BY The National House Buyers Association
The Strata Management Act (SMA) though has received its Royal Assent on Feb 5, 2013 and gazetted on Feb 8, 2013 was inordinately delayed because of the governing Strata Management (M&M) Regulations as well as a host of other crossed referred laws in the Housing Development (Control & Licensing) Act, 1966 (amended 2012), its HD Regulations (amended 2015) and the new statutory Sale and Purchase Agreements. It finally was implemented by the Minister of Housing and thus came into operation on June 1, 2015.
Maintenance & management – the new regime
As the country enters a new era of democracy, all of us are beginning to realise the importance of information so that we can be aware of our rights, obligations and responsibilities.
This is especially true for owners who are concerned about the management and maintenance of their stratified properties, now governed by the Strata Management Act, 2013 (Act 757) and its governing Strata Management (Maintenance & Management) Regulations, 2015 which has resulted in the repeal of the Building & Common Property (Maintenance and Management) Act 2007 (Act 663) that has outlived its effectiveness.
With the passage of this piece of legislation through Parliament in December 2012 and its introduction to the property landscape on June 1 this year, a framework for the establishment of a Joint Management Body (JMB), Management Corporation (MC), subsidiary MC and the appointment, duties and power of a Commissioner of Buildings (COB) to administer the new legislation are now in existence, as are rules relating to the rights and obligations of owners. It is also supposed to be enforced against offenders, be they big or small developers, a member(s) of a defiant JMB, MC or even rogue managing agents who fail to protect the interest of the body or corporation they represent and/or exercise the due fiduciary duty of care.
The legislation also saw the introduction of the new Tribunal in the form of the Strata Management Tribunal – a quasi form of legal redress; an efficient, cheap and speedy justice where an aggrieved party may seek legal recourse through without having to litigate in Courts.
The Strata Management (M&M) Regulations, 2015 is detailed, comprehensive and is forward-looking with pre-set format from Form of Proxy, Notice of Resolution(s), Notice of Demand to detailed check-list what the Developer must ‘hand-over’ to the JMB etc. There is a total of 30 pre-set forms. Even a pre-set ‘By-Laws’ governing stratified property is available as a skeletal guide. However, there are rooms for further improvements in the near future.
The Strata Management Act (SMA) is a victory to the National House Buyers Association (HBA) and those who fought for the wellbeing of stratified property owners in addressing the cumulative problems related to the proper maintenance and management of buildings and common properties and ensuring uniformity of laws and policies where they concern local governments. This SMA legislation includes all stratified properties – residential and commercial.
There were previous allegations of its ineffectiveness because part of the issue that relates to Maintenance and Management (M&M) were under different Ministries, i.e. Ministry of Urban Wellbeing, Housing and Local Government and the Ministry of Natural Resources and Environment. There were visible boundaries that divided the effectiveness of the laws governing M&M.
Down memory lane – ministers’ credit
HBA would like to firstly thank Tan Sri Ong Ka Ting, the then Minister of Housing and Local Government for having the courage to first tabled Act 663 that gives “Power back to the hands of the Owners” in the year 2007. The previous Act instilled on the Developers the mindset and recognized the rights, benefits and entitlement of the strata owners upon delivery of vacant possession. The Developers’ duty is to sell property whilst that of the owners is in forming community. The said Act 663 has worked “with some teething problems” for the past eight years. There were a lot of uncertainties and ambiguities. But it has since outlived its usefulness.
When Tan Sri Chor Chee Heung helmed the Housing Ministry portfolio, he boldly took a notch higher in the succeeding years to table the current wholesome legislation named the STRATA MANAGEMENT BILL, in Parliament on Dec 19, 2012.
Congratulations to the immediate past Minister and his team at the Ministry of Housing and Local Government who have worked through unequaled weekends with the numerous stakeholders (including HBA’s volunteers) in the related industry: tweaked and tuned both the M&M aspects in the Strata Titles Act, 1985 (Act 318) and the related Housing Development legislation. Hence, the birth of the Strata Management Act (SMA). Equally important is his counterpart Minister at the Ministry of Natural Resources and Environment, Datuk Sri Douglas Uggah Embas, who has also simultaneously tabled his law, i.e. Strata Titles Act,1985 (amendment 2012) at the previous sitting in Parliament to make the SMA a reality.
Credit too must be accorded to the previous Housing Minister, Datuk Abdul Rahman Dahlan, for implementing the SMA whereupon his Ministry has assumed the task of being the caretaker of M&M as well as following up on the past efforts of his Ministry. We were afraid that he may do another “U-turn” as what happened to HBA’s long-drawn proposal in the mandatory implementation of the Built-Then-Sell 10:90 (BTS 10:90) concept in the housing industry.
(PS: We are, however, dismayed that the word “registered property manager” was removed from the SMA legislation which invariably opens the floodgates to unregistered property managers. This is another topic that I have written on numerous occasions.)
Three-fold legal relationship
A person who purchases a unit in a strata development enters into a three-fold legal relationship; firstly, he is the individual owner of his unit; secondly, he is a co-owner with all other owners of the common property and the land of the strata development; and thirdly, he is automatically a member of the owners’ body to whom the management and maintenance of the scheme is entrusted.
Harmony can only be achieved if the strata development is managed properly, the common property and facilities maintained adequately and regularly. The proper maintenance, efficient management and ultimately the success of the strata development will depend on a steady flow of payments to the coffers of the common fund of the owners’ body.
Repeated failure to contribute to common expenses may hinder timely maintenance and efficient management and ultimately wreck the whole strata development scheme.
Firstly, every strata property purchaser or owner should read and be conversant with the newly minted SMA and its related Regulations to understand his duties, obligations and responsibilities as an individual owner.
Secondly, he should be aware that he is a co-owner of the common property of the strata development and thirdly that he is a member of the owners’ body formed.
We have repeatedly stated that laws are only as effective as the degree of enforcement. This had been the bane of the whole situation. Wayward developers, JMBs, MCs and managing agents well know that the chances of them getting away with their wayward deeds are extremely good.
Thus, ENFORCEMENT is the key to more protection. Our fundamental belief is that even the best of legislation to counter a particular situation would just remain as ornamental pieces unless strict enforcements are carried out against offenders, without fear or favour.
Our comments aforesaid are supplementary to our stand that no amount of law will be able to eliminate or solve the problems unless they are strictly enforced. As the saying goes, “THE LAW IS ONLY AS GOOD AS ITS ENFORCEMENT”.
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
Email: [email protected]