Articles

https://www.crmjetty.com/blog/property-management-basics/

https://www.klook.com/en-MY/blog/fmco-lockdown-announcement-malaysia/

• The MCO will be implemented nationwide for 2 weeks from 1 - 14 June 2021, and the list of SOP is applicable to all states and territories in Malaysia.

• All economic and social activities are not allowed to operate with the exception of 17 essential services such as F&B, health and medical sectors, vets and animal clinics, water, energy, security, communications, post and courier services, banking, insurance, agriculture, fishing, and more.

• Shopping malls are not allowed to operate with the exception of tenants that fall under the essential services category such as supermarkets, restaurants, convenience stores, optical stores, pharmacies, and more.

• All F&B outlets are allowed to operate for delivery and takeaway services only (strictly no dine-ins).

• Most services will only be allowed to operate from 8AM - 8PM daily.

• While there will not be a curfew, Malaysians are urged to stay home after 8PM.

• Only 2 people per household are allowed to head out to shop for daily necessities such as food, groceries, and medicine.

• Interstate and interdistrict travel remain banned and travel distance is now limited to a 10KM radius. Exceptions are allowed for emergencies such as death and to get medical help, permission can be obtained directly from the police when stopped at roadblocks.

• All sports and recreational activities are not allowed with the exception of jogging and non-contact individual exercise (till 8PM only).

https://www.burgielaw.com/2021/03/22/updated-sop-virtual-agm-egm-is-now-allowed-in-a-stratified-development/

Virtual Meeting

To resolve the backlog of AGMs (which is required to be convened within an interval of 15 months in each calendar year), KPKT has proposed to MKN in allowing virtual meeting be convened. Although it now lacks (*At the time of writing) the empowering provision in introducing the virtual general meeting, (like how Section 27 of the (Singapore) Covid-19 (Temporary Measures) Act 2020 empowers the Minister to prescribe alternative arrangements for meetings as he deems necessary including replacing a personal attendance meeting with a meeting held wholly or partly by electronic communication, video conferencing, tele-conferencing or other electronic means), it is encouraging that KPKT pushes innovative steps to allow virtual meetings.

The steps to convene a virtual general meeting is set out (in full) as follows:

A. AGM / EGM (virtual meeting) (Before it takes place)

• A Management Body which intends to convene a virtual AGM/EGM online must issue the statutory notice of meeting and copy the Commissioner of Buildings (“COB”).

• Notice of the meeting shall be issued accordingly (pursuant to Section 144 SMA 2013) whether personally, registered post (to the last known address) or by attaching the notice at a prominent part of the last known address TOGETHER with an email to all parcel owners / proprietors.

• Notice issued must set out the means by which the meeting can be electronically accessed, venue, type of virtual meeting platform, how a person (entitled to vote) may vote at the meeting by electronic means, method in lodging a proxy form and how the virtual meeting will take place;

• Documents and attachments (as required by law) accompanying the notice of meeting must be served on the proprietors 14 or 21 days before the general meeting (according to the proposed resolutions) whether by way of manually, email, QR Code or other suitable online methods;

• The list of names of persons entitled to vote must be displayed on the notice board and via the website / social media (if any) at least 48
  hours before the general meeting;

• The management body is advised to upload the AGM/EGM notice to the website/social media, (if have any);

• Participants must adhere to the COVID-19 Prevention Measures when conducting a virtual meeting;

• The proxy form and instrument appointing proxy must be deposited by the Proprietor to the management not less than 48 hours before the general meeting, whether manually or online;

• The management body can set a series of logins or passwords to distinguish proprietors, proxies and observers;

• The management body must ensure internet connection is in good condition with the minimum speed required to conduct a virtual meeting effectively.
  
  

B. AGM / EGM (virtual meeting) (During)

• The management body must ensure that the virtual meeting platform
  used is functional. The platform must be able to accept nomination of candidates, private motions, count the votes accurately, announce voting results and record the proceedings at the general meeting.

• The platform to be adopted must also be able to take into account the different voting methods , whether through hand or by poll involving the tallying of votes corresponding to the share units assigned to each parcel;

• Registration for an online meeting is open 2 hours before the meeting. If the quorum is not achieved, registration shall continue for a further 30 minute. Any eligible and registered proprietors during these period shall constitute quorum of the meeting.

• The chairman of the meeting is elected from among the eligible proprietors and shall preside over such meeting until its conclusion. If the appointed chairman fails or refuses to conduct the meeting until the conclusion, a new chairman shall be appointed from among the eligible proprietors;

• Votes and results must be displayed live on the meeting screen to be viewed by all;

• The organizing committee of the virtual meeting must be present at the location where the meeting is to be convened.

C. AGM / EGM (virtual meeting (After)

• The management body must prepare the minutes of the general meeting within the stipulated period. The minutes provided shall be displayed on the notice board.

• The management body must, within 28 days from the date of the general meeting, submit documents to the COB which include:-
  (i) A copy of the notice of meeting;
  (ii) A copy of the minutes of the meeting;
  (iii) A copy of the attendance record of the proprietors, proxy or representative; and
  (iv) Other documents required by the COB.

• The COB may direct that an AGM / EGM be re-convened in the event of flaws found in the platform, acts of irregularities found during the proceedings of the general meeting or any other reasonable grounds raised in a written complaint by a proprietor

https://www.burgielaw.com


Covid-19 Preventive Measures – to take temperature of each workers and visitors at the entrance of each strata scheme;

1. Post / Courier / Delivery – to deliver to the designated area determined by the JMB / MC / Property Manager;

2. Defects Management and Maintenance – All repair and maintenance works are allowed subject to the approval of the management body;

3. Renovation Matters – All renovation works are allowed subject to obtaining written approval from the management body;

4. Moving in and Out – Allowed in all strata scheme. Number of movers will subject to the approval of the management body;

5. Office operations – The offices are allowed to operate depending on the respective operational hours;

6. Visitors’ management – All visitors are allowed to enter with the management body having the right to determine the duration of each visit and number of visitors on each interval. Movement of visitors are also limited to the specific unit and/or to the ultimate destination;

7. Service Providers’ Management – All service providers are allowed to enter into a strata scheme;

8. Contractors’ management – All contractors are allowed to enter into a strata scheme to undertake maintenance / management / repair works;

9. Occupants’ management – Occupants are allowed to move within the strata scheme whilst ensuring social distancing;

10. Common Property – Opening of the common facilities at the common property will subject to the MKN’s directives. Management body is allowed to close a facility if SOP is not adhered to;

11. Meetings of Committee members – Face to face meeting is allowed by using only 50% capacity of the meeting room;

12. General Meetings – Face to face general meetings are allowed using only 50% capacity of the meeting room and adhering to social distancing with having face mask at all times. (The SOPs set out for face to face general meeting is very much similar to the previous SOPs.)

https://themalaysianreserve.com/2017/12/13/recovery-arrears-maintenance-charges-sinking-fund/


IT saddens us to learn recently that more than two (2) years after the coming into force, on 1.6.2015, of the Strata Management Act 2013 (“SMA”), the Strata Management (Maintenance And Management) Regulations 2015 (“SMR”) and the Strata Management (Strata Management Tribunal) Regulations 2015 (“Tribunal Regulations”) [collectively “Strata Legislations”] and the setting up of the Strata Management Tribunal (“Strata Tribunal”), many JMBs and MCs still cannot get their Awards from the Strata Tribunal for payment of maintenance charges and sinking fund by defaulters. What has gone wrong?

PROCEDURES NOT ADHERED?

The Strata Tribunal was set up more than two (2) years ago as an alternative forum which is supposed to be much cheaper, faster and easier than the Civil Courts. JMBs and MCs should be able to obtain Awards (which are equivalent to Civil Court Orders) from the Strata Tribunal very quickly and without incurring any legal fees which used to be the main deterrence for initiating legal actions against defaulters. To obtain an Award for payment of Charges and sinking fund contributions, JMBs and MCs must follow the procedures provided by the Strata Legislations. These procedures are simple and straight forward but, in many cases have not been followed, thus resulting in claims led at the Strata Tribunal being rejected and ling fees wasted.

BEFORE FILING CLAIM AT THE TRIBUNAL:

FORM 11 OR FORM 20 MUST BE SERVED

From the feedback received by the National House Buyers Association (HBA), it appears to us that the main reason for the Strata Tribunal rejecting claims on arrears of Charges and sinking fund contributions is the failure on the part of the JMB or MC to serve the requisite notice of demand in accordance with s.34(1) [for JMB] or s.78(1) [for MC] of the SMA.

S.34(1) of the SMA provides for the service of a “written notice demanding payment” (“the Demand”) in the event of failure by a parcel owner to pay the Charges and/or sinking fund contributions within 14 days of a notice from the JMB for such payment. This notice is in practice given by way of an invoice for payment within 14 days. S.78(1) contains similar provisions for the service of the Demand by a MC.

If the Demand is not complied with, i.e. the parcel owner / proprietor refuses or fails to pay the sum stated in the Demand, then the JMB or MC, as the case may be, may seek an Award from the Strata Tribunal for payment of such sum [see s.34(2) for JMB and s.78(2) for MC].

What many fail to appreciate is that the Demand must be issued by the JMB or MC, as the case may be, and be in a standard/specific format as provided by the SMR. This is because r.20 of the SMR provides that the Demand shall be in Form 11 for JMB and r.31 provides that the Demand shall be in Form 20 for MC.

If you, the JMB or MC fails to serve Form 11 or Form 20, as the case may be, before filing your claim at the Strata Tribunal, you are not likely to get an Award for your claim simply because you have obviously not complied with the pre-condition for ling your claim at the Strata Tribunal. Of course, you may file afresh but the filing fees paid earlier would have gone down the drain and we cannot emphasize enough especially to property managers that what goes down the drain may be substantial and regardless of the amount such wastage is, to my mind, definitely unjustifiable and inexcusable if the only reason is plain ignorance or failure to comply with clear procedural requirements.

If for an instance, you take a group of 50 delinquent owners to the Tribunal, the filing fees is RM100 each and that’s a whopping RM5,000 being filing fees forfeited/ squandered. How do you account for such dereliction of duties?

MANNER OF ‘SERVICE’ OF PROCESS IN SMA – FORM 11/ FORM 20

The SMR contains no provision on how Forms 11 and 20 are to be served on the parcel owners/proprietors. Manner of service can however be found in s.144 of the SMA which provides for service to be effected as follows:-

“(a) personally;

(b) by registered post addressed to the last-known address of business, parcel or residence of the person to be served; or

(c) by attaching the notice or order at a prominent part of the last- known address of business, parcel or residence of the person to be served. ““Personally” means giving the Form 11/Form 20 to the parcel owner/proprietor, and not someone else. Since one has to prove that service has been validly effected, an acknowledgement should be obtained from the parcel owner/ proprietor where service is done personally which in practice may pose a problem as some parcel owners/proprietors may refuse to accept service or the (process) server may not be able to reach the parcel owners/proprietors.

Option (b) is a much easier alternative for service. Send the Form 11/Form 20 by registered post (prepaid) and produce proof that this has been done. It should not matter whether the parcel owner/ proprietor has received it so long as it is addressed to his/hers/its last known address of business, parcel or residence because s.144 provides that  notice “shall be deemed to have been served” by serving according to options (a), (b) or (c) described above. It baffles us why some JMBs and MCs have asked HBA whether they should send by AR registered post or just registered post. Item (b) above is clear, is it not, that it is to be sent be registered post? There is no necessity to send by AR (Acknowledgement Receipt card).

How does one prove service if it is done in accordance with option (c)? In this day and age, it is easy to take a photo showing the Form has been attached to the main door of the parcel and the date and time the photo is taken. Given that the Strata Tribunal is empowered to accept evidence without being bound by the rules of evidence under Evidence Act 1950, such evidence should, to my mind, suffice.

SERVICE OF STATEMENT OF CLAIM (FORM 1)

Whilst we are on the topic of service, JMB and MC may want to note that similar methods apply to the service of the Statement Of Claim (Form 1 under the Tribunal Regulations) as can be seen in r.16(1) of the Tribunal Regulations. The above observation/ opinion on how to serve Form 11 or Form 20 and how to prove such service has been effected apply equally to service of the Statement of Claim (Form 1 under the Tribunal Regulations).

ONE OR TWO DEMANDS NOTICE?

Another issue recently raised with the HBA is whether there is a need for the Demand to be served twice before filing a claim. Two written notices were provided under s.32 of the Building and Common Property (Maintenance & Management) Act 2007 for JMBs and s.53 of the Strata Titles Act 1985 for MCs. These provisions have however been repealed and the relevant provisions are now s.34 and s.78 of the SMA which clearly require the Demand to be served only once before ling the claim at the Strata Tribunal.

However, HBA understands from the grapevine that, for practical purposes, the Housing Ministry and the Strata Tribunal have now settled for three (3) notifications comprising the invoice or billing of the Charges and/or sinking fund contributions as the first notification; a letter of reminder as the second notification; and the Form 11 or Form 20, as the case may be, as the third notification. These three (3) notifications are required as prerequisites for the ling of Form 1. If this is the case, (we stand corrected) HBA only requests that the Housing Ministry or Commissioner Of Buildings secretariat sends a circular to all JMBs, MCs and Property Managers or their Board to advise them of such prerequisite, and the Strata Tribunal to put up a large notice at the ling counters of the Strata Tribunal so that all parties are clear as regards the said prerequisites.

INORDINATE DELAY BY THE STRATA TRIBUNAL

Even more devastating to us is the possibility that the delay faced by some JMBs and MCs in their attempts to obtain Awards against defaulters is caused by inordinate delay on the part of the Strata Tribunal. Indeed, queries on time frames for hearing dates and disposal of cases at the Strata Tribunal was what prompted us to put pen to this paper.

S.117(1) of the SMA mandates an Award to be made without delay and in any event within 60 days of the commencement of the first hearing, where practicable. Granted there are cases requiring more time for disposal and granted there is no express provision mandating a time frame for the first hearing date, one must not forget that the Strata Tribunal was set up as an alternative forum, to the Civil Courts, to deal with strata management issues in a speedy manner. Speedy disposal of cases once they are fixed for hearing (which then complies with the said s.117(1) of the SMA) does not fully address the issue of speedy disposal if the Strata Tribunal is not equally efficient in ensuring the speedy commencement of the first hearing. Even if an Award is given at the first hearing, proceedings at the Strata Tribunal will be and can only be seen as no faster than the Civil Courts if the first hearing date is 6 months or even 2 months after the case is filed. The case may be dragged further with continued hearings.

We hope that by the time this article is published any delay on the part of the Strata Tribunal would have been addressed and effectively dealt with. The Tribunal for Home Buyers Claims has proven to be speedy in its proceedings, including fixing of the first hearing dates and there is simply no reason why the Strata Tribunal cannot gain a similar excellent reputation given that the same able and capable persons are behind the scene and the Strata Tribunal has a minimum of 20 presidents at any one time compared to a minimum of 5 for the Tribunal For Home Buyer Claims.

As the legal maxim goes: “Justice delayed is Justice denied” meaning that, if legal redress is available for a party that has suffered some injury but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all.

https://blog.burgielaw.com/2020/04/04/mco-series-can-a-jmb-mc-waive-charges-and-contribution-to-sinking-funds/#:~:text=Can%20a%20JMB%2F%20MC%20waive%20charges%20and%20contribution%20to%20sinking%20funds%3F&text=In%20the%20same%20vein%2C%20since,discount%20to%20parcel%20owners%20%2F%20proprietors.

Can a JMB/ MC waive charges and contribution to sinking funds?

Looking at the latest Court of Appeal case in Muhamad Nazri Muhamad v JMB Menara Rajawali & Anor [2019] 10 CLJ 547, the Court of Appeal ruled that the JMB’s powers are confined to only those expressly provided by the SMA. The grounds of judgment reproduced in verbatim below:

” As a creature of statute, the powers of the JMB are limited and circumsribed by the SMA which regulates it, and extend no further than is expressly stated, or is necessarily and properly required for carrying into effect the purposes of its establishment, or may be fairly regarded as incident to, or consequential upon, those things which the Legislature ha authorised. What the SMA does not expressly or impliedly authorised was to be taken to be prohibited.”

That means, the extent of powers given to JMB / MC is limited to those expressly provided by the SMA 2013.

If we go through the Strata Management Act 2013, there is no express power granted to waive by the Act and in that circumstance, the JMB / MC does not have the power to grant a waiver to charges and contribution to sinking funds.

In the same vein, since there is no power given by SMA 2013 to waive late payment interest (“LPI”) or to provide a discount, a JMB / MC cannot in law waive LPI or grant a discount to parcel owners / proprietors.

Many questions were posed as to which SOP a strata scheme should be adhering to. After getting clarification from KPKT, we were informed that the latest SOP issued during the period of CMCO will be the guide for all strata schemes to refer to. We wrote about the guidelines previously and will not repeat them but to provide you both links below:

(a) comprehensive CMCO guidelines; and

(b) updates to CMCO guidelines

for easy access.

The SOP however must be read in light of any new restrictions imposed by the MKN (general restrictions across all industries) and they can be found below:

SOP-PKPB-KLPUTRAJAYA-DAN-SELANGOR-14-OKT-2020Download

* After the article was written, KPKT again has taken the initiative to update its FAQs (for Strata development area) and a copy of the FAQs dated 15.10.2020 is enclosed below:

FAQ_KPKT_bagi_PKPB_15102020Download

The Latest FAQs (as at 15.10.2020) are translated to English and set out as follows:

Q1. Can the planned AGM/EGM be convened in a strata scheme during the CMCO?

A1. No. All AGM/EGMs are to be postponed.

Q2. Can the community in a stratified scheme move within the stratified area during the CMCO?

A2. Yes. But the Community should limit its movement within a stratified scheme and practise social distancing. Having said that, movement in conjunction to festivities and religious activities are subject to the directions and SOP issued by the MKN.

Q3. Are the commercial premises within a stratified scheme allowed to open and operate like usual during the CMCO period?

A3. Yes. In general, all business premises within a strata scheme can operate subject to the approved activities. Premises which carry out prohibited activities as provided by the National Security Council are not allowed and should be shut. (Prohibited activities set out in the schedule can be seen in our previous post.)

Q4. Can a Developer / JMB / MC / Managing Agent / Property manager which manages a strata scheme be allowed to operate with a maximum workforce capacity and can a management office be opened to the public at large during CMCO?

A4. The management office can operate with a maximum workforce capacity and open to the public at large, subject to practising social distancing of 1 metre among the employees in the management office and further taking all necessary measures to curb Covid-19 during operational hours and dealings with its customers. Operation hours of the management office in a strata scheme shall adhere to the respective operational hours.

Q5. Can common properties like hall, gymnasium, badminton court, swimming pool be allowed to be rented out during CMCO?

A5. No. Having said that, only parking bays are allowed subject to the decision of the AGM/EGM of the management body.

Q6. Can renovation works within a strata scheme be carried out during CMCO period?

A6. Yes. All types of renovation works are allowed. Renovation matters will however require a written approval of the management in a strata scheme and the parcel owner / proprietor should make the necessary queries and checks with the local authorities to determine whether approval (of the local authorities) is also required, when necessary.

Q7. Is there a fixed duration of time given to a contractor in carrying out maintenance or renovation works?

A7. A contractor / vendor / worker is to carry out the works in accordance to the fixed duration of time as follows:

(a) commercial strata scheme (retail and office) – to adhere to the duration and period determined by the JMB / MC or the property manager; and

(b) residential scheme – to adhere to the duration and period determined by the JMB / MC or property manager . Notwithstanding that, all works which generate loud noise like drilling works can only be undertaken between 9am to 1pm only on Mondays to Saturdays except gazetted public holidays.

(c) The contractors are to also adhere to the SOP for construction sector issued by Ministry of Works.

Q8. Can the operations of the management of critical services within a strata scheme like water, electricity, security, cleanliness, maintenance of lift, pump system be continued to operate?

A8. Yes. operations mentioned above can be continued.

Q9. If there is damage for instance, incident of a leaked pipe and damage to the air conditioner, can works be carried out?

A9. Yes. Action can be taken to repair the damages.

Q10. I wish to move into an apartment, can I install air-conditioner, kitchen cabinet or undertake works to change the tiles?

A10. Yes. All installation works or hacking works are allowed subject to the written approval obtained from the management of a strata scheme.

Q11. Are visitors allowed to enter into a residential strata scheme like condominium / apartment?

A11. Visitors can enter into a strata scheme only if he/she has matters or dealings which are allowed set out below:

(a) an occupant being a senior citizen who stays alone who requires monitoring. Only immediate children or siblings of the occupant or caretaker are allowed to visit, when necessary;

(b) an occupant being a patient (not a patient of Covid-19 or any other diseases which require notification by virtue of Section 10 Prevention and Control of Infectious Diseases Act 1988) or weak individual who requires frequent monitoring. Only immediate children or siblings of the occupant or caretaker are allowed to visit, when necessary;

(c) An occupant who requires instant medical intervention. Only immediate children or siblings of the occupant or medical practitioners are allowed to visit, if necessary.

(d) cases of death which do not involve Covid-19 or any other diseases requiring notification by virtue of Section 10 Prevention and Control of Infectious Diseases Act 1988. Only immediate children or siblings or caretaker are allowed to visit, when necessary; 

(e) providers of basic necessities to the occupant / resident who requires assistance from any individual, family or organisation on a condition that such provisions must be informed and prior approval obtained from the developer / JMB / MC or property manager;

(f) all contractors / vendors / workers / service providers / customers or any companies / bodies / individuals which deals with the management or parcel owners / proprietor are allowed to enter into a strata scheme for purposes allowed by the management. All are required to adhere to the procedures drawn up for visitors / service providers / contractors.

(g) JMB / MC or property manager can exercise its discretion to allow visitors to enter into a strata scheme not exceeding 2 persons at any one time.

Q12. What about post, courier and delivery persons (FoodPanda, Grabfood and etc)?

A12. All post personnel, delivery persons (FoodPanda, Grabfood and etc) are allowed to enter into a strata scheme only up to the security guardhouse / security counter) or a location determined by the Developer / JMB / MC / property manager after going through and passing the temperature check, and all post personnel can only enter into the mail box room. All delivery persons with body temperature of more than 37.5 degree Celsius are not allowed to deliver the goods.

Q13. Can an occupant take part in outdoor activities like exercising, jogging etc within a strata scheme?

A13. Yes. Occupant is allowed to take part in sport activities which do not involve physical contact and does not exceed more than 10 persons like e-sports, brisk walking, jogging, cycling, self aerobic exercise and etc at outdoors. All prohibited activities prohibited by the National Security Council, like, indoor games like gymnasium, activities in a swimming pool and contact sports like football and basketball are not allowed.

Q14. Can moving in and moving out be allowed?

A14. Moving in and moving out activities within a strata scheme is allowed. Occupant who is moving (in or out) is required to inform the date of such moving activity to the management. The number of movers allowed will subject to the approval of the management and they are to adhere to the procedures drawn up by the management for visitors / service providers.

Advertisements

Q15. My tenancy has expired and I am forced to move out. Can I be allowed to move out? Can I rent in another scheme?

A15. Yes. A tenant whose tenancy has expired is allowed to move out. Only a tenant who has entered into tenancy agreement with a parcel owner / proprietor is allowed to move in to the strata scheme.

Q16. Can a management committee meeting within a strata scheme be convened during the CMCO?

A16. A management committee meeting which involves physical gathering is allowed on the condition of not more than 10 persons being present at the meeting venue whilst adhering social distancing (of 1 metre among committee members) and further to take all measures to curb the spread of Covid-19. Having said that, a management committee is encouraged to convene a virtual meeting through online teleconferencing.

This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever.

One day, you get a call from the Majlis Perbandaran of a certain area. You happen to have a home there that you haven’t been to in years because it’s really far away. The Majlis representative tells you that you’ve been slapped with a hefty fine for leaving your home vacant for that long. They go on to say that over the years, there have been overgrown plants in your home that have creeped into your neighbours’ compounds. There have also been snakes in hiding in all that mess, making your neighbours worried for their safety.

This particular scenario may be something you don’t hear of often, but almost all of us have seen abandoned homes around. While they can be unpleasant to see, the problem is much more than that. Abandoned homes can make it unsafe for others living near the premises, and they can also affect the quality of life for them. And because that, you can get in trouble for not looking after your home.

Your Majlis Perbandaran can take action against you

Image via MBPJ’s Facebook

There’s actually a written law that allows your local authority to penalize you for leaving your home unattended to. Section 74 of the Local Authorities Act 1976 says:

Any owner, occupier or tenant of any house, building or land...who suffers the same or any part thereof to be in a filthy and unwholesome state or overgrown with rank or noisome vegetation, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand ringgit or to a term of imprisonment not exceeding six months or to both...and to a further fine not exceeding one hundred ringgit for each day during which the offence is continued after convictions

In other words, this law says that a person who lives in a home that is kept in a dirty state can be fined a maximum of RM1,000, be jailed for 6 months, or both. There’s also an additional fine of RM100 for each day that the offence is still done even after that person is caught.

You may have noticed that the key words above are keeping the house in a ‘filthy and unwholesome state’. So of course, this also means that a person can be penalized under this same law even if they still in live in that house—it does not necessarily need to be vacant. If you remember, there was a case early last month involving an elderly lady who had been hoarding garbage all around her house. It became unbearable for many of her neighbours, to the point that one of them filed a police complaint. In her case, she wasn’t taken to court, and that’s because she’s believed to have a mental disorder.

But this article is specifically on vacant homes that are in a dirty state, making it unpleasant for others to live in that area. And the law that was just mentioned above is exactly what’s being used to tackle the issue of vacant homes in Malaysia. For example, the Petaling Jaya City Council (MBPJ) have been enforcing this law in their municipality and have even set up a taskforce just to identify and deal with abandoned homes.

The law used to allow another person to live on your land

Image via Spanish Property Insight

This may be a slight diversion from what we’re talking about, but it’s still somewhat related to it and is more of an FYI. When the British were in our country, there used to be a law called ‘adverse possession’. Ironically, the law itself comes from Britain but they themselves eventually abolished it here. Basically, this law allowed someone to take over your land and legally make it theirs if you had left it vacant for a long time.

This started somewhere in the Middle Ages, in a time of economic hardship where many people were left homeless, but there was a lot of land that had been abandoned. These people ended up becoming squatters on land that was left empty, eventually making it their own. The authorities then saw fit to allow these people to take the land as theirs, since they had been looking after it, and their original owners had abandoned them anyway.

This law eventually came to Malaya, but as mentioned earlier, it’s been abolished—especially after the National Land Code came into effect. People DID try to claim adverse possession even after that, but the courts rejected them. Interestingly, this law still exists in the UK. However, it’s slightly different from what it used to be. Back then, a person who lived on another person’s land for 12 continuous years could take that land as theirs. Now, living on it alone isn’t enough. To be able to claim that land as theirs, they have show that they’ve done enough to make that place their home (furnished it further, spent money on it etc.).

In Malaysia, the law doesn’t allow someone else to live on your land and maintain it as their own. And that’s exactly why you can get in trouble for not doing so yourself.

Your neighbours can also sue you for nuisance

Image via GIPHY

We previously wrote an article on suing a neighbour whose tree grows into your compound. Let’s say neighbour A’s tree is growing into neighbour B’s compound. In this instance, neighbour B can cut off the branches that grow into their compound without getting neighbour A’s permission. But besides that, neighbour B can also sue their neighbour in court for private nuisance. So let’s say you leave your home vacant for years and your tree has now grown into your neighbour’s compound. To sue you for this, your neighbour would have to prove that:

• They own the property they live on and they have the right to possess it;

• You, the neighbour, acted in a way that has interfered with their enjoyment and use of their property; and

• This interference was substantial and unreasonable

So if you left your home in such a bad state that it’s impossible for others to live peacefully in their own homes, they may have a cause of action against you. The bottom line is this: While you may have bought that piece of land and it’s yours, you still have a duty to keep it in a reasonably clean state. If you fail to do so, both the local authority and your neighbours can hold you responsible.

[READ MORE: The Malaysian government CAN legally take your land and property...under 3 conditions]

Many questions were posed as to which SOP a strata scheme should be adhering to. After getting clarification from KPKT, we were informed that the latest SOP issued during the period of CMCO will be the guide for all strata schemes to refer to. We wrote about the guidelines previously and will not repeat them but to provide you both links below:

(a) comprehensive CMCO guidelines; and

(b) updates to CMCO guidelines

for easy access.

The SOP however must be read in light of any new restrictions imposed by the MKN (general restrictions across all industries) and they can be found below:

SOP-PKPB-KLPUTRAJAYA-DAN-SELANGOR-14-OKT-2020Download

* After the article was written, KPKT again has taken the initiative to update its FAQs (for Strata development area) and a copy of the FAQs dated 15.10.2020 is enclosed below:

FAQ_KPKT_bagi_PKPB_15102020Download

The Latest FAQs (as at 15.10.2020) are translated to English and set out as follows:

Q1. Can the planned AGM/EGM be convened in a strata scheme during the CMCO?

A1. No. All AGM/EGMs are to be postponed.

Q2. Can the community in a stratified scheme move within the stratified area during the CMCO?

A2. Yes. But the Community should limit its movement within a stratified scheme and practise social distancing. Having said that, movement in conjunction to festivities and religious activities are subject to the directions and SOP issued by the MKN.

Q3. Are the commercial premises within a stratified scheme allowed to open and operate like usual during the CMCO period?

A3. Yes. In general, all business premises within a strata scheme can operate subject to the approved activities. Premises which carry out prohibited activities as provided by the National Security Council are not allowed and should be shut. (Prohibited activities set out in the schedule can be seen in our previous post.)

Q4. Can a Developer / JMB / MC / Managing Agent / Property manager which manages a strata scheme be allowed to operate with a maximum workforce capacity and can a management office be opened to the public at large during CMCO?

A4. The management office can operate with a maximum workforce capacity and open to the public at large, subject to practising social distancing of 1 metre among the employees in the management office and further taking all necessary measures to curb Covid-19 during operational hours and dealings with its customers. Operation hours of the management office in a strata scheme shall adhere to the respective operational hours.

Q5. Can common properties like hall, gymnasium, badminton court, swimming pool be allowed to be rented out during CMCO?

A5. No. Having said that, only parking bays are allowed subject to the decision of the AGM/EGM of the management body.

Q6. Can renovation works within a strata scheme be carried out during CMCO period?

A6. Yes. All types of renovation works are allowed. Renovation matters will however require a written approval of the management in a strata scheme and the parcel owner / proprietor should make the necessary queries and checks with the local authorities to determine whether approval (of the local authorities) is also required, when necessary.

Q7. Is there a fixed duration of time given to a contractor in carrying out maintenance or renovation works?

A7. A contractor / vendor / worker is to carry out the works in accordance to the fixed duration of time as follows:

(a) commercial strata scheme (retail and office) – to adhere to the duration and period determined by the JMB / MC or the property manager; and

(b) residential scheme – to adhere to the duration and period determined by the JMB / MC or property manager . Notwithstanding that, all works which generate loud noise like drilling works can only be undertaken between 9am to 1pm only on Mondays to Saturdays except gazetted public holidays.

(c) The contractors are to also adhere to the SOP for construction sector issued by Ministry of Works.

Q8. Can the operations of the management of critical services within a strata scheme like water, electricity, security, cleanliness, maintenance of lift, pump system be continued to operate?

A8. Yes. operations mentioned above can be continued.

Q9. If there is damage for instance, incident of a leaked pipe and damage to the air conditioner, can works be carried out?

A9. Yes. Action can be taken to repair the damages.

Q10. I wish to move into an apartment, can I install air-conditioner, kitchen cabinet or undertake works to change the tiles?

A10. Yes. All installation works or hacking works are allowed subject to the written approval obtained from the management of a strata scheme.

Q11. Are visitors allowed to enter into a residential strata scheme like condominium / apartment?

A11. Visitors can enter into a strata scheme only if he/she has matters or dealings which are allowed set out below:

(a) an occupant being a senior citizen who stays alone who requires monitoring. Only immediate children or siblings of the occupant or caretaker are allowed to visit, when necessary;

(b) an occupant being a patient (not a patient of Covid-19 or any other diseases which require notification by virtue of Section 10 Prevention and Control of Infectious Diseases Act 1988) or weak individual who requires frequent monitoring. Only immediate children or siblings of the occupant or caretaker are allowed to visit, when necessary;

(c) An occupant who requires instant medical intervention. Only immediate children or siblings of the occupant or medical practitioners are allowed to visit, if necessary.

(d) cases of death which do not involve Covid-19 or any other diseases requiring notification by virtue of Section 10 Prevention and Control of Infectious Diseases Act 1988. Only immediate children or siblings or caretaker are allowed to visit, when necessary; 

(e) providers of basic necessities to the occupant / resident who requires assistance from any individual, family or organisation on a condition that such provisions must be informed and prior approval obtained from the developer / JMB / MC or property manager;

(f) all contractors / vendors / workers / service providers / customers or any companies / bodies / individuals which deals with the management or parcel owners / proprietor are allowed to enter into a strata scheme for purposes allowed by the management. All are required to adhere to the procedures drawn up for visitors / service providers / contractors.

(g) JMB / MC or property manager can exercise its discretion to allow visitors to enter into a strata scheme not exceeding 2 persons at any one time.

Q12. What about post, courier and delivery persons (FoodPanda, Grabfood and etc)?

A12. All post personnel, delivery persons (FoodPanda, Grabfood and etc) are allowed to enter into a strata scheme only up to the security guardhouse / security counter) or a location determined by the Developer / JMB / MC / property manager after going through and passing the temperature check, and all post personnel can only enter into the mail box room. All delivery persons with body temperature of more than 37.5 degree Celsius are not allowed to deliver the goods.

Q13. Can an occupant take part in outdoor activities like exercising, jogging etc within a strata scheme?

A13. Yes. Occupant is allowed to take part in sport activities which do not involve physical contact and does not exceed more than 10 persons like e-sports, brisk walking, jogging, cycling, self aerobic exercise and etc at outdoors. All prohibited activities prohibited by the National Security Council, like, indoor games like gymnasium, activities in a swimming pool and contact sports like football and basketball are not allowed.

Q14. Can moving in and moving out be allowed?

A14. Moving in and moving out activities within a strata scheme is allowed. Occupant who is moving (in or out) is required to inform the date of such moving activity to the management. The number of movers allowed will subject to the approval of the management and they are to adhere to the procedures drawn up by the management for visitors / service providers.

Q15. My tenancy has expired and I am forced to move out. Can I be allowed to move out? Can I rent in another scheme?

A15. Yes. A tenant whose tenancy has expired is allowed to move out. Only a tenant who has entered into tenancy agreement with a parcel owner / proprietor is allowed to move in to the strata scheme.

Q16. Can a management committee meeting within a strata scheme be convened during the CMCO?

A16. A management committee meeting which involves physical gathering is allowed on the condition of not more than 10 persons being present at the meeting venue whilst adhering social distancing (of 1 metre among committee members) and further to take all measures to curb the spread of Covid-19. Having said that, a management committee is encouraged to convene a virtual meeting through online teleconferencing.

https://www.thestar.com.my/news/nation/2020/08/28/pm-recovery-mco-extended-till-dec-31#cxrecs_s

PETALING JAYA: Prime Minister Tan Sri Muhyiddin Yassin has announced that the recovery movement control order (MCO) to stem the Covid-19 pandemic will be extended to Dec 31.

The decision took into account the recent emergence of new clusters, and the number of daily new cases, he said in a special address to the nation broadcast live via RTM, Bernama TV, TV3 and Astro Awani.

Muhyiddin said that while the nation has handled the crisis well, the ongoing spikes have raised concerns that the pandemic has yet to run its course.

On June 7, the Prime Minister had announced that the recovery MCO would replace the earlier conditional movement control order after Malaysia successfully contained the spread of Covid-19 in the country.

With the current extension of the recovery MCO, Muhyiddin said action can be taken under the Prevention and Control of Infectious Diseases Act 1988, or under Act 342.

"This is to ensure that all parties will follow the standard operating procedure (SOP) and the existing health protocols," he said. Based on global developments, Muhyiddin said it will take a long time before Malaysia would be free from the virus.

"Currently, the situation is under control. But if there is a rise in cases in specific localities, the government will use the targeted approach such as the enhanced MCO or the targeted MCO like what has been implemented in several areas before this," he said.

Muhyiddin added that strict quarantine regulations in certain places will continue to be enforced, as he recognised the risk of transmission from super spreaders.

"No one is exempt from this rule, and any individual who violates it will be punished accordingly.

"In that regard, I support the Health Ministry's proposal to increase compound fines for related offences to at least two or three times the current rate. But this matter needs to be scrutinised and Act 342 needs to be amended first," he said.

He added that the Domestic Trade and Consumers Affairs Ministry is also negotiating with the factories and distributors to reduce the price of face masks.

"If the negotiations work, the price of face masks will be affordable and it will reduce the people's burden," he said.

Muhyiddin said as all the other economic sectors have reopened except for a certain few like nightclubs and entertainment outlets. He said they will still not be allowed to operate as these places were difficult to supervise under the new norm.

He added that foreign tourists too are still not allowed to enter the country to avoid the transmission of import cases in the country.

"Sports activities will be allowed but it will be without international participants and audience," he said.

With the continuation of the recovery MCO, Muhyiddin said the Covid-19 fund that is being managed by the National Disaster Management Agency (Nadma) will continue until Dec 31, adding that those who want to contribute to the fund can do so.

Friday, 03 Jul 2020

SUBANG Jaya Municipal Council (MPSJ) is the first local authority in Malaysia to pursue legal action using the Strata Management Act 2013 against maintenance fee defaulters.

And there would be more to come, vowed MPSJ deputy president Mohd Zulkarnain Che Ali.

He was speaking at the Subang Jaya Municipal Magistrate’s Court in SS15, Subang Jaya, yesterday after the court convicted and fined the defendant RM5,500, in default of a one-month jail term.

The defendant was also ordered to pay the maintenance fees arrears.

It was the fourth hearing for several lawsuits filed by MPSJ.

The first was on Jan 30.

The lawsuits were filed by the council via the Commissioner of Buildings (COB) on Dec 31,2019, making MPSJ the first local council to file a suit under the Act.

“With the start of these prosecutions, we hope to educate strata unit buyers and owners in the municipality and all over Malaysia not to take the Tribunal for Strata Management (TPS) and its decisions lightly.

“It also sends a clear message to buyers and owners not to disregard their responsibility under the law to pay the monthly maintenance fees to ensure that management and maintenance in a strata building can run smoothly, ” said Zulkarnain.

The lawsuits were filed after COB received information from Housing and Local Government Ministry’s (KPKT) strata management branch’s prosecution, auditing and enforcement unit and the joint management body of Pangsapuri Putra Walk, Taman Pinggiran Putra, Section 2, Bandar Putra Permai, Seri Kembangan, at the end of 2018.

It pertained to defaulters who failed to comply with the award handed down by TPS, instructing unit owners to pay the outstanding maintenance fees within 30 days.

Also present was National House Buyers Association secretary-general Datuk Chang Kim Loong.

“When the tribunal issues an award, it must be complied with within a certain time frame, failing which it will be termed a criminal offence, ” said Chang.

“Under Section 123 of the Act, non-compliance of a decision made by the tribunal is an offence.

“Upon conviction, the defaulter is liable to a fine not exceeding RM250,000 and/or imprisonment for a term not exceeding three years, or both.

“For non-compliance, there will be a fine of RM5,000 per day.”

KPKT urban service division senior principal assistant secretary Buhairi Jahilan said they were looking into 1,230 cases at the moment.

“If owners fail to comply with the TPS, it will cause problems for strata management properties, ” he said.

EDGEPROP.MY

July 06, 2020 | Updated 1 month ago

PETALING JAYA (July 6): Subang Jaya Municipal Council (MPSJ) has become the first local authority in Malaysia that took legal action using the Strata Management Act 2013 against maintenance fee defaulters.

Several lawsuits were filed by the council via the Commissioner of Buildings (COB) on Dec 31, 2019, after the COB received information from Housing and Local Government Ministry’s strata management branch’s prosecution, auditing and enforcement unit and the Joint Management Body of Pangsapuri Putra Walk, Taman Pinggiran Putra, Section 2, Bandar Putra Permai, Seri Kembangan.This made MPSJ the first local council to file a suit under the Act.

According to The Star’s report, after the fourth hearing on July 2, Subang Jaya Magistrate’s Court on July 2 convicted and fined one of the defendants RM5,500, in default of a one-month jail term.  

The defendant, who had failed to comply with the Strata Management Tribunal's award in January 2020, was also ordered to pay the maintenance fee arrears.

Speaking to the media after the court hearing, Mohd Zulkarnain stressed that the court ruling has sent a clear message to strata property owners to not disregard their responsibility under the law to pay their monthly maintenance fees.

“The maintenance fees are important to ensure the daily operation and the upkeep of the building’s safety and living environment… The owners should not take the Tribunal for Strata Management and its decision lightly,” he said.

Meanwhile, National House Buyers Association secretary-general Datuk Chang Kim Loong said under Section 123 of the Act, non-compliance of a decision made by the tribunal is an offence.

Stay safe. Keep updated on the latest news at www.EdgeProp.my

Click here for more property stories

KUALA LUMPUR, Sept 28 — Those living in high-rises and default on their maintenance fees can be brought to a strata tribunal by the Joint Management Bodies (JMB) where they can be made to pay hefty fines, according to lawyers who deal with the industry.

The Strata Management Tribunal (SM Tribunal) was set up under the Strata Management Act 2013 where property owners or tenants who fail to pay maintenance charges can be charged for committing a criminal offence.

Real estate lawyer Khairul Anuar said at a time where the payment of service charges have become a problem for high rise residences, JMBs should enforce the use of the tribunal to compel their tenants pay up.

“There is the strata management tribunal that can help any management to collect the fees owed by the tenants.

“This can be done without any legal procedure and through the tribunal. This is a short cut for them to collect the dues. There is no more reason for them (JMB) to say residents are refusing to pay,” he told Malay Mail Online when contacted.

The SM Tribunal can hear cases involving claims up to RM250,000 in a hearing process that takes up to 60 days. There are also no lawyers involved in the process.

Section 123 of the Strata Management Act also empowers the tribunal to forward the case to a court if the person charged fails to comply with the Tribunal’s decision.

“Any person who fails to comply with an award made by the tribunal commits an offence and shall, on conviction, be liable to a fine not exceeding RM250,000 or imprisonment for a term not exceeding three years, or both.

“In the case of a continuing offence, to a further fine not exceeding RM5,000 for every day or part thereof, during which the offence continues after conviction,” the section reads.

Other than the tribunal, another real estate lawyer, Chris Tan, explained that there also other ways where the JMB can make their tenants to cough up maintenance fees.

Among the methods he suggested include referring the case to the Commissioner of Buildings or even putting restrictions on facilities at high-rises.

“The management can enforce restrictions on those who fail to pay like not letting them use the condominium facilities or even making them sign visitors book when entering the premises.

“They also can go through the Commissioner and at times can result in actions like taking away their cars, electrical appliances and stuff like that as compensation,” Tan told Malay Mail Online.

If at all the situation here worsens, Tan believes that Malaysia should follow Singapore in seizing and auctioning off defaulters’ units to recover arrears.

He conceded, however, that it will be hard to apply the same rules here as mostly properties here are privately owned compared to the Housing and Development Board (HDB) public housing in Singapore.

Earlier this year, it was reported that over 1,192 cases have been filed at the Strata Management Tribunal since the start of 2016.

The problems with high-rise living and their maintenance have been a growing pain in Malaysia over the past few years as strata properties increase.

A survey by the Urban Wellbeing, Housing and Local Government Ministry last week revealed that more than half of condominiums and apartments nationwide ranked below par in an evaluation of property management standards.

Among the major problems that resulted in such standards were the fact that some residents in condominiums are refusing to pay maintenance fees. Other problems included building defects and matters involving enforcement.