The lure of ‘Privatopia’
15/10/2005
NST-PROP
By Salleh Buang
There is a growing body of literature on gated communities, not only abroad
but also locally. PropertyTimes has focused on this issue several times in
the past, from the perspectives of both the law - which is still
significantly missing - and practice, which is uncertain and far from being
uniform.
A lot has been said about the rationale for such projects. When developers
are asked why they undertake gated-and-guarded developments despite the
absence of a specific law, the inevitable answer is, “Because there is a
demand for them”. When the governing law is missing, caveat emptor is the
rule of the day.
But do purchasers of properties in gated communities really know the risk
they are facing - now and in the distant future? Gurjit Singh’s excellent
two-page spread titled “Up close and personal with gated and guarded
communities” (PropertyTimes, July 30, 2005) is a must read for intending
purchasers of such properties.
This is not to say that purchasers will be fully protected if and when a
specific “Gated Community Act” is passed by Parliament. A good case in point
is the Housing Developers (Control & Licensing) Act 1966, which was recently
overhauled.
Despite its stated legislative intent to protect house buyers, there are
legions of victimised purchasers throughout the country. And judging from
media reports, the number of cases of abandoned housing projects and cheated
purchasers continue to grow.
Friends tell me that if and when a gated community law is passed here, it
will not assume that name. Instead it will be in the form of amendments to
the Strata Titles Act 1985 - but we will have to wait until the first
quarter of next year to find out if my information is correct.
Gated communities have different names in different jurisdictions. In
certain places, they are called “common interest communities”, elsewhere
they are called “common interest developments”. Despite the slight
difference in names, they share the same conceptual approach: Each community
has to rely on a pre-determined set of covenants, conditions and
restrictions.
These provisions, usually long-winded and heavy with legal jargon, which
even lawyers may find difficulty in understanding, will govern and control
land use, design decisions, services and so on, but more importantly, the
social conduct of the property owners.
In essence, each community will own (or intends to own, if the law of the
land permits), operate and manage the residential property within its walled
and gated boundary, including open space, parking, recreational facilities
and streets. In plain language, it wants to create its own world, separate
and distinct from the rest of the country beyond the walls of the community.
Commentators called this phenomenon “the privatisation of public space”.
Others simply call it “private utopia” or “privatopia”.
Is this objective achievable in the Malaysian context, as the law stands
today? If so, is it socially desirable or permissible?
I understand that in the United States, local governments welcome the
emergence of gated communities because these projects privatise
infrastructure and reduce public costs. Residents of such communities
welcome these projects because they are now able to control their
neighbourhood through compliance and enforcement mechanisms of the
covenants, conditions and restrictions. Overall, there are also better
infrastructure options, recreational amenities and community services.
Financially strapped local authorities in Malaysia might find this double
feature of “privatised infrastructure and reduction of public costs” enough
reason to approve the development of more such gated communities. They can
reduce their annual expenses on such things as street building and
maintenance, garbage collection and other services.
However, these benefits to the local authorities come at a heavy price -
loss of governance. In life, as always, there is no such thing as a free
lunch.
Chris Webster, professor of Urban Planning at the University of Wales in the
United Kingdom, said the emergence of gated communities brings about “the
re-engineering of the public realm”.
The traditionally bipolar “private-public realm”, he said, has to be
re-interpreted and seen afresh because of the rise of a third category,
called “the club realm”. Residents of a gated community are akin to members
of an elite club.
A gated community is essentially a “proprietary community”. It is a
privately owned and privately governed estate in which the residents/owners
share certain communal facilities for which they have to continuously pay
various amounts of charges and fees.
There are three kinds of such proprietary communities among us today -
commercial, retail and residential. Commercial properties and shopping malls
have been around for decades while comparatively speaking, private
residential estates appeared recently.
Local authorities have long accepted “the malled private high street”.
Within these malls, communal infrastructure is supplied and regulated by
private companies on the basis of payments made by retailers and recaptured
ultimately from customers. The mall is the prototype of a remarkable example
of urban re-engineering.
This is now replicated, with modifications, in privatised residential
estates. The growing interest in such lifestyle communities clearly shows
that they are here to stay. Even Jitra in Kedah has not been spared, for a
gated-and-guarded community is in the making in the town.
That being so, lawmakers, private enterprises, town planners and local
authorities need to sit together and think beyond their traditional
parameters, so that when the law is in place, everybody benefits and nobody
becomes a victim.
The sooner a governing law is in place, the better, since past experience
tells us that in a free and unrestricted caveat emptor world, the general
public normally becomes the victim.
Salleh Buang is senior advisor of a company specialising in competitive
intelligence. He is also active in training and public speaking and can be
reached at sallehbuang@hotmail.com.
