Apr 27, 2010

Opinion on LTSA Amendments 2010

Amendments to 84A
  • STB has a maximum of 60 continuous days and emphasis is on mediation, disputes will go to High Court for adjudication. 
  • Objections at High Court must be the same as for the STB 
  • STB/High Court is empowered to request for any information or documents with regard to the sale application **
  • High Court can refuse a collective sale if SC does not agree to increase the sale proceeds of an affected objecting minority owner (by Order).
  • SPs can no longer apply to STB to determine compensation regarding a leased unit.
60 continuous days: this is down from the 6 months previously that the STB had to deal with each case. Since the Board is now only occupied with mediation, and is no longer determining whether a sale was done in good faith etc, then 60 days is quite enough. Mediation previously was only scheduled for 2 days (nonconsecutive) and very unproductive they were, too. I suspect sales committees from now on will stick to their guns and refuse to budge an inch - knowing full well the onus is on the poor minority owner to take the matter to the High Court. Justice is never free. I hope the STB will look upon their mediation role more seriously, and wring a few arms if need be.

Don't expect mediation to succeed - only for the clear-cut financial loss and compensation cases. Once there is a whiff of a stalemate between objecting owners and the sale committee over matters of good faith then I suspect the STB will issue a stop order and let the whole shebang proceed to High Court regardless whether or not the minority can afford it or even want it. I do not see them wasting their time going through a tedious tribunal when they cannot adjudicate on it anyway.

UPDATE ** July 2011: I heard that the STB will only look into minority concerns (eg request for a Valuation)  if the minority first drop their objections at the STB!!!!! What is going on here???

On the plus side, this ruling also saves on the pointless ricocheting between STB and HC. It's a uni-directional approach, legal fees can be moderated, and there is a finality at the end.

What I see is that  cases will go to High Court sooner and matters resolved faster. What I don't see is a reduction in disputed sales.

 Objections to the High Court must be the same as for the STB: well, what about those revelations that may pop up during discovery?  It looks like an objecting owner will have to include every objection under the sun - regardless of whether or not he can prove it- in case he finds incriminating evidence at a later stage. The inquisitional powers given to the STB will come to naught otherwise. Either that, or word the objections so vaguely that they can cover every contingency  along the way.

Amendments to First Schedule:
  • Notices to be sent by ordinary mail.
Well, things get lost in the post, don't they.
.
 Amendments to the Second Schedule:
  • Constrictions imposed on repeated en bloc attempts. A second requisition less than 2yrs after the first failed attempt (called a relevant event) must have 50% support of SPs . A third requisition within 2 years must have 80% support. 
 A clarification of "relevent event" is defined. It is :

  1. No quorum of proprietors present at a general meeting. (quorum = 30%)
  2. The CSA expires at any time on or after the date of commencement of the LTSA Amendment Act 2010
  3. Motion for the constitution of a SC is defeated at a general meeting
  4. The SC is dissolved any time on or after the commencement of the LTSA Amendment Act 2010. This is going to be June 2010.
  5. Every member of the SC is removed from office on or after the commencement of the LTSA Amendment Act 2010
This might make a Sales Committee think twice before starting an en bloc as they have to be very sure of the support of the masses. A failure will send them to the back of the class for 2 years. Frivolous attempts and 'testing the waters' might be curtailed.

What is not specified is considered allowed, so, the list of relevant events does not include:


  • When an estate has reached 80% but has failed to find a buyer. But so long as they can keep the CSA active (ie through supplemental CSAs) the estate can be maintained in perpetual en bloc mode. This surely is a loophope and/or oversight made by the MinLaw- unless it was intentional. There can be no end until the estate is in shambles and a buyer is eventually found. I would hate to be a minority owner who has no choice but to stay until the very end in such an estate. It could be a slum by then.
  • If the collective sale failed at the High Court.
 .
Amendments to the Third Schedule:

PRETTY MUCH ALL HOGWASH - because there is no mechanism for verification or enforcement. What is the point of having speeding limits when there are no traffic cops. This schedule isn't worth the paper it is written on. 
  • Elaborates on types of interest and circumstances that may give rise to a conflict of interest between would-be members of a collective sale committee, eg how many units they/their family have in the estate and when they were bought
  • Deleting most of the previous EGMs
  • SC can remove a minority owner from serving on the SC once the 80% has been reached and an application for sale has been made to the Board. 
  • Dissolution of SC if no signatures within 12 mths after it is constituted
If he declares at a later date, post-EOGM,  the chairman has to put up a Notice on the notice boards about the declared interest. What? Why? Covering their backsides? What about AUTOMATIC DISMISSAL? Why not sue the guy for withholding information? What purpose does a piece of paper on the Notice Board serve other than to mock the hoodwinked owners?

Surely this is the reason why Clause 10 in the Third Schedule has been left in - silently sitting at the bottom, attracting no attention, waiting to spring into action if a contract looks like it may be in danger from a sale committee member's malfeasance or outright lies. He may be a crook - but the LTSA puts the sanctity of  contract before transparency and 'doing right' by owners.

10. "Any act or proceeding of a collective sale committee done in good faith shall, not withstanding that at the time that the act or proceeding was done,taken or commenced, there was:
(a) a vacancy in the office of a collective sale committee
(b) any defect in the appointment, or any disqualification of any such member, be as valid as if the vacancy,  defect or disqualification did not exist and the collective sale committee were fully and properly constituted"

So, all this clamoring and brouhaha about electing sales committee in the end doesn't mean a thing.  Believe me, it's hogwash.Also, in my humble opinion, this clause 10  is in contradiction to paragraph 150/151 of the HORIZON TOWERS APPELLATE COURT DECISION 2 APRIL 2009 dealing with disclosure of interests, which states:-

"150  This provision mandates the discliosure of a particular type of conflict of interest at a particular stage of the collective sale process (viz, the formation of an SC). In our view, it has certain important implications. It shows that Parliament is aware that a conflict of interest, if not disclosed to the subsidiary proprietors, may affect the good faith of the actions or decisions of the SC member who is in such a position of conflict. Disclosure is therefore mandatory so that, if the person in the position of conflict is elected as a member of the SC by the subsidiary proprietors, they are deemed to have taken into account the potential conflict of interest and are deemed to be prepared nevertheless to be bound by any decision the SC member may make on their behalf.

151    The statutory requirement of disclosure does not spell out the legal consequences of a failure to comply with it. However, since it is a statutory requirement, non- compliance with it has to have some legal effect on any decision made by the SC member who is in a position of conflict in relation to the sale. In our view, any non-disclosure of a conflict of interest of the type specified in this provision may affect the requirement of good faith in the transaction, especially if the SC member has played a decisive, influential or leading role in an SC’s decision to enter into the transaction. Each case of a failure to disclose a conflict of interest must be examined closely to determine the significance and consequences of the breach in relation to the transaction as a whole.

Amendments have been made to the Third Schedule reversing the amendments made in the last round of revisions. The last round of amendments tried to fix the steamrolling tactics  of the sales committee and put a little power (albeit without much teeth) back into the hands of the owners. Some of that has been taken away

OLD EGMS (up to 7):
  • a) to consider the appointment of en bloc lawyer and property agent
  • b) to consider the apportionment of sales proceeds
  • c) to consider the terms and conditions of the CSA
  • d) to give an update on the total number of SPs who have signed the CSA
  • e) to provide information of the sale proposal and sale process
  • f) to provide information of the number of offer received and their collective amounts
  • g) to consider the terms and conditions of the S& P.
Instead we now have:

NEW EGMS (up to 4): 
The collective sale committee shall convene one or more general meetings  of the MC in accordance with the Second Schedule for the following purpose
  • First EGM to constitution iof sale committee and it's powers, duties or functions
  • a) to appoint any advocate and solicitor, any property consultant or marketing agent in connection with a collective sale where the collective sale committee is not already authorised at  a general meeting to make such apppointments".
  • b) to approve the apportionment of sales proceeds; and
  • c) to approve the terms and conditions of the CSA
The other EOGMs will be replaced by simple subsidiary proprietor meetings - given with a 7 day notice. I can see this being abused no end.

Basically we are back to how it was in TC enbloc Round 1. There will be virtually no meetings for months and months on end,  - and then a quick one if you can catch it. Only an update, though. And another quick one after the game is over.  It is simply not enough. I would want the SC to hold MONTHLY meetings with SPs. Why didn't the MinLaw understand that people who have put their homes on the line want to be given regular face-to-face updates?

I see the new amendments are in direct conflict with the Duty to Consult the Susidiary Proprietors set out in the Horizon Towers Appellate Court Decision.

(2)    Duty to consult the subsidiary proprietors
166    Finally, whenever there is reasonable doubt as to the proper course to adopt, the SC ought to seek fresh instructions or guidance from the consenting subsidiary proprietors from whom it draws its mandate. It is true that the LTSA and most collective sale agreements do not contain any specific provision requiring an SC to obtain approval from the consenting subsidiary proprietors of the sale price before the SC issues an option to the potential purchaser (para 7(1)(g) of the Third Schedule to the LTSA provides that an SC shall convene a general meeting for the purposes of considering the terms and conditions of the sale and purchase agreement, but para 7(4) states that this need only be
convened after the close of a public tender or auction or after the SC has entered into a private contract for sale). However, an SC’s duty to consult with the consenting subsidiary proprietors arises out of its fiduciary obligations, independently of its contractual obligations (see [109] above).


167    An SC cannot rely on a mechanistic or literal compliance with its statutory and contractual obligations to escape indictment for breach of its obligations as fiduciary of the subsidiary proprietors. The first principle is that an SC has to work for the benefit of all the subsidiary proprietors. This will no doubt involve going beyond just paying lip service to the relevant procedural rules under the LTSA and its mandate under the collective sale agreement. Indeed, in evaluating the conduct of an SC, the contextual conditions in which the power of sale is exercised is everything.


It is even more vital that owners set things in stone AT THE FIRST EOGM under duties of the sale committee - force them to hold meetings and to TAKE DIRECTION from the owners. Do not sign your rights away in the CSA as the road to en bloc is long; keep your keys in your pocket. 

On a practical side, without a clubhouse, where in TC can such a meeting be held on such short notice. In the activity room, where you can squeeze, maybe, 30 people in?  In the carpark?

As for the dissolution of the SC if no one signs the CSA....... well, even if no one else signs, the SC members will, thus ensuring the continuity of their tenure and en bloc process for at least another 12 months (from date of first signature). They will have 12 months to twiddle their thumbs before their second 12 months begin.

So the time line now looks like:

12 + 12 + 12 + (12)m + 2 + Y  = 3 to 5 years for en bloc sale

Whereby:

12 = 12 months for SC to twiddle their thumbs/ CSA
12  = 12 months to gather the requisite 80%
12 =  12 months to find a buyer and make an application for sale to the STB
(12) = supplemental CSA should there be no buyer and majority wish to lower the RP
m = any number of multiples of supplementary CSAs to lower the price
2 = 2 months max at the STB
Y = Time taken at the High Court/Court of Appeal

CHANGES TO LTSA




Proposed changes to en bloc rules tabled at Parliament

Market watchers welcome proposed changes to en bloc sale regulations


Apr 21, 2010

Ministry of (bad) Law

Keep members of MC, sales committee distinct
AS en bloc sales fever is revived, it is important for the government to take note that, often, members of the management corporation or council (MC) are the same people as those sitting on the sales committee set up for selling the property . This presents potential conflict of interest and leads to malpractices.

When the MC, whose main roles are to oversee maintenance is tasked with the responsibility for collective sale, there would be obvious an conflict of interest simply because they are not in neutral positions; they have the power to make decisions on maintenance matters that influence en bloc sales.

A case in point is a condominium where the MC, in pushing for an en bloc sale, has openly said that non-maintenance is a tactic to make owners fed up of their run-down properties so that they would want to sell.

The MC also said that money should not be wasted on estate planning when an en bloc sale is in prospect. As a result, the estate's conditions, amenities and facilities have so deteriorated that they are posing safety and health hazards to residents.

As en bloc sale procedures can take years, maintenance of estates need to be continued at a reasonable level. Hence, it is important that management of maintenance issues be separated from en bloc issues and that members of the respective committees be also distinct.

 Florence Tan

Residents have power to deal with MC members
MS Florence Tan (‘Keep members of MC, sales committee distinct’, BT, April 15) suggests that members of management committees (MC) be distinct from members of en bloc sale committees (SC).
Ms Tan is of the view that there will be a conflict of interest when members of the MC, whose main role is to oversee maintenance of the estate, are also tasked with the responsibility for an en bloc sale.
Separating the members of an MC and SC may not be very practical for smaller estates if insufficient persons come forward to form two separate committees. The Land Titles (Strata) Act allows owners to elect who they feel are best suited to represent their interests into the SC. The Act also allows owners to remove any SC member or even the entire SC if they are of the opinion that they are not discharging their duties in a fitting manner.
Under the Building Maintenance and Strata Management Act, the MC is duty-bound to ensure the estate is well maintained and kept in a state of good and serviceable repair. Should the MC fail to perform its duties as imposed by law, residents can seek redress through the Strata Titles Board or the Court to compel the MC to perform its duties. If residents are unhappy with the performance of council members, they can consider removing the council members concerned by way of an ordinary resolution at a general meeting on grounds of neglect of duty.Thus, it is entirely within the powers of the majority of the residents to deal with errant MC members.Chong Wan Yieng (Ms)
Head, corporate communications Ministry of Law Source : Business Times – 20 Apr 2010

The only argument the Ministry of Law could dredge up was that it might be impractical for smaller estates should insufficient people came forward to form two separate committees. What a lame excuse. The SC need only have a minimum of 3 members and one can safely assume there are more than 3 people in the estate. MC members tend to be old guard and join/rejoin year after year. The SC is an ad hoc group, usually flippers or desperados, who would never have had any interest in the estate under normal circumstances.

The Ministry of Law is once again skirting the issue by not addressing the  'conflict of interest' head on. preferring instead to redirect the argument as to how owners can rectifying measures if things take a turn for the worse,. Measures that would be unnecessary had the MinLaw done a better job in the first place. They should view the two committees as opposing political parties. It is not possible to be a member of the Ruling Party and the Opposition at the same time. Can they not see the difficutly? Are they blind to the obvious conflict of interest? Why must owners hold a 'general election' to rectify the matter!

By not addressing the question of conflict of interest,  the onus is put on owners to do battle on the ground. They refuse to make good law and in so doing,  encourage disharmony and outright animosity amongst subsidiary proprietors. The MinLaw make a mess, and the owners must clean it up - as usual.

And it's all completely unnecessary and avoidable.
 
What possible reason could a sale committee member have for joining the MC? Isn't their SC job time-consuming enough? Why undertake the extra responsibility? What are their ulterior motives?
 
A huge estate like TC need not depend on the SC and their supporters to run the estate and can rely on many, many owners who would rather volunteer their time than see the estate go through a gradual decline on skeletal services.
 
Any aggressive tactics (as seen in the orchestrated pro-enbloc mayhem at the 2006 AGM) will face equally aggressive counter attacks from concerned owners.

Its a case of BEEN THERE, DONE THAT and NEVER AGAIN.

Fears not groundless

MINISTRY of Law’s rebuttal (“No conflict of interest”, April 23) attempts to dismiss lightly Ms Florence Tan’s comments in an earlier Voices letter of a perceived conflict of interest when Collective Sale Committee (CSC) members are also on a private estate’s management committee (MC). It is surprising, and not a little disappointing, for an official reply published for public information to be so riddled with controversial if not confusing statements. Not just once accidentally, but three times in the last three paragraphs of its letter, MinLaw expatiates on the supposed rights of residents, whereas in reality they have almost no say, unless they are also unit owners, or subsidiary proprietors as they are termed. Is MinLaw really unaware that there could be, and in fact there are, many residents who are no more than mere tenants with few rights except that of occupation of the unit for which they pay rent? By no stretch of imagination, or for that matter, law, (and here I stand open to correction by MinLaw) are they in the position to “elect, remove en bloc sale committee members” etc, which MinLaw so easily suggests.
 MinLaw opines that “separating the members of an MC and SC may not be very practical for smaller estates if insufficient persons come forward to form two separate committees”. It fails to define, even broadly, where the line of demarcation between “smaller” and “not smaller” starts, and/or ends.

EXTENT OF POSSIBLE CONFLICT
The (experienced) managing agent of the estate where I live in informed me that under the Land Titles (Strata) Act, just one person can in fact make up the MC, while the CSC needs to have a minimum of three. In this scenario, does MinLaw seriously contend that there is not even one committed individual in any private estate who is uninterested in what happens in a property into which one’s life savings would probably have been sunk?If so, it says a lot about the apathy commonly attributed to Singaporeans, who generally are kiasu otherwise.Instead of pooh-poohing Ms Tan’s fears and reservations as groundless, MinLaw should look more seriously into the extent of a conflict of interest which could, and in fact does, arise when a private estate’s MC is dominated by those who are also on its CSC, with diametrically opposing objectives – one entrusted with maintaining the estate in good order, and the other the avowed objective of selling it for eventual demolishment. Surely, when the stakes could run into hundreds of millions of dollars, it would be naive to believe that a conflict of interest does not exist, as MinLaw tries to convince in its rejection of Ms Tan’s reservations and fears.

PERSONAL EXPERIENCE
Perhaps it would not be out of place here to record my own personal experiences on this issue. My family and I moved into a private estate with over 250 units almost 13 years ago. At our first AGM, I was elected to the MC, and for the succeeding 10 years, served as either secretary or treasurer (in fact, one year as both simultaneously). Due to a lack of the necessary quorum, almost no AGM ever started promptly at the scheduled time, from which can be gauged the practical difficulty in getting people to serve as (honorary) members on an MC. Nevertheless, it was never really difficult to get a group of us to stand in the common interest. However, changes made in Land Titles (Strata) Act rules from October 2007 altered this scenario radically, when a group looking to engineer an en bloc sale of our estate moved in to oust (successfully) everyone in the previous MC (except one who was also in favour) and taking absolute control. Their elected and still-serving chairman is a property agent, and he also sits on the CSC, which was quickly formed. But at the end of the first year, less than 50 per cent of residents have signed the collective sale agreement, with the mandate lapsing. This did not deter the group from seeking and obtaining a fresh (on-going) mandate immediately. That was almost six months ago, and apparently the CSC has met only once in the interim, with anxious unit owners totally in the dark as to what progress has been made. Apparently, there is no provision in the present rules to compel the CSC to provide periodical “progress reports” to be made known to affected subsidiary proprietors. Why not indeed, when a half-billion dollars could be involved, and with that current buzzword of “transparency” being so freely bandied around everywhere?

RESERVATIONS ARE REAL
Against such a background, Ms Tan’s reservations on the propriety of such a perceptible conflict of interest seem real and more than valid.MinLaw’s summary dismissal of the issue in its letter, with all the flaws outlined above, is unlikely to satisfy subsidiary proprietors who are strongly opposed to the sale of their homes, with the resultant upheaval in their lifestyles, if not lives as well, and who prefer to stay rooted in Singapore.
To sum up, within just months of the October 2007 amendments, another publication ran an article wherein a MinLaw spokeswoman was quoted as candidly admitting: “Since the amended Land Titles (Strata) Act came into effect, we have received feedback mainly from affected (read ‘aggrieved’) owners to make the collective sale process even more rigorous by introducing more safeguards.” Thus, by MinLaw’s own admission, there are flaws in the current Land Titles (Strata) Act. That was well over two years ago, and perhaps MinLaw could at least now take steps to make suitable amendments to set matters right, instead of trying to argue that everything is well. It is unlikely that the defensive arguments advanced by MinLaw will find acceptance among most subsidiary proprietors. They are more likely to go along with the reservations voiced by Ms Tan, which it has tried to shoot down.  Source : Today – 24 Apr 2010

Apr 16, 2010

Market news

Private home sales rise 47% on-month in March to 1,761 units

"According to Colliers International, 44 per cent of sales in March were to HDB flat owners, up from 34 per cent in January and 33 per cent in February.
Colliers said this may be due to HDB upgraders rushing to lock in their private property purchases for fear of being caught in a double whammy situation, where private property prices rise beyond their means and HDB resale flat prices fall after the government stepped in to curb speculative activity in the HDB resale flat market in early March."
Source : Channel NewsAsia – 15 Apr 2010

IMF flags ‘bubble trouble’ in Asia


m
  
Private property prices continue to rise

Prices of Singapore’s private homes market defied recent property cooling measures and continued their upward climb in the first quarter of this year, even though the rate of growth has moderated slightly.
Statistics released by the Urban Redevelopment Authority (URA) on Friday show private residential properties prices rising to 175 points for the first quarter of this year, around 5.6 per cent higher than the previous quarter.
Analysts told MediaCorp that the whopping 7.4 per cent growth in private home prices in the fourth quarter of last year was “too high and unsustainable”.
“Although the price increase has dropped to 5.6 per cent this first quarter, it is still of the higher range”, said Mr Nicholas Mak, real-estate lecturer at Ngee Ann Polytechnic.
He said that if this trend continued, by year-end there could be a 22-per-cent jump in private home prices, reaching the peak level of 2008.
Real-estate agency ERA Asia Pacific said the market’s bullishness could be attributed to the opening of the two integrated resorts, as well as the Youth Olympic Games to be held in Singapore.
Singapore is becoming increasingly visible among international investors and high net worth individuals, said Mr Eugene Lim, associate director of ERA Asia Pacific.
According to the URA, prices of private homes on the city fringe during the first quarter rose the highest, by 7.9 per cent.
Prices of private homes located in the city climbed 4.4 per cent, while those in suburban areas rose 4.3 per cent. Rentals of private residential properties also increased 4.7 per cent.
URA statistics show a total of 4,372 uncompleted private residential units launched for sale by developers in the first quarter of the year – almost twice the 2,227 units released in the previous quarter.
Mr Colin Tan, head of research and consultancy at Chesterton Suntec International, reckons that the increase in supply of private residential units may help temper prices further in the next quarter.
To lower inflation risks, Mr Tan said the healthy price growth for private homes should hover between 2 and 3 per cent every quarter.
In terms of sub-sales, the total number of such transactions was 806 in the first quarter, up from 771 in the previous quarter.
Sub-sales, or re-sales that occurred before the completion of a project, are usually used as an indicator of speculative activity.
Source : Today – 24 Apr 2010

Apr 12, 2010

DIAMOND TOWER

Diamond Tower in Balestier sold in collective sale

"EL Development has inked a deal to buy the freehold Diamond Tower at Jalan Rajah in the Balestier area for $49.6 million through a collective sale."

"The price works out to a unit land price of about $652 per square foot of potential gross floor area inclusive of an estimated $300,000 development charge payable to the state.
Diamond Tower has a land area of about 27,323 sq ft and is zoned for residential use with a 2.8 plot ratio (ratio of maximum potential gross floor area to land area).
‘We intend to build an 18-20 storey apartment block with about 100 units, mostly one and two bedroom units but we’ll also have some three bedders,’ EL Development managing director Lim Yew Soon said when contacted by BT.
The break-even cost for a new apartment development based on today’s construction costs works out to about $1,200 psf."

"Diamond Tower’s collective sale was marketed by Urban Front Real Estate. It was offered through a tender exercise which closed last month without a deal being sealed.
‘We submitted our offer after that and are buying under a private treaty deal,’ Mr Lim said.
The proposed collective sale of Diamond Tower will be subject to approval from Strata Titles Board as its owners have not unanimously consented to the sale."
Business Times-12 April 2010 

No unanimous consent. I can't confirm how many units there are and the article didn't say how much each unit got.
But the developer is going to make a killing on the new development with a plot ratio of 2.8.
DOUBLE the height
DOUBLE the salable area
QUADRUPLE the unit number.
DOUBLE the price.












ADDRESSES TO WATCH

Apr 8, 2010

Toh Tuck

Toh Tuck Apartment site up for sale

The 26-year-old Toh Tuck Apartment, formerly known as Toh Tuck Garden, currently sits on the 40,449 sq ft site, which has a plot ratio of 1.4, allowing it to be rebuilt to five storeys. .....
The site is owned by Aik Hwa Trading, formerly a small-time developer but now in the building materials business.
Because the plot is owned by one party, the sale is likely to go through quicker than a typical collective sale lacking 100 per cent owner approval.

One party = 100% approval!

Toh Tuck Apartment up for collective sale with asking price of S$35.5m