Horizontal member of support

Q.
Explain the following building terms with diagram when necessary.

• Joists
• Stringers
• Headers
• Purlins
• Rafters
• Girts
• Lintels
• Girders
• Spandrels
• Trusses

A.
In most buildings, the superstructure systems consists of floor and roof desks, horizontal members that support them, and vertical members that support the other components.

The horizontal members are generally known as beams, but they also are called by different names in specific applications. For example:

• Joists are closely spaced to carry light loads.

• Stringers support stairs.

• Headers support structural members around openings in floors, roofs, and walls.

• Purlins are placed horizontally to carry level roof decks.

• Rafters are placed on an incline to carry sloping roof decks.

See above image.

• Girts are light horizontal members that span between columns to support walls.

• Lintels are light horizontal beams that support walls at floor levels in mutistorey buildings or that carry the part of walls above openings for doors and windows.

• Girders may be heavily loaded beams of horizontal members that support other beams.

• Spandrels carry exterior walls and support edges of floors and roofs in multistorey buildings. In concrete or steel construction, an exterior beam extending from column to column usually carrying an exterior wall load is known as a spandrel beam.

• Trusses serve the same purposes as girders but consists of slender horizontal, vertical, and inclined components with large open spaces between them. The spaces are triangular in shape. Lights beams similarly formed are called open-web joists.

"a framework, typically consisting of rafters, posts, and struts, supporting a roof, bridge, or other structure."

A.
Merritt & Ricketts (2001) Building Design and Construction Handbook. Six Edition. McGraw-Hill. Page 1.11.
Pictures download from public domain within search by Google.

Recovery of commission fee reward unlicensed broker

Q.
Josephine is the daughter of Auntie Wong who has co-broked a bungalow house costing RM1 mio. She asks you as a REA whether her mother's share of commission amounting to half of the total commission (1% of agreed 2% commission paid by Vendor) could be recoverable as now the partner of her mother had been reported to the authorities by the buyer.

Apparently, the buyer felt that he has been cheated.

A. (Repost from my-realproperty2.blogspot.com)

The law which is involved here has two parts. First is assuming Auntie Wong's partner is a REA, and second part is if the commission of 1% due to Auntie who is unlicensed broker, could be recovered.

Firstly, as REA is recognised in the Valuers, Appraisers and Estate Agents Act, 1981 Act 242, as in Section 22B and Section 22C, to practice Estate Agency, recovering the fees by the REA is spelled out pursuant to S.22C (1) (d) as extracted below.

S.22C (1) (d) be entitled to recover in any court any fees, commissions, charges or remuneration for any professional advice or services rendered as an estate agent.

Auntie Wong's partner - who is a REA, can recover the commission in total of the agreed 2% from the Vendor, or any such agreed fee or percentage as in the engagement and appointment letter. This can be a written document or by expressly agreed as it is a binding contract, as in Contracts Act, 1950:-

S.9 Promises, expressed and implied.

So far as the proposal or acceptance of any promises is made in words, the promise is said to be express. So far as the proposal or acceptance is made otherwise than in words, the promise is said to be implied.

And meaning of contract as in-

S.10 What agreements are contracts.

(1) All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

(2) Nothing herein contained shall affect any law by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.

Therefore, even if it was not written, not witnessed and not registered, it was a strong binding contract.

Assuming that there were not vitiating factors like lack of consent, where S.14 CA'50 and S.15-18 below is caused:

S.15 Coercion
S.16 Undue influence
S.17 Fraud
S.18 Misrepresentation

Which leads to S.19 Voidability of agreements without free consent,

(1) When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

that the contract can be voidable. Otherwise, it was a good contract. And, the REA was acting in the normal course of business as an estate agent, closing the deal and deserved to be paid accordingly.

However, it is mentioned in the question that the buyer felt cheated and thus taking action against the Vendor. In this case the buyer is probably using such elements of argument in fighting this case in court.

Following the Malaysian Estate Agency Standard 4 (MEAS 4), an unconditional contract (assuming this is the case here),

4.2.3 If the sale and purchase agreement or letting or leasing agreement is unconditional, the estate agency fee is due upon the signing of the sale and purchase agreement or letting or leasing agreement.

The commission 2% is due to the agent the moment SPA is signed. So, in this case, assuming that the SPA has already been signed, and the agent has transferred the money to the Vendor's lawyer the earnest deposit from the client's account, the commission is due any time.

Based on S.22C (1) (d), auntie Wong's partner - a REA, is entitled to recover that sum from the lawyer who deals with the Vendor's SPA, if the Vendor does not want to pay.

Auntie Wong's partner can send a letter of request to the lawyer dealing with the SPA requesting that the sum equivalent to 2% of the transacted price be retained as commission invoking section 22C (1)(d) at the conveyancing lawyer's office. The lawyer has to retain that payment, as the law says so, and not pay the Vendor the total sum transacted. There are other things which the lawyer also need to make sure, example the real property gains tax 'Borang CKHT'.

As for auntie Wong's share of 1%, she has no rights to the share of commission according to the law. In fact, both auntie Wong and her partner will get into trouble with the enforcement of the Board on two charges.

1. Section 24 of VAEA Act, 1981 (REA)
2. Section 30 of VAEA Act, 1981 (REA & Auntie Wong)

S.24 (1)(h) can be imposed on the REA who employ or partner with an unauthorized person in practicing estate agency. Unless the person is registered as REN and complied with the Board's requirements. One of which is auntie Wong's name be recorded in the Register of Negotiators of the firm, and been issued a REN Tag.

(h) has allowed any unauthorized person to carry on valuation, appraisal or estate agency business in his name; or

which he is liable for disciplinary action by the Board, in the below manners-

(i) cancelling his registration
(ii) suspending his practice
(iii) admonishing him and recording in register
(iv) admonishing him and impose a fine not exceeding RM10,000
(v) imposing a fine not exceeding RM25,000 and suspending him
(vi) prohibiting him for re-instatement if he has been cancelled or suspended.

2. S.30 (1) (g) and S.30 (1) (j) on REA, and S.30 (2) (a) and S.30 (3) onto aunti Wong.

S.30 (1) (g) sells, transfers, sublets or otherwise permits any other person to use any authority to practise issued to him under this Act;

S.30 (1) (j) aids and abets in the commission of an offence under this Act,

and,

commits an offence and is liable on conviction to a fine not exceeding RM300,000 or to imprisonment for a term not exceeding 3 years or to both and he shall be liable to a further penalty of RM1,000 for each day during the continuance of such offence.

S.30 (2) Any person [including auntie Wong] who, without any lawful authority [which is the case with auntie Wong],

(a) acts as a valuer, appraiser or estate agent for any party or acts in any capacity as a valuer, appraiser or estate agent whether the primary or principal object of his business is valuation, appraisal or estate agency or whether any incidental part of his business is valuation, appraisal or estate agency; or

(b) wilfully or falsely pretends to be, or takes or uses any name, title, addition or description implying that he is duly qualified or authorized to act as, a valuer, appraiser or estate agent, or that he is by law so qualified or authorized,

commits an offence and is liable on conviction to a fine not exceeding RM300,000 or to imprisonment for a team not exceeding 3 years or to both.

And, as she is not authorized, she is to be subject to S.30 (3) below.

(3) No costs, commission, fee, reward or any other consideration in respect of anything done by an unauthorized person in respect of any act which is an offence under subsections (1) or (2) shall be recoverable in any court.

Therefore, the REA would be taken to be implicated for the disciplinary action of abetting auntie Wong if he were to share his commission with her. This is also governed by Rule 91 of Valuers, Appraisers and Estate Agents Rules, 1986.

91. Participation of others in profits.

(1) No registered estate agent shall, directly or indirectly, allow or agree to allow participation by any other person, not being a registered valuer, appraiser or estate agent, who is permitted to practice estate agency, in the profits of his professional work in agency fees or in commissions.

(2) Notwithstanding paragraph (1), a registered estate agent may pay a commission to a member of his staff who is under his control or supervision in the aggregate not exceeding forty percent (40%) of the professional fee in a particular transaction.

Thus, if auntie Wong is a REN under this REA, he can share the commission of 2% with auntie Wong at maximum of 40% - NOT 50%!

Ref:
Various sections of VAEA Act, 1981 and Rules or Rules, 1986.
MEAS 4 - Fees.

Impersonating an agent

Q.
Where on earth does it say impersonating an agent is wrong? Ah Beng was arguing with Johnny after failing to solicit for his house for sale.

"I was just trying to help you sell your house! For God's sake! For a small commission that I make a living out of it! I haven't even sold your house yet! And, I was just going around asking people if they have for houses for sale! I'm not acting as house agent yet!"

Ah Beng is trying to argue his way out of the situation. He added "You mean, I am a thief before I even steal your car? That is ridiculous!!!"

Provide proof to Ah Beng that he is still wrong in the law.

A. (Repost from my-realproperty2.blogspot.com)

S.30 (2) of Valuers, Appraisers and Estate Agents Act, 1981 is the law for this scenario.

What S.30(2) says is:

Any person [including Ah Beng] who, without any lawful authority-

(a) acts as a valuer, appraiser or estate agent for any party or acts in any capacity as a valued, appraiser or estate agent whether the primary or principal object of his business is valuation, appraisal or estate agency or whether any incidental part of his business is valuation, appraisal or estate agency; or

(b) wilfully or falsely pretends to be, or takes or uses any name, title, addition or description implying that he is duly qualified or authorized to act as, a valuer, appraiser or estate agent, or that he is by law so qualified or authorized,

commits an offence and is liable on conviction to a fine not exceeding three hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.

S.30(1)(e) has the wording "impersonates". S.30 (1) is long, so an extract on (e) is shown below:

(e) impersonates a registered valuer, appraiser or estate agent;

S.30(2)(b) put Ah Beng as "pretends to be" and that is also carrying the meaning of impersonating an agent.

Furthermore, S.30(2)(a) says "incidental part of his business is ... estate agency" which means it does not have to be the whole part.

And, "whether the primary or principal object", again it means it does not need to be the main part, yet it is taken as wrong.

Lastly, talking about selling or asking people if they are selling their houses is not soliciting for business. However, if knowingly a person has a house for sale, and asking him to give commission for selling his house, that is acting as an agent.

This is stated in S.2 Interpretation of VAEA Act, 1981.

"Estate agency practice" means acting or holding oneself out to the public or to any individual or firm as ready to act, for a commission, fee, reward or other considerations, as an agent in respect of the sale or other disposal of land and buildings and of any interest therein or the purchase or other acquisition of land and buildings and of any interest therein or in respect of the leasing or letting of land and buildings and of any interest therein including the act of making known of the availability of land, building or any interest therein for such sale or other disposal, purchase or other acquisition, leading or letting;

The key word here for this scenario is "ready to act". So, Ah Beng was ready to act as an agent to Johnny and he also said he relied on a "small commission", thus making his act of soliciting for business (asking for commission) real, a fact of practising estate agency.

And, that is in contravention of S.30(2)(a) and punishable by a fine of maximum RM300,000 or imprisonment of maximum 3 years or to both.

On the part "a thief before I even steal your car?"

Well, the act of stealing is wrong. In this case, the soliciting for Johnny's house for sale is an act. So, it is taken by the law - in this case S.30(2) of VAEA Act, 1981, as an offence. Whether a commission is paid (car is stolen), becomes immaterial.

Nevertheless, the punishment for asking without doing the wrong is of course logically less severe than asking and actually doing the wrong. So, the fine and imprisonment term if any, would be less heavy on Ah Beng.

Ref:
Sections 2 and 30 of VAEA Act, 1981.

Lease your REA License?

Q.
Many a time, people ask me:

"When I get my REA License, can I rent it out to someone to run an agency firm?"

And, "How much I can get when I lease my REA license?"

A. (Repost from my-realproperty2.blogspot.com)

There are two sections of the law involved here. S.24 and S.30.

Section 24 of Valuers, Appraisers and Estate Agents Act, 1981 (Act 242) has a subsection (h) that prohibits this renting or leasing out of license.

Section 30 (1) of the same Act also has a subsection which deals with this act of renting or 'sublet'.

30 (1) (g) sells, transfers, sublets or otherwise permits any other person to use any authority to practise issued to him [the REA] under this Act;

Cancellation, suspension and admonishment

24. (1) Subject to the provisions of this Part, if a valuer, appraiser or estate agent or a probationary valuer or probationary estate agent whose name has been placed in the Register or the Register of Probationary Valuers/Probationary Estate Agents, as the case may be—

• (a) has been convicted of any offence involving fraud or dishonesty or moral turpitude; 
• (b) has been found to have obtained his registration or authority to practice under this Act by fraud or misrepresentation; 
• (c) has his qualification under section 18, 22A or 22D withdrawn or cancelled by the authority through which it was acquired or by which it was awarded; 
• (d) has contravened or failed to comply with any of the provisions of this Act or of any of the rules made thereunder; 
• (e) has not observed any conditions or restrictions subject to which he is registered; 
• (f) has refused or neglected to comply with any order of the Board acting under any of the provisions of this Act or of any of the rules made thereunder; 
• (g) has been found guilty by the Board of any professional misconduct or of any act or conduct which in the opinion of the Board is infamous or disgraceful; 

• (h) has allowed any unauthorized person to carry on valuation, appraisal or estate agency business in his name; or 

(Remaining parts of S.24 not shown here)


Therefore, allowing any unauthorized person (meaning one who is never been given the authority to practise) - to carry on estate agency business in his name (the REA's name) - is an offence under S.24.

And, such offence can be punished with the Board:

the Board may make an order—

• (i) cancelling his registration under the appropriate Part of the appropriate Register; 
• (ii) suspending his practice for a period not exceeding three years; 
• (iii) admonishing him and recording such admonishment in the appropriate Register; 
• (iv) admonishing him or imposing a fine not exceeding ten thousand ringgit or both and recording such admonishment or fine in the appropriate Register; 
• (v) imposing a fine not exceeding twenty-five thousand ringgit and recording such fine in the appropriate Register and that he be suspended from practice until the fine is paid; or 
• (vi) prohibiting him from applying to the Board for registration until all the conditions specified by the Board have been complied with. 

When a REA is removed or suspended from practising, he can no more carry out estate agency practice in the normal manner.

Thereafter, he has to appeal to the Board for leniency and reinstate him back to the register. This is spelled out in S.26 Reinstatement, and S.27 Appeal. While doing so, section 29 Procedure for appeal - need to be followed.

MORE SERIOUSLY, the Act also punishes the offenders (both the REA who lease and the person who pays for the license) under Section 30. Therefore, it is not just the REA who is at wrong, the partner in crime is also wrong. This is stated in S.30 (1) (j).

Why?

• S.30 is about "Any person who,...". That means whoever without limiting to REA alone.

• The punishment under S.30 is RM300,000 or maximum 3 years imprisonment or both.

Extract of S.30 (1) relevant to this offence is as below.

30. Offences

(1) Any person who-

(a) - (f) are left out intentionally, so please refer to Act.

(g) sells, transfers, sublets or otherwise permits any other person to use any authority to practise issued to him [the REA] under this Act;

(i) acts in contravention of section 21 [Restriction on Valuation] or 22C [Restriction on Estate Agency Practice]

(j) aids and abets in the commission of an offence under this Act,


As for 'how much is to lease the license?'

I don't know. I guess it is kind of how desperate you (or the parties who want to lease) are? Generally, it is demand and supply and market forces like economic performance of the real estate industry as a whole.

Just a word of caution, leasing and being sluggish partner is different. When a REA is operating an agency he can choose to only work certain hours to sign papers and manage the office. He can be a sluggish business partner, and it is perfectly legal. He can even own 51% of the shares of a partnership or body corporate (agency firm) and the remaining 49% being owned by someone who is not a REA. Nevertheless, it must be prior approved by LPPEH under S.23 (2)(b)(iv)(C).

However, he cannot allow his name and signature to be used by others who is not a REA in running this agency. This is enshrined in Rule 102 - Signature on report, etc. and 103 - Use of registered estate agent's name - of Valuers, Appraisers and Estate Agents Rules, 1986.

On the other hand, when he receives a fee for using his name, and allowing his operation to be entirely managed by a third party who is not a qualified REA, he is in contravention of S.24 (h).

Ref:
Sections 24 (h) and 30 (1) (f) (i) & (j) of VAEA Act, 1981.