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Building and Common Property
(Maintenance and Management) Act 2007
Act 663 |
| SECTIONS |
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An Act to provide for the proper maintenance and
management of buildings and common property, and for matters incidental
thereto.
Whereas it is expedient for the purposes only of ensuring uniformity of law
and policy with respect to local government to make laws relating to the
maintenance and management of buildings and common property within
Peninsular Malaysia and the Federal Territory of Labuan:
Now, Therefore, pursuant to Clause (4) of Article 76 of the Federal
Constitution, It Is Enacted by the Parliament of Malaysia as follows: |
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Part 1 – Preliminary
1. Short title,
application and commencement |
| (1) This Act may be cited as the Building and
Common Property (Maintenance and Management) Act 2006. |
| (2) This Act shall apply only to Peninsular
Malaysia and the Federal Territory of Labuan. |
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(3) This Act shall come into operation in each State on such
date as may be appointed by the Minister, after consultation with the State
Authority, in relation to that State by notification in the Gazette,
and the Minister may, after consultation with the State Authority, appoint
different dates – |
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(a) for the
coming into operation of this Act in different local authority areas or
parts of local authority areas; and
(b) for the coming into operation of different provisions of this Act in
different local authority areas or parts of local authority areas. |
| (4) This Act shall come into
operation in the Federal Territory of Kuala Lumpur, the Federal Territory of
Labuan and the Federal Territory of Putrajaya on a date to be appointed by
the Minister responsible for the Federal Territory of Kuala Lumpur, the
Federal Territory of Labuan and the Federal Territory of Putrajaya by
notification in the Gazette. |
| (5) Notwithstanding subsection (3),
the State Authority may, by notification in the Gazette, extend any
of the provisions of this Act to apply to the whole or any part of any area
within the State which is not under the local authority area; and may make
such modifications, amendments or variations to the provisions of this Act
as may be necessary for the purpose of their application to such area. |
| (6) Notwithstanding subsection (3),
the State Authority may, by notification in the Gazette, exempt any
part of any local authority area from any or all the provisions of this Act
or any regulations made under this Act. |
| (7) The State Authority may,
if in its opinion it would not be contrary to the public interest, and the
interest of the purchasers to do so, suspend the operation of this Act or
any provision of this Act in any local authority area or any part of any
local authority area or any other area for such period as it deems fit. |
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(8) In this Act, references to the State Authority in
relation to the Federal Territory of Kuala Lumpur, the Federal Territory of
Labuan and the Federal Territory of Putrajaya shall be construed as
references to the Minister responsible for the Federal Territory of Kuala
Lumpur, the Federal Territory of Labuan and the Federal Territory of
Putrajaya. |
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2.
Interpretation
In this Act, unless the context otherwise requires –
“accessory parcel” means any parcel shown in a strata plan as an accessory
parcel which is used or intended to be used in conjunction with a parcel;
“allocated share units’ means the share units to be assigned to each parcel
by a developer’s licensed land surveyor.
“Body” means the Joint Management
Body established under section 4;
“building” means any object erected on the development area, and includes
the common property of the building;
“Building Maintenance Account” means the Building Maintenance Account opened
and maintained under section 16;
“Building Maintenance Fund” means the Building Maintenance Fund that the
Body is required by section 22 to maintain; |
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“building or land intended for
subdivision into parcels” means – |
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(a) any building or buildings having two or more storeys
in a development area and intended to be subdivided into parcels; and any
land on the same lot intended to be subdivided into parcels to be held under
a separate strata title or for which an application for subdivision has been
made under the Strata Titles Act 1985 [Act 318]; or
(b) any development area having two or more buildings intended to be
subdivided into land parcels as defined in the Strata Titles Act 1985; |
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“Central Bank” means the Central
Bank of Malaysia established under the Central of Malaysia Act 1958 [Act
519];
“charges” means any money collected by the owner, developer, Body or
managing agent from the purchaser for the maintenance and management of a
building or land intended for subdivision into parcels and common property;
“common property”, in relation to a development area, means so much of the
development area as is not comprised in any parcel, such as the structural
elements of the building, stairs, stairways, fire escapes, entrances and
exits, corridors, lobbies, fixtures and fittings, lifts, refuse chutes,
refuse bins, compounds, drains, water tanks, sewers, pipes, wires, cables
and ducts that serve more than one parcel, the exterior of all common parts
of the building, playing fields and recreational areas, driveways, car parks
and parking areas, open spaces, landscape areas, walls and fences, and all
other facilities and installations and any part of the land used or capable
of being used or enjoyed in common by all the occupiers of the building;
“Commissioner” means the Commissioner of Buildings appointed under section
3;
“Committee” means the Joint
Management Committee established under section 11;
“developer” means any person or
body of persons (by whatever name described), who develops any land for the
purpose of accommodation including accommodation for commercial and
industrial use and includes the executors, administrators and successors in
title and permitted assigns of such person or body of persons;
“development area” means any alienated land held as one lot under final
title (whether Registry or Land Office title) on which building or land
intended for subdivision into parcels is constructed or is in the course of
construction;
“local authority” includes any
person or body of persons appointed under any written law to exercise and
perform the powers and duties which are conferred and imposed on a local
authority under any written law’
“local authority area” means any
area in a State that has been declared by the State Authority to be a local
authority in accordance with section 3 of the Local Government Act 1976 [Act
171];
“management corporation” means
the management corporation established under the Strata Titles Act 1985;
“managing agent” means any person appointed by the Commissioner of Buildings
under section 25;
“Minister” means the Minister charged with the responsibility for local
government;
“occupier” means the person in actual occupation of the building, but, in
the case of premises for lodging purposes, does not include a lodger;
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“parcel”, in relation to – |
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(a) a building intended for subdivision, means one of the
individual units comprised in the building which (except in the case of an
accessory parcel) is held or to be held under a separate strata title; and
(b) a land intended for subdivision, means one of the individual units of
land parcel; |
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“property” means
any land on the development area, and includes any building or part of a
building that has been erected or is being erected on the land, and also
includes a building or land intended for subdivision into parcels;
“purchaser” means the purchaser of a parcel;
“replacement value” means the value to replace the building in the case of
fire or damage;
“sinking fund” means a special
fund opened and maintained under section 24;
“subdivided building” has the
meaning assigned to it by the Strata Titles Act 1985. |
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Part II – Administration of
the Act
3.
Appointment of Commissioner of Buildings and other officers |
| (1) The State Authority may, in
respect of a local authority area or any other area, appoint an officer to
be known as the Commissioner of Buildings and such officers as may be
necessary for the purposes of administering and carrying out the provisions
of this Act. |
| (2) The Commissioner, subject to
any general or special direction of the State Authority, shall have charge
of the administration of this Act and Parts VI and VII of the Strata Titles
Act 1985 and shall perform such other duties as are imposed and may exercise
such powers as are conferred upon him by the Strata Titles Act 1985. |
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(3) Subject to any general or
special direction of the Commissioner, the powers conferred and the duties
imposed upon the Commissioner by this Act or any regulations made under this
Act may be exercised or performed by any other officer appointed under
subsection (1). |
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(a) before the commencement of this Act and vacant possession
of the parcels has been delivered by the developer to purchasers but the
management corporation has not come into existence, a Joint Management Body
shall be established consisting of the developer and the purchasers upon the
convening of the first meeting not later than twelve months from the
commencement of this Act; and |
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(b) on or after the commencement of this Act, a Joint
Management Body shall be established consisting of the developer and the
purchasers upon the convening of the first meeting not later than twelve
months from the date of delivery of vacant possession of the parcels to the
purchasers. |
| (2) The Body established by subsection
(1) shall be a body corporate having perpetual succession and a common seal. |
| (3) The Body may sue and be sued in
its name. |
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(4) The Body shall comprise the
developer and the purchasers. |
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5. Duty of developer to
convene meeting |
| (1) It shall be the duty of the
developer to convene the first meeting of all purchasers. |
| (2) The developer shall give a written
notice of the first meeting to all purchasers not less than fourteen days
before the meeting. |
| (3) Without prejudice to subsection
(1), if the developer fails to convene the first meeting within the
specified period, the Commissioner may appoint a person to convene the first
meeting of the Body, within such time as may be specified by the
Commissioner. |
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(4) The developer shall, until the establishment of the Body
and subject to the provisions of this Act, be responsible for the
maintenance and management of the Property. |
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(5) Any developer who fails to comply with subsection (1)
commits an offence and shall on conviction be liable to a fine not exceeding
twenty thousand ringgit or to imprisonment for a term not exceeding three
months or to both. |
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(a) the election of the office bearers of the
Committee as provided for in subsection 11(2); |
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(b) to confirm the taking over by the Body
of insurances effected by the developer; |
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(c) subject to subsection 23(2), to determine
the amount to be paid by the purchasers to the Building Maintenance Fund for
the maintenance and management of the common property of the building; |
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(d) the determination of the rate of
interest payable by a purchaser in respect of late payment charges; and |
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(e)any matter connected with the maintenance
and management of the common property of the building. |
| (2) The quorum of the first meeting
of the Body shall be one-quarter of the purchasers who have paid maintenance
charges in respect of their parcels to the Building Maintenance Accounts
(“members entitled to vote”) of the developer. |
| (3) If within half an hour after
the time appointed for the meeting, a quorum is not present, the members
entitled to vote who are present shall constitute a quorum. |
| (4) All resolutions at the first
meeting of the Body shall be decided by a show of hands. |
| (5) Notwithstanding subsection (4),
joint purchasers shall not be entitled to vote except by way of a jointly
appointed proxy. |
| (6) In the event of an equality of
votes, the chairman shall have a casting vote. |
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(7) Where an hour after the time
appointed for the meeting, no member entitled to vote turns up or all the
members present, for any reason, refuse to be the office bearers of the
Committee, the developer shall, within seven days of the date of the
meeting, inform the Commissioner of the fact and the Commissioner may – |
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(a) appoint a new date for the first meeting of the Body; or |
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(b)appoint a managing agent under subsection 25(1) to
maintain the common property of the building. |
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7. Duty of
Body to inform Commissioner of name of Body |
| (1) The Body shall inform and
register with the Commissioner the name of the Body within twenty-eight days
of the first meeting. |
| (2) The Commissioner may, upon an
application by the Body, issue a certificate certifying that the Body has
been duly constituted under this Act on the day specified in the
certificate. |
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(3) The constitution of the Body
under this Act shall not be affected in the event the first meeting is
subsequently invalidated, the provision of subsection 6(1) is not complied
with or a situation under subsection 6(7) occurs. |
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(a) to properly
maintain the common property and keep it in a state of good and serviceable
repair; |
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(b) to determine and
impose charges that are necessary for the repair and proper maintenance of
the common property; |
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(c) to insure and
keep insured the building to the replacement value of the building against
fire and such other risks as may be determined by the Body; |
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(d)
to apply insurance moneys received by the Body in respect of damage to the
building for the rebuilding and reinstatement of that building; |
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(e) to comply with any
notices or orders given or made by the local authority or any competent
public authority requiring the abatement of any nuisance on the common
property, or ordering repairs or other work to be done in respect of the
common property or other improvements to the property. |
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(f) to prepare
and maintain a register of all purchasers of the building; |
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(g) to ensure
that the Building Maintenance Fund is audited and to provide audited
financial statements for the information to the purchasers; |
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(h) to enforce
house rules for the proper maintenance and management of the building; and |
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(i) to do such
things as may be expedient or necessary for the proper maintenance and
management of the building. |
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(2) The powers of the Body shall include the following: |
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(a) to collect from purchasers maintenance and
management charges in proportion to the allocated share units of their
respective parcels; |
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(b) to authorize expenditure for the carrying
out of the maintenance and management of the common property; |
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(c) to recover from any purchaser any sum
expended by the Body in respect of that parcel in complying with any such
notices or orders as are referred to under paragraph (1)(e); |
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(d) to purchase, hire or otherwise acquire
movable or immovable property for use by the purchasers in connection with
their enjoyment of the common property; |
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(e) to arrange and secure the services of any
person or agent to undertake the maintenance and management of the common
property of the building; |
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(f) to make house rules for the proper
maintenance and management of the building; and |
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(g) to do all things reasonably necessary for
the performance of its duties under this Act. |
| (3) The Body shall be
deemed – |
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(a) for the purposes
affecting any insurance under paragraph (1)(c), to have an insurable
interest in the building equal to its replacement value or any value as
determined by the Body; and |
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(b) for the purposes of
effecting any insurance under paragraph (1)(d), to have an insurable
interest in the subject matter of the insurance. |
| (4) Where the Body incurs any expenditure or performs any
repair, work or act that it is required or authorized by or under this Part
to do or consequent upon the service on the Body of any notice or order by
any local authority or under any other written law, and the expenditure or
the repairs, work or act were or was rendered necessary by reason of any
willful or negligent act or omission on the part of, or breach of any
provision of its by-laws by, any purchaser or his tenant, lessess, licensee
or invitee, the amount of that expenditure expended by the Body in
performing the repairs, work or act shall be recoverable by the Body from
that purchaser. |
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(5) The generality of this
section shall not be prejudiced by any other provision in this Part
conferring a power or imposing a duty on the Body. |
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9. Annual General Meeting |
| (1) An annual general meeting of
the Body shall be held to consider the Building Maintenance Fund and to
transact such other business as may arise. |
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(2) The annual general meeting
shall be held once in each year and not more than fifteen months shall
elapse between the date of one annual general meeting and the next. |
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(a) shall convene an extraordinary
general meeting upon a requisition in writing made by the purchasers who are
together entitled to at least one-quarter of the total number of parcels
registered under section 12; |
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(b) shall convene an extraordinary
general meeting upon receiving a direction in writing from the Commissioner
for the transaction of such business as the Commissioner may direct; and |
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(c) may convene an extraordinary
general meeting on such other occasion as the Body thinks fit. |
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(3) Where the Commissioner is satisfied that the Body has not
been properly constituted, he may authorize in writing any purchaser to
convene an extraordinary general meeting for such purposes as may be
approved by the Commissioner. |
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11. Joint Management Committee |
| (1) The Body shall elect a Joint
Management Committee who subject to any restriction imposed or direction
given by the Body at a general meeting, may perform the Body’s duties and
conduct the Body’s business on its behalf, and may for that purpose exercise
any of the Body’s powers. |
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(2) The Committee shall consist of the developer and not less
than five and not more than twelve purchasers, who shall be elected at the
annual general meeting of the Body and shall hold office for a period not
exceeding three years or until the dissolution of the Body in accordance
with section 15, whichever is earlier. |
| (3) From among the members of the
Committee elected under subsection (2), there shall be elected a chairman, a
secretary and a treasurer. |
| (4) The provisions of the First
Schedule shall apply to the Committee. |
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(5) The State Authority may amend
the First Schedule by order published in the Gazette. |
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12. Register of purchasers
The developer or Body, as the case may be, shall maintain a register in such
form as the Commissioner may require, containing the following particulars
in respect of all the parcels in the development area: |
| (a) the allocated share unit to be assigned to
each parcel filed with the Commissioner; |
| (b) the floor area of the parcel referred to in
paragraph (a); |
| (c) the name and address of every purchaser and
if the purchaser is not a resident of Malaysia, the address in Malaysia at
which notices may be served on the purchaser; |
| (d) the name and address of the
solicitor acting for the purchaser in the sale and purchase of the parcel;
and |
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(e) the number of parcels which are unsold. |
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13. Right of purchaser
On application by or on behalf of a person who is a purchaser, or by or on
behalf of a person who is a prospective purchaser, the Body shall issue to
that person a certificate certifying – |
| (a) the amount of charges payable by a purchaser; |
| (b) the time and manner of payment of the amount of charges; |
| (c) the extent, if any, to which the charges have been
paid; |
| (d) the amount, if any, then recoverable by the Body in
respect of the parcel; |
| (e) the sum standing to the credit of the Building Maintenance
Fund and the sum in the account that has been committed or reserved for
expenses already incurred by the Body; |
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(f) the nature of the repairs and estimated expenditure, if
any, where the Body has incurred any expenditure or is about to perform any
repairs, work or act in respect of which a liability is likely to be
incurred by the purchaser of the parcel under any provision of this Act; and |
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(g) the amount paid and to be paid by
the developer for unsold parcels. |
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(a) keep a record of the house-rules in force from
time to time; |
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(b) on receipt of an application in writing made by a
purchaser or by a person duly authorized to apply on behalf of a purchaser
for a copy of the house rules in force, supply to such purchaser or the
person duly authorized by him, at a reasonable cost, a copy of the house
rules; and |
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(c) on the application of any person who satisfies the Body
that he has a proper interest in so applying, make such house rules
available for inspection. |
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(2) A copy of any house rules made by the Body and any
amendment of any house rules for the time being in force, certified as a
true copy under the seal of the Body, shall be lodged by the Body with the
Commissioner within fourteen days of the passing of the resolution by the
Body approving the house rules. |
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15. Dissolution of Joint
Management Body |
| (1) The Body shall be deemed to be dissolved three months from
the date of the first meeting of the management corporation for the
building. |
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(2) The Body shall – |
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(a) not later than one month from the date of the first
meeting of the management corporation, hand over to the management
corporation – |
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(i) the house rules; |
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(ii) the audited accounts of the
Building Maintenance Fund or, if such accounts have not been audited, the
unaudited accounts; |
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(iii) all the assets and liabilities of the Body;
and |
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(iv) records related to and necessary for the
maintenance of the building and its common property; and |
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(b) if only unaudited accounts have been handed over under
subparagraph (a)(ii); not later than three months from the date of the first
meeting of the management corporation, hand over to the management
corporation the audited accounts of the Body. |
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(3) If the Body fails to comply with this section, every
member of the Body commits an offence and shall on conviction be liable to a
fine not exceeding ten thousand ringgit and shall also be liable to a
further fine not exceeding one thousand ringgit for every day during which
the offence is continued after conviction. |
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(4)Where an offence under this section has been committed by
the Body, every member of the Body shall be deemed to have also committed
that offence unless, having regard to all the circumstances, he proves – |
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(a) that the offence was committed
without his knowledge, consent or connivance; and |
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(b) that he had taken all
reasonable precautions and had exercised due diligence to prevent the
commission of the offence. |
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Part IV – Building
Maintenance Account
16. Developer to open and maintain the Building Maintenance Account |
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(1) The developer of any building or land intended for
subdivision into parcels shall, before the delivery of vacant possession,
open, in respect of the development area on which the building is erected, a
Building Maintenance Account in the name of the development area with a bank
or financial institution licenses under the Banking and Financial
Institutions Act 1989 [Act 372] or regulated by the Central Bank under any
other written law. |
| (2) One Building
Maintenance Account shall be opened for each development area. |
| (3) Each Building
Maintenance Account shall be maintained by the developer until the
establishment of the Body for the building. |
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(4) The developer shall not open and maintain a Building
Maintenance Account together with any other building outside the development
area. |
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(5) Where any dispute arises in respect of a Building
Maintenance Account, the Commissioner may resolve the dispute as he deems
fit and just. |
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(a) all charges received by him from the purchasers in the
development area for the maintenance and management of the common property
of the development area; and |
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(b) all charges for the maintenance and management of the
common property to be paid by the developer in respect of those parcels in
the development area which have not been sold, being a sum equivalent to the
maintenance charges payable by the purchasers to the developer has the
parcels been sold. |
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(2) The developer shall – |
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(a) cause proper accounts of the
Building Maintenance Account to be kept in respect of all sums of money
received from and all payments made out of the Building Maintenance Account. |
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(b) appoint a professional auditor
to audit the Building Maintenance Account annually or in the case of where
money is to be transferred under subsection 19(3), one month before the date
of actual transfer. |
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(c) file with the Commissioner a
copy of the statement of accounts certified by the auditors and a copy of
the auditor’s report within fourteen days of the accounts being audited; and |
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(d) permit the Commissioner or any person authorized by the
Commissioner in writing to act on its behalf full and free access to the
accounting and other records of the Building Maintenance Account and to make
copies or extracts of those accounting or other records. |
| (3) The Commissioner shall have the
right to appoint an approved company auditor to investigate the books,
account and transactions of a Building Maintenance Account and the developer
shall pay all the expenses incurred for that purpose. |
| (4) The developer shall, upon the
completion of a building and until the Body is established, insure and keep
insured the building against any loss of the building and against fire and
other risks. |
| (5) The developer shall furnish to
the Commissioner or any public authority as may be specified by the Minister
such returns, reports, accounts and information with respect to its
activities and finances as the Commissioner or Minister may, from time to
time, require or direct. |
| (6) The returns, reports, accounts
and information shall be in such form as the Commissioner or Minister may,
from time to time, specify. |
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(7) A developer who fails to comply
with this section commits an offence and shall on conviction be liable to a
fine of not less than ten thousand ringgit but not more more than one
hundred thousand ringgit and shall also be liable to a fine not exceeding
one thousand ringgit for every day during which the offence is continued
after conviction. |
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(a) the developer enters into any composition or arrangement
with his creditors or has a receiving order or an adjudication order made
against him; or |
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(b) the developer; being a company, goes into
voluntary or compulsory liquidation. |
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(2) Upon the happening of any of the events referred to in
subsection (1) – |
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(a) the moneys in the
Building Maintenance Account shall vest in the administrator, the official
receiver, trustee in bankruptcy or liquidator, as the case may be, to be
applied for all or any of the purposes for which monies in the Building
Maintenance Account are authorized to be applied by this Act; and |
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(b) any money remaining in
the Building Maintenance Account, after all payments have been made pursuant
to paragraph (a), shall be held by the administrator. |
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(3) Any balance of money referred to in paragraph (2)(b)
shall be transferred into an account in the name of the Body. |
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20. Prohibition on
collection of charges |
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(1) No person shall at any time collect any charges from any
purchaser for the maintenance or management of any building or land intended
for subdivision into parcels and common property unless – |
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(a) a Building Maintenance Account has
been opened in the name of the development area; and |
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(b) vacant possession of the parcel purchased by the
purchaser has been delivered to the purchaser. |
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(2) Notwithstanding subsection (1), any developer of a
development area which has been completed on or before the commencement of
this Act, immediately before that date, been collecting charges for the
maintenance and management of a building from the purchasers comprised in
the development area may continue to do so until the Body has been established. |
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(3) Any person who contravenes this
section commits an offence and shall on conviction be liable to a fine not
exceeding one hundred thousand ringgit or to imprisonment for a term not
exceeding one year or to both. |
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21. Duty of developer in respect of charges for building completed before
commencement of this Part. |
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(1) Any developer of a development area which has been
completed before or on the commencement of this act but for which a
management corporation has not been established shall, not later than six
months following the commencement of this Act submit to the Commissioner an
account audited by a professional auditor of all moneys collected and
expended for the purposes of maintenance and management of the common
property and sinking fund, if prior to the commencement of this Act. |
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(2) The Commissioner may, upon request by the developer of a
development area, extend the period stated in subsection (1) for another
period not exceeding three months. |
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(3) Any person who contravenes this section commits an
offence and shall on conviction be liable to a fine of not less than ten
thousand ringgit but not more than one hundred thousand ringgit or to
imprisonment for a term not exceeding one year or to both. |
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Part V –
Building Management Fund and Sinking Fund
22. Building Maintenance Fund |
| (1) Any surplus moneys in the
Building Management Account after payment of all the expenditure which have
been properly charged to the Building Maintenance Account shall be
transferred to the Body by the developer not later than one month from the
date of establishment of the Body, and such moneys shall constitute a fund
to be known as the “Building Maintenance fund” which shall be maintained by
the Body. |
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(2) The Building Maintenance Fund
shall be administered and controlled by the Body and shall consist of – |
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(a) all or any part of the
maintenance charges for the building imposed by or payable to the Body under
this Act; |
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(b) all moneys derived from the
sale, disposal, lease or hire of, or any other dealing with any property,
mortgages, charges or debentures vested in or acquired by the Body. |
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(c) all other moneys and property which may in any manner
become payable to or vested in the Body in respect of any matter incidental
to its functions and power; and |
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(d) all other moneys lawfully received by the
Body, including interest, donation and trust. |
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(3) The Building Maintenance Fund
shall be used solely for the purpose of – |
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(a) ensuring that the common
property of the building is in a state of good repair and maintaining the
common property; |
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(b) paying for the expenses incurred in providing cleaning
services for the common property, security services and amenities for the
occupiers of the building; |
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(c) paying any premiums for the insurance of the building
against damage by fire and other risks; |
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(d) carrying out periodical
inspection on the safety of the building in the manner as specified in and
under the Street, Drainage and Building Act 1974 [Act 133]; |
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(e) cleaning premises including white-washing, colour washing
or painting of the common property; |
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(f) carrying out inspection of all electrical wiring systems
of the common property and replacing any faulty wiring systems, if any; |
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(g) carrying out inspection,
maintenance and repair of the main water tanks; |
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(h) paying rent and rates, if any; |
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(i) paying any fee incurred for the
auditing of the Building Maintenance Fund; |
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(j) paying all charges reasonably
incurred for the administration of the Building Maintenance Fund as may be
determined by the Commissioner; |
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(k) paying the remuneration or fees of
the managing agent appointed under section 25; |
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(l) paying any expenditure lawfully
incurred by the Body; |
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(m) paying for the allowances and
other expenses of the members of the Body and members of the Committee
according to such rates as may be approved by the Commissioner; |
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(n) paying any expenses, costs or expenditure in relation to
the procurement of goods or services, including but not limited to the
engagement of consultants, legal fees or costs and other fees and costs,
properly incurred or accepted by the Body in the performance of the Body’s
functions and the exercise of its power under this Act; |
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(o) purchasing or hiring equipment,
machinery and any other material, acquiring land any assets, and erecting
buildings, and carrying out any other works and undertakings in the
performances of the Body’s functions and the exercise of its powers under
this Act. |
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(p) paying any expenses for carrying
into effect the provisions of this Act; and |
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(q) doing generally all things
necessary for the maintenance and management of the common property. |
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(4) For the purpose of this section, if the Body has not been
established, references to the “Body” shall be construed as references to
the “developer”. |
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Back to the Top |
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23. Purchaser to pay
maintenance charges |
| (1) The purchaser
shall pay the charges for the maintenance and management of the common
property. |
| (2) The apportionment
of the charges to be paid by the purchasers shall be determined by the Body
in proportion to the allocated share units. |
| (3) Any written notice
served on the purchaser requesting for the payment of the charges shall be
supported by a statement of the charges, issued by the developer or Body, as
the case may be, stating in detail the categories of expenditure in respect
of which the charges are to be paid. |
| (4) The purchaser
shall, within fourteen days of receiving a notice under subsection (3), pay
the charges requested for. |
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(5) If the charges remain unpaid by the purchaser at the
expiration of the period of fourteen days specified in subsection (4), the
purchaser shall pay interest at the rate to be determined by the Body under
paragraph 6(1)(d) but such interest shall not exceed 10 percent per annum. |
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24.
Joint Management Body to open and maintain sinking fund
The Body shall open and maintain a sinking fund into which shall be paid
such portion of the contribution to the Building Maintenance Fund as may,
from time to time, be determined by the Body for the purposes of meeting its
actual or expected liabilities in respect of the following matters; |
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(a) the painting or repainting of any part of
the common property; |
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(b) the acquisition of any movable property for
use in relation to the common property; |
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(c) the renewal or replacement of any fixture or
fitting comprised in any common property; or |
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(d) any other expenditure as the Committee deems
necessary. |
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(a) a situation under subsection
6(7) occurs; or |
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(b) the Commissioner is satisfied,
after due inquiry has been carried out by him or a person appointed by him,
that the maintenance and management of a building is not carried out
satisfactorily by the developer or the Body, as the case may be, |
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the Commissioner
may appoint, by a written notification, one or more persons to act as
managing agent to maintain and manage the building for a period to be
specified by the Commissioner. |
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(2) A managing agent appointed under this Part shall enter
into a management agreement with the developer or Body to carry out the
duties and powers of the developer or Body as provided for under this Act. |
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(3) The managing agent shall be entitled to be paid such
remuneration or fees as may be agreed upon between the managing agent and
the developer or Body with the concurrence of the Commissioner, and such
remuneration or fees, shall be charged to the Building Maintenance Account
or Building Maintenance Fund, as the case may be. |
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Back to the Top |
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26. Independence of managing
agent |
| (1) A person shall not be appointed as
a managing agent if the person has a professional or pecuniary interest in
any building or land intended for subdivision into parcels. |
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(2) A person is regarded as having a
professional or pecuniary interest in any building or land if – |
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(a) he has been responsible for the design or
construction of the building; |
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(b) he or any of his nominees,
officers or employees has any material interest in the building or land or
any part of the building or land; |
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(c) he is a partner or is in the
employment of a person who has any material interest in the building or land
or any part of the building or land; or |
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(d) he or his family holds any
interest in the building or land or part of the building or land whether
directly, as a trustee or otherwise. |
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27.
Managing agent to lodge bond
A person shall not act as managing agent unless he has lodged with the
Commissioner a bond in the form approved by the Commissioner and for the
specified amount given by a bank, finance company or insurer and which binds
the bank, finance company or insurer to make good any loss caused by the
managing agent as a result of his failure to account for monies received or
held by him. |
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28. Powers and duties of
managing agent |
| (1) Where a managing agent has been appointed under section
25, the managing agent shall have control over the moneys in the Building
Maintenance Account or Building Maintenance Fund. |
| (2) Subject to the general directions of the Commissioner,
the managing agent, appointed shall perform the duties and exercise the
powers with regard to the maintenance and management of the building as if
he was acting as the developer or the Body. |
| (3) It shall be the duty of the managing agent to pay all
moneys received by him in his capacity as managing agent into the Building
Maintenance Account or Building Maintenance Fund of that building within two
working days of receiving the moneys. |
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(4) As soon as practicable after his appointment, but in any
case not later than one month after his appointment, a managing agent shall
prepare and submit to the Commissioner a statement showing as at the date of
his appointment – |
| (a) |
the moneys standing to the credit of the Building
Maintenance Account or Building Management Fund; |
| (b) |
the amounts due and owing by the purchasers which are due
to be paid to the Building Maintenance Account or Building Management Fund; |
| (c) |
any income derived from the common property of the
building which is due to be paid to the Building Maintenance Account or
Building Maintenance Fund; |
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(d) |
any sum incurred for the maintenance and management of
the building, which is authorized to be paid out of the Building Maintenance
Account or Building Maintenance Fund; and which remains unpaid. |
| (5) A managing agent who contravenes subsection (3) or (4)
commits an offence and shall on conviction be liable to a fine not exceeding
one hundred thousand ringgit or to imprisonment for a term not exceeding two
years or to both. |
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29. Developer not to be relieved of his obligation to carry out repairs,
etc.
The appointment of a managing agent shall not relieve the developer of his
obligation – |
| (a) towards the purchasers in his development area to carry
out repairs to the common property, to make good any defect, shrinkage or
other faults in the common property during the defects liability period; and |
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(b) to carry out repairs and varied and additional works to
ensure that the development is constructed in accordance with the
specifications and plans approved by the competent authority. |
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(a) not later than one month from such termination, prepare
and submit to the Commissioner the unaudited accounts of the Building
Maintenance Account or Building Maintenance Fund, as the case may be, and
hand over to the Commissioner a complete list of the assets and liabilities
of the Building Maintenance Fund or Building Maintenance Account and records
related to and necessary for the maintenance and management of the building;
and |
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(b) not later than three
months from such termination, submit to the Commissioner the audited
accounts of the Building Maintenance Fund or Building Maintenance Account. |
| (2) Any person who fails to comply
with subsection (1) commits an offence and shall on conviction be liable to
a fine not exceeding twenty thousand ringgit or to imprisonment for a term
not exceeding one month or to both. |
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(3) In the event of the termination of the management
agreement, the Commissioner may appoint another managing agent to maintain
and manage the building for a period to be specified by the Commissioner. |
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Back to the Top |
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Part VII – Deposit and
Recovery of Charges
31. Developer to pay deposit to rectify defects on common property |
| (1) The developer of a building shall deposit in cash or bank
guarantee with the Commissioner such sum as may be prescribed by the State
Authority for the purpose of carrying out any work to rectify any defects in
the common property of the development area after its completion. |
| (2) The deposit referred to in subsection (1) shall be paid
to the Commissioner upon the handing over of vacant possession. |
| (3) The Commissioner may use the deposit for the purpose of
carrying out any work which is necessary to rectify any defects in the
common property of the development area. |
| (4) Where the Commissioner has determined that the deposit is
insufficient for rectifying the defects to the common property, the
Commissioner may direct the developer to deposit within fourteen days such
further sums as the Commissioner may determine. |
| (5) any unexpended deposit shall be refunded to the developer
on the expiry of the defect liability period for the development area. |
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(6) Any developer who fails to comply with subsection (1)
commits an offence and shall on conviction be liable to a fine not exceeding
five thousand ringgit and shall also be liable to a further fine not
exceeding fifty ringgit for every day during which the offence is continued
after the conviction. |
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32. Recovery of
charges by Joint Management Body |
| (1) Where maintenance charges become recoverable by the Body
from a purchaser by virtue of section 23, the Body may serve on the
purchaser a written notice requesting payment of the sum due within such
period, which shall not be less than fourteen days from the date of service
of the notice, as may be specified in the notice. |
| (2) If at the end of the period specified in the notice
under subsection (1) the sum or part of the sum due remains unpaid, the Body
may serve on the purchaser a further written notice demanding payment of the
sum due within fourteen days from the date of service of the notice; and if
upon expiry of the said period, the sum due still remains unpaid, the Body
may institute proceedings in any court of competent jurisdiction for the
recovery of the said sum or, in addition or as an alternative to recovery
under this section, resort to recovery under section 33. |
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(3) Where a managing agent has been appointed by the
Commissioner under section 25 to maintain and manage a development area, a
notice sent by the managing agent shall be deemed to have been sent by the
developer or Body. |
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Back to the Top |
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33. Recovery of arrears of
charges |
| (1) Where the amount of charges payable is in arrears for six
months, the Commissioner may, at the request of the developers or Body,
issue a warrant of attachment in Form B of the Second Schedule authorizing
the attachment of any movable property belonging to the purchaser which may
be found in the parcel or elsewhere within the local authority area. |
| (2) No warrant of attachment shall be issued by the
Commissioner unless the Commissioner has served a notice in Form A of the
Second Schedule on the purchaser or any one of the purchasers of the parcel,
if more than one, requesting him to pay the arrears within fourteen days of
the service by posting or delivery. |
| (3) The warrant shall be executed by an officer from the
office of the Commissioner who shall be make an inventory of the property
attached and at the same time give notice in Form C of the Second Schedule
to the person who at the time of attachment appears to be the person in
possession of the property. |
| (4) Such officer may, in the daytime, effect forcible entry
into any parcel or building or any part of the parcel or building for the
purpose of effecting the attachment. |
| (5) Unless the arrears and the
collection charges are paid within seven days of the attachment of the
property, the property attached shall be sold by public auction. |
| (6) Where any amount is recovered by
the Commissioner under this section, the Commissioner may deduct from such
amount collection charges of such amount as may be prescribed by the
Minister, with the concurrence of the State Authority. |
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(7) Any amount received by the
Commissioner, after deduction of the collection charges, shall be deposited
into the Building Maintenance Fund as soon as practicable. |
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(8) Any surplus, after the deduction
of any amount by the Commissioner under subsection (6), shall be paid to the
person who, at the time of the attachment was or appeared to be in
possession of the property. |
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34.
Failure or refusal to pay charges
Any person who, without any reasonable excuse, fails or refuses to pay
maintenance and management charges commits an offence and shall on
conviction be liable to a fine not exceeding five thousand ringgit and shall
also be liable to a further fine not exceeding fifty ringgit for every day
during which the offence is continued after the conviction. |
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Back to the Top |
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Part VIII – Miscellaneous
35. Representation in
civil proceedings
Notwithstanding any other written law – |
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(a) in any civil proceedings by or
against the Body; or |
| (b) in any other civil proceedings in which the Body is
required or permitted by the court to be represented, or to be heard, or is
otherwise entitled to be represented or to be heard, any person authorized
by the Body for that purpose may, on behalf of the Body, institute such
proceedings or appear in such proceedings and may make all appearances and
applications and do all acts in respect of the proceedings on behalf of the
Body. |
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36. Liability of directors,
etc.
Where an offence under this Act or any regulations made under this Act has
been committed by a body corporate, any person who, at the time of the
commission of the offence was a director, manager, secretary or other
similar officer of the body corporate or was purporting to act in such
capacity shall, as well as such body corporate, be deemed to have committed
that offence unless he proves that the offence was committed without his
knowledge or connivance or that he took all reasonable precautions or that
he had exercised due diligence to prevent the commission of the offence.
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37. Service of notice or order
Any notice or order required to be served on any person under this Act
may be served and shall be deemed to have been served on that person by
serving a copy of such notice or order— |
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(a) personally;
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| (b) by registered post
addressed to the last known address of business, parcel or residence of the
person to be served; or |
| (c) by attaching the notice or
order at a prominent part of the last known address of business, parcel or
residence of the person to be served. |
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38. Power of entry
(1) The
Commissioner or any authorized person may, at all reasonable times, after
notice has been given, enter, any building, land or premises for the purpose
of— |
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(a) carrying out an inspection or
investigation to determine whether any offence under this Act has been
committed and may seize under this Act any books, accounts or
documents; and |
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(b) executing any work required to be
executed by the local authority in respect of which a notice has been issued
under this Act and there has been a default in complying with that notice.
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(2) No building or premises
which are not vacant shall be entered under this section unless the occupier
or a representative of the occupier is present during the entry.
(3) No private dwelling shall be entered by virtue of this section except
with the consent of the purchaser or after giving twenty-four hours notice
to the occupier.
(4) Notwithstanding subsections (1), (2) and (3), the Commissioner or any
authorized person may, at all reasonable times, enter any building, land or
premises for the purpose of executing any urgent repair or work to the
building, land or premises.(5) Any person who assaults, obstructs,
hinders or delays the Commissioner or any authorized person in effecting any
entry which he is entitled to effect under this Act, or in the execution of
any duty imposed or power conferred by this Act commits an offence and
shall, on conviction, be liable to a fine not exceeding
five hundred ringgit or to imprisonment for a term not exceeding one month
or to both.
(6) For the purposes of this section and section 39, “authorized person”
means any person authorized in writing by the Commissioner. |
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39. Examination of
person acquainted with case |
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(1) The
Commissioner or authorized person, when exercising the power of
investigation under section 38, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.
(2) The person examined by the Commissioner or any authorized person shall
be legally bound to answer all questions relating to the case put to him by
the Commissioner or authorized person, but such person may refuse to answer
any question the answer to which would have a tendency to expose him to a
criminal charge or penalty or forfeiture.
(3) A person making a statement under this section shall be legally bound to
state the truth, whether or not such statement is made wholly or partly in
answer to questions.
(4) The Commissioner or authorized person examining a person under this
section shall first inform that person of the provisions of subsections (2)
and (3).
(5) A statement made by a person under this section shall, whenever
possible, be reduced into writing and signed by the person making it or
affixed with his thumb print after it has been read to him in the language
in which he made it and he has been given an opportunity to make any
corrections he may wish. |
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40. Power to compound |
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(1) The
Commissioner may compound any offence against this Act or any regulations
made under this Act by collecting from the person reasonably suspected of
having committed the offence a sum of money not exceeding the maximum fine
prescribed for that offence.
(2) Where an offence has been compounded under subsection (1), no
prosecution shall thereafter be instituted in respect of the compounded
offence.
(3) Any moneys paid to the Commissioner under this section shall be paid
into and form part of the Consolidated Fund. |
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41. Appeals to the State
Authority |
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Any person or body aggrieved by
any act or decision of the Commissioner under this Act may, within fourteen
days after having been notified of the action or decision, appeal against
that action or decision to the State Authority; and the decision of the
State Authority shall be final and shall not be questioned in any court.
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42.
Regulations |
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(1) The
Minister may, with the concurrence of the State Authority, make such
regulations as may be expedient or necessary for the better carrying out of
the provisions of this Act. |
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(2) Without prejudice to the
generality of subsection (1), regulations may be made for all or any of the
following purposes: |
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(a) prescribing any matter which is required under this
Act to be prescribed;
(b) providing for proper standards of maintenance and management in respect
of buildings and common property;
(c) providing for the payment of deposit by any person erecting or
constructing a building to ensure its proper maintenance and management and
for the forfeiture of the deposit;
(d) providing for collection charges by the Commissioner;
(e) prescribing offences which may be compounded and the forms to be used in
and the method and the procedure for compounding such offences;
(f) providing generally for the performance of the functions, the exercise
of the powers and the discharge of the duties of the Body under the
provisions of this Act. |
| (3) Regulations under this section— |
| |
(a) may provide for different provisions for different
types of buildings and common property; or
(b) may provide for any other matter which is expedient or necessary for the
purposes of this Act. |
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43.
Prosecution |
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No prosecution in
respect of an offence under this Act shall be instituted except by or with
the written consent of the Public Prosecutor. |
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44.
Non-application of other written laws, contracts and deeds |
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On the coming
into operation of this Act, in a local authority area or part of a local
authority area or in any other area, the provisions of any written law,
contracts and deeds relating to the maintenance and management of buildings
and common property in as far as they are contrary to the provisions of this
Act shall cease to have effect within the local authority area or that other
area. |
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45. Contracting out prohibited |
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(1) The provisions
of this Act shall have effect notwithstanding any stipulation to the
contrary in any agreement, contract or arrangement entered into after the
commencement of this Act.
(2) No agreement, contract or arrangement, whether oral or wholly or partly
in writing, entered into after the commencement of this Act shall operate to
annul, vary or exclude any of the provisions of this Act. |
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46. Public Authorities
Protection Act 1948 |
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The Public
Authorities Protection Act 1948 [Act 198] shall apply to any action, suit,
prosecution or proceedings against the Commissioner or against any officer
or agent of the Commissioner in respect of any act, neglect or default done
or committed by him in good faith or any omission omitted by him in good
faith, in such capacity. |
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First Schedule
[Subsection 11(4) ] |
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1. Times and
places of meetings
(1) The Committee is to hold as many meetings as are necessary for the
places and times as the chairman may decide, but the chairman shall not
allow more than two months to lapse between meetings.
(2) The chairman shall call for a meeting if requested to do so in writing
by the Commissioner or by at least two members of the Committee.
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2.
Continuation of office
(1) A person shall continue to be a member of the Committee until that
person—
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(a) resigns;
(b) dies;
(c) becomes a bankrupt; or
(d) is no longer a purchaser. |
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(2) Where any vacancy occurs in the Committee, the remaining members shall
appoint another purchaser to be a member until the next annual general
meeting of the Body.
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3. Quorum
The chairman and at least half of the number of members of the Committee
shall form a quorum at any meeting of the Committee. |
4. Casting vote
If on any question to be determined by the Committee there is an equality
of votes, the chairman shall have a casting vote in addition to his
deliberative vote |
5. Committee may invite others to meetings
(1) The Committee may invite any person to attend any meeting or
deliberation of the Committee for the purpose of advising or assisting the
Committee on any matter under discussion, but any person so attending shall
have no right to vote at the meeting or deliberation.
(2) A person invited under subparagraph (1) shall be paid such allowances as
may be determined by the Body. |
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6. Resolutions of the Committee
A resolution is taken to have been passed at a meeting of the Committee if—
(a) all members of the Committee have been informed of the proposed
resolution in writing , or reasonable efforts have been made to inform all
members of the Committee of the proposed resolution; and
(b) the resolution in writing is signed by every member of the Committee
indicating agreement with the resolution, and in the absence of such
agreement by every member of the Committee, a meeting has to be held.
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7. Minutes
(1) The secretary of the Committee shall cause minutes of all their meetings
to be maintained and kept in a proper form.
(2) Minutes of meetings of the Committee, if duly signed, shall be
admissible in any legal proceedings as prima facie evidence of the facts
stated in them without further proof.
(3) Every meeting of the Committee in respect of the proceedings of which
minutes have been so made shall be deemed to have been duly convened and
held and all members at the meeting to have been duly qualified to act.
(4) A Committee shall cause copies of the minutes of all its meetings to be
submitted to the Commissioner as soon as practicable. |
8. Procedure
The Committee may regulate its own procedure. |
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9. Disclosure of interest
(1) A member of the Committee having any interest in any matter under
discussion by the Committee shall disclose to the Committee the facts of his
interest and its nature.
(2) A disclosure under subparagraph (1) shall be recorded in the minutes of
the Committee and, after the disclosure, the member having an interest in
the matter shall not take part nor be present in any deliberation or
decision of the Committee.
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10. Validity
of acts and proceedings
No act done or proceeding taken under this Act shall be questioned on the
ground of—
(a) any vacancy in the membership of, or any defect in the constitution of,
the Committee;
(b) contravention by any member of the Committee of the provisions of
paragraph 8; or
(c) any omission, defect or irregularity not affecting the merits of the
case. |
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11. Members to devote time to business of Committee
The members of the Committee shall devote such time to the business of the
Committee as is necessary to discharge their duties effectively. |
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