PERTUBUHAN AKITEK MALAYSIA

CPD Continuing Professional Development Seminar

7th May 2011 Falkuti Alam Bina University Malaya Kuala Lumpur

THE ARCHITECTS ROLES & RESPONSIBILITIES UNDER THE HOUSING DEVELOPMENT ACT (ACT118) & RELATED REGULATIONS

1.

INTRODUCTION 1.1. Overview of the housing delivery process 1.2. Housing Development Act and related Regulations MANAGING DURING CONSTRUCTION 2.1. Work Progress Certification 2.2. Managing Quality MANAGING CHANGE 3.1. Changes & Variation Orders 3.2. Extensions of Time MANAGING DEFECTS & COMPLAINS 4.1. Common Defects & Complains 4.2. Sources of Success in Development

2.

3.

4.

Ar Chan Seong Aun

M Arch (Distinction), B Arch (Hons), B Bdg Sc (NZ), APAM, AIPDM, TAM

1. INTRODUCTION
1.1 Overview of Housing Delivery Process
The current development approval process in Malaysia is a two stage process consisting of 1. Planning approval and 2. Building Plan approval and cumulating in the issuance of the Certificate of Completion and Compliance (CCC) or certificate of fitness for occupation (CFO) upon completion of the development. With the introduction of the OSC and CCC in 2007 however, all the processes are supposed to be run in parallel. In reality however, many Local Authorities still insist that the land conversion and planning approvals be obtained first before they are willing to accept the building plan submission. In order for the delivery process to be orderly and transparent, it must fall back on a set of laws. For a typical housing development, there are more than a dozen laws and regulations to comply with. 1. National Land Code (Act 56) 1965 2. Town & Country Planning Act 3. Environmental Quality Act 1974 4. Drainage Works Act (Act 354), (Revised 1988), 1954 5. Sewerage Services Act 6. Street, Drainage & Building Act (Act 133), 1974 7. Uniform Building By-Laws 1984 8. Housing Developers (Control and Licensing) Act 1966 (Act 118) 9. Housing Developers (Control and Licensing) Regulations 1989 10. Housing Developers (Housing Development Account) Regulations 1991 11. Housing Developers (Control and Licensing) (Amendment) Act 2002 12. Housing Developers (Control and Licensing) (Amendment) Regulations 2002 13. Housing Developers (Housing Development Account) (Amendment) Regulations 2002 14. Strata Titles Act 1985 (ACT 318) 15. Strata Titles (Federal Territory of Kuala Lumpur) Rules 1988 Are there too many laws? Certainly not. The more rules and regulations there are, the clearer the delivery process to all involved. Why then is there a lack of compliance? This is believed to be due to a lack of understanding of the core reasons these laws were passed. The key reasons for planning laws are to ensure orderly and managed development and to protect our environment for future generations. The key objective of the uniform building by-law is protection of public safety and health. The main reason for the Housing Developers Licensing Act is to define & control housing development in Malaysia. It is this ignorance and lack of understanding of these key objectives that leads to attempts by Developers to bend the law and Local Authorities to impose regressive rules which are not

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explicitly listed in the original laws anyway. It is therefore vital for all involved in the delivery process both Developers and Local Authorities - to align their thinking and actions to the those of the key objectives of these laws, if we want to see any significant improvement in our delivery process . Although the key reason for the Housing Development Act is to control the housing development process, the Act has entrusted certain duties and responsibilities to the Professional Architect. 1. The Architect is required to certify completion of various stages of works in the Standard Sales and Purchase Agreement between the Purchaser and Developer. 2. The Architect is required to certify draw down of the Housing Development Account. In view of this, the Architect now has to assume the additional duties due to the powers conferred on him by the Standard Sales and Purchase Agreement

1.2 Housing Development Act and related Regulations

Principle Act:
Housing Development (Control and Licensing) Act 1966 Act 118

Regulations:
Housing Development (Control and Licensing) Regulations 1989 Housing Developers (Housing Development Account) Regulations, 1991 Housing Development (Tribunal for Homebuyer Claims) Regulations 2002 Housing Development (Compounding of Offences) Regulations 2002 PU(A) 58/1989 PU(A) 231/1991 PU(A) 476/2002 PU(A) 475/2002

In force from 01 April 1989 26 August 1991 1 December 2002 1 December 2002

Amendments - Acts / Regulations

Housing Developers (Control and Licensing) (Amendment) Act 1977 Housing Developers (Control and Licensing) (Amendment) Act 1988 Housing Developers (Control and Licensing) (Amendment) Regulations 1994 Housing Developers (Control and Licensing) (Amendment) Regulations 1995 Housing Developers (Control and Licensing) (Amendment) Regulations 1996 Housing Developers (Control and Licensing) (Amendment) Regulations 1998 Housing Developers (Control and Licensing) Act A402 Act A703 PU(A) 358/1994 PU(A) 34/1995 PU(A) 358/1996 PU(A) 446/1998 Act A1142 10 June 1977 1 December 1988 01 August 1994 01 August 1994 01 August 1996 12 November 1998 01 December 2002

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(Amendment) Act 2002 Housing Developers (Control and Licensing) (Amendment) Regulations 2002 Housing Developers (Housing Development Account) (Amendment) Regulations 2002 Housing Development (Control and Licensing) (Amendment) Regulations 2003 Housing Developers (Control and Licensing) (Amendment) Regulations 2002 - Corriegendum Housing Developers (Control and Licensing) (Amendment) Act 2007 PU(A) 473/2002 PU(A) 474/2002 PU(A) 226/2003 PU(A) 42/2003 Act A1289 01 December 2002 01 December 2002 01 December 2002 07 February 2003 15 February 2007

Bills:
Building and Common Property (Maintenance and Management ) Bill 2006 Housing Development (Control and Licensing) (Amendment) Bill 2006 12 April 2007 12 April 2007

STRATA TITLES ACTS Principle Act:

Strata Titles Act 1985 (ACT 318)

Amendment Acts / Law:

Strata Titles (Amendment) Act 1990 Act A753

In force from 23 February 1990

Strata Titles (Federal Territory of Kuala Lumpur) (Amendment) Rules 1995

PU(A) 22/1995

20 January 1995

Strata Titles (Amendment) Act 1996

Act A951

02 August 1996

Strata Titles (Amendment) Act 2001 Strata Titles (Amendment) Act 2007

Act A1107 Amendment Act A1290

01 December 2001 [PU(B)560/2001] 12/04/2007

RULES:
Strata Titles (Federal Territory of Kuala Lumpur) Rules 1988 Federal Territory of Putrajaya (Modification of Strata Titles act 1985) Order 2002 PU(A) 164/1988 23 April 1988

PU(A) 503/2002

27 December 2002

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Strata Titles (Federal Territory of Putrajaya) Rules 2003

PU(A) 5/2003

09 January 2003

Bills:
Strata Titles (Amendment) Bill 2006 12 April 2007

HOUSING DEVELOPMENT (CONTROL & LICENSING) ACT 1966 The following parts will have impact on Architects. Part I defines what is housing development more than 4 lots Part II requires Developers to be licensed and minimum paid up capital Part III defines the basic duties of a housing developer including the opening and maintenance of the Housing Development Account Part IV Investigation and enforcement Part V Powers of Minister to give directions to safeguard the interest of purchasers Section 13A Controller to report the conduct of and Architect or Engineer Part VI Tribunal for Home Buyers Claims Part VII Miscellaneous covers fines for offences and liability of directors, managers and other officers Section 24 empowers the Minister to make regulations

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HOUSING DEVELOPERS (CONTROL & LICENSING) REGULATIONS 1989 In 1986 when the Malaysia economy went into recession, many Developers faced financial difficulties resulting in abandoned housing projects and projects never starting construction despite having been sold. The problems caused by one sided agreements and terms of sales were reviewed by the then Minister of Hosuing and under the powers contained in section 24 of the Act, introduced the Housing Development (Control and Licensing) Regulation 1989. Of interest to Architects are the following regulations. Regulation 11 standard contract of sale required that the Standard Sales and Purchase Agreement (Schedule G & H) must be used. Schedule-G Standard Sale and Purchase Agreement for land and building Clause 4 Schedule of Payment Part 1 Installment payments in the time and manner set out in Third Schedule of the SPA Part 2 Notice to purchaser supported by certificate signed by vendors Architect or Engineer and this shall be sufficient proof of completion Clause 13 Position and area of the lot Part 2 states Vendor may claim up to maximum 2% deviations. Part 4 No alterations are allowed Clause 14 Materials and workmanship to conform to description Building to be constructed in a good workmanlike manner Note 1. Building description as set out in Fourth Schedule - the specifications of finishes, fixtures and fittings 2. Approved building plans as in Second Schedule Key document is the approved building plans 3. No changes or deviations without the written consent of the purchaser except as required by appropriate authority 4. If changes or deviations involve the substitution or use of cheaper materials or omission of works, purchaser is entitled to corresponding reduction in price or damages.

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Clause 15 Restriction against variation by purchaser. Until after CCC/CFO Clause 16 Restriction against change of colour scheme Clause 21 Compliance with written laws. Architect has to ensure compliance with UBBL and Street Drainage Building Act Clause 19 New laws affecting housing development Developer to absorb any additional costs Clause 19 Time for handing over of vacant possession 24 months for landed property Clause 21 Manner of delivery of vacant possession Clause 20 Defects liability period 24 months from date of handing over vacant possession.

Schedule-H Standard Sale and Purchase Agreement for sub-divided building In addition to the above for sub-divide buildings, the main points of interest to Architects are as follows. Clause 11(1) Separate Strata title and transfer of title. Developer has to apply for strata title at his own cost. Under clause 9(b) of the Strata Titles Act, Architect is required to certify that the parcel was constructed according to the approved plans. Clause 13 Position and area of parcel. Different from schedule-G, Developer has to compensate the purchaser if the area of the parcel is smaller by more than 2 percent but not allowed to claim if parcel is constructed larger. Clause 15 Restrictions against variation by the Purchaser. This will become relevant if the purchaser makes changes after the CFO/CCC is issued but Strata Title is not issued yet as it will involve significant work by the Architect to re-submit plans for building plan approval. Clause 25 Time for delivery of vacant possession 36 months instead of 24 months for landed properties. Clause 27 Completion of common facilities

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Completion of common facilities is also 36 months. It is important that the Architect clearly define what is included in the common facilities for phased completion. This is done in the Second Schedule.

HOUSING DEVELOPERS (HOUSING DEVELOPMENT ACCOUNT) REGULATIONS 1991 Purpose is to ensure the interests of Purchasers are protected. DEPOSITS Developer has to deposit the following into the Housing Development Account a) All installments of purchase price b) Any loans for the construction c) Interests obtained from the above

WITHDRAWALS This is permitted only for purposes prescribed in Regulation 7 as follows a) Payments of quit rent, rates taxes, assessment levied on the land b) Stamp duty on charges, caveat, debenture, guarantee or memorandum of deposit of title c) Legal fees for SPA, charges, caveat, debenture, guarantee or memorandum of deposit of title or other matters. d) Insurance premiums and Professional Fees e) Cost for the following : Soil investigation, earthworks, foundation, building, external works, survey works, infrastructure works, relocation of squatters, other works f) Contributions to water and electricity supply g) Charges to Government departments h) Refund of progress payments i) Interest on loans and other financial charges j) Capital sums to redeem loans on land purchases k) Payment of cost of land l) Capital sum to redeem loans for construction m) Administrative expenses up to a maximum of 10% of total construction cost n) Taxes on the development o) Other reasonable expenses upon written approval of the Controller of Housing

Any withdrawals for purposes of construction must be supported by a certificate issued by the Architect or Engineer in charge of the housing project. After the issuance of the CCC and upon handing over of vacant possession, the Developer may withdraw any surplus monies subject to the following.
2. I hereby certify that the following amounts are still needed to satisfy the Developer Obligations:An amount needed to comply with conditions of Certificate of Fitness Architect

(a)

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(Where Temporary Certificate is issued) (b) (c) An amount needed to obtain separate Document of Title An amount needed for the cost and expenses of maintaining, up keeping and repairing the areas reserved for roads, open spaces, electricity substation, septic tanks and other communal amenities, until the same is taken over by the Appropriate Authority. An amount needed to keep purchasers Indemnified against fines, penalties or looses incurred by reason of any breach of the provision of any written law relating to the Housing Development. An amount needed to rectify any defects, shrinkages, or other faults in the said Building, which may become apparent within a period of twelve (12)/ eighteen (18) months after the date of handing over vacant possession (which amount should be in addition to the amount held by the Developers Solicitor as stakeholder.) An amount needed as outstanding Developers solicitors cost. Administrative expenses. Any other cost which has not been spelled out, as above which the architect may deem necessary. Balance may deem necessary Balance of payment to contractor Balance of payment to consultant Total (a) to (h) Add 10% for the contingencies and inflation Surveyor Developer QS

(d)

Developer

(e)

Architect QS

(f) (g) (h)

Lawyer Developer Developer

Architect Architect QS Consultants Architect

HOUSING DEVELOPERS (TRIBUNAL FOR HOUSE BUYER CLAIMS) REGULATIONS 2002 This is the venue for house buyers to make claims against Developers without engaging Lawyers. Part VI Section 16U(2) of main Act states that no party shall be represented by an advocate and solicitor unless in the opinion of the Tribunal the matter in question involves complex issues of law. The Tribunal shall hear any claim brought by a homebuyer not later than twelve months from the date of issuance of the certificate of fitness for occupation for the housing accommodation or the expiry date of the defects liability period as set out in the sale and purchase agreement. Proceeding open to public. Awards where practicable to be made in 60 days. Awards final and binding. Criminal penalty for failure to comply.

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2. MANAGING DURING CONSTRUCTION

2.1 Work Progress Certification
CHECKLIST FOR HOUSING CERTIFICATION Assist the Developer to prepare S&P schedules to ensure they are not different from the contract documents between Developer & Contractor Get a copy of the S&P and check against approved building plans and contract documents especially dimensions and floor areas Check against Lembaga Arkitek Malaysia Circulars 1/2001, 1/2001 (Revised 2002), 4/2003 and 4/2003 (Revised 2005) Check to ensure the S&P is within the Housing Developer Housing Act. Commercial properties such as Service Apartments are not covered under the act and these guidelines do not apply Check finishes against those listed in the Tender / Contract Documents to ensure the finishes and sanitary fittings match. Also check that the number and type of electrical points match those in the tender or contract documents. Ensure the correct version of the S&P Agreement is being used - Before and after the 1st December 2002 Check the mirroring of terraced houses are properly shown in the S&P the Lawyers are using Check that the correct plans for the corner and end units are being used as well as the specifications as corner unit specifications may differ from the standard or intermediate units.

CERTIFICATION FOR VACANT POSSESSION STAGE 3 This is the Most critical stage of Certification for the Architect must check strictly that ALL items listed as Works to be Completed must be fully complied. Many complains have been lodged against Architects for wrongly certifying this stage and have been reprimanded and fined by LAM Professional Architects Role for Stage 3 Issue a certificate certifying that the said building has been duly constructed and completed in accordance with the relevant Acts, by-laws, and regulations and that all conditions imposed by the Appropriate Authority in respect of the issuance of the Certificate of Fitness for Occupation have been duly complied with NOTE It is the Vendors responsibility to obtain a letter of confirmation from the Appropriate Authority certifying that Form-E as prescribed under the Second Schedule to the Uniform Building By-laws 1984 has been duly submitted , checked and accepted by the Appropriate Authority

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CONDITIONS TO BE COMPLIED BEFORE VACANT POSSESSION CAN BE GIVEN 1.Architect has issue Stage 3 Certificate that construction of the building has been duly completed with water and electricity supply ready for connection 2.Vendor has applied for issuance of CFO from Appropriate authority Borang-E has been accepted by Local Authority 3.Purchaser has paid al monies due under clause 4(1) in accordance with the 3rd schedule 4.Purchaser has performed and observed all terms and convenants on his part under the S&P

2.2 Managing Quality

QUALITY STANDARDS FOR ARCHITECTURAL WORKS Determining what is acceptable quality for architectural finishes is often difficult as there is the arbitrary or subjective dimension to all decisions. In order to remove this subject subjectiveness dimension, we have to fall back on industry-accepted norms, which are often listed as standards. Although there are a few hundred Malaysian Standards available for the Building Construction industry this is very far short of the 6,000 standards required for a comprehensive reference base on which to determine proper standards. Malaysian Standards for architectural finishes are even fewer less than 10. CIS7 and CONQUAS21 do list some quality standards for architectural works. They are however not widely accepted and Architects have to fall back on their specifications to determine standards for finishes. Listed below are some references for sourcing tolerances for architectural works standards. BS 8110 : Part 1 1997 Section 6. Concrete materials, specification and construction Section 6.2.7.2 Quality of finishes & Section 6.2.8 Dimensional deviations QLASSIC Section 4 Quality Standards for Architectural works CONQUAS21 Appendix 2 - Quality Standards for Architectural works Guides to Standards and Tolerances Victoria Building Commission, Australia ISO 1803 :1997 Building construction Tolerances Principles & terminology

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TOLERANCES FOR ARCHITECTURAL WORK Listed below are tolerances of key architectural elements extracted from the above sources. ELEMENT STANDARDS Finished concrete All surfaces should not have cracks All cross-section dimensions must conform to structural drawings Openings for services must conform to specified size and location Structural column vertical alignment Structural slab horizontal alignment Cast in place concrete elements Minimum finished concrete cover Pre-cast Concrete Length Up to 3m 3m-4.5m 4.5m-6m Add for every additional 6m Cross section Up to 500mm 500mm-750mm 4.5m-6m Add for every additional 250mm Straightness or bow Up to 3m 3m-6m 6-12 Add for every additional 6m Floor Finishes Cracks Evenness Staircases Tile finishes butt width Lippage between 2 tiles TOLERANCE SOURCE Max 0.3 mm 10 mm Size 10 mm Location 25 mm 3mm/1m max 20mm 10mm 10mm 3mm CIS7 CIS7 CONQUAS CIS7

CIS7 CIS7 CIS7 CIS7 BS8110 BS8110

6mm 9mm 12mm 6mm BS8110 6mm 9mm 12mm 3m BS8110 6mm 9mm 12mm 6mm

Width 0.3mm CIS7 Length 200mm 3mm per 1.2m CIS7 CONQUAS 5mm CIS7 CONQUAS 2mm-4mm CIS7 1mm CIS7 CONQUAS

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Internal Walls Evenness Verticality Walls at right angle Plastering Tiling lippage between 2 tiles Ceiling Finishes Cracks Evenness

3mm per 1.2m 3mm per 1m 4mm over 300mm 3mm per 1.2m 1mm

CIS7 CONQUAS CIS7 CONQUAS CIS7 CONQUAS CIS7 CONQUAS CIS7 CONQUAS

Width 0.3mm CIS7 Length 200mm 3mm per 1.2m CIS7 CONQUAS

External Walls Verticality Tile finishes butt width Facing brickworks = joint pointing

3mm per 1.2m 2mm-4mm 10mm

CIS7 CONQUAS CIS7 CONQUAS CIS7 CONQUAS

Doors Gap between door leave & frame Windows Gap between window leave & frame

5mm

CIS7 CONQUAS CIS7 CONQUAS

5mm

Roof Flat roof ponding Flat roof cracks Gutter Fixtures & Fittings Location

Less than 3mm Width 0.3mm Length 200mm 3mm

CIS7 CONQUAS CIS7 CIS7

25mm

CIS7

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ROLES & RESPONSIBILITIES OF THE ARCHITECT FOR QUALITY UNDER THE STANDARD SALES & PURCHASE AGREEMENT FOR HOUSING According to the Standard Sales and Purchase agreement for housing in Malaysia between Developers and House buyers, the role of the Architect is only to certify for completion of works according to the Third Schedule (Clause 4(1)) of the said agreement. Clause 4(2) states Every notice referred to in the Third Schedule requesting for payment shall be supported by a certificate signed by the Vendors Architect or Engineer in charge of the housing development and every such certificate so signed shall be proof that the works therein referred to has been completed The conclusions that can be drawn for this are as follows 1. There is no mention of the role of the Architect in the Standard S&P that he has to decide on quality of workmanship, although it can be reasonably assumed that the Architect would only certify for works that have been completed to a reasonable standard. This is an implied duty of the Architect and not specifically stated. 2. Unlike the PAM98 form of Contract, the S&P does not empower the Architect to make the final decision on quality 3. The works as described in the Third Schedule shall be DEEMED COMPLETED under this contract upon issuance of the certificate by the Architect How then are quality issues decided upon in the Standard S&P agreement? Clause (14) Materials and Workmanship to Conform to Description states .shall be constructed in a good and workmanlike manner in accordance with the description set out in the Fourth Schedule and in accordance with the plans approved by the Appropriate Authority.except changes as may be required by the Appropriate Authority. The purchaser shall not be liable for such changes.in the event that the changes or deviations involve the substitution or use of cheaper materials or the omission of works originally agreed to be carried out by the by the Vendor the Purchaser shall be entitled to a corresponding reduction in the Purchase Price herein or to damages as the case may be. It would appear that the quality of workmanship is tied to two documents as follows. 1. The FOURTH SCHEDULE which for almost all cases is so vague that no reasonable conclusion can be drawn regarding quality. There is no reference to any Standard or to more detail specifications. 2. plans approved by the Appropriate Authority would obviously refer to the approved building plans. Note that any changes to the approved Building Plans after the S&P have been signed does NOT entitle the Developer / Vendor to claim for any increase in his sale price. Any down grading, including downgrade in quality, entitles the Purchaser to a corresponding reduction in the purchase price.

The following are the implications.

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The Housing Developer Act needs to be upgraded to refer the Fourth Schedule to more detailed specifications and Standards. The approved Building Plan is a very important point of reference as far as quality is concerned, but unfortunately most Architects do not specify quality in their plans preferring to describe it in their Specifications which do NOT form part of the S&P agreement. Architects should freeze their design and the building plans as soon as the first S&P is signed as any upgrades to the BP do NOT entitle the Developer to a corresponding increase in price but any downgrades entitles the Purchaser to a corresponding decrease in the sale price. The Architect does not have the powers under the standard S&P to make the final decision regarding quality. This is covered by Section 16(a) 16(i) of the Housing Developers Act - Tribunal for House buyers Claims Claims up to RM 25,000. Decision of Tribunal to be final. Criminal penalty for failure to comply. Based on the above, the Board of Architects does not hold the Architect responsible for workmanship quality under the Standard S&P for housing and therefore any complains against Architects regarding housing quality are referred back to the Developer or for the Purchaser to take up with the Tribunal for House buyers which is the final decision maker with regards to Housing Quality.

ROLES & RESPONSIBILITIES OF THE ARCHITECT UNDER THE UBBL The UBBL 1984 hold the qualified person The Architect in this case for the building for which the person has submitted the plans. These are listed in the following by-laws. By-law section 3(1)(c) 5 Responsibility Bear the certification of the qualified person.by-laws for which they are respectively responsible qualified person or any person authorized by him undertakes the supervision of the erection and the setting out, where applicable of the building The qualified person submitting the plans shall be responsible for the proper execution of the works .they have supervised the erection of the buildingconstructed in accordance with the bylaws.they accept full responsibility for those portions for portions which they are respectively concerned with. I certify and accept full responsibility

7(1) 25(1)(a)

Borang-A,C,D,E

There is therefore little doubt regarding the responsibility of the Architect in respect of the UBBL 1984. Is there however an implied responsibility for the QUALITY of the works completed? UBBL in itself does not mention quality requirements and so long as the quality of the building element does not affect the safety and health aspect of the building, there is no directly implied responsibility for the quality aspect of the building.
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The Board of Architect Malaysia has taken a similar view in that the UBBL 1984 requires the Architect to only take responsibility for the safety and health aspect of the building. The Architect must however ensure for example that the staircases riser shall not be more than 180mm and the tread not less than 255mm under by-law 106(1) as this is a fire by-law requirement and not a quality requirement. The Building & Construction Authority of Singapore BCA has taken an identical position as explained in their FAQ for CONQUAS outlined below.
Why BCA issue Temporary Occupation Permit (TOP) where workmanship is poor? The TOP signifies that the completed building works have complied with the provisions of the building regulation, which focus primarily on human safety, and with the requirements of the various technical authorities, so that the completed building can be occupied. However, TOP does not ensure that materials have been accordance to the Sale & Purchase (S&P) agreement or quality of works as promised in sales document. These disputes should be brought directly to and resolved with the developer.

ROLES & RESPONSIBILITIES OF THE ARCHITECT WITH REGARDS TO QUALITY OF WORKS IN THE ISSUANCE OF CCC For similar reasons to those explained in relation to the application for Certificate of Fitness for Occupation, when the UBBL was amended for Architects to issue the Certificate of Compliance and Completion CCC effective from 12th April 2007, so long as the building has meet all technical compliance in relation to the UBBL in protecting public safety and health, the building should be deemed fit for issuance of the CCC, regardless of the quality of the workmanship, provided it is deemed reasonable by the Architect or other qualified person. Only workmanship and materials quality in compliance with safety and health requirements of the UBBL 1984 must meet the minimum requirements as outlined in the by-law or other relevant standards.

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3. MANAGING CHANGE
3.1 Changes and Variation Orders
Unlike standard building contracts, the Standard Sales and purchase agreement does not encourage change once the building plan has been approved and the SPA has been signed between the house buyer and developer. Clause 13 of the Housing Development Regulation 1989 requires the consent of the house buyer for any changes. It is therefore highly recommended that the design be frozen once the first SPA has been signed, especially for mass housing. Architects must also be mindful of their position in relation to the Building Contract and the S&P. In the case of the standard building contract, the Architect takes the role of quasi arbitrator once the contract has been awarded to the contractor and he is empowered under the contract to make changes. In the case of the Standard Housing S&P, which is also a contract, his role is restricted to that of certifier of completion only. Any disputes as to the requirement for change rests with the House Buyer Tribunal as the following digram illustrates.

Many Architects also often face the problem of never ending changes by the various departments of the developer, often with no compensation for these changes as none of their staff are prepared to sign off on acceptance of design before requesting for start of the next stage. One useful way to overcome this is to follow the ISO 9001 procedure of requesting for sign off on the Client Satisfaction survey form for each stage of the works which signifies completion of the stage and requesting for feedback on your performance. A typical survey form would be as follows.

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3.2 Extension of Time

Are Developers entitled to request for waiver of interest on late delivery if their Contractors delay the works or there is a shortage of materials for construction? Developers often applied to the Controller of housing for waiver from paying of interest for late delivery. There is however a leading case for this legal proposition in SEA Housing Sdn Bhd vs Lee Poh Choo [1982](2 MLJ 31) in which the purchaser sued the developer for breach of contract and for delivery of the title to a house he had purchased. The property in question was completed after 23 months, instead of 18 months as stated in the SPA. The issue before the court was whether the developer could be excused for the delay due to acute shortage of building materials, a state of affairs which was at that time public knowledge. The developer relied on Clause 32 of the agreement, which purported to exempt it if nonfulfillment of any term was caused by circumstances beyond its control. The High Court trial judge held that the 1966 Act and the 1970 Rules were passed by the authorities to protect the interests of the public and the developer could not contract out of the Rules. The developer's appeal to the Federal Court was dismissed. To date there have been no cases where Developers have been exempted for late delivery penalties.

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4. MANAGING DEFECTS & COMPLAINS

4.1 Common Defects & Complains

HBA Complaints Statistics 2006

1. 2. 3. 4. 5. 6. 7. 8. 9 Types of Complaints Strata titles Management & Maintenance Late delivery & LAD claims Certificate of Fitness Abandoned projects Shoddy workmanship & defects Non-adherence to building plans Infrastructure Failure to recovery on Awards / Prosecution of Awards Section 16AD % 30 24 12 9 14 7 1 1 2

Number Of Complaints Received by States by Types For Year 2000

No. Types Of Complaints/States 1. 2. 3. 4. 5. 6. 7. 8. 9. Defective Workmanship Compensation Payment CFO Late Delivery Of Houses Interest Not Conforming To Plan Service Cheating

SGR

PLS

P.P

PRK

KED

N.S

MEL

JOH

W.P

KEL

TRG

PHG TOTAL

82 124 20 47 97 40 14 20 2 21 0 12 177 656

0 0 0 0 0 0 0 0 0 1 0 0 1 2

26 28 15 4 38 4 10 17 1 5 3 15 50 216

12 14 6 3 24 1 6 5 3 2 0 7 27 110

14 6 4 1 15 3 1 2 1 1 0 9 15 72

14 4 8 1 24 14 0 4 2 1 1 2 9 84

7 0 9 0 14 5 1 2 0 4 0 0 0 42

18 0 7 1 24 17 3 3 0 4 0 1 5 83

28 60 23 26 83 9 98 51 8 13 1 9 32 441

0 0 0 2 12 0 0 4 0 0 0 1 4 23

0 1 0 1 1 1 0 2 0 0 0 0 3 9

11 10 0 9 16 4 2 3 0 2 1 2 25 85

212 247 92 95 348 98 135 113 17 54 6 58 348 1823

10. Deposit/Ownership 11. Infrastructure 12. Contravene Act/Regulations

13. Others Total

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No. of Abandoned Housing Projects by States As At December 2000 No. 1. Perlis State No. of Projects 15 No. of Houses No. of Buyers Estimated Cost (RM Million) 91.27

1,591

564

2.

Kedah

23

3,795

2,983

148.92

3.

Penang

41

8,364

3,754

633.21

4.

Perak

78

12,742

8,406

596.55

5.

Selangor

80

17,544

12,914

1,622.65

6.

W. Persekutuan

25

15,107

9,104

1,980.9

7.

N. Sembilan

52

11,170

5,947

521.73

8.

Melaka

29

5,146

3,518

383.5

9.

Johor

69

20,067

14,423

939.71

10.

Kelantan

37

4,241

2,218

191.72

11.

Terengganu Pahang Total

33 32 514*

1,557 6,378 107,702

790 3,719 68,340

78.35 53.9 7,542.41

12.

Source : Research and Development Division, National Housing Department, Malaysia, April 2001

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As the various surveys show, the three most complains form house buyers in order of frequency is as follows. 1. Late delivery of houses 2. Compensation 3. Defective workmanship Section 2.2 already deals with ways to improve quality of workmanship thereby reducing defective works. The question of delays in delivery shows a lack of basic management skills and techniques in ensuring timely and proper completion of projects. This usually arises with new developers who are under capitalized and lack the necessary experience. Many of these would become abandoned housing projects when the economic climate become poor.

4.1 Sources of Success in Development

The reverse side of the coin is to look at what developers consider to be the source of successful developments. For this we refer to the University Sains Malaysia Housing Building and Planning faculty research carried out in 2005. The following were identified as the key success factors.

Source :

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AN ANALYSIS OF COMPETITIVENESS OF HOUSING DEVELOPERS IN MALAYSIA Assoc Prof Abdul Rashid Abdul Aziz Ho Shiew Yi School of Housing Building and Planning Universiti Sains Malaysia Penang

The following were identified as top 10 key success factors. 1. Prime location of land 2. Cash flow 3. Understanding market potentials 4. Relationship with local authorities 5. Management expertise and experience 6. Organisation and service reputation 7. Ability to manage change 8. Relationship with competent support services providers 9. Skilled employees 10. Management tolerance to risks and

It is therefore just as important for Architects to look beyond the Laws and recognize when the conditions are not right for a successful housing development and to walk away from a project that has all the wrong conditions.. If not then in a best case scenario, he would have wasted a lot of his time and the project never takes off and he is not paid. In a worse case scenario, the project becomes abandoned and a few hundred people lose their life savings.

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