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Lai Chee Hoe

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Strata Management Case Updates 11 – How can one stop AirbnB or short term rentals?

Verve Suites Mont Kiara Management Corporation v Innab Salil and 20 others (Kuala Lumpur High Court Civil Suit No. WA-22NCVC-461-09/2017)

This is one of the more anticipated decision on Airbnb or short term rentals.

Facts:

Plaintiff is the Management Corporation of Verve Suites Mont Kiara. 1st and 2nd Defendants are the tenants. The remaining Defendants are proprietors of Verve Suites.

On 25.3.2017, the Plaintiff held an EGM to pass House Rules 3 which among others, prohibited short-term rental of the parcels.

An overwhelming majority of the proprietors voted in favour to prohibit short term rentals.

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Lai Chee Hoe

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Strata Management Case Updates 10 – Can a JMB apply different rates of charges?

Muhamad Nazri Bin Muhamad v JMB Menara Rajawali and Denflow Sdn Bhd

Kuala Lumpur  High Court Originating Summons No. WA-24NCVC-186-01/2018

Facts: 

The Plaintiff is a parcel owner of the residential component. The development area, namely Menara Rajawali consists of residential, retail and car park parcels.  Allocated share units of the development area were assigned. The 1st Defendant is the Joint Management Body of Menara Rajawali and the 2nd Defendant the owner of the car park parcel.

In an AGM held on 25.6.2016,  it was unanimously resolved that the mandate be given to the JMC to fix multiple rates of charges as below:

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Lai Chee Hoe

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Strata Management Case Updates 9 – How to deal with AirBnb parcels?

Salil Innab and Teng Keng Han v Badan Pengurusan Bersama Setia Sky Residences, Kuala Lumpur High Court, Originating Summons No. WA-24NCVC-776-04/2018

There are several AirBnb cases pending in courts. Unfortunately not all of them were reported. There is one pending an appeal in the Court of Appeal involving Verve Suites and we will write about it when the decision is out.

Facts:

The 1st Plaintiff is a tenant and the 2nd Plaintiff the parcel owner. The 1st Plaintiff rented the property from the 2nd Plaintiff for purposes of sub-letting it to 3rd party on a short-term basis. The 1st Plaintiff also rented other parcels within the development area for purposes of carrying out the short-term rental business through Innab Trade Sdn Bhd.

The JMB was aware of these arrangements. The Plaintiff claims that there is in place a short term rental operators standard operating procedure dated 25.3.2017 regulating the 1st Plaintiff and the employees of Innab Trade Sdn Bhd.

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Lai Chee Hoe

Lai Chee Hoe

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Strata Management Case Updates 8 – Can a JMB sue after the MC is established

Park Access Sdn Bhd & Ors v Badan Pengurusan Bersama Prima Avenue dan DPCC Fasa 1 (Block G, H, I) and other appeals (CA)

Facts:

The Plaintiff is the JMB and claimed that the accessory parcels of car park bays be declared as common property and the Sale and purchase agreement entered into be declared null and void.

The Defendant questioned on the locus standi of the JMB in initiating the action and filed a striking out application in the High Court. The High Court dismissed the striking out application and the Defendant appeal to the Court of Appeal.

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Lai Chee Hoe

Lai Chee Hoe

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Strata Management Case Updates 7 – Can a JMB or MC compel the developer to supply information or documents?

Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 JMB (CA)

Facts:

This is an appeal by the Developer (Bandar Utama Development Sdn Bhd) against the decision of the High Court in allowing a pre-action discovery pursuant to Order 24 R 7A of the Rules of Court 2012 in favour of Bandar Utama 1 JMB.

The main complaint by the Bandar Utama 1 JMB is that the developer has breached the sale and purchase agreement and failed to deliver strata titles despite delivering of vacant possession 10 years ago.

The developer in the appeal, argued, among other issues that the dispute must be referred to the Strata Tribunal pursuant to Section 105(1) of the Strata Management Act 2013 first to exhaust available remedies before filing of the originating summons for pre-action discovery.

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Lai Chee Hoe

Lai Chee Hoe

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Strata Management Case Updates 6 – Does a committee member of JMC / MC owes a fiduciary duty?

 

3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square & Ors 

[2018] MLJU 111 

Brief Facts:

3 Two Square Sdn Bhd, the developer sought a mandatory injunction to compel the Management Corporation to maintain properties on the basis they are common property of 3TwoSquare. The subject property includes, cooling tower, lifts and toilets.

The Developer also sought personal liability of the council members since they owe fiduciary duties to the Management Corporation.

The High Court ruled that those subject areas are common property and mandatory injunction was granted to compel the Management Corporation to manage those areas.

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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?

MOK SIOU MIN v. HAMPSHIRE RESIDENCES MANAGEMENT CORPORATION & ORS [2018] 1 LNS 333

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.

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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

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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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