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Lai Chee Hoe

Lai Chee Hoe

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Strata Management Case Update 5- Can a JMB/ MC deactivate access cards?

The facts are rather simple. The Plaintiff commenced this action against the Defendants, (MC and the Management Committee members) for nuisance and deactivation of the access cards.

On 8.5.2011, an explosion occurred at Hamshire Park Condominium which caused damages to certain units including 2 units owned by the Plaintiff.

On 20.9.2012, JMB received the insurance claim for the 2 units owned by the Plaintiff for a total sum of RM19,000.00.

There are outstanding maintenance charges due and owed by the Plaintiff and the MC took the insurance sum of RM19,000.00 set off against the outstanding maintenance charges and deactivated access card of the Plaintiff.

The principal issue was whether the deactivation of the access cards to the Plaintiff’s unit was lawful.

With regards to the issue, the court referred to Paragraph 6(4) of the Third Schedule which empower the MC to deactivate access without notice where a proprietor is in default of maintenance charges at the expiry of 14 days specified in paragraph 6(1)(a).

For easy reference, paragraph 6(1)(a) states:

(a) a defaulter is a proprietor who has not fully paid the charges or contribution to the sinking fund in respect of his parcel or any money imposed by or due and payable to the management corporation under the Act at the expiry of the period of fourteen days of receiving a notice from the management corporation.

By reading 6(4) and 6(1)(a) together, it is clear that the MC may deactivate one’s access card without prior notice only upon the expiry of 14 days after the defaulter receives a written notice from the MC.

The court also went on to refer to Section 78 where it states that the procedure for recovery of sums due, the MC may serve on the proprietor a written notice demanding payment of the sum due within the period as may be specified in the notice which shall not be less than 2 weeks from the date of service of the notice. If any sum remains unpaid at the end of the period specified in the notice, the MC may file a summons or claim in a court of competent jurisdiction or  beforee the Tribunal.

On top of that, the Hampshire Residence House Rules requires notice to be served to the owner before access card can be deactivated.

In the present case, since there was no such notice produced in court, the Court finds that the deactivation of the access cards are not in accordance with SMA2012 and as such is unlawful.

The  takeaway is clear whether to a Developer, Joint Management Body (JMB) or Management Corporation (MC). If you wish to deactivate any electromagnetic access device such as a card, tag or transponder, it must be preceded by a notification followed by the expiry of the notification period, usually 14 days.

 

 
Lai Chee Hoe

Lai Chee Hoe

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Strata Management Case Update 4- Is assignment required for liquidator to collect maintenance charges? Does SMA have retrospective effect?

BADAN PENGURUSAN BERSAMA KOMPLEKS PANDAN SAFARI LAGOON v. TAM CHENG MENG [2018] 1 LNS 223

This is an appeal by the Appellant/Plaintiff who is the joint management body (“JMB“) of Kompleks Pandan Safari Lagoon against the decision of the learned Magistrate in its suit against the Respondent/Defendant. The Defendant is a parcel owner. The Developer was wound up on 28.3.2006 and appointed a private liquidator.

The private liquidator in turn appointed other managing agents on 30.4.2009 and 1.6.211 to operate and manage the building.

The Plaintiff’s claim against the Defendant at the Magistrate’s Court was for outstanding service charges for the building in the sum of RM81,413.93 for the period up to June 2015. The learned Magistrate after full trial allowed only part of the Plaintiff’s claim for the sum of RM3,579.87, which is the amount of the service charges owed by the Defendant to the Plaintiff for the period from July 2014 to June 2015.

Dissatisfied with the Magistrate’s decision, the Plaintiff filed an appeal. At the conclusion of the hearing of this appeal, the High Court Judge allowed the appeal and the Plaintiff’s claim for the sum of RM81,413.93 together with interest of 5% from 26.06.2015 until the date of full settlement of the judgment sum was given. The decision of the Magistrate Court was set-aside.

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Lai Chee Hoe

Lai Chee Hoe

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Strata Management Case Update 3: Can we Pre-determined Service Charges and Sinking Fund

Ekuiti Setegap Sdn Bhd v Plaza 393 Management Corporation (Court of Appeal)

Plaza 393 reflects a very common problem plaguing many developers owned parcels in a mixed development intended to be subdivided. When it was reported in the High Court, it attracted quite a bit of attention since a quick glance suggested that it runs contrary to the current statutory regime. Before I go further, the facts were:

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Lai Chee Hoe

Lai Chee Hoe

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Strata Management Case Update 2: Extension of Time for AGM

Can a developer/ JMB/ MC apply for an extension of time to convene the annual general meeting?

Since I am involved in both operational and dispute on strata management, issues, I now share summaries of some of the cases I have handled and the recent Malaysian court decisions in interpreting the provisions in Strata Management Act 2013, Strata Management (maintenance & management) Regulations 2015 and Strata Management (Strata Management Tribunal) Regulations 2015.

Perbadanan Pengurusan Anjung Hijau v Pesuruhjaya Bangunan Dewan Bandaraya Kuala Lumpur (COB DBKL) [2017] 11 MLJ 554

Brief Facts:

The plaintiff was the management corporation known as ‘Anjung Hijau Apartment’. The rival faction of the owners of units of the apartment had filed several suits against the plaintiff. On this basis, the plaintiff sent a letter to the defendant and requested for an adjournment of the holding of the annual general meeting (‘AGM’).

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Lai Chee Hoe

Lai Chee Hoe

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Strata Management Case Update 1

Since I am involved in both operational and dispute on strata management, issues, I now share summaries of some of the cases I have handled and the recent Malaysian court decisions in interpreting the provisions in Strata Management Act 2013, Strata Management (maintenance & management) Regulations 2015 and Strata Management (Strata Management Tribunal) Regulations 2015.

Can a developer/ JMB/ MC impose charges or seek a contribution to the maintenance account or sinking fund over and above the monthly maintenance charges?

A developer / JMB / MC sometimes may impose further charges over and above the monthly maintenance charges and sinking fund. Most if not all are genuine expenses incurred, for example, upgrading of façade, repairing of defects, payment for legal expenses. There were however many instances where the expenses incurred were not recovered since the mechanism they used were incorrect. This frustrates the developer/ JMB / MC since the additional expenses incurred although is for the good of the proprietors in general yet it gets defeated in court / tribunal.

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Lai Chee Hoe

Lai Chee Hoe

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JMB & MC Series: 10 Most Common Questions Asked During Annual General Meetings

I have been consistently appointed to attend general meetings of the joint management body or management corporation in various development areas and I realise there is still a lack of knowledge when it comes to the meeting procedures and the laws relating to general meeting of a joint management body / management corporation.

For the benefit of our readers, I have summarized some of the more common questions asked during the general meetings and I reproduce them below, in no particular order.

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Arina Ong

Arina Ong

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Protection for the Victims of Domestic Violence

stop_domestic_violence

Does anyone know how prevalent is domestic violence? According to Kuala Lumpur Hospital, it has recorded up to 150 domestic violence cases monthly in 2016. More often than not, the victims suffered in silence, not knowing what course of action to take.

In Malaysia, the Domestic Violence Act 1994 (“the Act”) was passed in Parliament in order to fulfill the government’s commitment under the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) General Recommendation No. 19. The Act came into force on 01.06.1996.

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Lai Chee Hoe

Lai Chee Hoe

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JMBs & MCs Part 8: The JMC ought to be remunerated

meeting_room_with_joint_management_committee

My previous articles set out the obligations and liabilities of each JMC or MC members which includes a fine of RM250,000.00 or imprisonment or both. This usually prompts an immediate reaction to effect sufficient insurance coverage to insure against all risks including defamation, omission and negligence.

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Lai Chee Hoe

Lai Chee Hoe

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JMBs & MCs Part 6 : AGM/EGM Statutory Rights

Exercise Your Statutory Rights Accorded To You In An AGM Or EGM

JMBs&MCs: Statutory Righs In AGMs/EGMS

Every time a general meeting approaches, I see many Joint Management Bodies (JMBs)/Management Corporations (MCs) struggle. They are unsure of what documents to prepare, the time and method to circulate the notice of meeting, and what to include in the agenda.

Issues like that get more serious in self-managed buildings because they simply don’t know the laws that revolve around the general meeting of a JMB/MC.

Fortunately, the new Strata Management Act 2013 (SMA) gives some sort of guidance with the intention of assisting strata proprietors when it comes to calling a general meeting, whether it is an annual (AGM) or extraordinary general meeting (EGM).

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