OPENING MINISTERIAL SPEECH: When the Honourable Minister for Law, Prof S Jayakumar, moved the LTSA (Land Titles (Strata) Act) amendment bill for reading in Parliament on 20 Sep 2007, he ended his opening speech as follows: "Let me reiterate that the amendments to the en bloc sale legislation maintain a careful balance. They provide additional safeguards and ensure greater transparency for all owners but, at the same time, they have been drafted in such a way as not to make it unduly onerous to bring about an en bloc sale."
IN OTHER WORDS (as I heard it) ... The terms of reference set out by the Gahmen were to "tinker and NOT tank or torpedo" en bloc sales - that explains the baby steps taken, lah! Certainly, the terms of reference for MinLaw's Study Group were NOT charged with a Tripartite Vision nor imbued with Courage and a sense of Rectitude to build upon the ingenuity of PUBLIC URBAN RENEWAL at INDIVIDUAL CITIZENS' PRIVATE SACRIFICE started in 1999 but with CORPORATE CITIZENS' SOCIAL RESPONSIBILITY and GAHMEN'S DIRECT CONTRIBUTION starting from 2007!!! Sigh ... maybe 2008 then? Maybe, maybe, maybe ... if YOU AND I continue to engage MinLaw ...
CLOSING MINISTERIAL SPEECH: After various points were made by some MPs/NMPs during that parliamentary debate, the good Minister ended his reply with: "I do not consider that all the suggestions made by Members, which are not reflected in the Bill, as being undeserving of consideration. The position I take is that this is an ongoing process. There will be more en bloc sales. We have to see how this new legal regime works in practice. My Ministry, together with the other agencies, will monitor very closely the operation of these new provisions. It is my hope that they will eradicate or, if not, significantly minimise complaints of harassment, unfairness and lack of transparency. But if it is necessary to make further amendments, then we have no hesitation to do so."
IN SO MANY OTHER WORDS (as I heard it) ... MinLaw will watch and see. They are dipping in toes first. If it's too hot or too cold, MinLaw and other ministries will do something pronto. No ahems and ahhs - the man himself said "no hesitation"! So you'd better watch it too. Errr ... except that when it next rains, we will be soaking wet because we'd have lost our collective ceilings after the next en bloc tsunami ... unless we buy insurance in the meantime by sharing with MinLaw our ongoing experiences and observations and CONTINUING TO SQUAWK to:
This assurance of Big Brother Watching Property Market was echoed by PM Lee Hsien Loong who was quoted in The Straits Times of 29 Oct 2007 as saying: "The Government is also closely tracking the residential market to ensure that it stays in balance over the long term ... the Government is committed to keeping housing AFFORDABLE for all Singaporeans". [Capitalization emphasis is by The Pariah.]
However, I am NOT sure if I can take comfort from PM Lee's assurance as the man did not correlate it to our "aspirations" or "improvement" of our living conditions. If you read his statement carefully, I reckon ... "affordability" can be achieved in many ways ...
- through 50% pay hikes (unless you belong to the rare breed of near-ministerial calibre, a 50% pay hike is highly unlikely in today's globalized competition, especially with the Gahmen's immigration policy to hit 6.5mn population target ... partly to upsize our domestic economy but more importantly to cap labour cost up-spiral and retain competitiveness - "killing two birds with one stone"),
- by encashing via en bloc sales of private residential property and subsequently downgrading to HDB public flats (already happening),
- by downsizing from HDB 5-room public flats to 3-roomers (already happened during the last millennium's Asian financial/economic crises and continuing to happen with our structural under-employment).
At around the same time, towards end-Oct 2007, MM Lee Kuan Yew was on a state visit to Mumbai. Sharing his insights with the Mumbai audience, he said that Mumbai had the potential to develop into a future New York! On 30 Oct 2007 Channel News Asia quoted MM Lee as follows: "What I have described was done in the first 15 years, in the rebuilding of the city, getting the infrastructure right, flyovers, tunnels, etc. Now, the UPGRADING OF THE CITY WILL TAKE US ANOTHER ONE OR TWO DECADES AS WE MOVE INTO A NEW ERA." [Capitalization emphasis is by The Pariah.]
The Straits Times (31 Oct 2007) carried this report of MM Lee's visit [Again, capitalization emphasis is by The Pariah] - MM Lee was asking: " 'Can Bombay do it? Yes. WILL IT TAKE TIME? NOT REALLY,' he said, as the critical question was whether people would accept the resettlement and other inconveniences required to see the transformation through. In that he had been fortunate with Singapore, a nation of migrants or sons of migrants drawn from various parts of the British Empire. Its people had been willing to accept change, he said".
My point is this: ... Even as Singapore re-makes and transforms herself into the equivalent of New York/London (IF we succeed), ... even as we embrace change and sacrifice the brick-and-mortar of our "homes" (in any case, we would be forced to by the Majority Consenters), ... we must at least be allowed to preserve our "home" location through a 1-4-1 exchange! As I've blogged on 9 Aug 2007 (A national cause on National Day) ... reflecting "on what we are today and holding out the promise of what's to come tomorrow. And we ain't seen nothing yet", I kind of sense this Remarkable Remaking of Singapore is in the throes!!!
Based on the present-day prices that I observe in world-class cities (eg, New York, London), I posited in other forum chats in Apr/May 2007 that in the next decade or so, a plate of "mee siam mai hum" (a local dish of chillie-dyed vermicelli with tamarind-based gravy, sans half-cooked cockles, as concocted by our PM Lee) would cost $12 (compared to today's $3) in a food court and a prime-district apartment (not penthouse) would easily hit $12mn (compared to today's $5mn) ... NOTE: This was before the prices of condensed milk and chickens shot up and nobody was even talking about inflation exceeding 2% (not to mention the latest warning of 5%)! At that time, I was "flamed" by other forum chat contributors who were dismissive of my numbers ... today, I wonder what these contributors think when they pay $1.10 for an Old Chang Kee curry puff that used to cost $1 a few months ago ... that's a 10% jump (and it doesn't even attract the 7% hiked-up GST levy)!!!
In the same Straits Times report, MM Lee said: " 'Familiarity breeds contempt. So in Singapore no minister goes with the flag and our cars are not specially numbered. WE SHARE THE TRIALS AND TRIBULATIONS OF THE POPULACE,' he said. But while Singapore may be said to have arrived in so many ways, it could all go wrong too easily, Mr Lee cautioned. 'I say if you aren't careful, you disarrive tomorrow,' he said, adding that he had seen empires rise and fall in his lifetime. One of Singapore's biggest challenges today is to get committed leadership with the passion and drive to guide an electorate that doesn't often seem too grateful. 'SINGAPORE HAS THE HIGHEST PER CAPITA INCOME IN ASIA, SHORT OF JAPAN, AND THE MOST DISSATISFIED PEOPLE,' he remarked. ". [Capitalization emphasis is by The Pariah.]
... Ah soooo ... with that spiel from the Father-and-Son team, since they "share the trials and tributions of the populace", let's try to be more positive-thinking and grateful, eh, as we read on???
Actually, in my heart of hearts, I feel a biting twinge of sadness when I read MM Lee's speeches these days. As the Founding Father of our young nation, I'd have thought that MM Lee should be feeling the similar reverence and respect accorded to Sun Yat Sen, Mahatma Gandhi and Nelson Mandela by the respective diaspora of Chinese, Indians and Africans across ages and in different parts of the world. Instead - at his ripe old age - our MM worries if Singapore would survive as a nation, he talks about the possibility of re-merger with Malaysia, he is disgruntled at our dissatisfaction and disenchantment. I can't help looking at him with the same doleful eyes that I cast upon the brigade of bent-over cleaning ladies, streaming out of Centrepoint Shopping Mall at 11pm nightly. If I may digress a little more ... in Chinese, there is this two-character phrase “ Dào Lǐ “ – 道 理 – which roughly translates as "rationale". But it is more than that. This phrase breaks into two words - " Dào " which denotes "the Way" under the Chinese philosophy of Daoism and " Lǐ " which denotes "Logic". I reckon that if Singaporeans see the Gahmen as "doing right", as opposed to "being right", there would be a lesser degree of dissatisfaction and disenchantment. This en bloc phenomenon is a CLASSIC CASE STUDY of how the Gahmen is "being right" but is NOT "doing right"!!!
I must say that this en bloc saga has left me (and continues to leave me) feeling alternately wretched and bewildered and ... occasionally elated!
This blog entry comes in Parts A, B, C, D, followed by "kiam-chye" ("salted mustard" in Hokkien dialect of the Chinese) stir-fried with "roti" ("bread" in Malay) as the kids of old Singapore would sing in their little ditty:
Part A: Paying tributes - My "thank you's" to 5 groups.
Part B: Context, my dear, context - Putting things into context is useful because "argumentation" (this is different from being "argumentative") cannot take place in a void. In this Part B, there is a RE-FOCUS on 1-4-1 EXCHANGE that would be of particular interest to Owner-Occupiers ... with questions on Zebra and ... comparisons with South Korea's 1-4-1 exchange mandated by LAW!
Part C: Amended LTSA law ... What's there and what's missing - My snappy snapshot.
Part D: Tips on what to do and what NOT to do in a new en bloc sale - Life moves on. En blocs will continue ... we have to go forward and get round the humps, pitfalls, crevasses and minefields that MinLaw left behind. We may or may not be able to overcome them but we could at least try, eh? My suggestions essentially are for MAJORITY CONSENTERS to RETAIN TRANSACTION CONTROL (ie, NOT abdicate to the Sales Committee who should be relegated to mere "facilitator" status, NOT "agent" status) with STRUCTURED OPTIONS (replete with haircuts, swaps, floors, caps, clawbacks, time decay, mark-to-market ... to ensure that we ALWAYS stay in-the-money) or - better still - with INSURANCE underwritten by SS Fence-Sitters (Steady and Sturdy Fence-Sitters) ... hee, hee, I find this "SS" Nazi-associated oxymoron most apt in these ruthlessly tyrannical en bloc battles! To accord a Sales Committee of part-time laypersons with agency rights and obligations is a TIME BOMB, just waiting to explode and implode!
A. PAYING TRIBUTES TO 5 GROUPS
A-1. MinLaw. Gripes, grumbles and grouses aside, MinLaw did "listen". That much credit I'd accord to MinLaw - Thank you. You've worked hard!
When I started on this anti-en bloc quest, friends tell me that it won't change things one jot, the Public Consultation is all "wayang", be wary that the Gahmen will nab me somehow as OB markers are ever-fluid, it is not worthwhile because Singaporeans have "bo chap" and "mai chap" (respectively, "don't care" and "won't care" in Hokkien dialect of the Chinese) attitudes. They were well-meaning words of advice.
But I reckon that Descartes' famous quote of:
"Dubito, ergo cogito, ergo sum"
must surely extend to "ergo operor"
such that it would translate into:
"I doubt, therefore I think, therefore I am, therefore I do".
If you and I don't and won't stick up (and stick out) for Singapore, then who would??? The giraffe has a very long neck, I know ... but until and unless I give up my Singapore citizenship, I must stand up and be counted for my 2 cents worth! Surely, that's the least I could do, eh?
Having interacted with MinLaw over this en bloc saga, I went away assured that MinLaw has an earnest bunch there and they do try. Having "listened", MinLaw and the entire coterie of BCA, SLA, URA, MND did "do" something. We must respect that MinLaw can't do everything that each of us asked for - in any case, they won't; and if they do, I'd be worried too!
Question: Did MinLaw and the supporting coterie do enough?
The en bloc flippers, the unscrupulous marketing agents, the unconscionable lawyers and the predatory Developer-buyers would say "Too much". The rest of us (Owner-Occupiers and genuine Investor-Owners who are NOT cash-desperate) would say "Not enough" ... as I'll elaborate below.
A-2. MPs and NMPs. Kudos to the 4 MPs and 2 NMPs who spoke on this bill and gave voice to the voiceless. Some of them raised highly pertinent issues in their 1-hour of questioning. The points raised by Alvin Yeo, Ellen Lee, Kalyani Mehta, Siew Kum Hong particularly resonated with me, as they were hitting some nails on the head! Some did more "homework" than others - quite evidently so! Thank you to all the Honourable MPs and NMPs who spoke up.
Some trivial observations might also interest you ...
- Was it just the camera angle or what? Did the House look more than half empty to you? Although Mediacorp's cameraman was careful NOT to pan the entire house, the House looked pathetically deserted during the parliamentary debate of this bill! From the Hansard records, 23 parliamentarians out of 94 (84 MPs, 1 NCMP and 9 NMPs) were absent at that 20 Sep 2007 sitting - only 25% absenteeism rate apparently? I reckon the Hansard doesn't give an accurate attendance representation as parliamentarians probably float in/out during the entire afternoon session and the House may indeed be only one-third full during the debate on the en bloc law!
- Of all the backbenchers who spoke in the 2nd and 3rd readings of the 1999 en bloc bill, only Dr Teo Ho Pin is left in the House in 2007. Geez, talk about turnover within 8 years!
- Out of 84 MPs, only 4 (5%) spoke on this 2nd reading of the bill. Out of 9 NMPs, 2 (22%) spoke. Is something out of whack or what?
- Swathes of Districts 9-10-11 have gone en bloc in 2006-07 but the MPs who stood up during this parliamentary reading were from Hong Kah, Bukit Panjang, Sembawang and Tampines. Where were the MPs for the constituencies in D9-10-11 ... it does beg the question, doesn't it?
- As for my MP in District 9, I knew that that MP won't squeak. How did I know? Because I sent an e-mail as a citizen in that constituency under the Tanjong Pagar GRC when I was faced with a relentless barrage of en bloc attempts in the past 18 months. The Honourable MP didn't have the courtesy to even acknowledge receipt. It was a "strategic" move, no doubt, that this MP was plonked in the Speaker's Chair during this parliamentary debate! So much for MPs to represent the people, eh? Mind you, MPs are paid $11,900 EACH MONTH (previous comment about MP retirees getting pensions was deleted on 8 Jan 2008 when alerted that it was outdated, as verified based on a letter issued by PM's Office on this topic of pensions dated 4 Apr 2007).
A-3. Those who went before us. All too often, we forget the "sacrifice" of those who went before us. I'd like to record my apologies for their suffering and my gratitude for their sacrifice. Especially the owners of residential units in mixed developments who bore the brunt of the gaping hole in the 1999 law that pegged majority consent to share values only. And also all the owners who have gone or are in the process of being en bloc'ced under the 1999 law. They paid the "ultimate price" that contributed to this round of 2007 legislative amendments. Thank you to our en bloc predecessors pre-4 Oct 2007!
A-4. Horizon Towers Consenters/Dissenters and Other Dissenters. Where the Gahmen has failed us citizens so miserably since 1999 when the majority consent law was passed for collective sales, it is taking a brave bunch of Consenters and Dissenters of Horizon Towers to clarify and re-focus the many complexities of this Uniquely Singapore phenomenon in 2007! A big thank you for your sterling example of standing up for what you believe in. Indeed, you are at the leading edge of the horizon yonder!
Horizon Towers is a landmark case of such epic proportions that it foreshadows many other en bloc cases! But let us not forget the courage of all minority owners in so many other estates who are standing up for the count. In fact, in the smaller estates, their courage is all the more admirable because of the amount of effort, time and money it takes to make a stand and be counted!
A-5. All who doubted, thought and did something. Amidst the en bloc frenzy and all its ugliness, I found people who cared.
Dr Minority started his very informative blog at www.enblocsingapore.blogspot.com and continues to be a valuable resource and inspiration. Many others who took the cue from him and started their own estate blogs. If not for Dr Minority's encouragement, I too would not have started this blog. The people I have come to know since I started blogging - some of whom I have had the subsequent pleasure of meeting with - who shared their worries with me and who listened to my fears. The people who posted comments on my blog to encourage me, to engage and to exchange thoughts. A heartfelt "thank you" to all of you for your kindness and your forbearance ... for letting me realise that I am not alone in this en bloc battle to keep a roof over my head!
B. CONTEXT, MY DEAR, CONTEXT
[For those who want to read the parliamentary debate on 20 Sep 2007 on the amendments to LTSA (ie, the en bloc law under the Land Titles (Strata) Act) ... please click on this link:
after you've clicked on the above link, mouse over "Land Titles (Strata) (Amendment) Bill" and click again. Then scroll down to about the half-way mark to see the Minister's reply on 1-4-1 exchange which is the focus of Part B of my blog.]
It is important that we don't talk in a void. Professor David Zarefsky from Northwestern University said: "The first thing that we should do is to cast aside the popular stereotype which sees argumentation as a form of quarrelsomeness — a love of bickering for its own sake. In fact, argumentation is something far more important and worthwhile than that. It grows out of our nature as human beings. It is the study of how we go about giving effective reasons for our beliefs and actions in an uncertain world where the right belief or action is often far from obvious."
In the spirit of "argumentation" ... I'd like to pose the following:
B-1. Zebra, zebra, zebra. Is the Zebra a white animal with black stripes? Or is it a black animal with white stripes? MinLaw must "discover" this answer before it can really tackle the nub of en bloc issues.
On an African safari a few years ago, I peered through my binoculars and was enthralled to "discover" that the stubby mane of the zebra is alternately black and white as the mane hairs continue the line of black and white stripes on the zebra's head and neck! Then into my head (yes, my head, not the zebra's!) popped the question - Is it black on white? Or is it white on black?
B-2. Rule of Law. On 19 Oct 2007, Prof Jayakumar delivered a keynote address at the Symposium of the International Bar Association Conference on the rule of law where he talked about (a) the content of law, (b) the process and (c) the implementation of principles.
Prof Jayakumar said that "... especially in the implementation of principles ... very much depends on a balance between individual and societal rights ... how each society strikes this balance must be a function of its social, cultural and economic construct". He went on with an important caveat that "the contextual approach should not become an excuse for arbitrary or capricious government" and "harmony in a diverse society cannot be achieved with a laissez faire system".
At that same Symposium, Today newspaper reported in the 20-21 Oct 2007 edition that Justice Hisashi Owada, a judge at the International Court of Justice, argued that the content of law matters in today’s context. Owada-san said: “By implication, the actual substance of the law is not to any determination of whether the rule of law exists as long as the procedures guarantee the rule of law. Yet, this would be to the conclusion that Nazi Germany or the Union of South Africa under the apartheid regime were societies governed by rule of law.” Yeh!!!
Exactly my point about Just versus Unjust Laws as I quoted Dr Martin Luther King Jr in my blog banner!
In his concluding remarks at the Symposium, Prof Jayakumar cited "the essence of Rousseau and Locke: free society requires rules, rules require free society". He also highlighted some ironies. "The rule of law hinges upon laws that work. But its continued relevance depends upon more than the law. The government must be able to enforce it; and must work with the citizenry to ASSIDUOUSLY NURTURE THE CULTURE AND VALUES THAT SUPPORT IT. The courts must be able to uphold it. The citizenry must respect it. ULTIMATELY IT IS UNDERGIRDED BY A SOCIETY'S PERSPECTIVE OF ITS DESIRED VALUES, propagated by a preponderance of those values, and RELEVANT ONLY WHEN ITS FRAMEWORK RESULTS IN WELLBEING FOR ALL." [Capitalization emphasis is by The Pariah.] Ahhh ... "desired values"! Oooo ... "wellbeing for all"! Errrr ... I am so, so, so speechlessly dumbfounded that I can't even begin to quack as I quake in varying stages of disbelief!
B-3. What a High Court judge said. In the Horizon Towers High Court case, Justice Choo Han Teck wrote in his 11 Oct 2007 judgement that "... fairness requires that the law is applied consistently to everyone in similar circumstances. It gazes upon the horse as it does the horseman. It may be the appellants today who slipped, and tomorrow, the respondents. If the majority succeeds it is because it is right, not because it is the majority. Likewise, if the minority succeeds it is because it is right and not because it receives favours granted only to the underdog". The key words are "BECAUSE IT IS RIGHT" (if I may correlate to what I said near the beginning of this blog - about the Gahmen "doing right" versus "being right) - be it for the Majority Consenters or the Minority Dissenters.
[Hee, hee ... for those of you who have read my earlier blog about "ma" (horse in Chinese Mandarin), you will note that the omnipresent "horse" is still very much in the picture even in the High Court! If for no other reason than his namesake, Mah Bow Tan certainly serves his purpose as the Minister for National Development! We are getting equestrian, aren't we? Tickle, tickle ... I hope Mr Mah has a good sense of humour!]
B-4. Re-focus. Alright, alright, I'll stop horsing around and instead RE-FOCUS the issues. Just as it was important for the Germans to apologise for the Nazi excesses, so too it is important for the Japanese to apologise for the World War II atrocities. Likewise, it is essential for MinLaw to - FIRST AND FOREMOST - acknowledge that the LTSA en bloc law mandates sacrifice of PRIVATE property ownership rights in the PUBLIC interest of urban renewal and greater land use efficiency.
When you read Prof Jayakumar's parliamentary speeches and replies, you can see that the guy is trying his darnest to be fair, to walk the fine line, to be practical, to balance this with that. Hence, whilst I do not agree with all that he said, I give due credence to his concerns as he is a thoughtful gentleman - unlike some of his other colleagues, Prof is not prone to shooting his mouth off from his hips!
That's where I think the good Prof with the most honourable intentions (A) has lost sight of the underpinning core issue and (B) at best - is misguided in his concerns. Hence ...
- my ZEBRA Q.
- a CLARION CALL for MinLaw to acknowledge our PRIVATE SACRIFICE for PUBLIC GOOD.
- MinLaw to take the lead from what a High Court Judge opined and to DO RIGHT by those who are asked to sacrifice (whether willingly as a Consenter or unwillingly as a Dissenter).
- our dear Minister for Law ought to: Say what you mean; MEAN WHAT YOU SAY; Just don't be mean in saying it (and our good professor is not a mean person). Can a good minister say one thing at an international symposium and then do another thing on a local law?
- the GAHMEN to similarly pull its weight for this NATIONAL CAUSE of Urban Renewal when INDIVIDUAL CITIZENS are sacrificing their homes and prized asset and CORPORATE CITIZENS are playing along for profit (para B-4.3 below).
The ACID TEST is to correlate what a person SAYS to what that person DOES. How do we reconcile what Prof Jayakumar professed to the world at the 19 Oct 2007 International Bar Association Symposium with what he told Parliament on 20 Sep 2007 on the issue of 1-4-1 exchange? [Errrr ... Notice the two dates? It was exactly one month to the day ... One of Life's ironies, ugh? Poor Jayakumar! Maybe just bad karma?]
Time to roll up our collective sleeves ... and slice and dice what was said in Parliament ...
B-4.1 The good Minister started by saying: "More than one Member asked about one-to-one replacement. Ms Ellen Lee proposed that we provide for one-to-one exchange and, I think, she was particularly concerned about the elderly. Ms Irene Ng also drew a comparison with SERS and asked if we could have one-to-one. Of course, I should mention in parenthesis that SERS is acquisition under the Land Acquisition Act, and the system is very different."
- This citizen speaks: Yes, to be technical, LTSA and LAA are different. From a TECHNOCRAT'S perspective, that's perfectly valid. Surely the Minister as a POLITICIAN recognizes that the BOTTOMLINE IS IDENTICAL because both En Blocs and SERS achieve the national urban renewal objective, both displace homeowners, both have elements of compulsion to varying degrees, both hit CPF savings and both impact on the nation's sense of community and rootedness??? Classic oxymoron: Differently similar!!!
B-4.2 The good Minister continued: "On this one-to-one replacement or exchange, we have considered these proposals for one-to-one exchange as well as requiring the developers to offer a replacement unit which may not strictly be for one-to-one exchange. We also consulted the people in the industry and our expert panel. While I fully understand the sentiments, I wish to point out that there are many practical difficulties."
- This citizen speaks: It's great that MinLaw adopts an all-rounded approach. It gets feedback from the citizens during the Public Consultation. They then cross-check with the industry and pick the brains of specialists in face-to-face dialogues. Then they have their cross-ministerial Pow-Wow, brainstorming and brainwashing late into the night [in Washington DC, they know when the Fed goes into overdrive from the nearby pizza delivery joint ... in Singapore, maybe the Old Chang Kee Curry Puff "ah soh" ("aunty" in Hokkien dialect of the Chinese) knows something you and I don't!]. Such must have been the rigours MinLaw went through. This I have no doubt for "We are Singapore" ... and I say this with utmost conviction (whatever my "sentiments" may be on this en bloc issue).
- This citizen continues to speak: I know we citizens are pesky little things. I can understand why MinLaw thinks that they have heard the best and the last of us after studying our avalanche of Public Consultation submissions. Perhaps MinLaw could have gotten a Fifth Dimension by inviting a few of us pesky citizens to these face-to-face dialogue sessions to grapple with the issues "live"? Coming up with counter-alternatives and solutions to the Minister's oft-repeated "practical difficulties" are NOT beyond some of us, surely? Nothing can replace citizenry's direct engagement with industry players, specialist experts and civil service, yes? Isn't that why businessmen travel thousands of miles to negotiate face-to-face even with the most advanced of video-conferencing technology? Why were citizens NOT invited to the party? Did MinLaw consider citizens to be less capable, less valid and/or less worthy of direct face-to-face engagement? Heat and Cold are alternately applied to forge a stronger sword. Leaving out citizens in the cold, separated from the heat of argumentation, may well have resulted in a lesser sword, you think? QUESTION: Will MinLaw invite selected citizens to contribute directly and meaningfully to the next Roundtable Discussion to derive Best Practices for En Bloc Sales as some of us may have some ideas worth considering? We may scratch but we don't bite, you know.
- This citizen is still squawking: The Minister referred to "sentiments". Perhaps the pitch of the MPs suggested "sentiments". It's much more gutteral and fundamental than "sentiments" once you hit the 1-4-1 exchange button! MinLaw CANNOT deny that this en bloc law impinges on private property ownership rights. MinLaw also CANNOT deny that this impingement calls for personal sacrifice for a national objective for communal benefit. So how else can MinLaw DO RIGHT by us for our personal sacrifice EXCEPT BY MANDATING a 1-4-1 exchange by law???
By the same token, much as I share and hear the mantra that "this is my home", I'm fully cognizant that Singapore is too small and too vulnerable for us to preserve intact the idea of "home" in terms of the exact same bricks-and-mortar (except for selected iconic and architecturally worthy residential blocks). Rather - as a SACRIFICE for our country and a COMPROMISE of personal needs - we have to learn to painfully accept that it remains as "HOME SWEET HOME" in the form of re-constituted bricks-and-mortar in the SAME LOCALE with some FAMILIAR FACES and with a SENSE OF COMMUNITY STILL LARGELY INTACT.
- This citizen pouts: When the good Minister spouts at the International Bar Association Symposium about "balance between individual and societal rights ... how each society strikes this balance must be a function of its social, cultural and economic construct", how does he swallow those words within the social, cultural and economic construct of the LTSA en bloc law? It wouldn't surprise me if the Minister's speech-writer for the Symposium is not one of the government scholars in the LTSA review study group, eh?
B-4.3 The good Minister went on: "For example, in a letter written, and it was published in the local newspaper, one owner was offered a replacement unit but declined the offer, wrote to the press to say that the replacement unit, which eventually his neighbour took, had many nooks and crannies that were not usable, the rooms were all much smaller, the neighbouring unit was so close that he could open the windows and shake hands with the neighbour occupant. So, there will be various complaints. To avoid such complaints that owners are short-changed, we will have to prescribe in the law that developers must provide owners with details such as the size, configuration and the price of the units at the time when the developers make a bid to purchase the development. So, that is a major practical difficulty. And that may delay the process as well as add to the cost which could, ultimately, translate into lower sale proceeds. In the end, because of all these practical difficulties, we decided that the best is to leave it to the owners to negotiate with the developers for the best deal."
- This citizen counters: Ahhh ... now are we reduced to Darwinian survival principles as the good Minister "decided that the best is to leave it to the owners to negotiate with the developers for the best deal"??? If “leaving it to a disparate group of owners is NOT laissez faire”, then what is??? The group is disparate (some being Majority Consenters and some being Minority Dissenters, with each sub-group having own sub-set needs) versus a singular 100% commercial/profit-oriented Developer-Buyer. Does MinLaw expect Disparity and Singularity to negotiate “exchange” meaningfully with some semblance of level ground? If MinLaw considers “exchange” issues too complex to handle, does MinLaw think Developer-Buyers (especially the big boys with financial clout) will seriously entertain such requests? Is MinLaw setting up individuals for a raw deal even as they sacrifice their homes/investment assets for the nation? This is in STARK CONTRAST to his ministerial pronouncement at the International Bar Association Symposium that "the contextual approach should not become an excuse for arbitrary or capricious government" and "harmony in a diverse society cannot be achieved with a laissez faire system". Ooopsie ... I'm beginning to feel embarrassed ...
- This citizen rants: Yep, you bet there will be "complaints of short-change". We are pesky, remember? If the process is well-managed and with the expertise of experienced developers/ contractors who are conversant with planning and building requirements, these complaints will be capped. Of course, the "law needs to prescribe that developers must provide owners with details such as the size, configuration and the price of the units at the time when the developers make a bid to purchase the development". How else can it be managed a la Singapore mode?
Sure, it "MAY delay the process" as the good Minister pointed out. For crying out loud, the law provides for up to 24 months for the collective sale process!!! What's 3 more months to sort out the exchange nitty-gritties??? Interestingly, South Korea's en bloc laws mandate 1-4-1 exchange as the first option and if an owner wants cash instead, the onus of proof is on that owner to justify it. See? Isn't there a learning point from South Korea's en bloc laws?
In case the industry players have conveniently omitted to share with MinLaw in their face-to-face dialogue sessions, en bloc sales essentially UNLOCK for the Developer-Buyers THE PRESENT VALUE OF THE LAND that the owners had the foresight to invest in PREVIOUSLY - that's PRICELESS to start with because how else could Developer-Buyers lay their grubby claws to grab such choice prime/popular locations? On top of that, developments in such choice locations significantly reduce the MARKET RISKS for Developer-Buyers because the new re-developments are guaranteed to be more saleable and they garner higher profit margins relative to the suburban/less popular locations usually availed under the Government Land Sales, regardless of real estate cycles. In addition to lower financing burden if more owners take up "exchange" options that are equitably configured, the above two are key "BENEFITS" to the Developer-Buyer which the Minister did not utter nor mutter about. In contrast, he spewed about such "exchange" options adding to the "COSTS" and therefore translating into lower sales proceeds. Hey, there's such a thing called "Cost-Benefit Analysis", eh? Surely, one should not focus only on the "cost" aspect and blinker-out the "benefit" aspect, right? Tsk, tsk ...
For the NATIONAL CAUSE of Urban Renewal:
===>>> INDIVIDUALS as citizens are forced to sacrifice their most substantive asset and home as Investor-Owner/Owner-Occupier and unlock the value of their land for Developer-Buyers.
===>>> COMPANIES participate in urban renewal in the expectation of faster turnover and higher profits that are more assured than otherwise because of the prime/popular locations that we individuals sacrificed. Is it too much to expect - in return - that Developer-Buyers would have a sense of CORPORATE CITIZENRY and SOCIAL RESPONSIBILITY to go through the due process of offering 1-4-1 exchange on SAME LEVEL-SAME SIZE BASIS with limited flexibility variance???
===>>> And what about the GAHMEN??? Instead of expecting everyone to give-and-give all the time, do our civil servants have the DERRING-DO to take bold decisive steps with a broad VISION and an abiding sense of RECTITUDE??? Hmmm ... who uses this word "derring-do" these days, I wonder? Of course, I'm being restrained in refraining from asking if they have the b----! You will read in the next paragraph the Minister's concerns about 1-4-1 exchange adding to the cost and resulting in lower sale proceeds.
The good Minister for Law was afraid that 1-4-1 exchange would "add to the cost and MAY translate into lower sale proceeds". It MAY NOT because financing cost comprises a substantive chunk of the Developer-Buyer's cost which would be minimized if more owners opt for 1-4-1 exchange. I can betcha that it WILL NOT translate into lower sales proceeds if MND (Ministry of National Development) breaks the likely vicious cycle of another en bloc frenzy within the next 15-20 years by seriously upping plot density ratio NOW as part of the upcoming 2008 Master Plan!!! This would immediately facilitate 1-4-1 exchange. It would swell government coffers with handsome development charges. It would foster plot mergers for bigger developments. Plot mergers reap economies of scale in subsequent estate/facility maintenance and improve land utilization efficiency by eliminating set-in boundaries for multiple small plots. It would curb resource wastage of en bloc de-construction and reduce Singapore's energy consumption per unit of GDP. It would retard urban sprawl and keep whatever little nature pockets we still have left for recreation and as reserve land bank, as the Gahmen is already intent on so doing by joining up our little offshore isles and pushing oil storage tanks, roads, malls, etc, underground.
In May 2004, HDB launched the 50-storey The Pinnacle @ Duxton public housing flats! Other young global cities in countries many times the miniscule size of Singapore are already building up to 40-60 storeys. So why is our island-state still mucking around with 25-30 storey private residential blocks? As reported in The Economist (27 Oct 2007) - "Singapore's boom has already sucked in millions of immigrants: new figures show that, AS IN LONDON, almost one-third of residents were born in other countries".
For chunky land plots, it is almost unconscionable for URA/BCA (Urban Redevelopment Authority/Building & Construction Authority) to approve plans for residential blocks of 30+ storeys!!! "Unconscionable" because these blocks built on en bloc redevelopment sites today will likely go en bloc not long after, bearing in mind our Gahmen's 65mn target population PLUS the accommodation/recreation needs of targetted tourist arrivals. No wonder BCA is having a tough time getting developers to apply new building technology using expensive steel structures! Perhaps, the market (ie, developers, contractors/purchasers) knows better than to squander needlessly for imminent en bloc scrap!
I speculate of course ... Is MND tarrying over plot ratio increases because it wants to space-out Development Charge inflows into government coffers? By such tarrying, will MND be caught out in the residential sector? Minister Mah Bow Tan assures us that his MND is constantly watching ... but one can't help but wonder if MND is watching through mis-prescribed lenses? I'm sure it did not escape public notice that MND was obviously caught-out in the office space sector when MND willy-nilly approved redevelopment/ conversion of some downtown office blocks only to quickly impose a moratorium thereafter! Similarly, MOM is on its back foot with tight construction labour/resources supply after the 2006/07 en bloc raze-blitz and the newer en bloc redevelopment sites are cornered into a more distant Temporary Occupation Permit date. Talk about egg on one's face!
In Business Times (BT), 13 Nov 2007, Minister Mah Bow Tan said that "as at the end of September, there were about 65,000 units planned or under construction". So? The following day's BT reported that an "estimated 10,000 units from en bloc sales are also expected to be demolished in 2008 while TOPs from new projects are expected to re-supply only 8,000 units". BT also said that "the tightness in supply will be exacerbated by the need to fill job vacancies which stood at close to 40,000 by mid-2007". On 17 Nov 2007, Today newspaper reported that SM Goh said "the number of new citizens and PRs [are] expected to outstrip last year's record figure of 70,500". Taking everything else into context, is there cold comfort in Minister Mah's assurance?
Also, can't MND continue to hike Development Charges in prime/popular locations and then offer DC rebates to Developer-Buyers who extend 1-4-1 exchange to qualifying owners in en bloc sales?
Why can't URA give another 10% bonus GFA (Gross Floor Area) for Developer-Buyers who offer a 1-4-1 exchange that attracted a >50% take-up option rate? This would incentivise (A) the market to amalgamate small/mid-size plots for economies of scale in construction and subsequent maintenance and greater flexibility for design aesthetics befitting a First World Global City and (B) the Developer-Buyers to offer attractive exchange options that would ultimately preserve the sense of community and promote rootedness which are even more PRECIOUS QUALITIES for our nation.
There are many effective tools in the Gahmen's arsenal (eg, increase plot ratios, hike DC even more for choice locations and then offer DC rebate, accord GFA bonus, etc) to facilitate and incentivise 1-4-1 exchange. Why isn't the Gahmen pulling its weight for a NATIONAL CAUSE of Urban Renewal???
Whatever the pros and cons of 1-4-1 exchange ... but because the Zebra is a white animal to start with, then no matter how tedious it is to paint each and every continuous stripe in a consistently black tone with a steady hand, one must soldier on. Why? Who sloshed the black ink first with the introduction of the LTSA en bloc law? Who started the MESS? Whoever started it must now manage it such that THE MESS becomes LESS OF AN ORGANIZED CHAOS!!!
- This citizen proclaims: MinLaw knows for a fact that South Korea too has an equivalent law on collective sales. Here's a $64 million question: What's the DEFINING DIFFERENCE between Singapore's and South Korea's laws?
Answer: In an en bloc sale, South Korea mandates a 1-4-1 exchange BY LAW.
The South Korean real estate laws are apparently complex. They are necessarily so! If LTA could invite South Korean transport experts to join an International Advisory Panel to advise LTA on transport policies and strategies, why can't MinLaw follow LTA's footsteps and invite South Korean real estate and legal experts to advise them on 1-4-1 exchange and Australian experts from New South Wales on related issues, instead of laboriously trying to re-invent the wheel in isolation??? Whilst Singapore may never catch up with the South Koreans' uber cool factor, surely we need not lose out to South Korea in our STANDARD OF RECTITUDE???
- This citizen probes: What is the driving force to keep our en bloc laws and policies simple? Aren't our laws and policies for CPF (provident fund) and HDB (public housing) so much more complex and difficult to digest and administer? An en bloc sale routinely runs into millions of dollars. How many of us have CPF savings exceeding 6 figures? Is there any HDB flat that crossed a 6-figure price as yet? Have we lost all sense of proportion???
B-4.4 The good Minister said: "I think it is better just to provide for the en bloc sale through an open tender or auction so that the owners can get the best price, and they can then decide how best to use their sale proceeds. If some of the developments, especially the smaller ones, can find a way to negotiate and offer for replacement, of course, they are free to do so. I understand that, in fact, this happens on the ground. Paterson Lodge was such a case. And I was told that some developers have offered the owners who are selling the first preview to purchase a new flat ahead of the public launch. But these are matters which we should leave it to them to negotiate. I would not favour prescribing these because you have to prescribe for a great number of details."
- This citizen says wearily: Ditto my blah-and-blah above. Let me share with you another evolving sentiment that came through in our cafe talk-shop about en blocs. The viciousness and the vulgarity that blazed through in rowdy en bloc meetings (especially accentuated where there are flippers/raiders in the estate), the callousness and the continuing hands-off approach of the Gahmen, the relentless predation by Developer-Buyers without any sense of social responsibility ... all these caused us to re-examine our values of volunteerism and benefaction. Even one commentator who goes under the pseudonym of "Rebelrouser" in my blog openly queries why she is hosting lunches for overseas Singapore students in her London abode. Some people I know have already cut back their volunteer services, others are now re-considering their benefaction bequests.
Does it make sense to continue to "give" to this kind of society? Hence, a sense of "deja vu" pervaded me when I read the blurb in Today newspaper (17-18 Nov 2007 edition), reporting on SM Goh's speech at some Marine Parade constituency event. SM Goh cited the studies of Harvard University Political Science Dean Robert Putnam highlighting "the phenomenon of 'hunkering down' that takes place as a society becomes more diverse and multi-cultural. Left unchecked, it would reduce social solidarity and erode community trust. For example, people will have a lower likelihood of giving to charity or volunteering". Well, it didn't take a Harvard University study to tell me what's already seeping into our society!
C. AMENDED LTSA LAW ... WHAT'S THERE AND WHAT'S MISSING
C-1. The changes with "substance". There are a few changes with "substance". The additional inclusion of strata-title-area in computing the en bloc trigger is masterful. It redressed the the long-standing wrongs suffered by residential owners in mixed residential/commercial developments. The mandatory return of sinking funds to owners is only proper. The provision of a 5-day cooling-off period is helpful. The greater involvement of lawyers at key points of the en bloc process is much needed. The token adjustment power given to the Strata Titles Board for valid objections may come in handy although I suspect it would be grossly inadequate.
C-2. The changes of "form". However, most of the changes are those of "form" because they deal with procedures. Undoubtedly, these procedural requirements go quite a far way towards improving the transparency and tightening the free-for-all gaps arising from the sheer silence of the previous legislation. The calibration of due representation in the Sales Committee and the new disclosure requirements are healthy. The requirement for 4 EGMs give structure to the communication process.
C-3. Tweaking of the en bloc sword. The new sword can cut both ways. Some of the changes may open up new possibilities. Now that the owners have to vote in Sales Committee members, these members are no longer self-appointed but can you say that you know the nominee members well enough to formulate a basis for your voting decision? Two wrongs don't make a right, eh? To draw an analogy (and I exaggerate somewhat): It's akin to the former National Kidney Foundation (NKF) Board of Directors voting to bestow inordinate bonuses on the CEO - it's all above board and transparent but is it proper? The 25% value ascribed to the vote of an owner of a proposed lot even facilitates the en bloc sale of a pre-TOP block! The shifting of poll decision, the introduction of strata roll seniority and the new laxity over technical irregularity can work for/against any owner, depending on how it cuts in each situation.
The greater onus shouldered by lawyers will translate into higher legal fees that largely won't be paid unless the en bloc succeeds. The longer due process for en bloc attempts under the new law will similarly translate into higher commission rates for marketing agents who also won't be paid unless the deal goes through. IMPLICATIONS: These raise the stakes ever higher for lawyers and marketing agents alike. It'll make for an interesting study of behavioural science to observe what professionals and business people do when MORE $$$ are at stake!
In an article on the recent credit crisis in the US, The Asian Wall Street Journal edition of 24 Oct 2007 quoted Mr Edward Rock, co-director at the Institute of Law & Economics at the University of Pennsylvania: "Reputation matters until you get to some serious pain. It matters if the stakes are low. Somewhere between US$25mn and US$1bn, it shifts." Singapore is teeny compared to the US. So I reckon it takes much less than $25mn-$1bn range for things to start shifting!
C-4. What's missing. Core issues continue to be left unaddressed by MinLaw. Examples:
C-4.1 ===>>> Reserve price. If you are selling a cup of coffee, would you set the price before you establish the price of ingredients, your utilities, your staffing costs, your rental, your depreciation rate, etc?
Reserve Price and Apportionment Method are key determinants as to how much each unit owner gets. You cannot divorce these two.
On what factual basis is Reserve Price set without establishing Approved Plot Density Ratio, Allowable Gross Floor Area, Development Baseline, Outline Planning Permit, etc? Are we setting the price of a cup of coffee without establishing the price of the ingredients, etc?
C-4.2 ===>>> Apportionment method. Similarly, one would query the fundamental issue of apportionment method. On what expert basis is Apportionment Method set without a valuer's assessment of the estate's facts? Yet, the law expects the marketing agent to advise the Sales Committee!!! First of all, marketing agents are not qualified valuers. Secondly, even if marketing agents have in-house valuers or they engage the services of an external valuer, surely the vested and/or beholden interests are too inherent for comfort?
Marketing agents and valuers are in the business for profit, not for social service or charity. Because of the prevailing market practice of "payment upon en bloc success", the first hurdle for marketing agents to cross is to garner the requisite 80% (90%) consent ... What better way to do this than for the marketing agent and/or qualified valuer to recommend an apportionment method that would blatantly exploit the minority (eg, big unit/penthouse owners) to benefit the majority??? This is a "pau chiak" ("sure win" in Hokkien dialect of the Chinese), man!
Like a durian, 'tis a thorny issue indeed ... replete with vociferous warranties of ripeness and sweetness from the ruffian vendor holding out the King Fruit of Temptation menacingly. If you've attended an en bloc meeting, you'll know exactly what I mean. Little wonder that MinLaw ducked this apportionment issue like a basketful of rotten durians before NMP Siew Kum Hong deftly lobbed a King of Fruits to the good Minister in Parliament! Although MinLaw's Study Group failed to tackle this issue during their legislative review, full credit goes to Prof Jayakumar who then agreed to get the Singapore Institute of Surveyors and Valuers (SISV) to come up with more meaningful and well-defined parameters on apportionment methods. Well ... let's see if MP Amy Khor as President of SISV knows how to play this durian ball game!
Here is an extract of the exchange between NMP Siew and Prof Jayakumar on apportionment method at the 20 Sep 2007 parliamentary debate ...
- NMP Siew Kum Hong said: "It seems to me a little irresponsible of the SISV to recommend methods of apportionment without also providing detailed guidelines on how to apply them in a fair and equitable manner. It is tantamount to giving a loaded gun to a soldier without also providing the necessary training and guidance in its usage. Is it then any wonder that the recommendations are frequently abused in such a manner as to effectively oppress minority owners?"
- Minister for Law Prof S Jayakumar replied: "Mr Siew Kum Hong expressed his unhappiness with the guidelines, especially the guidelines issued by SISV, on how proceeds should be apportioned or distributed. I would look into this. But let me say that we understand that the SISV is working on refining valuation guidelines which are often used when valuers are asked to determine apportionment in sale proceeds. Of course, we are not able to specify in the law a standard apportionment method because there are a multitude of factors to consider in deciding on a single method of distributing the sale proceeds, including share value, size of unit, market value, and so on. So it would be very difficult to specify one standard method that you could apply to all sizes, designs and types of developments. But I take his point about the guidelines, and we will have discussions with the SISV."
In an effort to "facilitate" the en bloc process ... because nobody wants to pay a single cent upfront (this is so UNREAL!) and nobody would want to do any work for free (EXCEPT the Sales Committee - it makes you wonder why, doesn't it???), the new law continues to leave these core elements dangling in the air. Owners will just have to lump it in the end when it is all water under the bridge anyway. Who can the owners look to subsequently ... it was them who voted in the Sales Committee, set the price willy-nilly themselves and chose the apportionment method without advice from qualified valuers? The new-found transparency under the 2007 legislative amendments merely means that you can't even begin to cut your nose to spite your own face! Classic, eh?
C-4.3 ===>>> 1-4-1 exchange. As exhaustively dealt with in Part B above, Singapore should follow the lead of South Korea's SENSE OF RECTITUDE. This is the least that the Gahmen must do for strata title private property owners for their PERSONAL SACRIFICE in the name of Urban Renewal. ONE IMPORTANT EXCLUSION: En bloc flippers/raiders must be excluded from any 1-4-1 exchange. Shouldn't be too difficult to ferret these out and the Gahmen can even earn some fees for running this verification check.
I quote from Harvard Business wherein Michael Watkins, Professor of General Management, IMD, Lausanne, Switzerland, discussed the sub-prime mortgage debacle in the USA: "New York Times said that a year ago [The Pariah reckons this would be in 2006 2Q], Goldman Sachs started to offload their mortgage securities. Whereas, when asked about the impact of sub-prime in a July 2007 interview, Charles Prince, the then CEO of Citigroup said, 'When the music stops, in terms of liquidity, things will get complicated. But as long as the music is playing, you've got to get up and dance. We're still dancing.' Well, Citi and some other big banks danced their way, lemming-like, over a cliff. Goldman on, the other hand, confronted reality and organized to deal with it. Note that both Citi and Goldman saw this coming, but only Goldman was able to mobilize an effective response. This is product of leadership courage and a culture that doesn't keep dancing just because everyone else does."
Professor Watkins also said in an article "Predictably Surprised" dated 13 April 2007: "Just because surprises are predictable doesn't mean they are inevitable ... there is much that COURAGEOUS AND THOUGHTFUL LEADERS can do to help their organizations avoid predictable surprises ... that this is a CORE LEADERSHIP RESPONSIBILITY, one for which we need to HOLD executives, Boards of Directors, and GOVERNMENT OFFICIALS MORE ACCOUNTABLE." - [Capitalization emphasis is by The Pariah]. May we all hope and pray that we still have a few of such courageous and thoughtful leaders left in Parliament, in our civil service, in our statutory boards and in our government agencies!!! C-4.4 ===>>> Sales committee remains essentially a "Committee of One". Despite the improved EGM procedural changes, birds of a feather flock together.
More assured than a lucky draw or Toto win, the INTERESTS OF THE MINORITY of large/penthouse unit owners will be subsumed by the TYRANNY OF THE MAJORITY of small/mid-size units - this PRE-loaded dice continues to be left conveniently UNaddressed by MinLaw (yep, it's another durian ... NMP Siew Kum Hong didn't grapple with this one - could it be that his mother-in-law-to-be doesn't own a penthouse? Mothers-in-law-to-be must be handled with even more extreme care than mothers-in-law, if I may so gingerly surmise)! The need for cashflow by those who failed to plan properly for their retirement or simply couldn't accumulate enough CPF/private savings in their old age now drives some of our senior citizens into a desperate preoccupation with encashing $$$. There is little understanding of inflationary pressures or future value of money (or perhaps there is lesser need for such understanding if one is already past 70 years old). Unfortunately, the financial circumstances for some of our aged are such that Grace is not something they can afford any more - it's pathetic really. The fear of market correction/ collapse with the burden of debt servicing weighing on the shoulders of those who simply are NOT in the league of real estate investment creates another die-die-must-exit pressure - be they itinerant speculators hitching a joy ride or exploitative en bloc flippers/raiders.
I dare say that despite greater transparency and regulation under the new law, the perspectives of the dissenters will continue to be suppressed by the zeal and dedication of those intent on en bloc'cing. In essence, who pays the price? This law precisely denigrates the interests of those who have a sense of "home" and "community", those who had or continue to have sound financial planning, those who qualify as realty investors in terms of capital outlay, risks and time horizon. Doesn't this have an all too familiar ring??? Precisely ... this is everything that the Gahmen has been exhorting us to do through the years!!! And now??? Those of us who heeded the Gahmen's advice are bearing the brunt of the en bloc aftermath! No wonder, a certain teenager has a banner in his room that proclaims: NEVER UNDER-ESTIMATE THE POWER OF STUPID PEOPLE IN LARGE GROUPS! Visceral, eh? But not without an element of truth, I reckon.
I was also told that the clever lawyers commonly insert in Collective Sales Agreement (CSA) a standard provision obliging Sales Committee members to sign the CSA or otherwise stand down. Lawyer Philip Fong of Harry Elias Partnership verbalized the need for a Best Practices Code for En Bloc Sales during an interview with Channel News Asia a few months ago. It's wonderful that MinLaw is receptive to this idea! Will Law Society play its role in deriving the upcoming Best Practices to ensure that coercive clauses are banned from CSAs? Setting out what's "best" will be immensely helpful. But it is equally important (if not more so) to set out the "no-no's" because the very best can be negated in the next breath or clause - like a beautiful lady with bad breath! Under the new law, with marketing agents' commissions and lawyers' fees amounting to even more dollars at stake if the en bloc attempt fails to procure (a) the requisite majority consent or (b) STB's collective sale order, the Code of Best Practices cannot go on the basis that you can make a U-turn anywhere except where there is a prohibition sign. Instead, there must be clear "U-turn" signs (ie, recommended practices) and specific "NO U-turn" signs (ie, prohibited practices) along this long, winding and slippery en bloc road!
If any of MinLaw's Study Group members on this legislative review studied Behavioral Science, they will realise that those who are disinclined towards an en bloc sale will not volunteer to be Sales Committee members. Even if they do, they will resign or be kicked out in no time. The "no" lobby would loathe to attend rowdy en bloc meetings. Owners have been known to succumb to consent because it just wears them down when they have to be confrontational (Asians are typically not very comfortable with such direct outbursts). It bothers home owners to face unending rounds of en bloc attempts or suffer bombardment in the privacy of their own space by zealous marketing agents and die-die-must-sell owners. At the end of a long working day, how many of us can muster enough energy to go for so many rounds of owner meetings when we all have to juggle competing demands of our jobs/businesses with family, friends and self ... all in the space of effectively 14 hours after providing for human sustenance of nutrition, hygiene and slumber?
In the end, I reckon the en bloc result in some cases transpires more by Default than by Design. We may need to commission a NUS or Booz Allen study to confirm this finding ... I suspect that it's a more often than not a QUIRKY case of a DIE-HARD EN BLOC MINORITY that drives the MAJORITY INTO A 50:50 CLUELESS:FATIGUED ACQUIESCENCE despite the PROTESTS OF THE HAPLESS MINORITY who are either resentfully silent or, if vocal, it's generally more subdued by nature of the "no" lobby).
C-4.5 ===>>> Contracting out of law and other known tactics of en bloc flippers/serial enbloc'cers/condo raiders. There are no provisions in the new amendments to preempt any efforts to CIRCUMVENT THE LAW! Apparently, even the Strata Titles Boards as arbiter of this en bloc law condones "financial loss" cases being topped-up by other owners (not even the Developer-buyer)!!! Doesn't this negate the very essence of a collective sale forced through by the requisite majority consent? As I have posed in my earlier blog: What is the difference between (1) a Collective Sale forced through by a 80% (90%) consent VERSUS (2) a Private Sale of 100% of the units? Am I the only one who is too dense to understand this conundrum??? There was a deafening silence from the official quarters to whom I posed this question and hence I remain stupefied to this day. Or is this a case of the "contextual approach" being applied as "an excuse for arbitrary or capricious government"? Have we already stepped on a slippery slope so feared by our Minister for Law?
Ditto for unscrupulous practices to buy-out swing votes to tip the requisite majority consent trigger. Ditto the terrorist-like tactics where flippers/raiders target residential estates in a loose cell-group formation of family/friends/associates to buy up several units at one go and then proceed to legally dominate the Sales Committee even under the new legislative framework and flip the units before the ink dries on their sale and purchase agreement.
Reading the parliamentary "debate" (if one may call it that) during the final reading of the 2007 LTSA legislative amendment, I get the sense that MinLaw in an attempt to be purist and proper may have thrown out the baby with the bath water! By being so careful TO DO NO WRONG by these en bloc flippers/raiders, has the Gahmen DONE RIGHT by Owner-Occupiers and genuine Investor-Owners? If two men (one a convicted rapist and another an ordinary worker) fell into the choppy sea and you can only save one of them - who would you save?
I take it that the Gahmen is NOT for en bloc flipping and property speculation of any kind. Yet there was ABSOLUTELY NOTHING in the spiel of the 2007 LTSA amendments that would effectively kill such destructive forces within a residential community with larger economic ramifications of asset inflation and bubble effects! To temper these forces, again the Gahmen took a series of baby steps, viz, (i) sequential and substantive hikes in Development Charges and Differential Premiums - once in Jul 2007 unexpectedly and again in Sep 2007 as scheduled, (ii) releasing more parcels in Government Land Sales, (iii) putting more land lots on the Reserve List, and (iv) finally withdrawing the Deferred Payment Scheme in Oct 2007 (which they should have done in early 2006 had MND been nimble and wise and looked at the correct set of stats) EXCEPT that the market has once again outsmarted MND by offering Interest Absorption Scheme post-DPS withdrawal! Too little, too late!
D. TIPS ON WHAT TO DO AND WHAT not TO DO IN A NEW EN BLOC SALE
* * * You pay peanuts, you get monkeys.
* * * You pay nothing, you get gorillas (perhaps, in our South-East Asian context, you'd get orang utans). It's an "orang" ("person" in Malay) alright but the type that is in the genre of "beasts" and it runs wild in your estate, with these Sales Committee members cajoling or forcing you (as the case may be) to sell at much lower than replacement cost so that you will end up as a Squatter, Refugee, Downgrader or Downsizer!
* * * When S$600,000 annual remuneration for running a charity organization is considered "peanuts" by none other than the wife of the former Prime Minister (now Senior Minister) of Singapore, then your apartment worth 7- or 8-figures and your entire estate worth hundreds of millions of dollars or a billion or two would be HEAVEN ON EARTH and send Sales Committee members, marketing agents, valuers, lawyers and Developer-Buyers into SHEER ORGIASTIC ECSTASY!
Given that the legislative amendments dealt more with Form (ie, procedures) than with Substance (ie, content of law), all of us (whether as Sales Committee members, Majority Consenters or Minority Consenters) must be mindful of the following CORE TRUTHS:
D-1. Payment-upon-success; One-off business. Property marketing agents, valuers and lawyers do NOT get paid unless en bloc is successful (viz, unless the en bloc sale is registered with the Singapore Land Authority in the event of 100% consent OR the Strata Titles Board or High Court (depending on how far the parties take the case to) makes the collective sale order). Unless you are an en bloc flipper/raider, your estate is one-off business for marketing agents, valuers and lawyers whereas Developer-Buyers are their highly valued REPEAT CUSTOMERS. Who's kidding whom? They know which side of their bread is buttered!
D-2. Business/profit. Putting aside marketing agents who are obviously driven solely by profit, we must recognize that even professionals (eg, doctors, accountants, engineers, valuers, lawyers) are in a business as they bear overheads and other costs in running an enterprise. Professionals can't survive on love and air for long!
D-3. Sales Committee - From voters' perspective. Typically, in Singapore's high-rise living, neighbours do NOT know each other well (sometimes, a mere nodding acquaintance, sometimes not at all). Even if the Sales Committee nominees are long-time Owner-Occupiers, most of us would NOT know their financial background and net worth, the intellectual level, their moral values of integrity and sense of fair play, their skills or business-savvyness, etc. Yet these are all very pertinent factors to consider BEFORE you even have a basis to decide whether to appoint them as your agent, to bestow such wide powers upon them and to TRUST them to sell your home at the HIGHEST price on the BEST terms and conditions at the MOST OPPORTUNE time!!! In some private estates (especially in the prime districts), 70-80% of the owners are Investor-Owners whom we'd have never seen in our lives because they have rented out their units upon purchase and the only occasions they step into the estate are when tenants have problems or move in/out or at the occasional Management Council meetings. If there are en bloc flippers/raiders in your estate, they would be the first to offer themselves for "service" in the Sales Committee. Sorry, there is no such thing as Presumed Innocence for such unconscionable flippers/raiders!
Even with the new disclosure requirements and qualification criteria for Sales Committee members, it is barely sufficient. Which en bloc flipper/raider will tell you that she is holding 5 more units in different parts of Singapore or that the other 4 Sales Committee nominees are his colleagues/relatives that he has tipped-off for this high en bloc potential estate? Which businessman tottering in his business venture, which salary worker on the verge of being made redundant from corporate restructuring or relocation, and which senior citizen will admit that they are or will soon be strapped for cash? Who will profess to the entire estate that they need to sell because they want to relocate to another part of Singapore or another country or they have changed their mind about real estate investment? Just because you are a CEO or a senior civil servant, it doesn't mean that you know how to handle a property sale worth hundreds of millions (or a couple of billions) of dollars. Just because you are in the property line, it doesn't mean you are smart enough to know the liabilities in law nor the intricacies of finance to ask the right questions and make the best decisions on behalf of others.
D-4. Sales Committee - from nominees' perspectives. As Minister for Law Professor S Jayakumar said during the 20 Sep 2007 parliamentary debate: "It is not our intention, in these amendments, to change the substantive law regarding their potential duties or liability, whether under common law, or ... It is not the intention of these provisions to change the substantive law concerning these matters. Whatever the legal position is, it will remain the same." Do these people know what they are getting themselves into as Sales Committee members in terms of their duties and their liabilities??? Do they know enough of issues relating to contract, tort, negligence, fraud and perjury and the consequences arising therefrom???
Ignorance is NOT bliss when you are selling other people's homes/assets involving 9/10-figure amounts. Perjury is a SERIOUS OFFENCE! From the noises made, it would appear that MinLaw takes a lighter view because Sales Committee members are unpaid volunteers. But let us NOT FORGET the wide-ranging and deep impact of such volunteers' actions and decisions! STB resources are precious. En bloc sales are not one-off transactions and they are here to stay because Singapore must continue to re-make herself. Therefore, it is of PUBLIC INTEREST for the Public Prosecutor to investigate and prosecute any instances of perjury highlighted by the parties involved and/or STB. For JUSTICE to be done, it must be SEEN TO BE DONE. It is high time that examples be made of such black sheep within our fragile society!
With (A) a widening gap between collective sales price and replacement price and (B) growing public awareness and knowledge of en bloc issues, the stakes and the risks are getting higher. Ask any one who has sat in the witness box even in just the Strata Titles Board proceedings - it's harrowing, to say the least. The risks of being sued NOT JUST by the Minority Dissenters, but possibly by the Majority Consenters, or being counter-sued by your co-members of the Sales Committee or the Developer-Buyer are NOT THEORETICAL any more! In this world, there's no free lunch. So, doesn't it beg the question as to why these people are so enthusiastic about "serving" in the Sales Committee? Please excuse my cynicism ... it wouldn't surprise me that these Sales Committee members typically would NOT have volunteered for any charitable cause or social service in their entire adult life!
D-5. Work OUTSIDE of the box WITHIN the new law. Here, I play the role of the Devil's advocate! Hee, hee ... the Sales Committee has a solicitor, the rest of us need an advocate, eh??? Structure the deal with options and "manage" it properly to ensure that you are ALWAYS in-the-money. How???
===>>>D-5.1 Accumulate your own record. At every meeting, record ALL proceedings (be it pre- or post-presentation, actual presentation, and the meeting itself). You do NOT need the permission of any one to do such recording. Transcripts of such recordings have been accepted as crucial evidence in Strata Titles Boards' hearings in challenging the collective sale. Do NOT rely on your estate's managing agent or the property marketing agent or the lawyer to record such proceedings because you never know which portion of the presentation or meeting they record. All that is said at such presentations and meetings are "representations" (or mis-representations) made. Do NOT rely on minutes as there may be convenient incompleteness or genuine omissions or careless errors in understanding or poor summations.
===>>>D-5.2 Attempt "due diligence" on Sales Committee nominees and get waivers of legal privilege from elected members. In addition to the disclosures required under the new law ... as part of the DUE DILIGENCE attempt, get CVs from the Sales Committee nominees - this is to assess whether they have the intellect and expertise to "manage" an en bloc sale. You may not get the kernel of truth but no harm asking why they are interested in an en bloc and why do they volunteer their services for the Sales Committee ... but do take it with a pinch of salt - you'd ask this of any job interviewee and you don't necessarily buy it lock, stock and barrel, right?
Akin to the idea when Immigration Department asks you to declare the amount of foreign currency you are bringing in/out of the country ... ask them how many units they and/or their family members own in your estate and how many other properties (residential and commercial, in or outside of Singapore) are they holding at that point in time - this will enable you to roughly gauge their level of en bloc enthusiasm and possible underpinning motivations. They may decline to tell you, claiming reasons of privacy - that's fair enough but I reckon that if the person has only one or two units, that person is more likely to be comfortable in answering this question. Ask if they have sold any units in an en bloc sale previously - this will be a barometer of their en bloc expertise which may work for/against you, depending on the situation. Ask if they know any of the other Sales Committee nominees before this nomination and, if yes, in what capacity.
These fact-finding exercises could be verified through subsequent searches and investigations if and when the occasion arises. You may not get straight answers but the onus of proof now shifts to the Sales Committee members should they be found out later. If the Sales Committee nominees are sincere in their en bloc quest, they would not find such due diligence attempts offensive. Rather, it sets the tone to reinforce in them the fiduciary duty and care that Sales Committee members owe the owners in selling other people's homes/assets. If you keep getting stone-walled or the answers are either cagey or not forthcoming or highly suspect, then others in the meeting will get a sense of things. These nominees could still get elected into the Sales Committee - they may have their supporters by way of fellow en bloc flippers/raiders and those desperately needing to relocate or liquidate.
As the lawyers will be in frequent contact with the Sales Committee members (in contrast with the limited contact with owners at EGMs) and as their legal advice will likely be heavily relied upon by Sales Committee members as laypersons in managing the en bloc sale process, it is ABSOLUTELY VITAL to procure a written Irrevocable Waiver of Legal Privilege from each of the Sales Committee members (and their replacements) jointly and severally upon appointment and to embed a similar irrevocable waiver in the Collective Sale Agreement. At stake is the worth of your estate amounting to hundreds of millions (or a couple of billions) of dollars. When things go wrong, you not only have the onus of proof to prove bad faith, lack of reasonable care/skills, gross negligence, blatant fraud or such other misdemeanour but also play detective as a mutated Sir Arthur Conan Doyle's Sherlock Holmes and/or Alexander McCall Smith's Mma Precious Ramotswe (on top of your full-time career/business/household management, mind you!) to ferret out bits and pieces of the jig-saw puzzle and possible conspiracy. So, getting this waiver of legal privilege from the Sales Committee members upfront means it will be one less thing to gnaw over.
===>>>D-5.3 PERSIST and ask for 1-4-1 exchange option IN ADDITION to keeping the cash settlement option. Whether as an Owner-Occupier or as a genuine Investor-Owner, preserving a swap makes sound financial sense. For those who are NOT in desperate need for immediate cash, 1-4-1 exchange is another form of encashment but at a future date, as explained in the next para.
No matter how attractive the so-called en bloc premium is, it is more likely than not that replacement cost of a new unit of same-size, same-level, same-location will be at least 50%-200% more than collective sales proceeds at (i) the point in time when the Sales and Purchase Agreement is signed with the Developer-Buyer and (ii) possibly even when you lay hands on the collective sales proceeds 9-18 months later!!! It is only proper to peg your premium to a NEW replacement unit (as opposed to a replacement unit of equivalent age to your present apartment in the neighbourhood) because you should NOT be subject to the continual hassle of en bloc displacement and recurring risks of asset reinvestment. So, do NOT be fobbed-off by facetious counter-arguments on this point.
Be very aware of time-decay issues ... whatever your needs are after the en bloc sale (eg, you intend to move back after redevelopment of the estate OR continue to rent out the new redeveloped unit OR sell the rights to the rebuilt unit upon/after launch of the redevelopment OR sell the unit after Temporary Occupation Permit is issued for the redevelopment), you are FREE to do as you deem fit according to your own needs and in your own time!!! You are NOT painted into one corner (ie, holding the cash and hunting desperately for a unit of about that price range or changing your investment risks by reinvesting the cash).
===>>>D-5.4 NEVER release "transaction control". No matter how earnest these Sales Committee members may appear to be (more so if they are somewhat dubious), NEVER, NEVER, NEVER release "transaction control". You are selling (and will be forcing others to sell OR are being forced to sell) your home and probably one of the more chunky assets in your entire investment portfolio. You don't really know these committee members. The real estate market is in a constant state of flux. Bearing in mind all these parameters, why on earth would you give up "transaction control" to a motley bunch of strangers by setting ONE Reserve Price with a LONG TIME WINDOW OF UP TO 24 MONTHS???
Remember, after setting the Reserve Price and apportionment method, the Sales Committee has up to 12 months to collect the requisite 80% (or 90%) of signatures for the Collective Sale Agreement (CSA) AND up to another 12 months to get a Developer-Buyer to enter into a Sale and Purchase Agreement (SPA) before applying to STB for a collective sale order in the event of less tha 100% consent! Market prices can shoot up way beyond expectations of even the prescient of real estate specialists (eg, in late 2006-early 2007) and render the Reserve Price set as long as 24 months ago wholly irrelevant and possibly even meaningless.
===>>>D-5.5 Contractually designate the Sales Committee as a mere facilitator (instead of an agent). Under the usual CSA contractual terms, the Sales Committee is an agent. Agent for whom (consenters only or all owners) is another can of worms that I won't pry too much into in this blog because the issues can get technical and complex.
From the perspectives of the marketing agent and the lawyer, it is very neat and pat to designate the Sales Committee as agent. A principal-agent relationship works when the agent is an expert in that line and is in a one-to-one structure (eg, a talent manager has all the necessary networking contacts and talent evaluation skills; whilst he may be the talent manager for a few artistes simultaneously, he has a one-to-one responsibility towards his respective artiste-principals).
However, a principal-agent relationship simply does NOT work for en bloc sales because the agent (Sales Committee) is not an all-rounded property, valuation, financing and legal expert all rolled into one. Yet the Sales Committee is representing a multitude of principals (Majority Consenters) whom they do NOT know well or communicate extensively with and they are making decisions effectively binding on the Majority Consenters; and such decisions may well impact on another set of principals (Minority Dissenters) who are not even amenable to their appointment at the outset.
Given the considerations above, it would be more prudent to appoint the Sales Committee as a mere FACILITATOR (eg, to convene EGMs, to gather the information on real estate prices and market conditions from the marketing agent, to be a point of contact for the lawyers, to submit application to STB, etc), and NOT an AGENT (ie, WITHOUT the power to enter into contracts that are binding on their multitude of principals).
Do NOT give decision powers to Sales Committee. As shown in an ongoing mega-en bloc battle (whatever the merits/demerits of the case may be from an array of conflicting perspectives and whatever the verdict turns out to be eventually), the flip-side of the familiar dicta of "Caveat Emptor" (Buyer Beware) loomed menacingly over the horizon ... Bottomline: the Developer-Buyer contracted to buy at $500mn and they are now suing for damages between $800mn to $1bn! So, Seller Beware!!! It goes to reinforce my point in para D-5.4 that it is of PARAMOUNT IMPORTANCE for (A) the Majority Consenters to retain the decision power as part of "transaction control" and (B) the Sales Committee NOT to take on such decision power. For what??? [in Singlish: What for???] The risks are just NOT worth it - for any body and everybody!
===>>>D-5.6 Set a RANGE of Reserve Prices in the Collective Sales Agreement (CSA). Why be fixated with setting "ONE" Reserve Price? Do NOT set one price - Rather, set a range of between $xx-yy million dollars that reflects the multitude of methods in pricing the estate (eg, Residual Land Value, Comparative Replacement Unit Pricing, expected Plot Ratio, etc). Alternatively, peg Reserve Price to the premium of NEW replacement units within a 300m radius of your estate because the raison d'etre for an en bloc sale is purportedly the collective sale premium over an individual sale of an apartment of your unit's age.
Although the Reserve Price is technically supposed to be "secret", it is an "open secret" in reality because all the owners in the estate know it and Singapore is so small. For "form" anyway, the marketing agent would typically advertise an "Asking Price" that is above the Reserve Price and see what the market hits them with. Hence, in practice, there is already a "price range" at work!
By setting a Reserve Price RANGE (this in itself suggests potential for variance and fluidity) instead of ONE Reserve Price, you oblige the Sales Committee to revert to the Majority Consenters in an EGM BEFORE they award the contract to a Developer-Buyer. Also, by creating a mechanism to seek the Majority Consenters' affirmation, the Sales Committee also divests themselves from any potential claims in the event that the market crashes after securing a firm offer from a Developer-Buyer at the set Reserve Price. The new law requires at least 4 EGMs but it doesn't prevent you from requiring more. Looking at it constructively, adding an affirmation mechanism is a WIN-WIN for all (do read this para in conjunction with para D-5.8 below). This idea will NOT tank or torpedo any potential en bloc sale. Why? Say, the Reserve Price Range is set at $600mn-$750mn on Day 1 which garnered the requisite 80% (90%) majority consent by Day 200. If the highest firm offer comes in at $660mn (or - for the sake of argument, if there are two firm offers, one at $660mn and another one even higher than the top-end range at $770mn, but each with slightly different conditions from what was in the tender invitation) on Day 500, I'm suggesting that the Sales Committee should convene an EGM to AFFIRM WITH THE OWNERS whether to proceed with AWARDING the contract at that OFFER PRICE and on those NEGOTIATED TERMS to that Developer-Buyer based on the MAJORITY VOTE OF CONSENTING ATTENDEES (ie, more than 50%) at that EGM.
By this advanced stage, more of the key facts that will impact on pricing may have been ascertained (eg, searches on Development Baseline and Outline Planning Permits may have been effected) and the terms of sale previously set by the Majority Consenters may have been amended by or negotiated with the Developer-Buyer during the public tender or private treaty process. Keeping the Developer-Buyer waiting for another 14-30 days for a transaction of this size is not unreasonable. If a truly fair value has been offered, Developer-Buyers have less fear of being upstaged by a competitor.
Being contractual in nature, CSAs can be crafted to make the above work. First, collectively decide on what you want (eg, the boundaries to be imposed on the Sales Committee), then tell the Sales Committee to instruct the lawyers accordingly and finally verify with the lawyers directly (NOT via the marketing agent or the Sales Committee) to determine that the contract reflects your collective decision.
===>>>D-5.7 Incorporate a RANGE of Apportionment Methods to distribute the collective sales proceeds. Using the lower end of the Reserve Price range, establish the collective sales proceeds for each unit using at least 3 apportionment methods likely to be applicable your estate's characteristics (eg, if there is a wide range of unit sizes in your estate - then apportionment computations could be based (a) strata title area only; (b) 80:20 weightage; or (c) 50:50 weightage pegged to strata title area and share values, respectively). This will preserve a greater degree of integrity for the valuer to discharge his/her duties objectively. Also, by establishing the upper/lower limits of apportionment, it would minimize the risk of Strata Titles Board proceedings as Majority Consenters are aware of their maximum/minimum entitlements at the point of signing the CSA. This would in turn delay the final pay-out of proceeds (and thus your purchase of a replacement unit).
REMEMBER, apportionment can only be recommended by a qualified valuer - NOT the marketing agent, NOT the lawyer. No matter how astute and investment-savvy your medical doctor is, is he the right person to consult for stock investment advice?
Apportionment determines your precise share of the Reserve Price. Even if the Reserve Price Range is highly attractive with an exorbitant collective sale premium, if the apportionment method is twisted, you will end up with significantly less than what you are entitled to. Therefore, Apportionment and Reserve Price are inextricable twins - entwined at so many points in such impossible spots that any separation attempt will spell death of both (not just one)!
However, because nobody is prepared to pay valuation fees upfront and in order NOT to tank or torpedo this phenomenon of en bloc sales, MinLaw has amended the law by pushing forward the need for a valuation report from the 3-month period before submission of collective sale application to STB (under the 1999 law) to the close of public tender (under the 2007 law). In other words, MinLaw has shifted it from a purely administrative exercise to serve the interests of STB to a slightly more market-oriented approach to validate the Developer-Buyers' bids. But it still does NOT serve the needs of the Owners because by that advanced stage of public tender close, too much effort and costs would have been expended by the marketing agent, lawyers and Developer-Buyers ... the stakes are simply too high for any valuer (no matter how professional that person may be - anybody would have done the same) to recommend any apportionment method but the one method that was stated in the CSA!
===>>>D-5.8 Devise a clawback under the Sales and Purchase Agreement (SPA). REMEMBER that you are being asked to set the selling price of a cup of coffee BEFORE establishing the price of the ingredients and the costs that go into brewing/selling that cup of coffee.
What if the Development Baseline search shows a higher plot ratio than previously approved? What if new possibilities open up after getting an Outline Planning Permit? All these could significantly jack-up the value of your estate. But all these searches incur significant costs which again nobody wants to bear upfront when it is not known if the requisite majority consent could be mustered or whether there would be any firm offers.
As the Reserve Price Range is set based on certain ASSUMPTIONS about plot ratio and gross floor area, it should be possible to tabulate these assumptions and impose a commensurate clawback from the successful Developer-Buyer if, say, the Development Baseline is in fact 20% higher than what was assumed (do read this para in conjunction with para D-5.6 above).
Although the new law requires the terms and process of the sale to be discussed at the 3rd EGM BEFORE the launch of public tender (with provision for the sale to be done on private treaty basis within 10 weeks from the close of such tender), the law continues to empower the Sales Committee to enter into the Sale and Purchase Agreement UNILATERALLY with a successful Developer-Buyer (who may have countered with some other terms in their public tender or private treaty), UNLESS you CONTRACTUALLY DENY the Sales Committee of such power in the CSA as suggested in paras D-5.4 and D5.5 above.
===>>>D-5.9 Questions to ask the Marketing Agent. Is the marketing agent acting on behalf of the Sales Committee OR the Majority Consenters OR ALL Owners? Their answer may NOT be correct. But getting the answer and putting it on record should make marketing agents more conscious (and hopefully more cautious) of their duty. If the Marketing Agent fails to hit the Reserve Price or Reserve Price Range in a Public Tender, the estate could:
(a) Go under Private Treaty which - under the new law - must be within 10 weeks from the close of Public Tender;
(b) Undergo further rounds of Expressions of Interest from potential Developer-Buyers;
(c) Go for another Public Tender;
(d) Be withdrawn from any further collective sale attempt.
There is NO "DIE-DIE-MUST SELL" OBLIGATION on anybody!!!
Do NOT be strung along by the marketing agent who has a vested interest to die-die-must-sell so long as it hits the Reserve Price in order to earn the marketing commission. The Reserve Price or Range may become out-of-sync with the passage of time and change of market conditions.
===>>>D-5.10 Questions to ask the Lawyer. Is the lawyer acting for the Sales Committee OR the Majority Consenters OR ALL Owners? Their answer too may NOT be correct, depending on how they conduct themselves specifically in each transaction. From my limited observations, I think the position is made more nebulous because the en bloc law - in my opinion - has totally PRETZELIZED fundamental property rights laws and mercantile law!!!
There are lots of if's and but's on this issues. In my previous blogs dated 10 July 2007 (The Holey Trinity ... the show must go on) and 9 Aug 2007 (A national cause on National Day, paras 6 and 7), I had posed these questions on "who does the lawyer and the marketing agent each represent?". In the 20 Sep 2007 parliamentary sitting, NMP Siew Kum Hong also asked: "And for whom do the solicitors and the marketing agents act? To whom do they owe their contractual and fiduciary duties? The CSC? The management corporation? All subsidiary proprietors? Or only those owners who have signed the CSA? This latter point is especially important with respect to solicitors, because it would then guide them in their discharge of their duties. It seems from anecdotal evidence that some solicitors behave as if they are only acting for the CSC while other subsidiary proprietors believe that the solicitors are acting to protect their own best interests. This is not a desirable state of affairs." The Minister for Law's answer is essentially set out in para D-4 above (ie, the en bloc law does NOT change the substantive law).
Here I am merely hypothecating ... If (repeat: IF) the lawyers are acting for the Sales Committee only OR just the Majority Consenters in the Collective Sale Agreement (CSA) signed by these people, then these parties could well claim legal privilege for any advice rendered. As it now stands, the en bloc law empowers STB to oblige the Minority Dissenters (who did NOT sign the CSA) to be bound by the terms of the CSA and thus contribute towards the legal costs for advice and services rendered for the collective sale which is being forced through, eg, under STB's order and which would culminate in the eventual sale to the successful Developer-Buyer. Therefore, it contradicts a fundamental principle of mercantile law that one should only pay for what one has contracted to buy. In the Minority Dissenters' case, you are now obliged to pay for what you didn't want at the outset. On top of that, in challenging the collective sale on the basis of, say, bad faith by the Sales Committee or Majority Consenters, if (repeat: IF) legal privilege is to be granted, doesn't it further contort and distort the mercantile principle that since the Minority Dissenters are now obliged by law to pay for what you didn't want, such Minority Dissenters are additionally denied the eventual benefit and access to such services/advice relating to the terms of the collective sale being forced upon you?
===>>>D5-11 Keep a 10% buffer of SS Fence-Sitters. Keeping THE BEST for THE LAST, I'd suggest that you keep a 10% buffer of Steady and Sturdy Fence-Sitters. Even if you are pro-sale, this is the ULTIMATE POTENT WEAPON in any en bloc sale and is a NATURAL CHECK-AND-BALANCE against being sold down the river!!!
Just as in a murder case, finding the motive is key to solving the case. Once the trigger consent is reached, both the Sales Committee and the marketing agent would have NO FURTHER MOTIVATION to keep reviewing the Reserve Price or Range IN TANDEM WITH market movements. Again, if you understand Behavioural Science, you will appreciate that the Sales Committee, the pro-sale owners and the employees of the marketing agency are probably exhausted from all the cajoling (to put it nicely) to get the 80% (90%) CSA signatures and the human tendency is to let sleeping dogs lie. Quite naturally, these people would ask why review the Reserve Price or Range and get into another ruckus of procuring the darn 80% (90%) all over again? In fact, not only will they be UNmotivated to review the Reserve Price or Range, they may feel (rightly or wrongly) that they are constrained to review, especially if the Reserve Price or Range is hit because there are additional worries of a series of "what if's" should the deal be aborted because the market turned adverse, the Developer-Buyer backs out, etc.
Although technically, the public tender should be launched only AFTER procuring the requisite 80% (90%) consent, past practices have shown that so long as the Sales Committee and the marketing agent get a sense that they are more likely than not to hit such consent (ie, there is a bunch of "likely-to-agree" Fence Sitters), they will still move things along and call for public tender, etc. DO NOT FORGET even momentarily that the Sales Committee (working for free) and marketing agent (working for free unless successful) are extremely dedicated and committed people ... they would NOT let a small shortfall in hitting the trigger consent deter them in their quest!
So, the SMARTEST MOVE is "mark-to-market" by withholding the requisite consent to motivate both the Sales Committee and the marketing agent to do their utmost best and actively review the Reserve Price or Range to closely track the market! Even if you are very pro-sale, it'd work better for the en bloc sale if you keep the bone enticingly close enough (but NOT too close because you won't want to hit tipping point too easily) to make these running dogs aka lackeys chase for the bone ...and yet far enough such that these running dogs can't quite grab it ... until you want the bone to be grabbed.
In my blog, you'd have read of chickens, monkeys, snakes, crocodiles, ostriches, jokers, goldfishes, giraffes, zebras, gorillas, orang utans, birds and running dogs. [For those of you who are more insightful readers familiar with the local topography in Singapore, you'd have noticed that there are no elephants - white or otherwise - in private residential estates. Elephants were made extinct in Buangkok in 2005!] But it's still a JUNGLE out there!
Now that the legislative amendments for 2007 are out, I go back to the question I asked in my 29 May 2007 blog when MinLaw was in the thick of public consultations and private dialogues (In between ... evolving a Bagel Class of Singaporeans, under "The Saga TO BE Continued"):
Did the hero get the girl?
My answer: Not quite. The hero only managed to progress to the stage of holding her dainty little hand. He hasn't won her heart ... yet.
Looking at the 5Cs of our urban society, our fair lady is obviously not seduced by so-called Cash windfalls (you could tell from her condemnation of en bloc flippers/raiders), nor overly impressed by fast Cars (although she did bat her fluttering stick-on lashes at Minlaw's vroom-zoom speed in getting the legislation passed), nor interested in joining the Country Club of consenting exploiters. She wants to trade-in her Condo if the en bloc push comes to a collective shove. Hmmm ... what's the last C that would bring a sweet smile to her luscious red lips? Courage in his character, my dear.
Well, 2008 is coming ... who knows, eh? With us urging and goading him along, our hero may well score! MinLaw need not be so timid or too shy ... to re-discover the SENSE OF RECTITUDE and get the Gahmen to contribute to a TRIPARTITE EFFORT of Urban Renewal and MANDATE a 1-4-1 exchange by law, confident in the knowledge that it will NOT tank or torpedo en bloc sales!
So, my dear readers ... please, please, please continue to engage MinLaw and share your observations and experiences under the NEW LAW with them! Otherwise, MinLaw won't know if the new law is working as they had hoped. They won't know how these abuses and anomalies are continuing or evolving day-by-day.
MinLaw's e-mail is:
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ANOTHER PIECE OF SAD NEWS, 21 Dec 2007: On a dismal day, the Minority Dissenters of Gilman Heights in Alexandra Road area LOST their case at the Strata Titles Board hearing in respect of their points on technical grounds and lack of good faith.
HEARTBREAKING NEWS, 7 Dec 2007: On a wet and rainy afternoon on 7 Dec 2007, the Minority Dissenters of Horizon Towers in Leonie Hill and Leonie Hill Road LOST their case at the 2nd round of Strata Titles Board hearing!!! Their points on constitutional and jurisdiction issues were rejected. They lost on the points about the lack of 80% requisite majority, non-compliance with the Schedules under LTSA and the lack of good faith.
It's twisted ... There is a novel written in the 1930s by James Hilton entitled "Lost Horizon". It's about a paradise land of eternal youth called Shangri-La. One of the parties in the developer-buyer consortium embroiled in this en bloc purchase of Horizon Towers is Hotel Properties Limited (HPL). You know what ... HPL's hotel business in Singapore started out with the Hilton! Sigh ... little wonder ... Lost Horizon! But Singapore is NO Paradise on Earth where ruthlessly fierce en bloc battles ignite and rage on with every property market spike!
Horizon Towers' en bloc battles between the Majority Consenters and the Minority Dissenters were fought in two rounds in STB tribunal hearings.
Round 1: On 3 Aug 2007, the Minority Dissenters won when the STB tribunal threw out the application for collective sale on "technical grounds" arising from lack of the requisite 80% consent and STB did not rule on the "merits" of the case. When the STB ruling was announced by Dr Philip Chan Chuen Fye, one of the Deputy Presidents of Strata Titles Boards - after a split second of stunned silence - the packed courtroom broke out into applause and cheers ... the Majority Consenters and Minority Consenters were shaking hands, beaming broad smiles, hugging and congratulating each other! It must be the only instance ever in STB's history when both contesting parties were deliriously happy with the verdict! Case of Win-Win, eh?
Round 2: After the High Court appeal on STB's ruling on technicality was won by the Majority Consenters, the Majority Consenters and Minority Dissenters went back to STB for Round 2. On 7 Dec 2007, the Minority Dissenters lost when the STB tribunal ruled in favour of the Majority Consenters. After the five judgements were read out by Dr Philip Chan, there was one Cheshire cat grin on the handsome face of a lawyer sitting by the courtroom wall and one short hand clap from the back of the packed courtroom near the door! Once again, it must be the only time ever in STB's history when both contesting parties were absolutely glum over the verdict! Case of Lose-Lose, ugh?
In the midst of all the hype, tensions, expectations, legalese, big bucks and little bucks ... and one's home ... the human instincts and the human reactions came through ... we are human after all!
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BREAKING NEWS, 29 Nov 2007: On a fine afternoon on 29 Nov 2007, the Minority Dissenters of Finland Gardens in Telok Kurau WON their case at the Strata Titles Board hearing!!! Yes, represented by Denis Tan of Toh Tan & Partners, they won ... on 3 grounds: (1) Lack of good faith, (2) Lack of 80% consent and (3) Financial loss.
Congratulations! Jubilation! Celebration!
The latest development as reported in The Straits Times on 5 Jan 2008 is that the Majority Consenters of Finland Gardens "have filed an appeal on the instructions of buyer Sing Holdings". Well, let's see what happens in High Court ...
ANOTHER ESTATE'S WIN: Another case of a Minority Dissenter who won ... Airview Towers on River Valley! This Minority Dissenter was NOT even represented by a lawyer! The case was won on the basis that there was no requisite 80% majority consent upon expiry of the Collective Sale Agreement. According to the Strata Titles Board's written judgement dated 12 Nov 2007, the owners of 2 units who signed the Collective Sale Agreement subsequently sold the units to new buyers. The new buyers did NOT sign the Collective Sale Agreement or any other memorandum in writing before expiry of the CSA's 12-month tenure. [The Developer-Buyer, Bukit Sembawang View Pte Ltd, attributed this turn of events as a "hiccup". Adjoining to Airview Towers is an empty plot of land that was acquired in late 2006 by the same Bukit Sembawang Group through the en bloc sale of Chez Bright apartments.]
More Congratulations! More Jubilation! More Celebration!
Kudos to this brave soul who stood up alone!