“HOUSING ACCOMMODATION” UNDER HDA 1966
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1. Regulation 11(1) provides that “where the contract of sale is for … the sale and purchase of a housing accommodation in a subdivided building, in the form of a parcel of a building or land intended for subdivision into parcels, as the case may be, it shall be in the form prescribed in Schedule H”. Hence, the Subject Property is a particular parcel in a sub-divided building on land intended for sub-division into parcel (the Subject Property).
2. The definition of housing accommodation in Section 3, Housing Development (Control and Licensing) Act 1966 “includes any building, tenement or messuage which is wholly or principally constructed, adapted or intended for human habitation or partly for human habitation and partly for business premises and such other type of accommodation as may be prescribed by the Minister from time to time to be a housing accommodation pursuant to Section 3A”.
3. The immediate question is whether the building and tenement in the definition refers to the Subject Property or the sub-divided building comprising the Subject Property as a whole.
4. It must be noted that the word “parcel” is not part of the definition of housing accommodation which raise the question if the omission is deliberate.
5. It is arguable that the definition of housing accommodation should be applied toward the Subject Property, which is the particular parcel, and not the sub-divided building comprising the said parcel (the First interpretation) or in the alternative that the definition shall be applied towards the building or tenement, comprising the said parcel (the Second interpretation).
6. A home-office being wholly or principally constructed, adapted or intended for human habitation or partly for human habitation and partly for business would be a housing accommodation according to both the First interpretation and Second interpretation.
7. A penthouse in an otherwise completely commercial office building may not be a housing accommodation applying the Second interpretation, as the building is not wholly or principally constructed, adapted or intended for human habitation; nonetheless, it would be deemed as housing accommodation under the First interpretation.
8. A purely commercial parcel in a building intended for human habitation would nonetheless, comes within the definition of housing accommodation, applying the Second interpretation being within a building wholly or principally constructed, adapted for human habitation or partly for human habitation and partly for business premise but would not be deemed a housing accommodation applying the First interpretation.
9. The First interpretation result in a more precise result whereas the Second interpretation cast a much wider net but may give raise to result which are not in accord with common sense.
10. Nonetheless, in the absence of any judicial pronouncement on the interpretation of the said provisions, it is advisable to err on the side of caution and to adopt the prescribed Schedule H contract. Otherwise, one should obtain confirmation from the Minister that the prescribed Schedule H contract is not applicable.
11. Regulation 11(3) provides that “Where the Controller is satisfied that owing to special circumstances or hardship or necessity compliance with any of the provisions in the contract of sale is impracticable or unnecessary, he may, by a certificate in writing, waive or modify such provisions. Provided that no such waiver or modification shall be approved if such application is made after the expiry of the time stipulated for the handing over of vacant possession under the contract of sale or after the validity of any extension of time, if any, granted by the Controller.”
12. Going further, if the court could be convinced that the above provisions are ambiguous, we could invite the court to interpret the provision in accord with the stated intention of Parliament in enacting the Act at hand, which is for the protection of home-buyers.
13. Giving effect to the intention of Parliament would, in my opinion favour the First interpretation above.
14. For completeness sake, it must be noted that the definition of housing accommodation was originally introduced by the Housing Developers (Control and Licensing) Act, 1966. There were no prescribed contract for a parcel in a sub-divided building; the first prescribed contract, which was introduced by the Housing Development (Control and Licensing) Regulations 1982, was Schedule E, in respect of housing accommodation together with the sub-divisional portion of land. The Schedule H contract was only introduced by the Housing Development (Control and Licensing) Regulations 1989. Hence it could be submitted that Parliament where not concern with parcels in a sub-divided building when the definition of housing accommodation were introduced in 1966.