BY The National House Buyers Association
This article will address the provisions in the Strata Management Act 2013 (Act 757) (“SMA”) relating to by-laws. The SMA has been tabled and passed by Parliament and was gazetted on Feb 8, 2013.The said legislation has been implemented effective June 1, 2015.
The by-laws are the regulations made by the Minister for regulating the control, management, administration, use and enjoyment of the building or land intended for subdivision into parcels or the subdivided building or land, and the common property and include any additional by-laws passed by the developer with the approval of the Commissioner of Building (COB) or by the joint management body or the management corporation, as the case may be, by way of special resolution at a general meeting.
Building or land intended for subdivision means “any building or buildings having two or more storeys in a development area and intended to be subdivided into parcels and any land on the same lot intended to be subdivided into parcels to be held under separate strata title”.
Common property under the SMA means the areas that are not comprised in any parcel or proposed parcel, including any accessory parcel, or any provisional block as shown in a certified strata plan and is used or capable of being used or enjoyed by occupiers of two or more parcels.
A building or land intended for subdivision or a subdivided building may be managed by three separate bodies, namely the developer, the joint management and the management corporation.
Generally, when the developer sells a property intended for subdivision, there would a separate document signed by the developer and the purchaser called the Deed of Mutual Covenants. Apart from the Deed of Mutual Covenants, there will be the house rules from which the developer would control, manage and maintain the building and common property.’ However, when the SMA comes into force, these Deed of Mutual Covenants, house rules or any contract or deed or written law for the maintenance and management of the building or common property in so far as they are contrary to the SMA shall not be valid any more.
Additional by-laws not inconsistent with the regulations made under the SMA can be made by special resolution for all or any of the following matters:-
* Safety and security measures;
* Details of any common property of which the use is restricted;
* The keeping of pets;
* Floor coverings;
* Refuse control;
* Architectural and landscaping guidelines to be observed by all parcel owners; and
* Imposition of fine not exceeding RM200 against any parcel owner, occupant or invitee who is in breach of any of the by-laws.
Special resolution means “a resolution which is passed at a duly convened general meeting of which at least 21 days’ notice specifying the proposed resolution has been given and carried by a majority consisting of not less than 3/4 of the valid votes cast at the general meeting by a show of hands, or if a poll is demanded and taken, by a majority consisting of not less than 3/4 in number of the valid votes cast on such poll”.
Additional by-laws that prohibit or restrict the transfer, lease or charge of, or any other dealing with any parcel of a subdivided building or land or destroy or modify any easement implied or expressly created by or under the Strata Titles Act 1985 shall be invalid.
The effect of the by-laws is that it binds the developer, joint management body or the management corporation, as the case may be, and the parcel owners, charge, assignee, lessee, tenant or occupier of a parcel to the by-laws as if they had signed a valid contract.
This contract of by-laws can be enforced by the parties bound by it in a court of competent jurisdiction or the Strata Management Tribunal.
A copy of the additional by-laws must be given to the Commissioner of Building for their record by the body managing and maintaining the building and common property.
Where there is limited common property as provided for under the Strata Titles Act 1985 as amended, the by-laws of the management corporation would apply to the limited common property unless the by-laws have been amended by the subsidiary management corporation pursuant to a special resolution at a general meeting of the subsidiary management corporation for matters solely affecting the limited common property or subsidiary management corporation.
The additional by-laws for the limited common property would bind the subsidiary management corporation and the proprietors of the parcels constituting that subsidiary management corporation and any chargee, lessee, tenant or occupier of such a parcel as if it was signed by these parties and it can be enforced by these parties in any court of competent jurisdiction or the Strata Management Tribunal.
NATIONAL HOUSE BUYERS ASSOCIATION [HBA]
No. 31, Level 3, Jalan Barat, Off Jalan Imbi, 55100, Kuala Lumpur
Tel: 03-2142 2225 | 012- 334 5676 | Fax: 03-22601803
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