Friday, 25 April 2008

Shifting Accountability - Poor Ken Lee of Airview Tower

(To people who know Ken Lee, please ask him to contact me via enblocsingapore@hotmail.com.)

If you have not heard the craziest news in the latest enbloc debacle, you can read it here. Airview Towers' decision by the High Court of Singapore has been overturned by the Court of Appeal, allowing majority owners to bring the sale back to the Strata Title Board. Not only that, the Court of Appeal has ordered Mr Ken Lee to pay legal costs for the proceedings at STB, the High Court and Court of Appeal. Not only has David lost, he is made all the more poorer.

You can read my previous blog post about Airview Towers here.

Taking my caveat that I read the news as a layperson and not a lawyer, some cautionary points have to be made from Mr Ken Lee's turn of misfortune, which is applicable to everyone here:

  1. The enbloc law is subject to so many different interpretations, and levels of interpretations, that there is no right or wrong. What was initially a clear cut case of 80% not being reached, as decided at STB and High Court, now turns out to be NOT the case after all. As the Tampine Court blogger pointed out: "...the enbloc legislation is ambiguous. The STB, High Court and Court of Appeal can all have a different interpretation on various aspects and the onus is on the minority to have the law clarified at their expense."
  2. It also means that how to win in a legal enbloc battle depends heavily on (1) how much money you have to push the case through legal onslaught after legal onslaught, (2) which heavy weight lawyer you get to represent your case before the various levels - STB, High Court, Court of Appeal. No longer is it the case that if the law is clearly flouted, you can win. It's how you interpret the law, and how much money you have, that matters more.
  3. The Court of Appeal also clarified a point about owners who sell their flats after they've signed the CSA - The CSA is binding on the selling owner as well as all future owners. Think of it as 'sins of the father' that just doesn't go away: "The original owners, in signing up for a collective sale, signed for themselves and future buyers" (Straits Times 25 Apr 08).
  4. Point 3 is crucial because what it also means is that the onus of collecting signatures is shifted from the marketing agent (whose responsibility it is to collect signatures, follow them up etc), to the owner. The responsibility is now on the owner who must chase, and ensure that any buyer not only agrees to the CSA, but must sign the CSA within the 1 year limit. Preferably, the new buyer must sign the CSA on the day s/he signs any papers concerning the sale of the flat.
  5. There is only two ways out of this situation - (1) Do not sign the CSA unless you are absolutely sure you do not plan to sell your unit during any enbloc attempt (2) Ensure that your CSA does NOT include clauses that binds future buyers of your unit.
  6. The Business Times article pointed out that the Court of Appeal used "a different interpretation of the reference period during which the minimum period should be obtained". Until we get more information on this, I have to seriously wonder how different can their understanding of 1 year be from that of the STB and the High Court? I can hear some sarcastic readers among you suggest that perhaps they follow the Chinese lunar cycle instead.
  7. The salt in the wound is when the Court of Appeal ordered Mr Ken Lee to pay legal costs. This is simply madness. IF the interpretation of the law is so subjective that different levels can have issues over what the law means and how it should be applied, especially in Airview Towers' case, why should a man, with no legal training but nevertheless chose to represent himself, be penalised? Did he waste the court's time? The STB and High Court clearly didn't think so, but the tribunal of judges that form the Court of Appeal must have felt that Mr Ken Lee must be made to pay.
  8. Where is the accountability for the Sales Committee, and the marketing agent, whose primary responsibility is to ensure that the law is adhered to? It's like saying to the common people - "Hey, the law is highly subjective, just get a good lawyer, we (SC, agent) will legal-bash the objector and make him pay for daring to speak up".
I'm sorry but after Mas Selamat and Airview Towers, I think I'm not alone in having very little faith in the Singapore legal and governmental system, or the law for that matter.

It really drives home the simple point that has been raised here and by others again and again: Enbloc applications should be presided upon by judges, not the STB. If it has to go through 3 layers before a 'definitive' (and I use this term sparingly) judgment can be reached, why not cut out the STB and the High Court, and just have a tribunal of 3 judges to preside over any enbloc application that has objections? Saves a lot of time and money, if you ask me. And heartaches and headaches, I'm sure too.

11 comments:

Anonymous said...

My view on COA's decision:
1. On point of law was right. i.e to prevent any person who had signed the CSA to get away by simply selling or giving away their unit and cause chaos to enbloc process.
2. On cost was discouraging. i.e Ken at each level is the defendent and his points were valid until at COA where the 3 judges felt that the STB & HC judgements were not supported. A fairer decision would be each side to bear their own cost.

mr.meles said...

I am shock! I do not see why he has to bear such extensive cost. Is this allowed, I mean , to fight all the way without a lawyer? Was he disrespectful to the system? Is this a warning to minority to becareful or else this is what you will be faced with too?

Dr Minority said...

To mr.meles, I believe anyone can represent himself in court. And Mr Ken Lee, while not trained, certainly believed that his case was really quite clear cut, since 2 signatures were not obtained within the 1 year limit. However, perhaps he (and us all) were naive in thinking that the law was that simple and defined.
Was he disrespectful? No, both STB and High Court believed he was correct. That's at least 1 trained lawyer at STB, and a High Court judge.
Re "On point of law was right" - But what is your duty of care to the sale, when you sell away your flat? For example, I incurred huge debt from gambling, all linked to my address. I sell the flat away and move overseas. Does the next owner then have to carry the burden of my debt? Crude example, but surely if a person wishes to sell his flat, it is up to the agent to ensure the new owner intends to sign up to the sale. Not the other way round - by default.

Anonymous said...

Dr Minority,
The main focus was on whether the application to STB obtained the required 80% within the permitted time. The judges felt that application have obtained the 80% signatures by owners AT THAT TIME.

The Judges came from the basis that once the the owners at that time signs, there is no provisions under the previous Act for them to back out within the permitted time. If the minimum requisite is obtained within that permitted time, the majority have to follow throught the process. The Judges also made reference to the current Act that came to effective in Oct '07 have since provided a cooling period of 5 days for any owner who had signed to withdraw.

Also, with this decision it may also prevent the new owner (buyer from majority) to hold ransom to the enbloc sale after they had met the minimum requisite within the permitted time.

Anonymous said...

Dr Minority,
Your example on transfer of debts cannot fit into this arguement. You can only sell your house free from encumbrances. Every cents need to be settled!

Ken case is this:
If a owner who had signed the CSA sells his unit, it is the seller responsibility to inform the buyer and conditions. With this COA decision, the buyer will have to follow the decision at that time made by the seller. If the seller did not inform the buyer of the matter, the buyer may take up a case against the seller for misrepresentation.

Anonymous said...

To shape and emplement enbloc-policies,one has to live through the enbloc saga to be acutely aware of the enbloc experiment. Its the one and only way one can relate to the issues,every human direct involvment in enblocing homes. Getting feedback and reading from newspapers gives a totally different perspective.

Anonymous said...

I feel sorry for him. This whole enbloc thing is one big mess.

"sng buay" said...

1)The erratic schedules.
2)The rowdiness.
3)The time bomb.
3)The constant changes.
4)No set rules.
5)The dysfunctional routine.
6)Zero stability.
7)The spiral out of control stress.
8)The multiple parties and groups scattered all over.


Yes,it's the "STUBBORN ENBLOC."

Anonymous said...

Enough of all the rambling on and on about how the enbloc is working against you. WHAT ABOUT HOW ENBLOC CAN WORK FOR YOU?

Anonymous said...

Mr Ken "LEE" is extremely well taken care of, thank you very much!

Lauretta said...

Ma cherie, I am indeed in awe of him, especially since there is a part mentioned about him doing this on behalf of his daughters, who ironically was the one who had asked me to go google up his name. Still...