Certificate of Fitness: Easy
to understand, difficult to Implement
10/2/1001 NST-PROP By Prof Salleh Buang
ESSENTIALLY the law relating to the issuance of certificates of fitness
for occupation of a building (CF) is not difficult to understand.
It should therefore be not too difficult to implement on
a uniform basis throughout the nation. That, at least, is the theory.
In practice, it is somewhat different and media reports
on the subject over the past several years would probably make up two big
tonnes if compiled.
The law is contained in the Uniform Building By-Laws 1984,
in subsidiary legislation made under section 133 of the Street, Drainage
and Building Act 1974.
Under by-law or rule 25, it is stated that a CF “shall
be given” when “the qualified persons” have certified (in FormE of the Second
Schedule, which is an application for the issuance of a CF) that:
they have supervised the erection of the building to
the best of their knowledge and belief, the building has been constructed
in accordance with these By-laws and any conditions imposed by the local
authority (In other words, it is in accordance with the Building and Structural
Plans): and they accent full responsibility for those portions which they
are respectively concerned with.
The term “qualified persons” mentioned here has been defined
in the By-Laws to mean “any architect, registered building draughtsman or
engineer.”
By-Law 25 goes on further to state that as a precondition
to the issuance of the CF, the local authority or an officer authorized
by it must have inspected the building and that “all essential services
including access roads, landscape, car parks, drains, sanitary, water and
electrical installation, fire lifts, fire hydrant and others where required,
sewerage and refuse disposal requirements have been provided.”
The law envisages that circumstances may arise in which
the developer or a building owner may wish to apply for a temporary CF.
This contingency is met by By-law 26(1) which states that
subject to the payment of such prescribed fees, the local authority “may”
after imposing a deposit either in cash or bank guarantee grant a ”temporary
certificate of fitness of occupation to a building for a period not exceeding
six months in cases where only minor deviations from the approved building
plans have been made and pending full compliance with the requirements of
the local authority.”
By-law 26(2) then goes on to state that if the “owner
or occupier of the building does not fully comply with the requirements
as imposed,” the local authority “may” make use of the deposit for the purpose
of complying with said requirements.
Besides temporary CF, there is also a provision for “partial
CF.” Under By-law 27, it is stated that the local authority “may in its
discretion” grant a CF for “any part of a building partially completed,”
subject to such conditions as it may choose to impose. A partial CF, however,
can be issued only if:
- an application for it has been made within the period
of construction;
- all essential services have been provided; and
- occupation of such part of the partially completed
building will not prejudice public health or safety.
Once issued, a partial CF remains in force until the whole
building has been completed and a CF is issued for it.
To underscore the necessity of having a CF before a building
can be occupied, By-law 28 makes it an offence for any person to occupy
any building without a CF. Such misconduct will expose the occupier to criminal
prosecution under the 1974 Act.
Last November, the local media reported the Prime Minister
Datuk Seri Dr Mahathir Mohamad’s concern that some local authorities in
the country had failed to adhere to the Certificate of Fitness for Occupation
Guidelines which had been agreed to by the Cabinet and the State Governments
in 1995.
According to the Housing and Local Government Minister,
Datuk Seri Ong Ka Ting, the guidelines only stipulate “seven technical factors”
which local authorities must be concerned with when considering applications
for CF. However, he said some local authorities were imposing non-technical
requirements as well, such as requiring developers to contribute funds to
build additional roads and drainage.
Ong said this practise had to stop and his ministry would
be issuing reminders to that effect soon.
The problem is, according to what I am told, some local
authorities regard themselves as sovereigns in their own little kingdom
and pay little heed to what the Federal Cabinet or the Minister has to say.
A question I was recently asked is whether past practices
by these “independent thinking” local authorities will continue in the year
2001 and beyond. I am still searching for the answer.
(Prof Salleh welcomes feedback via salehbuang@hot.mail.com)
