Set up Strata
Titles Board, urges Bar Council
20/07/2007 The Sun LAW & REALTY By Roger Tan
THE Bar Council calls on the Government to set up the Strata Titles Board
(Board) as soon as possible because it is long overdue.
Six years ago, Part IXA of the Strata Titles Act 1985 (the Act) was
inserted by the Strata Titles (Amendment) Act 2000 with the view of setting
up a Board in every State in West Malaysia.
The 2000 Amendment Act which came into force on Dec 1, 2000, provided that
members of the Board would be appointed by the State Authority, and only a
person qualified to be a lawyer under the Legal Profession Act 1976 would be
eligible for appointment as the President or a Deputy President of the
Board.
However, todate only Penang has set up the Board. Apparently, the reason the
other States have not set up the Board is due to financial constraints, for
example, in having to provide and maintain the premises, and pay the
allowances of the Board members. Then on April 12 this year, Part IXA was
amended by the Strata Titles (Amendment) Act 2007 to federalise the
appointment of members of the Board.
As a result of the Amendment Act 2007, the Federal Minister will now be the
person who appoints the President, Deputy Presidents and not more than 20
other members of the Board, and he may consult any relevant State Authority
before making such appointment.
The words may consult any relevant State Authority seem to imply that
there can still be a Board in every State. Further, section 81(1)(a)
provides that the power to make rules in relation to the fees to be paid in
respect of applications made to the Board and the remission of any such
fees, and the practice and procedure of the Board is still vested in the
State Authority.
In practice, the Board can only commence functioning after such rules have
been made and gazetted in that State. That said, once the rules are in
operation, there is nothing to prevent the Minister from setting up only one
Board for the entire West Malaysia based, for example, in Putrajaya but
Board members can travel and sit in any State from time to time so long as
in every sitting, the Board is constituted by two members sitting together
with either the President or a Deputy President of the Board as the
chairman.
Jurisdiction
The powers of the Board are as follows:
Revoke any amendment or addition of a new additional by-law or revive any
revoked additional by-law passed by the management corporation in a general
meeting.
Direct the management corporation to pay compensation to the parcel
proprietor adversely affected by the amendment, addition of revocation of an
additional bylaw. Such compensation is recoverable as a debt in the court.
Declare any additional by-law to be invalid if the management corporation
has made an additional by-law but it did not have the power to do so.
Invalidate any resolution of, or election held by, the persons present at
the general meeting if the Board considers that the Act has not been
complied with in relation to a meeting of the management corporation, or
refuse to invalidate any such resolution or election if the failure to
comply with the Act did not prejudicially affect any person, and that
compliance with the Act would not have resulted in a failure to pass the
resolution, or have affected the result of the election, as the case may be.
Order that no interest for late payment of a contribution shall be payable
or that the interest so payable be at a rate specified by the Board instead
of the rate determined by the management corporation which is unreasonable.
Nullify any resolution passed at a general meeting if the Board is
satisfied that a particular resolution would not have been passed at a
general meeting but for the fact that the applicant was improperly denied a
vote on the motion for the resolution, or he was not given due notice of the
item of business pursuant to which the resolution was passed provided the
application to the Board is made 28 days after the date of the meeting at
which the resolution was passed.
Vary any amount of insurance to be provided if it considers that the
amount for which the management corporation has insured the subdivided
building or land is not reasonable.
Order the settlement of a dispute, or the rectification of a complaint
with respect to any defects in a parcel, a subdivided building or land and
its common property or the liability of a parcel proprietor to bear the
costs of or any part thereof for any work carried out by a management
corporation in the exercise or performance of its powers, duties or
functions conferred or imposed by the Act and the by-laws in connection with
the subdivided building or land.
Order the management corporation to make or pursue insurance claim if the
Board considers that the management corporation has unreasonably refused to
make or pursue an insurance claim in respect of damage to the building or
land or any other property insured by the management corporation under the
Act.
Order the management corporation, managing agent, or any member of the
council to supply or make available the information to the applicant if the
Board considers that the management corporation, or managing agent for the
subdivided building or land, has wrongfully withheld from the applicant
information to which he is entitled under the Act.
Order the management corporation to consent to any proposal by a parcel
proprietor to effect alterations to the common property if the Board
considers that such consent has been unreasonably withheld by the management
corporation.
Make such ancillary or consequential provisions as the Board thinks fit
including costs to be paid by the applicant, a management corporation or any
person against whom the order is made or costs to be paid by a party for
making a frivolous application to the Board.
Order a management corporation or any member of its council, a managing
agent or any other person having registered interest in a parcel or an
occupier to do or refrain from doing a specified act with respect to a
subdivided building or land and the common property for the purpose of
securing compliance with an order under the Act.
Proceedings of Board
The proceedings of the Board will be open to the public and minutes of the
Board including a note of any oral evidence given before the Board shall be
kept by the President. The members of the Board shall be deemed to be public
servants within the meaning of the Penal Code.
Representation before the Board
An applicant may appear before the Board or may be represented by counsel. A
management corporation appearing before the Board may be represented by
counsel or a member of the council of the management corporation.
Witnesses
The Board may summon any person to attend before the Board to give evidence
and to produce books, documents or writings in his custody or control. A
person served with a summons who, without reasonable excuse, disobeys the
summons shall be guilty of an offence and shall be liable on conviction to a
fine not exceeding RM5,000 or to imprisonment for a term not exceeding six
months or to both.
A witness appearing before a Board shall have the same protection; and in
addition to the penalties provided by the Act, the same liabilities, as he
would have had if he had been a witness before a court.
Bar to actions
No action shall lie against any member of the Board in respect of anything
done or omitted to be done by him in good faith in the execution or
purported execution of his functions, powers and duties under the Act.
Why set up the Board
Hence, it is in the interest of parcel proprietors that the Board is set up
expeditiously, fortified by the following reasons:
it is a specialised tribunal to deal with disputes between parcel
proprietors and management corporation and among the parcel proprietors
themselves;
the procedure is supposed to be simple, and founding and maintaining an
action in the Board should not be a costly affair;
it is supposed to be a forum for speedy settlement of disputes as the law
requires the Board to make a finding or determination within six months from
the date it is constituted unless the matter involves complex issues.
it is an offence for any person who contravenes an order made by the Board
to do or refrain from doing a specified act and he shall be liable on
conviction to a fine not exceeding RM10,000 or imprisonment for a term not
exceeding two years or to both.
the decision of the Board is final and no appeal shall lie to the High
Court except on a point of law. Neither is there an automatic stay of
execution when notice of appeal is filed.
The writer is the Chairman of the Conveyancing Practice Committee, Bar
Council, Malaysia www.malaysianbar.org.my.
