Lesson 3
1.4.5 Knowledge of Latest Developments/ Current Regulation 1) Housing & Development Act 2) Housing Developers (Control & Licensing) Act and Rules 3) Residential Property Act 4) Immigration Act 5) Land Acquisition Act 6) Land Titles (Strata) Act 7) Building Maintenance & Strata Management Act (BMSMA) 8) Town Council Act 9) Oaths and Declaration Act 10) Conveyancing and Law of Property Rules 2011 11) Civil laws and Syariah laws on inheritance and divorce 12) Personal Data Protection Act (PDPA) 2012 13) Moneylenders Act and lodging of caveats 14) Bankruptcy Act 15) Stamp Duty Act 16) State Lands Act 17) Anti-money laundering measures For the purpose of examination, any new measures announced hereon until 2 weeks before examination can still be tested.
Notes To Learner You are not required to know the full details of each Act. Rather, know how it affects your Real Estate Agency work, its implications and updates. Through this section, you would also know how each different aspects of a Real Estate Transaction is covered by the various Acts.
Housing & Development Act Unit 1 Page 63 The Housing and Development Act was introduced to establish the public housing authority, the Housing and Development Board, to provide public housing to residents and the powers to implement various housing schemes. These include introducing regulations and control on these housing programmes and the Design Build and sell Scheme. There are provisions in the Act which will affect the actions of the buyers and sellers of the HDB flats. Agents and salesperson should be familiar with these provisions; the breach of these may result in very serious penalties.
Declared Resale Price Unit 1 Page 63 Buyers and sellers who purchase or sell resale HDB flats are required to declare the true resale price. Under section 60 of the Act, any person who: a) in relation to the purchase, mortgage, sale or transfer by such person or any other person of a flat, house or other living accommodation; or (b) in relation to any application (whether by the person or on behalf of another) to the Board for its permission, consent, approval or license under this Act or any subsidiary legislation made thereunder, makes (whether orally, electronically, in writing or otherwise) any statement to the Board which is false, and which he either knows or believes to be false or does not believe to be true, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both.
Unauthorized Subletting Unit 1 Page 63 HDB flat owners who wish to let out his entire flat must obtain the prior approval of the HDB, and those who sublet one or two rooms are required to register with the HDB within 7days of subletting. Any person who, being the lessee of a flat, house or other living accommodation sold by the Board subject to the provisions of this Part, assigns, underlets or parts with the possession of the flat, house or other living accommodation or any part thereof without obtaining the prior consent of the Board as required by the lease shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both.
Compulsory Acquisition Unit 1 Page 64 In addition to the above offences, there are other more serious offences which may result in the Board acquiring the owner s flat. Under section 56(1) of the Act, The Board may compulsorily acquire any flat, house or other living accommodation sold subject to the provisions of this Part, whether before or after 2nd June 1975. List of offences listed on Page 92 and 93 of Notes
Housing Developers (Control & Licensing) Act and Rules Unit 1 Page 65
Housing Developers (Control & Licensing) Act and Rules This is an Act for the licensing and control of housing developers. It covers the rights and obligation of developers. The main objective of the Act is to protect the interest of the buyer and also to ensure that developers adhere to the requirements of the Act as follows: A Project Account must be set-up. Progress payments are solely for the construction of the project and not for other purposes. Delays in completion and issuance of Title are prevented though retention of a portion of the payment. Defective and shoddy construction is prevented with the provision of the defects liability period. To prevent shortfall in floor area, an error margin of 3% has been set. Following the the RES Examination syllabus, we will cover this Act and the Housing Developers Rules under Unit 4 of Paper 2 Sale of uncompleted private properties.
Sale of Commercial Properties Act and Rules Unit 1 Page 65
Sale of Commercial Properties Act and Rules Regulates the sales of separate units of commercial properties in a commercial complex and for purposes connected therewith. No person shall sell any commercial property unless the plans for the construction or erection of the commercial property have been approved by the Building Authority. Need for Option to Purchase and Agreement for sale. In the event where any person fails to comply with the provisions of this Act, he/she shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 1 year or to both.
Sale Of Commercial Properties Rules No payment exceeding 10% The rule states that a developer of commercial properties shall not require a prospective purchaser to pay for an option or the right to purchase any commercial property a booking fee, or make any other payment by whatever name it is called, exceeding 10% of the purchase price of the property. Developer to maintain register A developer of commercial properties shall maintain a register showing the particulars of those persons who have obtained options for the purchase of his commercial properties. This register may be produced to the Controller or any authorized officer for inspection.
Sale Of Commercial Properties Rules Option Form and Notice Form Developer of commercial properties shall give to a prospective purchaser of any of the commercial properties an option to purchase the commercial property. Option granted by the developer shall not be assignable or transferable and that no amendment, deletion or alteration to the option referred to in paragraph shall be made except with the approval in writing of the Controller. It is also stated that a developer shall, before accepting a booking fee from a prospective purchaser for an option to purchase any commercial property, notify the prospective purchaser that the following documents are available for his inspection at a specified place and during specified hours free of charge: a copy of the schedule of strata units or amended schedule of strata units for the building project comprising the commercial property as filed with and accepted by the Commissioner of Buildings; where any common property of the building project comprising the commercial property is designated as limited common property, a plan or description of the limited common property and the commercial properties in the building project the purchasers of which will be entitled to the exclusive benefit of the limited common property; and make available such documents for inspection at the specified place and during the specified hours if so requested by that prospective purchaser.
Sale Of Commercial Properties Rules Exclusive option Where a developer has granted a person an option to purchase any commercial property, he shall not grant to any other person an option to purchase the same property until after the first-mentioned option granted by him has lapsed. The duration shall remain in force for a period of 3 weeks from the date of delivery to the option holder s solicitors of the title deeds or copies thereof and the draft agreement for the sale and purchase of the property. Sale and purchase agreement An agreement made between a developer and a purchaser for the sale and purchase of any commercial property to which the Act applies shall be in prescribed Form D in the Schedule. As with all prescribed forms, there must not be amendment, deletion or alteration shall be made to the agreement referred to in paragraph without the prior approval in writing of the Controller. If there are, then the agreement shall be null and void. The Singapore Academy of Law established under the Singapore Academy of Law Act shall act as stakeholder under the agreement.
Sale Of Commercial Properties Rules Development plan The developer of a commercial property shall attach a plan of the commercial property sold by him to the agreement for the sale and purchase of the property and the plan shall contain such particulars as are sufficient to enable the purchaser to lodge a caveat against the land on which the commercial property is being erected.
Sale Of Commercial Properties Rules Assignment In the event where a purchaser of a commercial property intends to assign or has assigned all his right, title and interest under an agreement made between him and a developer for the sale and purchase of the commercial property, the developer shall, within 3 weeks of being so required in writing by the assignee, enter into a new agreement with the assignee for the sale and purchase of the commercial property containing terms and conditions as shall place the developer and the assignee in the same position as regards their respective rights and obligations as if the assignee were substituted for the purchaser in the original agreement. If the new agreement requires or contains any amendment or alteration to or deletion of any term or condition in the original agreement for the sale and purchase of the commercial property, the developer shall submit an application to the Controller for approval of such amendment, alteration or deletion within one week of being required by an assignee to enter into a new agreement for the sale and purchase of the commercial property, and the Controller may approve (wholly or partly and with or without modifications) or disapprove such an application. The developer shall then be required to deliver to the assignee for the assignee s signature the new agreement containing any amendment or alteration to or deletion of the terms and conditions in the original agreement only after the Controller has approved the amendment, alteration or deletion. The developer shall be entitled to charge the assignee a fee not exceeding $200 (exclusive of goods and services tax) and to require the assignee to reimburse him up to the amount of $200 for costs payable by the developer to his solicitor.
Sale Of Commercial Properties Rules Penalty Any person who refuses or fails to comply with or acts in contravention of any of the provisions of these Rules shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 6 months or to both.
Planning Act Unit 1 Page 68
Planning Act Provides for the planning and improvement of Singapore and for the imposition of development charges on the development of land and for purposes connected therewith. Master Plan was originally submitted to and approved by the Governor in Council on 5th August 1958 under the provisions of Part IV of the Singapore Improvement Ordinance (Cap. 259, 1955 Ed.) as subsequently amended under the repealed Act or this Act, and includes the approved maps and written statement. Also covers the Development Charges. Development charge is a tax paid to the relevant authority in respect of every development of land authorised by any planning or conservation permission, except where the planning permission or conservation permission is granted for a specified period of 10 years or less. It is stated that any development charge payable in respect of any development of land shall be the difference between the Development Baseline and the Development Ceiling for that land. (covered in subsequent sections)
Residential Property Act Unit 1 Page 68
Residential Property Act Restrictions on Foreign Ownership of residential and residential landed property in Singapore Foreign Person cannot acquire or purchase restricted residential property unless he obtains the prior approval
Definition of Foreign Person Anyone who is not any of the following: Singapore Citizen Singapore Company Singapore Limited Liability Partnership or Singapore Society Singapore Permanent Resident is also considered Any foreign person who is interested in purchasing restricted residential property has to submit application with supporting documents to Controller of Residential Property through Land Dealings (Approval) Unit (LDU) at Singapore Land Authority) Ministerial Committee will consider and approve or reject application
Restricted Property Vacant Residential Land Land Property (covered in Unit 1) Landed Property in strata developments which are not approved condominium developments under Planning Act (Cluster houses, Townhouses) Shop house which is not strata subdivided and is erected on land which has been zoned residential ALL the apartments within a building or ALL the units in an approved condominium development without prior approval from Minister of Law
Land Dealings (Approval) Unit Unit 1 Page 69 The LDAU administers the provisions of the Act and Rules by: Processing applications from foreign persons for approval to acquire or retain restricted residential property Issuing clearance certificates to Singapore companies, limited liability partnerships and societies Prosecuting offences under the Act Dealing with general enquiries relating to the operation of the Act
Ownership Criteria Applicant intends to use the landed property as dwelling house for own stay The applicant is a PR of Singapore Applicant is of huge economic benefit to Singapore Applicant s academic, professional and/or technical qualifications Applicant s expertise and working experience needed by Singapore and Investments in the type of industry or service sector needed in Singapore
Conditions To Be Met By Applicants Foreign person applying for Special Approval must comply with following: If the restricted property to be purchased by the Foreign person is under a Tenancy Agreement, the applicant must submit a letter from the tenant stating that the tenant will not exercise the option to renew the agreement once the tenancy expires Likewise, the applicant must also submit an undertaking that he shall not renew the existing tenancy or enter into a new tenancy agreement once the existing agreement expires
Approval-In-Principal (AIP) Can be applied for even when specific property is not found Valid for 6 months, if granted, non-renewable and new application must be made
Conditions Imposed if AIP Application is Approved Foreign person cannot sell estate and interest within 3 years after date of purchase of property (or after date of issue of TOP or within 3 years after date of issues of Certificate of Statutory Completion, whichever is earlier Land area of property <= 1393.5 sqm/15,000 sq ft Property will be used solely by foreign person for own occupation and that of his family members as dwelling house and not for rental or any other purposes In cases whereby foreign owner intend to tear down and rebuild the house, he shall obtain the Grant of Written Permission for the construction of a new dwelling house or additions and alterations (AA) of the house within 6 months after the date of the letter conveying the Minister s decision.
Conditions Imposed if AIP Application is Approved The foreign owner shall complete the construction of a new dwelling house or additions and alterations to or reconstruction works of the subject property and obtain the TOP or CSC, whichever is earlier, for the subject property, within 24 months after the date of issue of the Grant of Written Permission The foreign owner shall provide a Banker s Guarantee of $50,000 or 1% of the purchase price of the property (whichever is higher) as security for the compliance with the preceding 2 conditions, such guarantee to continue and remain in full force and effect until the date of issue of the TOP or CSC, whichever is issued earlier, in respect of the subject property, and that in the event of the foreign owner s default of any one or both of the conditions during the period of guarantee, the bank shall pay the Controller of Residential Property, on demand, the sum of $50,000 or 1% of the purchase price of the property, whichever is higher
Conditions Imposed if AIP Application is Approved A foreign owner who is currently an owner of a restricted property can apply for another AIP but is required to dispose of the existing restricted property according to the following timeframe: Within 3 months from the date when the seller delivers vacant possession of the new property (where the TOP or CSC for the new property has been issued but separate legal title has not been issued Within 3 months from the date of issue of the TOP or CSC (whichever is earlier) for the new property (where the new property is under construction) On or before the legal completion of the purchase of the new property (where separate legal title has been issued for the new property)
Foreign Developers Must also apply for approval under Residential Property Act Who granted approval must develop and sell the residential units in a timely manner Stipulated Completion Period is currently 5 years Required to sell off all units within 2 years from TOP If fail to meet, their Banker s Guarantee, pegged at 10% of land price, may be forfeited Extension charge may be levied for any extension of time beyond Project Completion Period.
Immigration Act Unit 1 Page 71
Immigration Act RES must conduct the follow 3 mandatory checks to prevent renting to overstayers: Check tenants ORIGINAL immigration pass and/or work pass Cross-check the particulars of passes against the particulars on his ORIGINAL passport Verify the validity of pass either by checking with the issuing authority, which is the Immigration & Checkpoints Authority OR the Ministry of Manpower. Under the Immigration Act, the homeowner and RES is liable to be charged for harbouring overstayers and/or illegal immigrants in his house if investigations reveal that he has not exercised due diligence as required by the law.
Immigration Act If the homeowner or RES is found guilty of recklessly (i.e. failing to carry out all three due diligence checks or carrying out only one of these checks) or knowingly harbouring overstayers and/or illegal immigrants, he may be sentenced to imprisonment of not less than six months and not more than two years AND a fine not exceeding S$6,000. OR If the homeowner or RES is found guilty of negligently (i.e. carrying out only two of the three due diligence checks) harbouring overstayers and/or illegal immigrants, he may be sentenced to imprisonment for a term not exceeding 12 months OR a fine not exceeding S$6,000 OR to both.
Land Acquisition Act Unit 1 Page 72
Land Acquisition Act Land may be compulsorily acquired by the State. President may declare by notification in Gazette that any land in private hands is required for: 1) Any public purpose 2) by any person, corporation or statutory board for any work which in the opinion of the Minister is of public benefit, or of public utility or in the public interest or 3) for any residential, commercial or industrial purposes
No Constitutional Protection Of Land Right Notification shall be conclusive evidence that the land is needed for purpose stated. No provision in Act for the Challenge of the ACQUISITION
Assessment of Compensation People interested in land acquired are entitled to compensations Some considerations will be Market Value at given time, increase in the value of other land the person interested likely to accrue from the use to which the acquired land will be put, or any damage sustained by the person
Basis of Compensation With effect from 12 February 2007, all land acquired by the government will be compensated based on market value of the lands as at the date of acquisition. In addition, the new law has also removed two constraints when determining the market value. These are known as the 2- year and the 7-year rule. Under the 2 year rule, all renovation works carried out with the 2 years of acquisition would not be considered in arriving at the market value. Under the 7 year rule, the rise in value attributed to the infrastructure works carried out by the state should have now been removed. With the amendment, the compensation payable to acquired lands will be in accordance to what a willing buyer would pay for the land in the open market.
Land Titles (Strata) Act Unit 1 Page 73
Coverage of Act Relating to Strata-Subdivided buildings Also governs the sale process of collective sale (or En- Bloc sale) of strata-titled properties. En-bloc sale involving landed properties does not come under this act Majority rule is 100% unanimous agreement
Strata Titles Board Statutory Board set up to ensure all collective sale processes in Singapore are done in good faith All sales without 100% consensus are subject to an Order by STB Subsidiary Proprietors must apply to STB for a Sale Order. But to qualify for application, Majority of Subsidiary Proprietors must have agreed in writing to sell all the lots and common property under conditional S&P Agreement
Majority Rule Minimum of 80% majority consent by SHARE VALUE and the TOTAL AREA OF ALL THE LOTS in a Strata or flatted development building s for properties 10 years old or more or A minimum of 90% majority consent for properties less than 10 years old Age is calculated from the latter of: Latest TOP of any building in the Strata Title Plan or If no TOP was issued, Latest CSC of any building in Strata Plan If project is able to garner 100% support, there is no need for SALE ORDER from STB
Building Maintenance & Strata Management Act (BMSMA) Unit 1 Page 73
Building Maintenance And Strata Management Act Under Ministry of National Development Administered by Commissioner of Buildings of the Buildings and Construction Authority(BCA)
Determination Of Share Value Figure that represents the proportionate SHARE entitlement assigned to each strata unit in same development => SHARES each owner has Significance of Share Value Determines the amount of Maintenance fees to be paid by owner Determines Voting rights Determines Share that owner has in common property
Responsibility of Subsidiary Proprietors Contributions by Subsidiary Proprietors Maintenance fees to Management Corporation to help upkeep common property Subsidiary Proprietors to comply with Public Notices Subsidiary Proprietors to comply with By-Laws made by Management Corporation
Repairs and Improvement Work Improvement and Additions to Unit If any SP intends to carry out work that result in increase of Total Gross Floor AREA of entire development, a 90% RESOLUTION is required from the MC Inter-Floor Leaks Neighbouring SPs are required to jointly carry out investigation to establish cause of leak and proceed with repair. Both bear costs
Responsibilities Of the Management Corporation Control and Manage the common property Keep accounting Records & Court Order served to IT Keep Strata Roll a register of the owners of each unit in the development Collect and Manage sinking fund All building in MC must be insured under: Damage Policy Insurance required under Workman s Compensation Act Public Liability Insurance Insurance by Individual Owners Manage Disputes among Subsidiary Proprietors seek mediation Manage Disputes listed in BMSMA
By Laws Pursuant to special resolution, MC may make by-laws for the following purposes: (a) Safety and security measures; (b) Details of any common property of which the use is restricted; (c) The keeping of pets; (d) Parking; (e) Floor coverings; (f) Garbage disposal; (g) Behavior; (h) Architectural and landscaping guidelines to be observed by all subsidiary proprietors;
Owner The important obligations of owners are: MC without office-bearers Inter-floor leaks Unsafe exterior feature Improvement and additions to lots
Dispute resolutions The Strata Titles Board has the following jurisdictions and is empowered to make an order according to resolve the matter: Convene general meeting when MC defaulted Invalidate proceedings of meetings Annual resolution if voting rights are denied Annual resolution if notice of business if not given Revoke amendment to the by-law Invalidate by-law Vary rare of interest for late payment Vary contributions levied or manner or payment
Dispute resolutions The Strata Titles Board has the following jurisdictions and is empowered to make an order according to resolve the matter: Convene general meeting when MC defaulted (Cont d) Vary the amount of insurance Require the MC to make or pursue insurance claim Appoint a managing agent Settle dispute on costs of repairs or rectify complaint Give consent to owners to alter common property Compel the MC to supply information or documents Compel owner to grant access to MC to carry out work
Developer As in existing requirements, a developer is required to establish a maintenance fund from the date of issue of the TOP. The period after the formation of MC is known as the initial period. Under the BMSMA, the initial period is shortened to 12 months. As in existing requirement, the developer is required to convene the first AGM after formation of MC.
Town Council Act Unit 1 Page 76
Town Council Act Town Councils manages HDB Housing Estates Have the power to make by-laws for them to run and manage the common property of the HDB Housing Estates better
Functions of Town Council (a) To control, manage, maintain and improve the common property of the residential and commercial property in the housing estates of the Board within the Town and to keep them in a state of good and serviceable repair and in a proper and clean condition; and (b) To exercise such powers and perform such duties as may from time to time be conferred or imposed on the Town Council by or under any written law. Town councils are empowered to levy monthly service and conservancy charges (SC/CC) in respect of every property managed and maintained by them. They can decide on the rates to be levied. These are the main source of income of town council.
Owner s Responsibilities The maintenance of the individual flat units in the HDB estates remains the responsibility of the individual lessees and not town councils. Matters relating to the HDB housing loans and control on sales and subletting are still the jurisdiction of the HDB. Town councils are only responsible for the maintenance of the common area.
OATH and DECLARATIONS ACT)
Format of Statutory Declarations A person may make voluntary Statutory Declarations (SD) in relation to any matter in the following manner: Where the law requires SD SD made outside Singapore In UK and Commonwealth Countries SD made outside Commonwealth Countries
Where the law requires SD The person making SD before a court, a person acting judicially, or a prescribed person and in the following format:
SD made outside Singapore In UK and Commonwealth Countries Shall be made before a NOTARY PUBLIC or JUSTICE OF THE PEACE of that country, or other person having authority under any law for the time being in force in that country to take or receive a declaration
SD made outside Commonwealth Countries Shall be made before a Consul or Vice Consul or before any person having the authority under any law for the law being in foce in that place to take or receive a declaration
Commissioners for Oaths Include: Registrar Deputy Registrar Assistant Registrar Those other persons successfully applying for and appointed by the Senate of the Singapore Academy of Law. Include: Advocates, Solicitors, Court interpreters, offcers in the employment of government ministries, departments, statutory boards, government-linked companies and employees of designated nonprofit organisations who are considered FIT-AND-PROPER to be appointed to administer oaths
Duties of Commissioners for Oaths All that a Commissioner for Oaths is required to do when taking an affidavit is to satisfy himself: That he can communicate with the deponent in the language or dialect that the deponent can understand As to the identify of the deponent by requesting to see his IC, Passport, or other means of identificationl That the deponent is competent to depose to the affidavit
Duties of Commissioners for Oaths All that a Commissioner for Oaths is required to do when taking an affidavit is to satisfy himself (Cont d): Where applicable, enquiring of the deponent if the contents of the document have been interpreted for him Enquiring of the deponent if he understands what he is about to swear to That the deponent knows that he is about to be sworn to the truth of the statements in his affidavit That the exhibits(if any) are the documents referred to in the affidavit
Formality For Taking The Oaths Commissioner For Oaths should get deponents to raise right hand and repeat after the commissioners the following words: I swear by Almighty God that the contents of this affidavit are the truth, the whole truth and nothing but the truth. So help me God. or I solemnly and sincerely declare and affirm that the contents of this affidavit are the truth, the whole truth and nothing but the truth. Translations required for non-english speaking group
False Declarations Any person who: Makes in a SD a statement which is FALSE, and which he knows or has reason to believe is FALSE or does not believe to be true, touching any point material to the object for which the declaration is made or used, or Corruptly uses or attempts to use as true any SD made in or outside Singapore knowing the same to be FALSE in any material point, shall be guilty of an offence
Punishment for False Declarations If the person made the SD for use in any stage of judicial proceeding or, as the case may be, used or attempted to use the SD in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may be extended to 7 years and shall also be liable to a fine; or In any other case, shall be punished with imprisonment which may extend to 3 years and shall also be liable to a fine
Conveyancing & Law of Property (Conveyancing) Rules 2011 Unit 1 Page 79
Conveyancing & Law of Property (Conveyancing) Rules 2011 On 11 April 2011, the Minister for Law, Mr K Shanmugam, had announced in Parliament new measures to regulate conveyancing transactions and the receipt, holding and distribution of conveyancing money. These measures, which will come into operation on 1 August 2011, seek to provide greater protection for the public and, at the same time, balance the commercial needs of the conveyancing market.
Measures Lawyers will no longer be allowed to receive and hold conveyancing money in their normal client accounts (as is the current practice). A breach of this prohibition will result in a fine of up to $50,000 and/or an imprisonment term of up to three years. Lawyers will only be allowed to receive and hold conveyancing money in a new type of bank account, called a Conveyancing Account. These Conveyancing Accounts will be opened with Appointed Banks designated by the Minister for Law. Withdrawal or pay-out of money from Conveyancing Accounts will require two- party authorisation. Typically, the counter-signatory will be the lawyer representing the other party in the conveyancing transaction. Lawyers holding on to CPF money on behalf of clients or CPF Board will be able to do so in separate Conveyancing (CPF) Accounts. Purchasers and vendors who wish to place conveyancing money in such accounts will have to indicate the payee s name on their cheque/cashier s order in the format: <Name of law firm>-cvy
Measures Purchasers and vendors who do not wish to deposit money with their lawyers can instead instruct their lawyers to engage the Singapore Academy of Law (SAL) to hold conveyancing money, through a newly created Conveyancing Money Service. Payment of such money via cheque/cashier s order should be made to Singapore Academy of Law. Alternatively, lawyers can receive and hold conveyancing money under escrow agreements between both purchasers and vendors lawyers. These are more relevant for complex transactions. The Law Society of Singapore will administer an adjudication scheme for the expedited resolution of disagreements in respect of the withdrawal of conveyancing money from special conveyancing accounts.
Personal Data Protection Act (PDPA) 2012 Unit 1 Page 80
PDPA Comprises various rules governing the collection, use, disclosure and care of personal data. It recognises both the rights of individuals to protect their personal data, including rights of access and correction, and the needs of organisations (NOTE: a RES falls under this category and is liable) to collect, use or disclose personal data for legitimate and reasonable purposes. Ensure a baseline standard of protection for personal data across the economy by complementing sector-specific legislative and regulatory frameworks. This means that organisations will have to comply with the PDPA as well as the common law and other relevant laws that are applied to the specific industry that they belong to, when handling personal data in their possession.
Investigations and Actions The PDPC may conduct investigations upon complaint or on its own accord to determine whether an organisation is complying with the PDPA. If the PDPC finds that an organization is in breach of any of the data protection provisions in the PDPA, it may direct the organisation to rectify the breach. These directions may include requiring the organisation to: Stop collecting, using or disclosing personal data in contravention of the PDPA; Destroy personal data collected in contravention of the PDPA; Provide access to or correct the personal data; and/or Pay a financial penalty of an amount not exceeding $1 million. An organisation that contravenes the Do Not Call (DNC) provisions in the PDPA will commit an offence and will be liable on conviction to may be liable for a fine of an amount not exceeding $10,000 for each offence.
Offence under PDPA An organisation or a person is also guilty of an offence if any of the following is committed: If the organisation or person with an intent to evade a request for access or correction under the PDPA, disposes of, alters, falsifies, conceals or destroys, or directs another person to dispose of, alter, falsify, conceal or destroy, a record containing Personal data; or Information about the collection, use or disclosure of personal data If the organisation or person obstructs the PDPC or an authorised officer in the performance of their duties or exercise of their powers under the PDPA; If the organisation or person knowingly or recklessly makes a false statement to the PDPC, or knowingly misleads or attempts to mislead the PDPC, in the course of the performance of its duties or powers under the PDPA; and If a person makes a request under the PDPA to obtain access to or to change the personal data of another individual without that individual s authority.
How does the Personal Data Protection Act Work? Consent Organisations may collect, use or disclose personal data only with the individual's knowledge and consent (with some exceptions); Purpose Organisations may collect, use or disclose personal data in an appropriate manner for the circumstances, and only if they have informed the individual of purposes for the collection, use or disclosure; and Reasonableness Organisations may collect, use or disclose personal data only for purposes that would be considered appropriate to a reasonable person in the given circumstances. Application of the Personal Data Protection Act
PDPA does not apply to: Any individual acting in a personal or domestic basis. (RES to friends contact, or people you personally know.) Any employee acting in the course of his or her employment with an organisation. (RES s PA, Telemarketeer, Distributors, etc) Any public agency or an organisation in the course of acting on behalf of a public agency in relation to the collection, use or disclosure of the personal data. (CEA, HDB, MND, Hospitals, MOH, etc) Business contact information. This refers to an individual s name, position name or title, business telephone number, business address, business electronic mail address or business fax number and any other similar information about the individual, not provided by the individual solely for his or her personal purposes. (As a RES, your contact details are considered as Business contact information. Any organization can market products/services/goods that are RELATED to your business.)
When does the Personal Data Protection Act Come into Effect? The PDPA takes effect in phases starting with the provisions relating to the formation of the Personal Data Protection Commission (PDPC) on 2 January 2013. Provisions relating to the DNC Registry came into effect on 2 January 2014 and the main data protection rules will come into force on 2 July 2014. This allows time for organisations to review and adopt internal personal data protection policies and practices, to help them comply with the PDPA. Note the Dates
Do Not Call Registry Generally prohibits organisations from sending certain marketing messages (in the form of voice calls, text or fax messages) to Singapore telephone numbers, including mobile, fixed-line, residential and business numbers, registered with the DNC Registry. Messages include: Offer to supply, advertise or promote goods or services Advertise/promote suppliers or prospective suppliers of goods or services Supply/advertise/promote land, interests in land or business/investment opportunities
Procedural Checks In Accordance To DNC Check with the DNC Registry, unless you have the recipients clear and unambiguous consent in written or other accessible form for sending the marketing message to the Singapore telephone number. Check whether you have ongoing commercial or member relationship (must still allow Unsubcribe functions). Include clear and accurate information identifying your organisation as well as contact details within the message. If your organisation is making a voice call, ensure that the calling identity, or phone number from which the message is sent out from, is not concealed. The DNC Registry, however, does not cover messages sent for other purposes, such as service calls or reminder messages sent by organisations to render services bought by the individual. Messages for pure market survey or research and those that promote charitable or religious causes are also not covered under the DNC provisions. Telemarketing calls or messages of a commercial nature that target businesses are also excluded from the DNC Registry rules.
Moneylenders Act and lodging of caveats Unit 1 Page 84
Money Lenders Means a person who, whether as principal or agent, carries on or holds himself out in any way as carrying on the business of moneylending, whether or not he carries on any other business Does not include any excluded moneylender: any body corporate, incorporated or empowered by an Act of Parliament to lend money in accordance with that Act; any person licensed, approved, registered or otherwise regulated by the Authority under any other written law, to the extent that such person is permitted or authorised to lend money or is not prohibited from lending money under that other written law; any society registered as a credit society under the Co-operative Societies Act (Cap. 62); any pawnbroker licensed under the Pawnbrokers Act (Cap. 222);
Money Lenders any person who (i) lends money solely to his employees as a benefit of employment; (ii) lends money solely to accredited investors within the meaning of section 4A of the Securities and Futures Act (Cap. 289); (iii) lends money solely to (A) corporations; (B) limited liability partnerships; (C) trustees or trustee-managers, as the case may be, of business trusts for the purposes of the business trusts; (D) trustees of real estate investment trusts for the purposes of the real estate investment trusts, or who carries on any combination of such activities or services; or any person carrying on any business not having for its primary object the lending of money in the course of which and for the purposes whereof he lends money;
Licences Required by Moneylenders Annual License required No such license will be granted to anyone or firm ho is not ordinarily resident in Singapore No Contract for the repayment of the money lent by an unlicensed Moneylender is enforceable
Legislation to Stop Lodgment of Caveats by Moneylenders against HDB Flats To protect flats, houses and buildings sold by HDB and to prevent such property as security or collateral for any debt. Amendments to Section 51: Amended to void any contract or agreement to use property sold as under HDB as security or collateral, except in favour of the Board, specified financial institution and persons prescribed by the Minister Registration of Deeds Act or Land Titles Act Caveats against HDB flats for payment of debt can no longer be lodged
Bankruptcy Act Unit 1 Page 85
Bankruptcy Act Bankruptcy Inability to pay debts on the part of individuals or partnerships. For companies, the equivalent process is known as winding up or liquidation Petition Process Presented by a Creditor against a person or against a partnership firm Creditor would usually present petition if statutory demand made for the repayment of the debt owed to him as not be satisfied within 21 days, or it creditor has obtained judgment against a person and the creditor is not otherwise able to enforce that judgment against that person Creditors owed < $10,000 usually not permitted to take up petition, mediation instead.
Bankruptcy Act Official Assignee Once a person is declared a Bankrupt by court, his property will be vested in the Official Assignee A public servant and official of the court Duty is to gather the assets of the debtor, register the claims of the creditors and distribute the assets among creditors. Certain assets are exempted, e.g. HDB flats, CPF funds Duty to Disclose Asset Bankrupt is duty bound to disclose fully all assets and give an account of all the monies or property coming in subsequently. Failure to do so is an offence If bankrupt is gainfully employed, a portion of his income may be taken to repay creditors
Bankruptcy Act Liabilities of a Bankrupt Not eligible to be RES, solicitor, accountant and member of parliament. Buying of Public Flat Letter of Consent from Official Assignee is no longer require, but is required for purchase of Executive flat, HUDC or Multigenerations flat
Effect of Bankruptcy Order Where a bankruptcy order is made against a firm, the order shall operate as if it were a bankruptcy order made against each of the persons who, at the time of the order, is a partner in the firm. This section shall not affect the right of any secured creditor to realize or otherwise deal with his security in the same manner as he would have been entitled to realize or deal with it if this section had not been enacted. Notwithstanding subsection and section 94, no secured creditor shall be entitled to any interest in respect of his debt after the making of a bankruptcy order if he does not realize his security within 6 months from the date of the bankruptcy order or such further period as the Official Assignee may determine.
Effect of Bankruptcy Order Where a person is adjudged bankrupt, any disposition of property made by him during the period beginning with the day of the making of the bankruptcy application and ending with the making of the bankruptcy order shall be void except to the extent that such disposition has been made with the consent of, or been subsequently ratified by, the court. It should be noted that the following property of the bankrupt will not be divisible among creditors: Property held by the bankrupt on trust for any other person; The tools, if any, of his trade; Such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the bankrupt and his family; and Property of the bankrupt which is excluded under any other written law.
Disqualification of Bankrupt In addition to any disqualification under any other written law, a bankrupt shall be disqualified from being appointed or acting as a trustee or personal representative in respect of any trust, estate or settlement, except with leave of the court. Any disqualification to which a bankrupt is subject under this section shall cease when the bankruptcy order against him is annulled or rescinded; or he is discharged under Part VIII. Any person who acts as a trustee or personal representative while he is disqualified by virtue of subsection shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.
Disabilities of Bankrupt Where a bankrupt has not obtained his discharge: He shall be incompetent to maintain any action, other than an action for damages in respect of an injury to his person, without the previous sanction of the Official Assignee; and He shall not leave, remain or reside outside Singapore without the previous permission of the Official Assignee.
Stamp Duty Act Unit 1 Page 87
Stamp Duty Act Stamp Duty is a tax on documents relating to immovable properties, stocks or shares. Examples of such documents are : 1. Lease / Tenancy Agreements 2. Acceptance to Option to Purchase / Sale & Purchase Agreements 3. Mortgages 4. Share Transfer Documents A document where Stamp Duty is paid can be admitted as evidence in the court in cases of disagreements.
Documents That Not Liable For Stamp Duty Service contracts not in connection with granting of lease Deed of Appointment of Trustees Loan agreements not relating to properties and shares such as cash settlement Letters of Guarantee / Indemnity Statutory Declaration, Affidavit Assignment of intangible assets such as Goodwill, trademark and patents Assignment of book debts / receivables (e.g. Sale proceeds) Will Hire Purchase Agreement Charter-Party
Stamp Duty Payment Schedule Once the document is signed and dated, Stamp Duty needs to be paid : Within 14 days after the date of the document if the document is signed in Singapore or Within 30 days after the date of its receipt in Singapore if the document is signed overseas Note : The various property related Stamp Duties and calculation will be covered in Unit 4.
Anti-Money Laundering Measures Unit 1 Page 89
What is Money Laundering? Money laundering is a process intended to mask the benefits derived from drug trafficking or criminal conduct so that they appear to have originated from a legitimate source Generally, three stages: 1. Placement 2. Layering 3. Integration Most basic check from RES is during the Financial Calculation phase. Lawyers are also required to perform checks
Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act (CDSA)
Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act (CDSA) An offence for all persons including real estate agents to: a. enter into or otherwise be concerned in an arrangement knowing or having reasonable grounds to believe that by that arrangement: 1. it will facilitate the retention or control of benefits of drug trafficking or criminal conduct by/on behalf of {Sections 43(1), 44(1) of the CDSA}; or 2. the benefits of drug trafficking or criminal conduct are used to secure funds or acquire property (by way of investment or otherwise) for, another person (whom the real estate agent knows or has reasonable grounds to believe has been/is involved in, or has benefited from, drug trafficking or criminal conduct) {Sections 43(1), 44(1) of the CDSA};
Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act (CDSA) b. conceal or disguise; or convert, transfer, or remove from the jurisdiction, any property which, in whole or in part, directly or indirectly, represents another person's benefits of drug trafficking or criminal conduct (for the purpose of assisting any person to avoid prosecution for a drug trafficking offence, foreign drug trafficking offence, serious offence or foreign serious offence or the enforcement of a confiscation order issued under the Act) {Sections 46(2) and 47(2) of the CDSA}; or c. acquire any property for no or inadequate consideration, knowing, or having reasonable grounds to believe, that the property, in whole or in part, directly or indirectly, represents another person's benefits of drug trafficking or criminal conduct {Sections 46(3) and 47(3) of the CDSA}. The above offences are punishable by a fine not exceeding $200,000, or imprisonment for a term not exceeding 7 years, or both {Sections 43(5), 44(5) 46(6) & 47(6) of the CDSA}.
Terrorism (Suppression of Financing) Act (TSOFA) Unit 1 Page 90
Terrorism (Suppression of Financing) Act (TSOFA) An offence for all real estate agents to: willfully or without lawful excuse, provide or collect property with the intention that the property be used, or knowing or having reasonable grounds to believe that the property will be used to commit any terrorist act {Section 3 of the TSOFA}; collect property, provide or invite a person to provide, or make available property or financial or other related services intending that they be used, or knowing or having reasonable grounds to believe that they will be used for the purpose of facilitating or carrying out any terrorist act, or for benefiting any person who is facilitating or carrying out such an activity, or will benefit any terrorist or terrorist entity {Section 4 of the TSOFA};
Terrorism (Suppression of Financing) Act (TSOFA) An offence for all real estate agents to (Cont d): use property for the purpose of facilitating or carrying out any terrorist act, or possess property intending that it be used or knowing or having reasonable grounds to believe that it will be used for the purpose of facilitating or carrying out a terrorist act {Section 5 of the TSOFA}; or deal in any property, or enter into or facilitate any financial transaction relating to a dealing in such property, or provide any financial services or any other related services in respect of such property, that he knows or has reasonable grounds to believe is owned or controlled by or on behalf of any terrorist or terrorist entity, including funds derived or generated from property owned or controlled by any terrorist or terrorist entity {Section 6(1) TSOFA}; The above offences are punishable by a fine not exceeding $100,000, or to imprisonment for a term not exceeding 10 years, or both {Sections 3, 4, 5, and 6(2) TSOFA}.