BY The National House Buyers Association
You have the Consumer Tribunal under the Consumer Protection Act, then the Tribunal for Home-Buyers Claims under the Housing Development (Control & Licensing) Act and here is an easy, cheap and speedy path to justice that an aggrieved party may seek without having to litigate in courts: The Strata Management Tribunal
One of the key eye-openers of the Strata Management Act (SMA), 2013 (Act 757) – which was implemented on July 1, 2015 is the formation of the Strata Management Tribunal as spelt out under “Part IX” of the said legislation.
For the benefit of those who want to know how much power it wields, we hope that today’s column will shed appropriate light:
Before moving any further, we have to define three terms, which are commonly used when it comes to stratified properties. Who are “parcel owners” and what is a “Joint Management Body” and “Management Corporation”?
i) A “parcel owner” is an owner of an individual unit contained within a sub-divided building, which is held under separate strata title.
ii) A “Joint Management Body” or JMB means the body established under section 17 of the SMB
iii) A “Management Corporation” or MC is similarly a body corporate but established under the Strata Titles Act 1985;
Here, we also re-produce the pertinent Sections of the laws for ease of understanding its actual formulated words and sentences.
Jurisdiction of Tribunal
Section 105, (1) – The Tribunal shall have the jurisdiction to hear and determine any claims specified in Part 1 of the Fourth Schedule and where the total amount in respect of which an award of the Tribunal is sought does not exceed two hundred and fifty thousand ringgit or such other amount as may be prescribed to substitute the total amount.
Section 105, (3) – The jurisdiction of the Tribunal shall not extend to any claim in which the title to any land, or any estate or interest in land, or any franchise, is in question.
Persons entitled to file a claim
Section 107 states that no person other than the following persons shall be entitled to file a claim to the Tribunal:
(a) a developer;
(b) a purchaser;
(c) a proprietor, including an original proprietor;
(d) a joint management body;
(e) a management corporation;
(f) a subsidiary management corporation;
(g) a managing agent; and
(h) any other interested person, with the leave of the Tribunal.
Right to appear at hearings
Section 110, (1) – At the hearing of a claim, every party shall be entitled to attend and be heard.
Section 110, (2) – No party shall be represented by an advocate and solicitor at a hearing unless, in the opinion of the Tribunal, the matter in question involves complex issues of law and one party will suffer severe financial hardship if he is not represented by an advocate and solicitor.
Determination of rules and procedure
Section 114, (1) – The Tribunal may conduct the proceedings in such manner as it considers appropriate, necessary or expedient for the purpose of ascertaining the facts or law in order that it may determine a claim.
Section 114, (2) – The powers conferred upon the Tribunal under subsection (1) shall include the following:
(a) to determine when and where any part of the proceedings is to be held;
(b) to determine the language or languages to be used in the proceedings and whether translations of any relevant documents are to be supplied;
(c) to make interlocutory orders;
(d) to determine the relevancy, admissibility and weight of any evidence without being bound by the rules of evidence under the Evidence Act 1950 [Act 56];
(e) to draw on its own knowledge and expertise;
(f) to order the provision of further particulars in a statement of claim or statement of defence;
(g) to order the giving of security for costs;
(h) to make an on-site inspection of the building or land which form the subject matter of the claim;
(i) to order samples to be taken from, or any observation to be made of or experiment conducted upon, any parcel or common property or limited common property which is or forms part of the subject matter of the claim;
(j) to order the discovery and production of documents or materials within the possession or power of a party;
(k) to order the preservation and interim custody of any evidence for the purposes of the proceedings;
(l) to order the interrogatories to be answered;
(m) to order that any evidence to be given on oath or affirmation; and
(n) to summon the parties to the proceedings or any other person to attend before it to give evidence or to produce any document, records or other thing in his possession or otherwise to assist the Tribunal in its deliberations.
Awards of the Tribunal
Section 117, (1) – The Tribunal shall make its award without delay and, where practicable, within sixty days from the first day the hearing before the Tribunal commences.
Section 117, (2) – The Tribunal shall in all proceedings give its reason for its award in the proceedings.
Criminal penalty for failure to comply
Section 123 – Any person who fails to comply with an award made by the Tribunal commits an offence and shall, on conviction, be liable to fine not exceeding RM250,000 or to imprisonment for a term not exceeding three years or to both, and in the case of a continuing offence, to a further fine not exceeding five thousand ringgit for every day or part thereof during which the offence continues after conviction.
Jurisdiction of the Tribunal
The Fourth Schedule, Part 1 [Subsection 105(1)] states that:
- A dispute or complaint concerning an exercise or the performance of, or the failure to exercise or perform, a function, duty or power conferred or imposed by this Act or the by-laws, except for those specifically provided for in this Part.
- Subject to subsection 16N(2) of the Housing Development (Control and Licensing) Act 1966 [Act 118], a dispute on costs or repairs in respect of a defect in a parcel, building or land intended for subdivision into parcels, or subdivided building or land, and its common property or limited common property.
- A claim for the recovery of Charges, or contribution to the sinking fund, or any amount which is declared by the provisions of this Act as a debt.
- A claim for an order to convene a general meeting.
- A claim for an order to invalidate proceedings of meeting where any provision of the Act has been contravened.
- A claim for an order to nullify a resolution where voting rights has been denied or where due notice has not been given.
- A claim for an order to nullify a resolution passed at a general meeting.
- A claim for an order to revoke amendment of by-laws having regard to the interests of all the parcel owners or proprietors.
- A claim for an order to vary the rate of interest fixed by the joint management body, management corporation or subsidiary management corporation for late payment of Charges, or contribution to the sinking fund.
- A claim for an order to vary the amount of insurance to be provided.
- A claim for an order to pursue an insurance claim.
- A claim for compelling a developer, joint management body, management corporation or subsidiary management corporation to supply information or documents.
- A claim for an order to give consent to effect alterations to any common property or limited common property.
- A claim for an order to affirm, vary or revoke the Commissioner’s decision.
ORDERS OF THE TRIBUNAL
In [Subsection 117(3)], it is stated that the Tribunal may order a party to the proceedings to:
- pay a sum of money to another party.
- The Tribunal may order the price or other consideration paid by a party to be refunded to that party.
- The Tribunal may order the payment of compensation or damages for any loss or damage suffered by a party.
- The Tribunal may order the rectification, setting aside or variation of a contract or additional by-laws, wholly or in part.
- The Tribunal may order costs to or against any party to be paid.
- The Tribunal may order interest to be paid on any sum or monetary award at a rate not exceeding eight per centum per annum.
- The Tribunal may dismiss a claim which it considers to be frivolous or vexatious.
- The Tribunal may make any order of which it has the jurisdiction to make under Part 1 of this Schedule or any other order as it deems just and expedient.
- The Tribunal may make such ancillary or consequential orders or relief as may be necessary to give effect to any order made by the Tribunal.
Strata unit owners are advised to get acquainted with the SMA, its rules and by-laws governing sub-divided buildings.
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