Right to peace
and quiet
01/05/2001 The Star
Articles of Law with Bhag Singh
MORE businesses are located in office and shopping complexes these days. Similarly,
changing lifestyles and shortage of space have resulted in more people living
in apartments and condominiums.
Such buildings comprise separate units owned by different people. Each unit is
referred to as a compartment; according to existing legislation, they are parcels
defined to mean "one of the individual units comprised therein, which (except
in the case of an accessory parcel) is held under separate strata title.''
The ownership and occupation of such property creates a form of community living
which requires restrictions and tolerance on the part of the proprietors of
the parcels.
A reader would like to know what legal rights a proprietor has against activities
that are not conducive to the peace and comfort of the residents.
If the grievance constitutes a breach of any law, the remedy is in lodging a report
to the authorities. However, there are situations where the "offence'' is not
a breach of the law but is objectionable in the eyes of others.
If strata titles have not been issued, then the aggrieved party must look towards
the developer and the covenants relating to the rights of the proprietor. At
this point, the common property is vested in the developer and such complaints
will have to be directed to the developer who must take the initiative to find
solutions.
Where strata titles have been issued, the complaint will have to be lodged with
the management corporation. In this connection, the laws of the management corporation
will be very relevant as they regulate such a subdivided building.
In the context of our own Strata Title Act 1985, the by-laws impose certain prohibitions
against a proprietor. By-law 6 states that a parcel proprietor shall not:
a) use his parcel for any purpose (illegal or otherwise) which may be injurious
to the reputation of the building;
b) use as fuel any substance or material which may give rise to smoke or fumes
or obnoxious smells;
c) throw or allow to fall, any refuse or rubbish of any description on the common
property or any part thereof except in refuse bins maintained by him or in refuse
chutes provided in the building;
d) keep any animal in his parcel or on the common property which may cause annoyance
to any other proprietor.
A close examination of these prohibitions could give rise to different interpretations
as to what their actual effect is. That is a separate issue.
But would this mean that if the offensive activity was not included in the categories,
an aggrieved party would have no remedy?
This question arises because an activity that is legal and permitted by law may
cause annoyance or be injurious to others. An example would be where part of
a building is permitted for commercial use and the other floors are for residential
use.
A proprietor may use his commercial premises for a karaoke lounge. Fights may
occur and it may be noisy. The establishment may be licensed by the authorities.
Can the unhappy occupants/owners of the residential units do anything about
it? Even if they must tolerate such establishments which already exist, have
they any say against more such establishments in the building?
Such a situation arose in the case of Lark Lounge and Nite Club Pte Ltd vs MCST
Plan 1420 (Balestier Point) where the court endorsed the principle that the
proprietors did have the power to make additional by-laws so as to require a
proprietor to obtain the approval of the management corporation for a change
of use of his lot before submitting his application to the competent authority.
The court upheld the power of the management corporation to make additional by-laws
to provide for such restrictions but went on to say that any approval sought
in such a situation could only be withheld for good reason. This, of course,
was a Singapore case.
But, it would be possible in Malaysia for proprietors who are members of a management
corporation to initiate moves to enact provisions in their respective management
corporations to achieve a similar objective. Our law is similar to the Singapore
Legislation on this note; Section 44 (1) and (2) of the Malaysian Strata Titles
Act 1985 provides:
(1) The by-laws set out in the Third Schedule shall, as and from the opening of
a book of the strata register be in force for all purposes in relation to every
subdivided building and shall not be amended by the management corporation.
(2) The management corporation may by special resolution make additional by-laws
or make amendments to such additional by-laws, not inconsistent with the by-laws
set out in the Third Schedule, for regulating the control, management, administration,
use and enjoyment of the subdivided building.
There are considerable powers vested in the members of a management corporation
to regulate the management of the building.
However, the validity of such laws as well as the implementation by the council
of a management corporation is subject to judicial review and supervision of
the courts.
Readers would have heard about changes being made to the Strata Titles Act 1985.
The changes would not make any significant difference to the position as discussed
above.
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