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.
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.
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.
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.
Every time when a general meeting approaches, I see many of the JMB / MC struggles. They are not too sure what are the documents to prepare, the time and method to circulate the notice of meeting, and what to include in the agenda.
Exercise Your Statutory Rights Accorded To You In An AGM Or EGM
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).
Using The Maintenance And Sinking Funds
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.
Legal Agreements & How To Keep Your Legal Backyard Clean
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?
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.
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.