Consultants (JKR)

After having discussed agreed on the framework of appointment, consultants are appointed by client by either one of the following 3 ways:

1) Consultant issues Letter of Appointment together with a duplicate copy to client who executes in acceptance and returns copy to consultant.

2) Client issues Letter of Appointment together with a duplicate copy to consultant who executes in acceptance and returns copy to client.

3) Both the client and consultant execute 2 copies of Memorandum of Agreements
- a standard agreement produced by the consultant's respective statutory board.
Each party keeps a copy.

The above 3 agreements shall basically contain the following 5 essential parts:
a) The amount of fees  and reimbursable charges payable by client to consultants.
   - Consultant can suspend services when non-payment from client.
b) Terms and conditions of appointment
c) Types of services provided by consultants.
d) Consultant's scope of works.
e) Mode of payment.

Current practice is for clients  to appoint a key consultant, usually the architect who in turn appoints other sub-consultants. Architect will then has laibility over other consultants' design. The client pays the Architect for the comprehensive services and the Architect pays other consultants "back to back". This way,. the client needs deal with only a lead consultant and holds him responsible and liable for everything . Other consultant sare responsible and liable to the Architect.

The appointments of consultant by their respective Memorandum of Agreements are as follow:
A) ARCHITECT - Lembaga Arkitek malaysia (LAM) memorandum of Agreement consists of 2 parts:

i) Architects (Scale of Minimum Fees) Rules 2010.
ii) Memorandum of Agreement between The Client and The Architect for Professional Services.

B) ENGINEER- Board of Engineer Malaysia's Memorandum of Agreement contains 2 parts:
i) Fees / charges client is to pay Engineer
ii) BEM Model Form of Memorandum of Agreement between Client and Consulting Engineer for Professional SAervices.

C) Q.S. - memorandum of Agreement Between The Client and The Consulting Q.S. For Professional Q.S. Services

Termination of Professional Services 
- Consultant who initiates termination gives client 60 days written notice with 30 days to settle outstanding fees. Consultant cannot suspend service during this period.
- Upon settlement of fees, consultant issues Letter of Release (LR) to client. If disupute on fee, to refer to arbhitration and to Board of professional who would within a week write to consultant waiving LR upon which client can proceed to appoint new replacement consultant.
- Terminated consultant if made submission to local authorities (L.A.) issues Letter of Withdrawal to L.A. withdrawing as Submitting Person without which new consultant cannot make submission / take over as Submitting Person.


FEES FPR [RPFESSOPMA; SERVOCES 

Professional fees are paid by the clients to consultants when each of the different phases of works has been completed.. payments are initiaited when consultants issues invoices to clients. If consultants are individually appointed, fes shall be apid directly to them. if other consultants are appointed by the lead consultant, they should receive theri fees from the lead consultant back to back after lead consultant received client's payment.

some standard phases are as follow
a) Upon completon of schematic design   15%
b) Upon finalization of design  15%
c) On completion of submission drawing  15%
d) On completion of tender document  15%
e) On completion of contract documents   10%
f) During contract implementation   25%
g) Final completion     5 %

Classification of land 
Land can be used for development os classsified based on usage into the following 4 types

1) AGRICULTURE
- Land alienated for agriculture use  i.e. farming
- To start cultivation within 12 months of alienation and be continuously used.
- Can construct buildings used for purposes of cultivation only or a dwelling for farmer.
- Can apply to land office for conversion of landuse e.g. to Building or industry .
- For estate land, land administrator from land office has to get approval of Estate land Board.

2) Building
- land alienated for building purposes.
- To erect building within 2 years of alienation.
-  Such land can be zoned for residential, commercial, passenger transport, exhibition, education or medical, etc. Can be for commercial cemetery only   e.g. Nirvana in Nilai and Semenyih.

3) Industry
- used only for industrial purposes e.g. building factories, workshops, foundries, warehousing, docks, jetties, etc.
- Industry to commence within 3 years of alienation.

4) Golf Course
- A different category just for golf course.

Land for development 
land can generally be categorized into the following 3 types based on ownership

1) State Land
a) Land owns by state government who leases aldn out for development, usually for a period of 99 years. known as leasehold land.
- leasehold can be applied and extended when lease near expiry, but under law, others can also apply and be given lease.
- Leaseholder can lease out land. leaser can sub-lease but sub-leasee cannot sub sub lease out.
- Leaseholder can only lease out maximum 15 years

b) State government owned land granted to user on a temporar basis for either 60 years or 30 years. Known as temporary ordiannace Lease ( TOL).

2) Privately owned land
Land granted or sold to owner by government on a permannent basis. Known as freehold land. Usually for rubber or oil palm plantations. Government no longer grant/ sell freehold land.

- Freehold can be leased for 99 years from the government but if lesse wants lease only part of land, then only 30 years lease allowed.

3) Reserved land
land can be reserved for Malay, to KTM, as forest, road reserve, etc. land not transferable but can be leased from government for use.
malay reservd lands own by non malays ( previously approved) can be transferred to non Malays but if transferred to malays, cannot trransfer to non Malays thereafter.

LAND ACQUISITION FOR DEVELOPMENT 
LAND DEVELOPMENT regulated by statues ( laws passed by parliament), regulations ( regulative rules), policies and guidelines.

land for development might have been acquired long before actual development especially druing economic downturn when land prices are low. Financially capable developers usually accumulateland g such time. Developers with big landbank can choose their time adn type of development, usually druing period of lower development cost. leasehold or freehold land converted or unconverted can be purchased from private owners.

under NLC, property permannently fastened to land e.g. underground petrol tanks, formed part of land and cannot be removed by original land owner after land sold case law.

A) AGREEMENT TO PURCHASE
having assessed and decided to purchase a piece of land, the developer ( Purchaser) paus the landowner ( vendor) an Earnest Deposit of 2% of the agreed land price via either a real estate agent, if he brokers the sale or a lawyer. This deposit avoids Vendor selling to another party or the Purchaser changing his mind and not to purchaser. 14 working days is allowed for both parties to settle any outstanding mattrs. Default by Purchaser on this Agreement will result in forfeiture of his Earnest Deposit.

If Vendor defaults, he returns Earnest deposit to Purchaser and also com pensates an equal amount to Purchaser.

The Purchaser's biggest task in the 14 working days is to apply and secure a bank loan to finance the purchase. only after securing a loan will the Purchaser commit to go theough with the sale, which is to sign the Sale & Purchase Agreement (SPA), etc.

B) Sale & Purchase Agreement (SPA)

Once financing is assured and Purchaser's loan application is being processed, the lawyer shall prepare the SPA for execution by Vendor and Purchaser. SPA shall also be signed within the 14 working days specified in the Agremenet To Purchase. Failure by either party to sign within this time frame means default by him. With the signing of this Agreement, Purchaser to pay a total of 10% of purchase price to Vendor as Deposit Sum. Since 2 %has already been paid during Agreement  To Purchase, now 8 % need sto be paid.

Earnest Deposit adn Deposit Sum though paid to ( banker's draft in favour of 0 vendor, draft kept by REA/ lawyer as stakeholder.

A period of 3+ 1 months is usually allowed to finalize the whjole transaction. 3 months is allowed to settle all maters. if either party needs to use the additional 1 month to settle oytstanding matters, interest curently at 8% per annnum shall be charged by the other party. After 4 months the deal is off.

This Agreement basically includes the following:

a) particulars of parties to Agreement
b) Land be free from encumbrances. Vendor;s lawyer need sto carry out discharge of charge of land if has earlier charged land to secure loan.

c) Forfeiture clauses, whereby if either party defaults e.g. not proceed with deal or takes more than 4 months, transaction be terminated. if purchaser defaults, his 10% Deposit Sum forfeiturd by Vendor. if Vendor defaults, he reutnr Deposit Sum to Purchaser adn compensates another 10%
d) Schedule of payment
e) Interest on late payment, now usually 8% per annum on a daily basis be imposed on outstanding payment.
f) Defaults caluses leading to determination by either party of this Agreement
g) particulars of land.
h) Conditions imposed by developer on what can / cannot be done on land. only apply to bungalow lots.

On Signing the SPA, Purchase can ask lawyer to lodge a private caveat with high court against any other dealings on the land by other parties while awaiting the documentations adn transfer of title to be effecrted. Caveat prevents other from staking a claim on the land or Vendor selling to another person or putting restruction on the land.
This caveat is held by the SPA lawyer. After completion of transaction or determination of SPA, the caveat is lifted.
important instryucment of Agreements be stamped under Tamp Act 1949 within 1 month of the later party's atestation.
Late stamping charged double .