MCO Series

MCO SERIES: Is Property Management Service deemed an “essential service” within the Prevention and Control of Infectious Diseases (Measures within the infected local areas) Regulations 2020?

As of now, we have yet to receive an official directive from the relevant ministry to declare that property management services be deemed essential service. At present, what we have is a new set of regulations introduced by the Minister of Health pursuant to Section 11(2) of the Prevention and Control of Infectious Diseases Act 1988 [Act 342] which primarily provides:

(a) restriction for travelling and

(b) type of services be rendered

Reasons to travel

In Regulation 3(1) of the Prevention and Control of Infectious Diseases (Measures within the Infected local areas) Regulations 2020, it states that “No person shall make any journey from 1 place to another place within any infected local area except for the following purposes:

(a) to perform any official duty;

(b) to make a journey to and from any premises referred to in regulation 5;

(c) to purchase, supply or deliver food or daily necessities;

(d) to seek healthcare or medical services; or

(e) any other special purposes as may be permitted by the Director General.

Essential Services

In Regulation 5, it reads that any premises providing essential services may be opened provided that the number of personnel and patron at the premises shall be kept to the minimum.

In Regulation 2, “Essential Services” are specified in the Schedule which contains a list of 22 different type of services:

  1. banking and finance
  2. electricity and energy
  3. fire
  4. port, dock and airport services and undertakings, including stevedoring, lighterage, cargo handling, pilotage and storing or bulking of commodities
  5. postal
  6. prison
  7. production, refining, storage, supply and distribution of fuel and lubricants
  8. healthcare and medical
  9. solid waste management and public cleansing
  10. sewerage
  11. radio communication including broadcasting and television
  12. intercommunication
  13. transport by land, water or air
  14. water
  15. e-commerce
  16. defense and security
  17. food supply
  18. wildlife
  19. immigration
  20. customs
  21. hotels and accommodations
  22. any services or works determined by the Minister as essential or critical to public health or safety

It is clear that property management services rendered to a stratified development area is not contained in the closed category within the Schedule and is not deemed “essential services”.

In that regard, property managers is not allowed to operate during the MCO period and if it continues to operate, commits an offence and on conviction be liable to a fine not exceeding RM1,000.00 or to imprisonment for a term of not exceeding 6 months or to both.

Notwithstanding that, I have read 1 particular circular from DBKL (DBKL/JPPK/100-2/1/4 Jilid 4) which reads:

“Pejabat Pengurusan dan Ejen yang menguruskan mana-mana perkhidmatan penting (essential service) yang diwartakan oleh Kerjaan Persekutuan di skim strata hendaklah terus beroperasi dengan mengambil penekanan pencegahan sewajarnya dan memastikan wujudnya saluran komunikasi yang sentiasa aktif serta berupayaha bertindah bagi membolehkan penyaluran maklumat dan aduan untuk memastikan kesinambungan perkhidmatan penting. Mana-mana kerja/perkhidmatan yang tidak kritiakn boleh ditangguhkan buat sementara.”

There is also a whats app being circulated citing a KPKT circular KPKT Bil 1/2020 which sets out almost similar contents.

In the strict sense, the circular contradicts the Regulation. Until the property management services are included in the “essential service” category, there is no definite answer in allowing a property manager company to carry out its operations and its staff is not even allowed to travel to the development area.

What are the essential services which are to be provided by the property manager?

Despite not included in the essential service list, I think property manager does play an important role to a stratified development area and some of the services are essential. Essential in its ordinary meaning is “absolutely necessary” or “extremely important” and it is to be construed in the context of preventing the spread of Covid-19, I list down some of the essential services which may be of absolute importance:

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  1. providing effective communication – The property manager is the sole medium of communication between parcel owners and a JMB / MC, on behalf of JMB /MC. In times like this, it is important to provide updates as to the internal mechanism or additional restrictions to curb Covid-19. This includes suspending of common facilities, sanitisation frequency, introducing other methods of payment (for charges and contribution to sinking fund). This is more crucial when there is a confirmed covid-19 patient among the parcel owners in the development area. Parcel owners must be given prompt and accurate information as to the time of discovery, status of the spread, sanitisation area coverage and other immediate measures taken to avoid speculation. Necessary warning must be given to stay indoors. Proper mode of service of such notices if strictly applying the law pursuant to Section 144 has to be by way the mode of service be by way of (a) personally; (b) registered post; or (c) attaching a notice at a prominent part of the last-known address. In times like this, if there is a group email, I will recommend that notices be issued by way of email only (to reduce contact).
  2. Suspending use of common facilities – A JMB / MC ought to suspend non-essential use of common facilities. This may include gymnasium, swimming pool, yoga area, sky lounge. A JMB/MC can derive its powers pursuant to Paragraph 4, Third Schedule, Strata Management (Maintenance and Management) Regulations 2015 to control, manage and administer the common property . The Property Manager in this regard may have to cordon off the facilities by using necessary tools such as tapes, cones etc to prevent usage of those common facilities / property.
  3. Enforcing by-laws – All the above can only be effective if there is enforcement put in place. This is consistent with Sections 21(1)(h) and 51(1)(h) Strata Management Act 2013 where one of the many duties of the JMB / MC is to enforce by-laws. Restriction of use in the original context by virtue of Paragraph 4 may not require a special resolution be carried through a general meeting. A JMB / MC (and so is the property manager) should be prudent in drawing the source of its existing powers (without the need to introduce additional by-laws since there is not sufficient time to convene a general meeting to have a special resolution passed for implementation as provided in Sections 32 or 70 SMA 2013) for purposes of enforcement. This is also useful to restrict the movement of parcel owners or visitors.
  4. Restricting entry of contractors and stopping non-essential works – A property manager is required to draw up a list of non-essential service providers and stop such services be carried out and further to stop the non-essential service providers from coming into the development area. This may include renovation contractors, window cleaners, landscapers, painters, swimming coach.
  5. Instructing other service providers – Property Manager again is the sole medium of the JMB / MC to maintain effective communication with other essential service providers. Essential service providers include waste management contractors, common property cleaners, sanitisers and security guards. A property manager must be able to communicate the policies drawn up by the JMB / MC from time to time for effective implementation by essential service providers for instance the correct approach to verify purpose of visiting by a visitor / contractor.

With the essential services set out above, I think it is safe to conclude that some of the services are still required to be performed on-site and in my view services rendered by a property manager should be listed as “esential services”. In this regard, I am in agreement with the DBKL’s and KPKT’s circular. Having said that, all form of works, if possible should be done by way of a remote basis and the personnel placed at the management office should be minimal.

All the above is written on the presumption that there is a functional and effective JMB / MC which is constantly reviewing the policies depending on further actions taken by the government and the spread of Covid-19. A functional JMB / MC means having a committee which collectively carry out its duties, taking active participation in deliberating policies and communicating the decisions, policies and rationale to the property manager for purposes of effective implementation.

Disclaimer: The content provided on this website does not constitute legal advice but are for general informational purposes only. It may not be the most up-to-date legal information after the published date. To seek professional legal advice, please check with your lawyer.
Lai Chee Hoe
Partner at Chee Hoe & Associates. With 10+ years of experience under his belt, he specializes in civil and corporate litigation. He is also the current Chairperson of various Joint Management Bodies.

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