12th March, 2001.
BY Dr Tan Kee Kwong
Pejabat Timbalan Menteri
Kementerian Tanah & Pembangunan Koperasi BY HAND
Tingkat 10, Wisma Tanah
Jalan Semarak
50574 Kuala Lumpur
Yang Berhormat,
Re: Amendments to Strata Titles Act, 1985
We refer to the above matter.
House Buyers Association (“HBA”) admires your quick reaction and timely initiatives
on the exigencies of the matter to propose amendments to the Act.
While the amendments are considered expedient and vital, as a stop gap measure,
to curb undesirable trend practiced by Housing Developers in the building
industry, it is the Association’s considered opinion that in the long run
it would be preferable if a thorough review would be carried out on the existing
Act or to replace it with one that would suit the present day prevailing conditions.
This contention was prompted largely on the basis that the existing Act which
was passed in 1985 might be construed to have surpassed its effectiveness
over such a long period of time and in the chase taken by developers to build
houses to cater for the market. The Malaysian strata titles legislation owes
its origin to the Conveyancing (Strata Titles) Act passed in New South Wales
in 1961 and to the Singapore Land Titles (Strata) Act (Cap. 277, 1970) which
itself was modeled on the New South Wales Legislation. The old Act and other
such legislation in New South Wales has since been repealed and there is now
reformed into “Strata Scheme Management Act, 1996”. Perhaps, we too must consolidate
our ideas and we should reform the entire stratified properties. HBA don’t
think that we will be well served by the proposed amendment. It would be best
to start a new Enactment.
Nevertheless, our committee have made a study on the proposed amendment and
noted that they were intended to streamline the existing Act as well as to
serve as deterrents to developers who had deliberately flouted the law by
taking advantage over unprotected house buyers. It was on these premises,
that HBA would like to contribute by making some comments on the proposed
amendments, for whatever they were worth as representing the views of thousands
of house buyers who had always been on the loosing end in their dealing with
the developers in the hope that their earnestness for a more protective Act
would be met with due consideration.
1. Section 4
Propose to amend the definition of “proprietor” in the Act. This amendment
seeks to include the Developer as a party to the Act in instances where the
proprietor and developer of the building are different parties and in such
instance the word original proprietor would include the developer of the project
as well.
2. Proposed amendments to Section 8 (5)
We can’t comprehend the rationale for capping the minimum fine in the second
limb of the statement. The perception is that penalties should be increased
with time instead of being reduced. In order to create a heavier impact and
to be sufficient deterrence, the penalty to be imposed ought to be of a certain
magnitude that could effectively deter offenders from committing the act.
Housing developers are not petty traders and an amount of RM100,000.00 is
justified as a standard penalty for those developers who deliberately violate
it. For further delay committed by offenders a minimum fine of RM1,000.00
per day should be further imposed to make them realize its consequences and
that it was not worth while to ignore the Law.
Perhaps, provisions should be allowed for all relevant authorities like the
Department of Survey, Land Office, State authorities etc to automatically
freeze all other applications for housing development of the same Developer
pending the compliance of this provision.
3. Section 8
This Section is also vague on the period to submit application. Perhaps this
clause should be re-structured to give it certainty. The provision of this
section implies that parcels/units within building are sold only upon completion.
Bearing in mind that units are sold prior to the completion of building and
that some of the conditions in Section 10 can only be complied with on completed
units, it is proposed that the 6 months period be calculated upon commencement
of work on building site in accordance with the 1st Schedule of the Payment
of Schedule H or G.
Further proposals :-
- to delete Sub-section (6) and replace with a provision which is similar
to sub-section (3) of section 7.
- that a qualified/provisional strata title be issued pending
the final measurement of the built of area of the parcel and other compliance
of Section 10. Thereafter upon the final submission of all plans a final document
of strata title be issued.
- to make it mandatory for proprietor/developer to maintain
a register in its office which is accessible to the public. In this register
all relevant forms, correspondences to and from the relevant authorities for
the application of subdivision will be kept and open for inspection by the
interested parties. In this way all purchasers will be informed of development
of applications and whether developer/proprietor have complied with this section.
On discovery of any breaches of this section, the purchasers can notify the
Director and appropriate action can be taken against the developer. Propose
form of penalty is for a purchaser or any party having an interest in the
property to petition to the Director to direct all financiers/purchasers to
stop payment under the Schedule H or G to the Developer until breach has been
rectified. Developer will not be allowed to charge interest on late payment
upon this direction by the Director.
4. Section 15
To add a further proviso to make it the responsibility of the proprietor/developer
to remove all caveats lodged against the master title within a period of six
(6) months upon the notification from Registrar that lot is so subject to
the caveats entered on the master title at the proprietor/developer own cost
and expense.
5. Section 39
This amendment may impose further encumbrance on the part of the management
corporation (hereinafter “MC”). A provision to provide for a letter from the
MC after the first AGM to the Registrar notifying of its establishment is
sufficient.
6. Section 41
To add further amendments to reflect:-
- a duty of trust impose on the proprietor/developer for the purchasers on
the management fees received prior to the setting up of the MC;
- a duty on the developer to keep proper books of account in respect of all
sums of money received and expended by it, specifying the matters in relation
to which the receipts and expenditure took place;
- to present and hand over the audited accounts, the balance of the management
fees (if any) paid by the proprietors to the developer prior to the setting
up of the MC during the first AGM;
- to increase the fine to RM5,000.00.
7. Proposed to redefine Section 46 (d)
Presently maintenance services of most stratified properties and high rise
apartments are provided by the housing developers themselves or by their appointed
subsidiary companies who lack the competence of qualified property managers
resulting in mundane maintenance work and unsatisfactory services.
Huge sums of money collected as maintenance fees and the sinking fund account
are under their control. There is a need for these accounts to be properly
managed and made transparent to unit owners and expenditure statements, which
is not being practiced although the onus of doing it rests with Management
Companies.
Too put in check of the blatant disregard of their obligation there should
be proper guidelines in the Act that requires section 46 (d) of the Strata
Titles Act to be redefined.
To eliminate problems relating to non-application for strata titles. HBA proposes
that all necessary payments whether surveyors fees, premiums, processing fees
for sub-division, application for strata titles etc., should be effected to
a proposed Strata Title Board prior (meaning pre-paid) to any Building
Plans being approved. This is not impossible as the Chief Minister of Malacca
YAB Dato Wira Mohd Ali Rustam adopted and implemented the concept.
8. Section 50
Propose to add in:-
- a sub-section (4) to set a time limit to the appointment of the managing
agent. A period of two (2) years or until the next election of a council to
take over the MC;
- a sub-section (5) for the removal or replacement of the management agent
upon the application of a proprietor or any other person or body having a
registered interest which content is similar to sub-section (1);
- a sub-section (6) to provide for the provisions of section 55 to apply in
the event the managing agent breaches the provisions of this Part VII.
The concept in the proposed Section 50 is good except that the identity of
the Managing Agent has to be identified. What is his/their responsibilities?
What if he/she/they could or could not perform? Capacity to be liable or negligent?
How is the managing agent to work with the MC? Must the books be handed over
or must he/she/they take out an insurance policy?
9. Section 55A
HBA recommends that the monies received from the ‘fines’ should be paid to
the MC coffer and for failure to pay the fines, it should be made out to be
a statutory criminal offence.
10. New PART IXA
Section 67 M
There may be disputes on duplicity of insurance. It is suggested that there
should be a uniform insurance.
Section 67 N & 67 Q
HBA proposes that the Strata Title Board should be able to take application
for hearing on disputes on anything related to Common Properties.
Section 67 O
It’s pursuing of someone’s action. This is oppose to the common law “maintenance
of an action”.
11. Other sections not mentioned in the Amendment
Section 9 (i)
To increase the period of leasehold land to seventy (70) years so as to shorten
the application process on part of relevant authority.
Section 10
All those conditions that require exact measurement/technical specifications
that can only be complied on completed parcels and buildings have to be amended
to provide for approximate estimation in accordance with the buildings plans
and specifications. Recommend an additional sub-section to provide for subsequent
submission of actual built-up area of unit or such other technical specifications
immediately upon the completion of buildings. Should consult architect/QS
on this area.
Section 14A
To increase the fine to 10,000 ringgit and to a further fine of 1,000 ringgit
for each day of offence.
Section 54
To include the mode of service of documents to all proprietors of parcels
for notices of meetings, etc.
Section 55
To include the managing agent as a party to be liable.
Other Proposals
- to set up a single strata title department to expedite the handling of this
area of the law as too many authorities are involved. There should also be
a time frame for the person at the department to complete the process of strata
to reflect efficiency.
- to formalized a standardized Deed of Mutual Covenants as Schedule 4 for
all developers and purchasers to adopt to ensure better protection for purchasers
and to ensure that there are no uncertainty of house rules.
- all “fines” which are to be collected should be the rights of entitlement
of the MC concern.
12. Problems faced by house buyers of stratified properties
Under the Act, a management Corporation could only assume its responsibilities
and functions of managing the properties of the subdivided units if the buildings
had been registered with separate titles. The period between the submission
of application by the developers and the issuance of titles normally took
a long time during which the management of the building properties were left
in the hands of the developers or then appointed subsidiaries who were hand
in glove with one another. Usually this category of management did not see
eye to eye with the Residents Association resulting in disputes over several
issues regarding the maintenance of the properties.
HBA had expected that incidents could be dissolved in the proposed amendments
of the Act, which would empower the setting up of an interim joint co-operation
consisting of members of Residents Association and the management whom, pending
the registration of individual strata titles to provide the management of
services to the properties.
An amendment to the Act to put off the nagging problems at rest between the
fending parties had been much expected by house buyers.
HBA is of the opinion that these proposed amendments to the Strata Title Act,
1985 should be best tabled at the same time with the Common Property (Maintenance
& Management) bill which has been drawn up by the Housing and Local Government
Ministry as both are related and should be debated together with a full understanding
and complete analysis of the issues affecting house buyers all over the country.
Our comments aforesaid are supplementary to our stand that no amount of law
will be able to eliminate or solve the problems unless they are strictly enforced.
Thank you.
Yours sincerely
(Signed)
Datuk Hj Zainuddin b. Bachik
(Chairman)
