

 

Manner of payment

When purchasing a property, the terms of payment can vary, but here are some common elements you might encounter:

  • Purchase Price: The total amount agreed upon by the buyer and seller for the property.
  • Earnest Money Deposit (EMD): A deposit made by the buyer to show their serious intent to purchase. This is usually around 2-3% of the purchase price.
  • Down Payment: A portion of the purchase price paid upfront by the buyer. This can range from 5% to 20% or more, depending on the loan type and lender requirements.
  • Closing Costs: Fees associated with the transaction, such as appraisal fees, title insurance, and attorney fees.
  • Contingencies: Conditions that must be met for the sale to proceed, such as securing financing.
  • Payment Schedule: The timeline for making payments, including the initial deposit, down payment, and any subsequent payments.

These terms are usually outlined in a real estate purchase agreement (SPA), which is a legally binding contract between the buyer and seller.

 

Vacant Possession

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.

 

Purchase Subject to Tenancy

Purchasing a property “subject to tenancy terms” means that the property is being sold with existing tenants who have a lease agreement in place. Here are some key points to consider:

  • Inheriting the Lease: The buyer takes over the existing lease agreements and must honor the terms set forth in those leases
  • Rental Income: The buyer will start receiving rental income from the tenants from the day of settlement.
  • Tenant Rights: The buyer cannot change the lease terms, raise the rent, or evict the tenants until the lease term ends, unless the tenants agree to new terms.
  • Landlord Responsibilities: The buyer assumes all landlord responsibilities, including property maintenance and ensuring a habitable living environment for the tenants.
  • Lease Obligations: The seller must disclose all lease agreements and tenant information to the buyer.
  • Transfer of Responsibilities: Upon sale, the seller transfers all landlord responsibilities to the buyer.

 

Considerations:

Due Diligence: Buyers should review all lease agreements and understand the terms before purchasing.
Negotiations: Buyers can negotiate with the seller to have the property vacant at the time of purchase, but this depends on the seller’s ability to end the leases early

 

Purchasing a property with tenants can be a good investment opportunity, but it requires careful consideration of the existing lease terms and tenant rights.

 

Defect Liability

Defect liability by a developer, often referred to as the Defect Liability Period (DLP), is a specified timeframe during which the developer is responsible for repairing any defects in the property that arise due to poor workmanship or materials.

Duration: The DLP typically lasts for a certain period after the property is handed over to the buyer. In Malaysia, for example, the DLP is usually 24 months from the date the buyer receives the keys.

Scope: During this period, the developer is obligated to fix any defects reported by the buyer at no additional cost. This includes issues like cracks in walls, faulty plumbing, or electrical problems.

Reporting Defects: Buyers need to report any defects within the DLP to ensure they are covered. It’s important to document and communicate these issues promptly.

Legal Obligations: Developers are legally bound to address these defects. Failure to do so can result in legal action by the buyer.

 

Sub-sale Property

The Defect Liability Period (DLP) can still apply when purchasing a completed property, especially if it’s a new development.

Newly Completed Properties: If the property is newly completed and you’re the first owner, the developer typically provides a DLP. This period usually lasts for 24 months from the date you receive the keys.

Existing Properties: For existing properties, the situation can be different. If you discover defects after purchasing, the seller may be liable if they failed to disclose known issues.

This is often covered under laws related to latent defects and seller disclosure obligations.

Inspection Reports: It’s crucial to have a thorough inspection done before purchasing any property. This can help identify potential issues early on.

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Draft SPA

Drafting a Sale and Purchase Agreement (SPA) involves several key points to ensure that the document is comprehensive and legally sound.

  1. Parties Involved: Clearly identify the buyer and seller, including their legal names and contact information
  2. Property Description: Provide a detailed description of the property being sold, including its address, legal description, and any fixtures or fittings included in the sale.
  3. Purchase Price: State the agreed purchase price and the payment terms, including any deposits, down payments, and the balance due at closing.
  4. Conditions Precedent: Outline any conditions that must be met before the sale can proceed, such as financing approval, satisfactory inspection, or obtaining necessary permits.
  5. Warranties and Representations: Include any warranties and representations made by the seller regarding the condition of the property, title, and any encumbrances.
  6. Closing Date and Procedures: Specify the closing date and the procedures for transferring ownership, including the delivery of keys and documents.
  7. Default and Remedies: Define what constitutes a default by either party and the remedies available, such as forfeiture of deposits or specific performance.
  8. Dispute Resolution: Include a clause outlining how disputes will be resolved, whether through mediation, arbitration, or court proceedings.
  9. Governing Law: State the governing law that will apply to the agreement, which is typically the law of the jurisdiction where the property is located.

These points ensure that the SPA covers all necessary aspects of the transaction and protects the interests of both parties.

 

Letter of Offer

A Letter of Offer is a formal document that a potential buyer sends to the seller or developer, expressing their intent to purchase a specific property.

This letter typically includes key details such as the offer price, payment terms, and any conditions or contingencies related to the purchase.

It often comes with a financial deposit to show the buyer’s commitment and seriousness about the transaction.

  • Buyer and Seller Information: Names and contact details of both parties.
  • Property Details: Description and address of the property.
  • Offer Price: The amount the buyer is willing to pay.
  • Payment Terms: Details on how the payment will be made (e.g., cash, financing).
  • Conditions: Any contingencies such as financing approval or property inspections.
  • Deposit: An initial payment to demonstrate commitment.
  • Closing Date: Proposed date for completing the transaction.

This letter helps to formalize the buyer’s interest and can serve as the basis for further negotiations leading to a final sale agreement.