Insights on Malaysia Legal Matters.

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.

Q1. Can I vote if I have an outstanding in one of the many units I own?

A1. The answer appears to be no by a plain reading of Para 21(2) Second Schedule Strata Management Act 2015.

Para 21(2) of the Second Schedule Strata Management Act 2013 provides that:

“A proprietor shall not be entitled to vote if, on the seventh day before the date of the meeting, all or any part of the Charges, or contribution to the sinking fund, or any other money due and payable to the management corporation in respect of his parcel are in arrears”

However one may argue that when it comes to voting rights, his/her rights attached to the parcel which has no outstanding charges or sinking fund cannot be denied. The right to vote should be retained to the parcels where there is no outstanding.

* In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

Q2. Can I be elected to the joint management committee or management committee if I have outstanding charges to one of the many units I own?

A2.  A plain reading of Paragraph 2(9)(a) Second Schedule Strata Management Act 2013 again indicates a No.

Notwithstanding subparagraph (7), an individual referred to in that subparagraph shall not be eligible for election as a member of the management committee of a management corporation if, on the seventh day before the date of election”.

(a) where he is a proprietor or co-proprietor of a parcel, all or any part of the Charges, or contribution to the sinking fund, in respect of that parcel are in arrears; or

(c) where he is a member of the immediate family of a proprietor who owns two or more parcels and is nominated for election by that proprietor, all or any part of the Charges, or contribution to the sinking fund, in respect of any parcel are in arrears.

It is interesting to note however that limb (c) provides for 2 or more parcels but not limb (a).

Q3. Can an absent proprietor be nominated and elected as a member of a joint management committee or a management committee?

A3. Yes.  This is supported by paragraph 2(13) Second Schedule of Strata Management Act 2015.

“An absent proprietor shall not be nominated for election as a member of the management committee unless he has appointed a proxy and has given his written consent to be nominated and elected as a member of the management committee.”

Q4. Who should elect the office bearers, Chairman, Secretary and Treasurer of the Joint Management Committee or Management Committee?

A4. The Joint Management Committee and/or the Management Committee at the conclusion of the general meeting can elect the officer bearers but not the parcel owners or the proprietors at the general meeting.

Paragraph 2(5) Second Schedule of the Strata Management Act.

“There shall be a chairman, secretary and treasurer, all of whom shall be natural persons, to be elected by the management committee from among its members immediately after the conclusion of the general meeting but no chairman, secretary or treasurer shall hold office for more than two consecutive years.”

Q5. If a management committee absents from 3 consecutive meetings, does it automatically deemed to have vacated his/her office?

A5. Yes only if it can be proven that no leave in writing from the Chairman was given to him/her for her absence.

Paragraph 3 1(i) of the Second Schedule of Strata Management Act 2013 provides that “ in the case of a member of the management committee other than the chairman, if he absents himself from three consecutive meetings of the management committee without the leave in writing of the chairman;

Q6. Can there be a vacation of office if the Chairman of the joint management committee or management committee absents from 3 scheduled meetings?

A6. Yes. Unless he was given leave by the Joint Management Committee / Management Committee to be absent.

Q7. How do you vote in a general meeting?

A7. By hand unless if a parcel owner / proprietor demands to vote by poll.

Paragraph 17(1) Second Schedule Strata Management Act 2015

“Any matter that requires a decision at a general meeting shall be decided on a show of hands unless a poll is demanded by a proprietor or his proxy.”

Q8. How to decide on matters in a general meeting?

A8. Most of the motions can be decided by a simple majority vote, 51%. There are however provisions in the Strata Management Act 2015 which provides for a special resolution 75% or unanimous resolution, 100%.

Q9. Can I propose a motion to be voted upon at the general meeting itself?

A9. No. It must be by way of a notice in writing deposited with the management office before 7 days of the schedule time for the holding of the meeting.

Paragraph 13(1) of the Second Schedule Strata Management Act 2015

 “Any proprietor may, by notice in writing deposited at the registered office of the management corporation not less than seven days before the time for holding the meeting, require inclusion of a motion as set out in such notice in the agenda of the next general meeting of the management corporation.”

Q10. Do I need to appoint a lawyer to issue letter of demand to defaulters?

A10. Not necessary. You can prepare Form 11 or Form 20 and serve them on the Defaulters.

Download the free Strata Management forms from the BurgieLaw online legal template store.

Form 11
NOTICE TO DEMAND PAYMENT OF SUM DUE BY PURCHASER OR PARCEL OWNER
– for use of a developer of a joint management body

Form 20
NOTICE TO DEMAND PAYMENT OF SUM DUE BY PROPRIETOR
– for use of a management corporation

 
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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Lai Chee Hoe

Lai Chee Hoe

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Part 5: The Use of Funds In The Maintenance And Sinking Fund Account Is Strictly Provided For Under The Strata Management Act 2013

Using The Maintenance And Sinking Funds

JMBs and MCs: use of maintainence and sinking funds | Property & conveyancing law

Throughout the years of chairing Joint Management Bodies (JMBs) and Management Corporations (MCs), a similar question keeps popping up as to whether we can utilise the funds from the Maintenance Account to carry out certain activities.

These activities include to have a simple appreciation dinner with the JMC/MC members, to install wifi at the common area, to purchase equipment for the gymnasium, setting up signboards (especially in a mixed project) etc.

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Lai Chee Hoe

Lai Chee Hoe

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The GrabGas Fiasco: The Importance of Legal Agreements

Legal Agreements & How To Keep Your Legal Backyard Clean

man-person-street-shoes

I was quoted in The Star newspaper not too long ago by Qishin Tariq at the Fireside Chat organised by BurgieLaw. The article essentially highlighted the need to appoint lawyers to look into your legal backyard. Not too long after, the dispute over Julian and GrabGas exploded and it is now available in the public domain.

I then thought to myself, where else can I get better live examples than this to illustrate the point of “hiring a lawyer at the first instance”.  Whilst writing this article, I have also had the benefit of reading the response from GrabGas which is available here. I am not propounding that legal advice is a cure all pill but at least it can avoid the disputes arising. So what is my take from the legal perspective?

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Lai Chee Hoe

Lai Chee Hoe

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JMBs & MCs Part 4: Appointing A Person Or A Management Company?

Directly Employing VS Management Company

So after taking over the management rights from the developer. What should the JMB do?

In practice, many times the JMB or MC will continue to retain the services of the management company appointed by the developer for convenience purposes. However I see a recent trend of JMBs opting to make a change and conduct competitive bidding to appoint other management companies.

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Lai Chee Hoe

Lai Chee Hoe

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JMBs & MCs Part 3: JMB Duties & Legal Liabilities

Taking Office In JMB Exposes Oneself To Potential Legal Liabilities

The topic although appears intimidating but unfortunately is true. In my practice, I acted for and against Joint Management Bodies and many times, the matters turn litigatious because there was lack of knowledge of the statutory duties and applicable laws on the part of the JMC.

It is close to impossible to list down all the potential liabilities in this article but I will attempt to list down the most important items a JMB must be aware of.

To begin with, let me list down the statutory duties of the JMB which are the most basic duties each JMC should be aware of. It has no intention whatsoever to discourage you from offering your services to the Joint Management Body. On the contrary, this article serves to provide you insights into the responsibilities, possible legal liabilities of the JMB.

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Lai Chee Hoe

Lai Chee Hoe

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JMBs & MCs Part 2: Developer Duties

Duties Of The Developer

This week, I’ll share with you the statutory duties of the developer, what happens if the developer fails to perform them and what action can the JMB/MC can take if that happens. We’ll also cover what the JMB should take note of when the JMB is formed. This topic is important because it determines whether a JMB will have a good head start.

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