New Covid-19 law protects deposits paid by property buyers to developers

On 13 May 2020, the Singapore Ministry of Law (MinLaw) has put in place further legal provisions to protect eligible property buyers from penalties that arise from being unable to fulfil legally-binding contracts amid the Covid-19 pandemic.

The Covid-19 (Temporary Measures) Act, which these provisions fall under, now includes two additional contracts (i) Option to Purchase (OTP) and (ii) Sale & Purchase (S&P) Agreements/Agreements for Lease (AFL).

Explaining the decision to include the above contracts, MinLaw said it has “received feedback that some buyers who have entered into OTPs or S&P Agreements / AFLs are facing difficulties making payments because of Covid-19, and stand to lose their booking fees or deposits as a result.”

[Note: The term buyers in this article includes intending/prospective buyers who have yet to exercise their option.]

Only contracts with developers are covered, says MinLaw

The additional provisions will bring relief to property buyers and renters who have entered into contracts with housing developers before 25 March 2020. Only OTPs and S&P Agreements/AFLs made between buyers and housing developers (i.e. private housing developers and HDB) will be covered.

Like other contracts covered by the Act, these contracts must have been entered into before 25 March 2020, with contractual performance (e.g. expiry date of OTP) due on or after 1 February 2020.

How long is the relief and how do I obtain it?

MinLaw has specified a six-month relief period under the Act that starts from 20 April 2020. During this time, it wil not be lawful for property developers to foreit the deposit or booking fees of from buyers.

That being said, MinLaw said that buyers should first approach the developer to seek an extension if they need one.

If the buyer and developer are unable to agree on the terms of the extension, or if negotiations with the developer are not possible, MinLaw stated that the buyer may serve a Notification for Relief (“NFR”) on the developer to enjoy relief under the Act.

The buyer must serve a NFR on the developer in the prescribed form (available via this link), before the relief can come into effect.

If the parties are unable to reach a compromise even after the NFR is served, either the buyer or developer may make an Application for an Assessor’s Determination. The Assessor will consider both parties’ arguments, and will seek to achieve an outcome that is just and equitable in the circumstances.

I signed an OTP and qualify for the relief, who should I approach?

For OTPs granted by the Housing & Development Board (HDB), the buyer may approach HDB to seek an extension of the OTP.

For Executive Condominiums (ECs), the buyer may approach the developer directly.

For OTPs granted by a licensed private housing developer, the buyer may write to the Controller of Housing and approach the developer.

For OTPs that are granted by non-licensed private housing developers, the buyer may approach the developer directly to seek an extension of the OTP

How is the buyer protected during the relief period?

Once relief is obtained, the property buyer will receive the following protection:

a. In the case of an OTP, the developer is prohibited from withholding or forfeiting any part of the booking fee paid under the OTP during the relief period.

b. In the case of an S&P Agreement/AFL, the developer is prohibited from terminating the agreement on the basis of the buyer’s non-payment.

Developers are also not allowed to impose any additional charges or fees (e.g. late charges) on buyers during the relief period. All of the following actions are prohibited:

a. Increase of any charges or interest rate payable under the contract unless certain conditions are satisfied*

b. Imposition of new charges under the contract without buyer’s further agreement.

c. Requiring any part of a security deposit given pursuant to the contract to be replaced by the non-performing party except with the further agreement of the non-performing party.

*These conditions include: (a) the increase in charges or interest rate is specified in the original contract; (b) the increase in charges or interest rate is calculated by reference to a formula (e.g. a reference rate) in the contract. Additional increases are not allowed as long as the non-performing party(i.e. the buyer) does not agree to it.

New law “bodes well for the entire market”: Agent

The new law also protects buyers of new launch properties from losing their deposits should they be unable to make progressive payments as scheduled. Under the new law, these buyers “have the option of negotiating for a extension of payment or partial payment”, said Stuart Chng of Navis Living Group at Orangetee.

Remarking that the enhancements to the relief measures are “timely”, Stuart said that “in normal situations, the buyers would either have either lost their deposits or be sued for specific performance of the contract.”

“The government is giving stakeholders a direction on how legal binding contracts should be handled compassionately in this climate, so that affected parties do not resort to too drastic a stance such as suing or forfeiture of deposits,” said Stuart.

Equitably under the new law, MinLaw has also provided developers an option to seek relief if they are unable to fulfill contractual obligations themselves.

“Developers would also more likely prefer extensions than get caught up with termination of contracts and legal suits,” Stuart added.

[Read the full MinLaw press release here.]

Should MinLaw do more to protect property buyers during Covid-19? Share your views with us in the comments below.

If you found this article useful, 99.co recommends Covid-19 and Property: 12 Legal Questions Answered by Lawyers and Covid-19: HDB’s answers for Flat Buyers, Sellers and Owners [both Resale and BTO]

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