Malaysia – A Practical Guide To Filing A Claim At The Homebuyer’s Tribunal.

The Tribunal for Home Buyers Claims or Tribunal Tuntutan Pembeli Rumah (“TTPR”), commonly known as the “Homebuyer’s Tribunal”, is a cheaper and faster forum for home buyers to file complaints with a filing fee as low as RM10 with decisions granted within 60 days. 

It was established by the Housing Development (Control and Licensing) Act 1966 under the purview of the Ministry of Housing and Local Government. There is yet another tribunal for strata properties named as the Tribunal Perumahan dan Pengurusan Strata (“TPS”) and since 2013, both tribunals have been combined into the Tribunal of Housing and Strata Management or Tribunal Perumahan dan Pengurusan Strata (“TPPS”) with two divisions. 

A “homebuyer” who is eligible to file a claim must have purchased the property from the housing developer or first purchaser and is not a sub-sales property.

Types of claims 

Claims that can be brought are:

Technical Claims	Non-technical Claims
Defects workmanshipDefects in construction materialsNon-compliance with the building plans and specifications in the SPA	Late delivery of vacant possession and payment of Liquidated Ascertained Damages (LAD)Refund of depositOther claims arising from the SPA

One cannot claim over matters such as:

1. Recovery of land/interests in land;
2. Disputes concerning: 
   • Entitlements under a will or settlement; 
   • Goodwill; 
   • Any trade secret or other intellectual property right; 
3. Claims arising from personal injury or death.

Additionally, one cannot bring his case to court at the same time over the same issue and same parties. 

Amount of Claim 

Notably, claims are capped at RM50,000.00. If the amount of claim exceeds RM50,000, homebuyers may opt to: 

• Abandon so much of the claim in excess of RM50,000. This can be done via the ‘Borang Pelepasan Tuntutan Baki Gantirugi’. When part of the claim has been abandoned, the Tribunal will record it and the developer will be absolved from liability of the amount so abandoned. 
• However, homebuyers cannot split claims and no more than one claim can be brought in respect of the same matter against the same party. 
• Enter into a written agreement with the developer to allow the Tribunal to hear the matter. This can be done before lodging a claim, or where a claim has been lodged, at any time before the Tribunal records the determination of the case. 

How to file a Claim  

To file a complaint, homebuyers can do so at any of the Tribunal offices. The forms are available over the office counter or downloadable at the official website. Unfortunately, the filing must be done physically or by post as there is yet to exist an e-filing system in place.

Step 1: Homebuyer files Borang 1 & Borang Butiran

1. Fill up four original copies of Borang 1. One copy would be kept by the Tribunal, one copy to be kept for oneself, one for the financier bank, and the last copy to be served to the Developer with an acknowledgement of receipt. Service can be done by hand or by post.
2. One copy of Borang Butiran TTPR. 
3. Attach any other relevant documents (refer to Senarai Semak TTPR): 

• copy of the sale and purchase agreement (SPA)
• copy of the acceptance of vacant possession
• copy of the certificate of completion and compliance (CCC)

• list of technical claims
• coloured photographs of the defects 

Filing at the Tribunal can be done two ways: 

1. 1. Filing at the office counter at any of the Tribunal offices. 
   2. Filing by post where the fee can be paid by money order, bank draft or money order under the name of the ‘Ketua Setiausaha Kementerian Perumahan dan Kerajaan Tempatan’. 

*Do note that TTPR does not accept private cheques or cash by post.

Service of documents to the Developer can be three ways: 

1. 1. Leaving the Borang 1 at their office with a photograph proof. 
   2. Handing the Borang 1 to an officer with a signature/stamp acknowledging receipt of the document.
   3. Posting the Borang 1 using registered post and keeping the proof of receipt. 

Step 2: Developer files Borang 2

The developer may raise any defence as well as any counter-claims against the homebuyer within 14 days where a copy must be served to the homebuyer. 

Step 3: Homebuyer files Borang 3 

The homebuyer may raise a defence against the developer’s counterclaim. 

Step 4: Both parties attend the hearing

The Secretary of the Tribunal will issue a notice in Borang 4 to both parties indicating the day, time and place of the hearing.

Step 5: A Tribunal Award is given 

The decision of the Tribunal is to be final and binding as if it were a court order. There is no appeal process to the civil court, save for exceptional situations allowing judicial review on the grounds of irregularity. Other than that, a party who was absent from the hearing or who has failed to submit defence for a proper reason can also apply to set aside the award in Borang 12 within 30 days.

Time limitation 

Claims must be made within 12 months from:

1. Date of issuance of the certificate of completion and compliance (CCC) of the property or facilities,  
2. The expiry of the defects liability period in the sales and purchase agreement (SPA),
3. Date of termination of the SPA if the agreement was terminated before the issuance of the CCC.

After the period is over, homebuyers may initiate their claims in court instead. Court claims are limited by 6 years from the date of the breach of contract or negligent act. 

Negotiations for Settlement 

In allowing negotiations, the Tribunal will have regard to factors that may impair the ability of either party to negotiate fairly. 

If negotiations are successful, the Tribunal will approve and record the agreed settlement and it will take effect as if it were an award given by the Tribunal.

If parties are unable to reach a settlement, the Tribunal will proceed to determine the matter.

Hearings 

Parties are not allowed to be represented by an advocate or solicitor unless complex issues of law are involved. Where one party is allowed legal representation, then the other party shall also be entitled. All hearings are open to the public. 

A Tribunal can also proceed with the hearing in the absence of a party where notice of the hearing has been duly served on the absent party.

Parties will have the opportunity to present all evidence gathered, oral or written, including witnesses, documents, expert evidence etc. 

Bring along your IC, relevant documents as well as proof that the documents have been served to the Developer, such as receipt of registered post.

Powers of the Tribunal  

So what can the Tribunal do for you? The Tribunal has powers to grant: 

1. Money to be paid;
2. Refund of the price or other consideration;
3. Compliance with SPA;
4. Monetary compensation for any loss or damage suffered;
5. Contract to be varied or set aside;
6. Costs of proceedings;
7. Interest not exceeding 8% per year for any monetary award; and
8. Dismissal of the claim.

Claims for damages are wide enough to cover consequential losses, physical or economic and any sort of harm done to the property. For example, a homebuyer who is prevented from moving into a house due to defects and is forced to rent another place, for the time being, can claim for such rentals.

Enforcement of Award 

What can one do if a party refuses to comply with the award? Firstly, one can send 3 copies of the ‘Notis Ingkar Award’ and 5 copies of the ‘Award’ to the Tribunal. Subsequently, the Tribunal would send a copy to the Magistrate’s court to be recorded. As a result, one can then pursue both civil or criminal actions against the other party through the ordinary court procedure. 

Failure to comply with an award is an offence punishable with a fine not less than RM10,000 and not more than RM50,0000 or imprisonment not exceeding two years, or both.

Conclusion

Buyers beware! Take heed to ensure your home specifications are met before signing a SPA or signing a form of acceptance of vacant possession. Recently in Country Garden Danga Bay Sdn Bhd vs. Tribunal Tuntutan Pembeli Rumah & Anor  [2022] MLJU 678, a Singaporean man lodged a complaint over his balcony which should have been sheltered based on the display model. Unfortunately, his claim was dismissed as the SPA terms contain no such terms, and he had already accepted the condominium unit and carried out renovation works. Thus, the Tribunal can only decide based on the terms of the SPA and no other documents such as brochures or showhouses and one should refrain from making any permanent changes to the unit that may jeopardise one’s claim.