7/28/2019 EDBFM4 Law Article 2

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Sunday Star.12 JUNE 20u FOCUS 27Resolving tenancy disputesll fl ILLIONS of Malaysians livell fI and undertake commercialI ll I activities in strata sub-divided buildings these days. Thesestratified buildings can vary fromlow-cost apartments to high-endcondominiums and from shopprngcomplexes to commercial officetowers.

But whenever there is a clusterof people living and undertakingbusiness together as a communityin one sub-divided building, andsharing the same resources andfacilities, there are bound to bemultifarious problems.The most commonproblemsinvolve stratified residential build-ings, particularly in rebpect oftheoperations of management bod-ies and payment and collection ofmaintenance charges.Cunently, the Strata Titles ActI 985 (Act 3 I 8) and the Building andCommon Property (Maintenanceand Management) Act 2007 (Act663) govern the maintenance andmanagement of stratilied buildings,Acts 318 and 663 are respec-tively under the purview oftheNatural Resources and EnvironmentMinistry (MNRE) and rhe Housingand Local Covernment i4inistry(MOHLG).

The provisions ofActs 318 and663 relating to maintenance andmanagement of stratiiied buildingsare almost identical, with the maindifference being:> Act 318 applies to buildingsmanaged by a management corpo-rafion fMC) which has come intoexlstence Decause seDarate stratatitles for individual pircel unitshave been issued.> Act 663 applies to buildingsmanaged by ajoint managementbody (JMB) before the inception ofthe Mc.Pdor to Act 663, the developerswere responsible for maintenanceand management ofsuch buildingsafter completion until the MC wasestablished,It is good to know that the aboveministries are cuffently workingFuriously together to improve Acts31 8 and 663, with assistance ftomthe Bar Council, so that the newamendments can come to gripswith the exigencies of moderncommunity living in stratifiedbuildings.It is hoped that the amend-ments will also simpliry andstreamline such laws into onesingle statute as in the case oftheBuilding Maintenance and StrataManagement Act (Cap. 30C) efSingapore.

As regards the operations oftheMC andJMB, the residents'inter-est in parficipating in its affairs canrange from one ofinsouciance toone of over-zealousness.There are some cases, particularlyinvolving lost-cost apartments,where not even a single parcelowner is interested in offer-ing himselfto be elected to theCouncil of MC orJoint ManagementCommittee (lMC) ofJMB, tu aresult, some buildings are without aCouncil orJMC.Yet at the same time, there arealso cases where various factionsamong the residents vooferously

In the interest of millions of stratifiedto be set up and quickly brought into property owners, a Board needs0Deration.

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High-ri5e woes! Whenever there js a cluster 0f people Iiving and undertaking business together as a community in one sub-divided building, and sharing the same resources and facilities, there are bound to be multifarious problems. - Filepirvie for control ofthe MC orjMB.Some altercations even end up incourt.

Things can easily come to a boilbecause the cunent provisions reg-ulating the conduct of meetrngs ofCouncil and MC, andJMB andJMC,are not comprehensive enough.One case in question is GurneyTower Management Corporation& 3 Others v Commissioner ofBuildings, Penang Municipal Council& Other, 2010. In this case, JusticeDatukJohn Louis o'Hara madesome important pronouncements oflaw namely:(1 ) Only proprietors and notproxies can be elected to CouncilofMC.(2) Each propri6tor, be it anindividual or a comoration, is enti-tled to nominate o'nly one CouncilMember regardless ofthe numberof parcel units he/it owns, This is to

prevent any owner, especially thedeveloper who still owns unsoldparcel units, to monopolise the MCorJMB so that the interest oftheminority is protected.

(3) ln the absence ofa StrataTitles Board (the Board), theCommissioner of Buildings (COB)has power to adjudicate on issueson management ofstratified build-ings as provided in section 3 ofAct663.(4) Any person dissatisfied withthe decision ofthe COB must aDDealto the State Authority and not icithe court as Drovided in section 41ofAct 663.This is a sound judgment, and fofthe avoidance of doubt, points (1 )and (2) above should be incorpo-rated into the Second Schedule ofAct 3 18.In addition, the proposed amend-ments should deal with the follow-ing fourissues:

> To avoid unnecessary politick-ing and infighting from the begin-ning, the chairman ofgeneral meet-ings ofthe MC need not be electedfrom arxong those present, Thechair ofthe meeting should just bethe chaiman of the Council.> It shguld !e made clear thatonly one'co;proprietor is entitled to

be elected to the Council.> A same person should not bea proxy of more than one proprie-tor. This is to prevent a person whohas a conflict of interest such as anestate agent to indirectly controlthe outcome ofthe Council elec-trons.For example, it is not difficult fora popular estate agent who han-dles almost all the tenancies andsub-sales ofthe units in the samecondominium to mobilise and getthe majority of the proprietors toappoint him as their sole proxy.The proprietors, mainly the illiter-ate ones and foreigners, who mayalso be his clients, will most Iikelyappoint him for reasons ofconven-ience.But this will be detrimental tothe interest ofthe minonty iftheestate agent's position becomesso entrenched that the Council isunable to interfere with his dealingswhich will affect the value ofthecondominium units since he con-trols the rental rates and sale prices.It is axiomatic that if any Council '

member should incur his wrath, hecan be easily voted out by this sin-gle powerful proxy. This will resulrin a Council becoming subservrentto a proxy who may not even be anronrietor him The mandatory by-laws orhouse rules f,or stratified buildingsas set out in theThird Schedule .of Act 3 l 8 are clearly out of date.These by-laws should be capableof being amended by unanimousapproval in a general meeting ofthe MC,The other perennial problem isthe difficulty in collecting mainte-nance charges from parcel owners,This has serious consequencesresulting (especially) in some build-ings like low and medium-costapartments becoming abandonedand ending up as enclaves for illegalactivities.It is now abundantly clear thatcunent recovery provisions in Acts318 and 663 are not adequate tocompel errdnt parcel owners [o paythe maintenance charqes, esDe-cially the recalcitrant Jnd habinialdefaulters.The fact that it is also a criminaloffence for non-payment of chargesdoes not seem to frighten themsimply because up to this day, not asingle proseotion has taken placealbeit some MCs have lodged sev-pr:l nnlirp rpnnn