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Management Corporation vs High Rise Residents
8 January 2007 - 9:33pm
Monday January 8, 2007(Star)
Condo owners versus management firms
By K.W. MAK
Condominiums are a statement of luxury, but behind the facade, residents complain of the lack of services from their management companies (MCs) while MCs complain that the residents who refuse to pay management fees are the ones preventing such services from being provided.
This “chicken and egg” scenario is causing a lot of dissent among condominium property owners, so much so that a group of such affected owners decided to form the Condominium, Apartment and High-rise Committee (CAHC) to champion the rights of condominium owners.
There are no quick fixes to the problems, however, as residents who got together to fight their issues discover numerous hurdles and obstacles before them.
“There is a lack of transparency in the way things are done presently and residents are tired of being taken for a ride,” said CAHC pro tem chairman Tengku Nazaruddin Zainuddin.
Arguments between residents and MCs are often the result of money matters. Residents are already paying a premium on their service charges and when such services are not up to expectations, complaints would ensue.
Most MCs do not make the matter any easier to resolve because they do not allow the management accounts and the sinking fund accounts to be viewed, citing excuses that the accounts could not be shown.
“Don’t let them cheat you. Withholding such accounts from residents is a violation of the Housing and Development (Control and Licensing) Act 1966 that many MCs and condominium owners themselves are not aware of,” said CAHC pro tem assistant chairman Khong Chee Seng.
Section 19 of the Act states that the developer shall provide the purchaser with a copy of the Annual Audited Accounts for the expenses incurred for the provision of the said services.
Section 20 (sub-clauses 3 and 4) meanwhile provides for the Sinking Fund accounts to be made available to the purchaser.
CAHC through the residents associations has used this Act to apply for the accounts from two MCs of condominiums located in Petaling Jaya and Klang. However, they have yet to provide a copy to owners.
Part of the reason MCs do not want to disclose their accounts is the fact that some of them charge management fees illegally.
Prior to the acquisition of the strata title, the developer is either supposed to manage the condominium or outsource the management to another person or corporation.
“Any person who undertakes property management practice is required by law to register with the Board of Valuers, Appraisers and Estate Agents,” said Board of Valuers, Appraisers and Estate Agents registrar R. Mahaletchumi in reply to a query on management fee charges.
“Nevertheless, if the condominium concerned has not been issued with strata titles, then the developer may manage the condo himself, provided he does not charge property management fees.”
The right to charge such fees lies with those registered with the Board, as stated in Section 21 of the Valuers, Appraisers and Estate Agents Act 1981.
Developers who outsource the management to a third party must ensure that the person or company is registered with the Board.
Monday January 8, 2007
Strong-armed tactics used to bully residents
Condominium, Apartment and High-rise Committee (CAHC) pro tem assistant chairman Khong Chee Seng said there are many stories of management committees (MCs) using strong-armed tactics to bully residents into paying up the management fees.
One of the tactics employed is the clamping of water meters – a penalty which some MCs have included in the in-house rules and regulations for not paying management fees.
What many MCs do not take into account, however, is that Section 35 of the Strata Title Act 1985 specifically states that condo residents have the right to support, service and shelter, which includes access to water, and that any attempt to clamp water meters is in violation of the Act.
CAHC is trying to get around this deadlock by getting the Selangor state government to legislate a law forcing MCs to hand over the water meters to Syarikat Bekalan Air Selangor (Syabas).
Syabas is willing to let condominium dwellers pay domestic rates, but they must first control the meters, and they cannot take control of it presently due to the ambiguity in the law on water meters governing joint-ownership properties like condominiums.
Syabas has already submitted the proposal to the state government and it would take some three months for the state government to implement, if it agrees to such a suggestion.
Other tactics include lawyers’ letters with threats of lawsuits.
Khong himself has been slapped with several lawsuits amounting to RM5mil for fighting on behalf of condominium residents.
But residents are not the only victims here. Bungah Raya Management Corporation secretary Somasundaram Venkates-waran said from his experience, MCs use water clamping to enforce payment of arrears by defaulters.
“Though this is certainly not a fair thing to do (access to drinking water is a basic human right), it has been found to be a practical, cost-effective and quick recovery method,” said Venkateswaran.
“Legal recovery procedures are expensive and time-consuming. MCs may have to wait a long time to obtain judgment from our courts, all the more so with our appellate courts system.
“In the meantime, core services including corridor and car park lighting and lift operations have to be disrupted or even stopped altogether due to the lack of collections from owners. This will obviously anger owners who are good paymasters who may also stop payment until services are restored. It is a ‘chicken and egg’ situation.”
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Management Corporation vs High Rise Residents
INDIVIDUAL METERS vs BULK METERS
Schedule H of the Housing Act stipulated
19. Water, electricity, gas piping, telephone trunking stipulated:
(2) The Purchaser shall be liable for and shall pay, within fourteen (14) days after the receipt of a notice requesting for payment from the Vendor, the deposits for the installation of water, electricity and gas meters and the Vendor shall bear all other costs, if any.
22. Time for handing over vacant possession.
By virtue of this, all Purchasers are entitled to have individual meters and in fact had paid deposits to the Developer so as to enable Developer = Vendor to apply the water supply to proceed with the application of CF for the vacant possession. Therefore, the deposit of any Bulk meters should have came from these Deposit which was usually higher than what was deposited by the Developer to PUAS.
Therefore, what Syabas considered the law is ambiguous is unfounded. Or, how come there are individual meters for electricity under the same section?.Pushing again the responsibility for individual to deal with the matter is a very irresponsible. Will they serve better if they do not realize the responsibility NOW?
The statement:
"Syabas is willing to let condominium dwellers pay domestic rates, but they must first control the meters, and they cannot take control of it presently due to the ambiguity in the law on water meters governing joint-ownership properties like condominiums."
Posted the following QUERY:
1. Are all Deposits for Bulk Meter been or will be accounted for Transfer from PUAS to Syabas?
2. How should these Deposit be transferred to the Individual? And, what about the differences, if any?
3. Is the Statement post a condition that only new meter be installed that the Domestic Rate will be applied?
4. So, a new Deposit and a new installation Charge?
According to http://www.monitoringglobalisation.org/index.php?option=com_content&task...
there are 420,000 units under 2,200 registered Bulk Meters. With an average of 300/unit, a new Deposit of 1.62 billion will be collected, besides possible new installation Charge. Will approved meters not be used as reported (somehere)?
Therefore, unless the old deposits are transferred or settled with Individual owners, the move of having individual meters is only contributing another nuisance.
Technically, it will also posed problem when there are Filtering system between the Bulk Meter and the Individual meters.
CONDO RATE
Most Condo are required to have water pump after the Bulk Meter and a water Tank to ensure pressure of water supply to the Condo. Therefore, there is no reason of higher price than domestic. Besides, there are less piping to be used than landed properties as the Units of the Condo are more centralized
CAHC
When there should be 2,200 bulk meters, apparently, the number CAHC are representing is still a minority. Therefore, in order to avoid CAHC from being accused of manipulating the discussion, I hope CAHC committee will posted what they want to discuss with Saybas for comment before discussion (could it be done on http://www.monitoringglobalisation.org ?) and report what had been discussed during the meeting with Saybas. Otherwise, the discussion could solve some problems but causing other loopholes.
Meanwhile, I SALUTE THE WORK OF CAHC FOR THEIR CONTRIBUTIONS AND HOPE THE ABOVE CAN BE ATTENDED BEFORE ANY SOLID PROPOSAL to be voted by the public. I hope CAHC will provide more LEGAL GROUND FOR OUR UNDERSTANDING OF RIGHTS FOR THE ISSUES.
Pay for the Chicken to enjoy Eggs!
When there is an action, there is always a reaction! Therefore when the MC is trying to recover debts from the defaulters, the hit back from residents sure will be like a cobra with head spears when stirred and ready to attack! That is why this world of human living being is never be possible to achieve eternal peace and harmony! From minor -squabble give rise to -war - is the course of evolution.
One should always bear in mind that only the responsible MCs who would drain their precious brains and crack their lovely bald heads to think of how to perform their duties for the welfares and betterment of the proprietors and many alike are not being paid to do such donkey jobs! Yet they have to face court action in the event they neglect or breach the by-laws (the Strata Titles Act 318 & Act 118etc.) which could sentence them to jail terms at the worst! For whatever benefit they would get from their positions, I feel it is not worth the while to be such dunderhead if their contribution is not reckon with by the residents!
When interview with the "dunderheads", they revealed to me that they have no choice knowing that it is an uncalled for mission yet they have to commit in such doing because if no one takes care of their property, it will be doomed to wreck and they will be ultimately affected as the receiving ends! What a dumb idea when others remark otherwise!
Management fund is stupulated very clearly in the SnP agreement as the obligation of house buyers to pay for property maintenance purposes and when adore, the home buyers will say I do to pay but soon they forget about the agreement and throwing out all kind of excuses claiming that it is "chicken and egg" business! Some even resort to bring forth the bible (the Strata Titles Act) intentious of plugging loopholes to evade them from contractual obligations. What a shame and irresponsible act !
It will not be surprised if you come across many who untiresomely interpret Strata Titles Act like they are experts in laws but with due respect to these people, if they are not in legal profession, they are no lawyer, I appeal to them to stop all those misrepresentation and misleading of innocent homebuyers into becoming outlaws due to their ignorance and believe in them! Only the court of competent jurisdiction is capable of defining on point of law. Others don't try to be too smart.
A word to those adamant defaulters, put yourselves in the shoes of the MCs, how would you efficiently carry out the duties to do all necessary to manage and properly maintain the common property and keep it in a state of good and serviceable repair when there is insufficient funds ?!
Management fund is not donation to the MC depending on your mood and at your discretion to pay. It is mutual covenant and law abiding. Whether you like it or not, pay and pay for your whole life time until you own a bungalow or landed property!
Building and Common Property (Maintenance & Management) Bill
I wish to share the analysis posted by Homeless with a House in
<http://www.monsterblog.com.my/2006/12/14/better-things-to-come-with-passing-of-new-housing-bill/>
citing the ALARM that a new Act was created to have further confusion and loopholes and further abuse of the Rights of the Purchasers.
WHY SHOULD IT BE PROPOSED BY A MINISTRY WHO HAD FAILED TO ENFORCE THE ACT FOR SO MANY YEARS DESPITES OF A NUMBER OF AMENDMENTS?
Any Legal Advisors that had been acquired to revise the Amendment before submitting to the Parliament? Or, is there any Legal profession in the Parliament who should study the Proposal before it was put to vote and passed?
If there is a “Building Maintenance and Strata Management Act 2004″ in Singapore since 2004, <http://statutes.agc.gov.sg/non_version/cgi-bin/cgi_legdisp.pl?actno=2004-ACT-47-N>, should the Ministry and his legal advising Committee proposed such a "NEW" Acts?Why not combine HDA & STA into one？ Or, should we not be able to have at least an equivalent ACT as the Singaporean in 2006?
Should anyone look into the Amendment of the Housing Act and the Strata Title Act and advise if there are similar loopholes or deterioration of amendment - by Purpose or negligence??
FINALLY WHO SHOULD BE RESPONSIBLE? And, CAN THE AMENDMENTS OR BILL BE STOPPED?
Did MOH present the actual picture with list of projects that are having the problems that requested such amendments? Basically, anything to justify the need of so many Amendments?
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Pay for the Chicken to enjoy Eggs!
This is a comment to the above posting!
Under normal circumstances why a resident should be against his/her interest and to be "a "cobra with spear heads" when MC is for the Management of Common Properties/Facilities with the risk of jailing (referred below)?
Can you justify your claim with further details? Such as:
1. No. of units, average price of units, rate of the Management fee? List of Common Properties/Facilities?
2. When were the properties started the vacant possession? And, when did CF issued?
3. Did the Developer done a good job in handing over the properties?
4. When did the Strata titles being applied, approved, issued and transferred?
5. When was the First AGM being conducted, smoothly and if the Management fee been justified and fixed?
6. Did the Developer do a good job in management and observed their obligation and respect the Rights of the residents?
7. Did the Developer transfer accordingly an acceptable accounts and the necessaries to the MC?
From personal experience and cases, there were/are a great number of cases of management turmoil where Developers violated their obligations amounted to poor accountability, poor or no transparency, poor management, unjustified charged, bully, etc.. However, how many Developers/MC, governed by HDA and STA had been fined, or taken to jail (if any jail penalty been stipulated by Law?). And, because of lack of (or NO) enforcement by the authority, therefore, a lot of Developers had frustrated the residents who has no choice but suspending the management fee as much as "being bitten by cobra". Therefore, if it is the case that you are having, most probably you should consider a Victim of History as well as Victim of no enforcement! In some cases, those officers or politicians involved would refer the situation as "Chicken and eggs" to confuse who is to be responsible for the start of the problem and finger pointing those frustrated residents as "Defaulters" where I believe, in law that resident failing to pay management fee are subjected not only to fine but imprisonment. Therefore, has the Law been bias against the residents being the only one to get jailed?
In our case, some "pro-developer" residents, well knowing the developers with similar defaults mentioned above, also yelling/barking at frustrated residents as "Defaulters" after they got a post in the Council via a tricky elections (with non-registered owners voting) voting with no audited account and other documents being received and covering the transparency further.
If you have access to the history of the management in your building, I believe you will understand better why residents prefer to risk being jailed and not paying. If you have done the best and not getting a good response from the residents, may be you should try to investigate if those residents had been bitten real hard previously such that your efforts are in vain. In this respect, WHO should be complained of? The developer or the Authority or the previous management if you did have one before you?
Hope when you mentioned as MC, it refers to the one after the issue of Strata Title and after 1/3 been transferred and First AGM been conducted. I understand a great number are confused with a management co. or a MC before the first AGM under the STA.
May be I should sympathy you as you have joined the invisible nation wide club of housing victims under HDA, STA without much or NO enforcement! But, may be I should congratulate you as being able to escape from the "new" CPA - Common Property Act if your MC is already under a Council before the "new" CPA could come into force where you will be forced to join the Developer to press the residents on the recover of fund where most probably the Developer was at fault to be qualified for the charges.
When referring to your mentioned idiom " When there is an action, there is always a reaction!", should the residents in your case be considered as merely reacting to an action and they are not the one who started the action?
HOPE YOU CAN IDENTIFY WHO IS CHICKEN AND WHO IS EGG! WHO IS THE REAL "DEFAULTER"!
Building and Common Property (Maintenance & Management) Bill
Small history of the Housing Act can be found from :
http://hba.org.my/articles/buyer_watch/2006/down.htm
Since the First Act came out in 1966, Amendments been done in 1973, 1977, 1988, 2002 and the latest 2006. Had those intentions for the amendments been fulfilled? Or, it is even worse than a consumer?
ARE THE FOLLOWING A RESULTS OF AMENDMENTS OR SIMPLY BECAUSE MOH FAILED CONTINUOUSLY TO ENFORCE? OR, SIMPLY AMENDMENTS HAD LED TO MORE LOOPHOLES?
Let us go through some figures quoted from http://hba.org.my/articles/buyer_watch/2006/blind.htm
---------------------
Figures tell
In 2004 alone, 227 housing projects were abandoned in all the States of Peninsular Malaysia, involving some 75,356 houses worth RM7 billion. Selangor topped the list, with its band of rogue developers abandoning 55 projects, followed by Penang (24 projects), Negeri Sembilan (22) and Perak and Johor (19 each).
Two years earlier in 2002, though, the Ministry of Housing and Local Government said there were 544 abandoned projects involving 125,646 units and 80,070 victims. Elaborating, it said the total value of the projects was a whopping RM9,496,675,000!
The contrast between the two sets of data has led us at the HBA to feel that the present-day figures have been “toned down”. Is it believable that 317 abandoned housing projects can be revived in just two years?
Recently, the Selangor Government revealed that the number of abandoned projects in the State increased to 61, affecting 18,000 house buyers. A total of 17,512 buyers were affected when Selangor was faced with 55 abandoned projects in 2004 – so, does this mean that just 488 buyers were affected by the six freshly abandoned projects? The numbers just do not add up!
The figures also do not include projects undertaken by cooperative societies and State Agencies as they were governed by the Housing Development Act until the 2002 amendments came into force.
Simply put, despite the numerous amendments to the Act, the last being on Dec 1, 2002, the abandonment of housing projects continues to be a major problem.
NUMBER AND VALUE OF ABANDONED PROJECTS IN 2004
Kelantan
--------------------
From http://hba.org.my/articles/buyer_watch/2006/buck.htm
--------
Footnote: The Parliament of Malaysia was told on April 3 that 2,326 housing projects abandoned during the course of the Eighth Malaysia Plan would be revived under the Ninth Malaysia Plan. According to the Minister in the Prime Minister's Department, Datuk Seri Mohamed Nazri Abdul Aziz, some of the projects could not take off the ground because of problems of "acquiring land from State Governments".
-------------------------------
CAN WE INTERPRET:
1. Since under the Housing & Developer Act, MOH are to receive progress report from the Developer with a Form 7 (f), the MOH should be the one to realize earlier on possible failure of the projects.
2. Since MOH is the one monitoring those projects and the one to "decide" if they are abandoned. So, why should those figures among years be contradicting?
3.On basis of the figure announced in 2002, MOH had provided chance for CROOKED DEVELOPERS to RUN AWAY from 544 projects at an average of 19million each.
3. In 2004 alone, some 227 CROOKED MILLIONAIRES with an average of 31million!
4. The Eighth national plan period had "created" some 2326 millionaires of an average of XX million!
CAN ANYWHERE IN THE WORLD CREATES SUCH CROOKED MILLIONAIRES IN SUCH A SPEED AND MAGNITUDE WITH LAWS AND NUMEROUS AMENDMENT WITH THE "INTENTION OF STOPPING"?
Apparently, those 2326 project should affect million of house buyers. But, is the Government aware of the situation or had turned a Blind eye on or Deaf ear to it? Apparently MOH had continued failing to enforce or monitor. Therefore, should the enforcement and monitor be given back to the State?
Is Malaysia lacking any capable persons in handing Housing matter? Or, it is hopeless because of the system?
MCs vs Parcel Proprietors....
Our MC has been in existence since 1997 and I believe we were one of those pioneers given the chance to practise as the Councils.
I do agree with you that there are a lot of bad apples among the Developers and I use to call them unscrupulous business people who only keen to make huge profits through housing development projects and neglect their social responsibilities and contractual obligations to the society /home-buyers. Sad to realize that the Ministry concerned has had till date still confine themselves in the dead alley straining their brain in making new or amendment laws purportedly claimed to be effective remedies to the numerous grievances and problems which are bugging the apartments accomodation buyers for endless days!
When much of hope and concerns are given to the implementation of so-called new common property act, I am sceptical of its effectiveness to help solve the problems of highrise property maintenance problems. What is the use to have the laws in theory which is lack of enforcement by the relevant authorities?! I just hope that it will be something not like the strata titles act which use to cite : "Court of competent jurisdiction" as the ultimate resolution to the problems faced by the parcel proprietors with the developers, proprietors with the management corp. and so forth.
We have had many dialogues with the government officers (PTG) held to debate on methods of implementation of by-laws (STA) and remedial actions to curb common property maintenance problems but any concrete results have yet to be seen! It is not surprising even the hosts of those dialogues at times have shown their ignorance or half-past-six understanding of the Act! To further define on point of law, forget about it!
When there is no effective channel and means to solve the conflicts between the tri-parties, the battle continues and gradually aggravated into white heat! The councils since have taken up the tasks will have to resort to stringent laws and actions to try recover arrears of management funds from the defaulters. Immediately the pinch was felt and the proprietors retaliate by throwing all kinds of excuses to defence their non-payment standing. Most frequently quoted as valid reasons are poor services rendered, dubious accounts or no accounts on expend of management funds etc.etc.
Whatever reasons they are, something which is very clear or by common sense, contribution to management funds is mandatory and everyone has to make it obligation to pay as if he is paying for the income tax. Any dispute? Pay first and dispute later, is that right?
Once bitten twice shy cannot be cited as an excuse to deny payment of management funds. Trust me that you won't have a good defence in the eyes of court or authority!
MCs vs Parcel Proprietors....
1. I tried to read between lines and cannot find your input of any concrete background information to justify that the residents had been giving a fair deal before or after the MC. Paying bill after taking a meal is fair. But, if what should be provided to be paid and justified had not been there, should a customer paid? Consumers in many respect can refuse to pay and seek justification in the Consumer Court. But, had the Housing Tribunal court, started in 2002/2003, been handling any of such Maintenance Fee disputes? (YOUR QUESTIONING OF WHAT QUALIFIED AS A COMPETENT COURT really make sense!!) A proprietor is a shareholder of the MC, so any reason to ruin their "own company"? Or, unless the position of "shareholder" or "customer" had not been respected? Or, else.!
2. When STA started in 1985 and your MC started to be in existence since 1997 and are proud to be one of the first pioneers to practice Council! Can I take the interpretation that only until somewhere in 1997 that only some Strata Titles (including yours) were issued? I believe you must be the luckiest ones being the "pioneer". Should we give the "credit" to MOH & Land & Mines? The former is to monitor the complete of the project with the issuance of CF for the latter to issue the Strata Title.
3. When you said that your MC started in 1997 without mentioning the First AGM (Annual General Meeting), can I assume that the transfer of the Strata Title was almost immediate or amazingly fast? As only after 1/3 of the Strata Titles are registered (transferred) from Developer into proprietors, then, the First AGM can be called upon and thereby the Council members were elected and taking over the management from the Developer. Were accounts & documents, etc.. were transferred accordingly?
4. If those defaulters can be dated back to well before the time of MC - they could be an addict towards non-payment or they were "hurt (in feeling)" or ignored badly by the Developer. If those "defaulters started after MC, should someone investigate what was wrong with MC as well?
5. Since you have not presented the performance of the Developer, I can only guess from point 2 above, the delay of applying or issuing of Strata Title could be there.
6. When you have query on what could be a "competent Court", and you "good" experience with PTG, should "one pay and dispute later"? And, this should regard a good Common Sense?
I do not know which PTG you had been talking to? If PTG sticks to Law and you understand LAW (herein referred to STA), both of you should not be discussing the implement of any By-Law (STA). According to Amendment in 2002, the "competent“ authority under STA is the "Strata Title Board". Unless you are in Penang, otherwise, the one in Selangor is only callled "Housing Board" - therefore, the question whether they are competent again arises!
And, if you are talking about the By-Law, I believe you might refer to Cutting Water or barring of car, deactivate certain pass, etc.. which is a violation of the basis principle of the Strata Act - access and support to public service - water, electricity, etc. must be a guarantee or else who will take Strata building?
7. Unless you present the whole history and information requested last, I believe it is premature to regard any residents not paying management fee to be Defaulters as they may just be the small defaulters when comparing with the Developers or MC? Especially you have not mentioned if the fee were justified and account to be transparent or how transparent it has been? Before MC, HDA specified that the list of Common Facilities and the List of Service has to be provided (since 1989) and the Schedule of Service (since 2002) to qualify the invoice!
8. "mandatory" is to be balanced with Rights & Obligations!!
I SURELY SALUTE YOUR “Pay first and dispute later" attitude. According to such an attitude,
A. No one should question PTG on the delay of Strata Title even knowing that Quit Rent is supposed to be based on the Strata Title. Your obligation to pay Quit Rent to PTG officially only started when your name is on the Title!!
B. Similarly, you are not the legal proprietor of "your" properties until the Strata Title were "registered" or "transferred"), therefore, why should MP be charging you the Assessment before the registration or transferred?
C. STA only concerned MC and the "registered" proprietors. Therefore, if MC is there but buyers not "registered", the Developer should be the "proprietors" liable to pay the Management Fee.
Your common sense could be logically but outside the boundaries of LAW!! If you take "Defaulter" as the one ignoring LAW, then, should PTG, MP, MOH, etc.. being the "pioneers"? The Developers - a good follower? The Resident - "the small egg" (even worse than potato, as egg is so easily crackable!!)
Therefore, your remarks of "even the hosts of those dialogues at times have shown their ignorance or half-past-six understanding of the Act!" are more than correct!!! GOOD REMARKS!!
Being in a MC ONE should know the in & out to identify who act and who is reaction (the Black & White). Who is acting and WHO is reacting???
If you can identify which project you are referring, I am sure the residents could justify your case better.Or, why don't you answer the 7 questions to make it more straight forwards!
YES, WE ARE ALL VICTIM with the Confusion by Laws! if anyone refer to the posting in this website:
http://www.penangwatch.net/node/306#comment-498
with some Common Sense in Law, one will question why it is there! Should it be put up as ACT and dispute later?
Thank you for providing the opportunity in taking up the matter with more LEGAL sense!!
Pay for the Chicken to enjoy Eggs!
I hope the article of MCs vs Parcel Proprietors.... will be put under the same topic as above so as to follow the sequence.
The starter of this article could be a Victim of irresponsible Parcel Proprietors (via his claim), or, as viewed from other angles, a Victim of History. For fairness, the answers to the 7 questions must be provided before any fair comment can be reached - why not putting thing more straight forwards? If you can mention which project you are in, it will be fair for those your are complaining to provide you with their feedback.
When the starter also presented his/her grievance with the Government Departments, the possibility of being a Victim of History is there - a Victim of the ACTS under the MOH (the HDA) and perviously the Land & Mines (the STA). If he/she goes through the Building and Common Property (Maintenance & Management) Bill
in this site, I am sure more people will be "sweating if not tearing".
FOR YOUR CASE
Since STA started in 1985, including MC & Strata Title, the existence of your MC since 1997 can be claimed as one of those pioneers in practicing the Council!!
1. Can I take the assumption that the issuance of Strata Title in 1997 can be considered as the first or earliest batches? As MC came in existence when ST were issued.
2. When the date of existence of Council is not specified other than 1997, can I take it that at least 1/3 of the parcels were transferred within the same 1997 for the calling of the First AGM to elect the Council? In this respect, credit must be given to the Local Land Office for such a speedy transfer or registration.
3. Your remarks that PTG officers are having ignorance or half-past-six understanding of the ACTS (STA) is correct, and regretfully, same could be at your end! Under STA (amendment in 2002(?), the one in charge should be the Strata Title Board where only Penang was the first to follow. The one in Selangor is Housing Board which was years after, so they do not have to follow STA!!! And, therefore you may have asked the wrong Department or there wasn't any "competent authority" to answer your grievance!!! I believe Selangor is the first to start Pre-MC Committee (on joint-management) before the coming of the Property Bill, so they had been practicing before the Law come in!!
4. If your read the comment posted at A broom will be given to non-performing government departments i
on this site, I believe besides MOH, PTG is also a big defaulter. Therefore, if parcel proprietors are Defaulter if they don't pay the Management Fee, then, they are only a small defaulter in compare with MOH, PTG, Developers, who cannot grieve to any "competent authority" if MC had been acting accordingly.
5. Since you have contacted PTG, I assume you are also trying to base yourself on the Strata Title Act in related to HDA. Therefore, I assume when you talk about "Common Sense" I believe you are referring to the Common Sense on the ACTS as well. However, the ACTS themselves are contradicting:
A. A purchaser under HDA is not a legal owner of the proprietor as in the ST until the issue of ST and be registered from the Developer's name into the purchaser's name.
B. The liability to pay to MC is the proprietor after they had their ST transferred or registered. However, the MC (during the initial period under the Developer) could be chasing the arrears from the purchasers, even the purchasers could have no way to get access or answers to the account or if the Management fee had been justified, simply with an excess that they are not proprietors.
C. While Sinking Fund was mentioned in HDA (since 2000). STA mentioned as special account.
etc...
IF YOU WOULD LIKE TO TALK ABOUT DEFAULTERS, TRY TO SEE ANY DEFAULTERS EXIST IN YOUR CASE BEFORE THOSE PARCEL PROPRIETORS!
iF YOU ARE TALKING ABOUT ACTION AND REACTIONS, TRY TO SEE WHO HAD STARTED THE ACTION TO BRING THE REACTIONS FROM THOSE PARCELS!
WHEN PROPRIETOR ARE SIMILAR TO SHAREHOLDER UNDER THE MC, WHY THEY CHOOSE TO RUIN THEIR OWN COMPANY!!
CHASING AFTER ARREARS
Paying to get a meal or after a meal is common sense. Refusing to pay when the meal/service is not right is also Common sense!!
If you have been chasing arrears before the MC, you had been punching at the wrong party - GET it from the Developer!! The Developer could have increased the Management Fee when they failed to collect the Management Fee reasonably. Therefore, you could be "inherited" a big sum of receivable (as arrears from purchasers) but legally, arguable or unjustified!!
If the basis of all these problems - the ACTs and the Government are not putting them in the right position, the proprietors (including those in the council) are Victims, excluding those being put into the MC politically!!
I HOPE YOU WILL PUT FORWARDS YOUR CASE WITH A BETTER PICTURE, OTHERWISE, YOU WILL ONLY BE CONFUSED BY YOUR "COMMON SENSE" AWAY FROM THE LAW. (Even if Law is Law is doubtful under the existing environment from the date of legislation EVEN when the stipulation cannot support the claimed intentions!!) Or, should we base on NO LAW!!
IF LAW ARE MADE FOR THE PEOPLE, IT SHOULD HAVE TAKEN IN THE COMMENTS THE PEOPLE. THEY SHOULD BE EXPLAINED IN FURTHER DETAILS and NOT MISLED!
WHY SHOULD A PROPERTY BE UNDER 3 DIFFERENT ACTS WITH CONTRADICTIONS OR INCONSISTENT???
The Common Properties Bill came even without mentioning HDA and only slightly touching STA when HDA is the "mother" to bring along the possible relationship of joint-management, and, itself to be taking as the stepping stone towards the STA (but without mentioning the time frame!!
In daily life, there are so many abuse of Rights! I am sure you will be the most respectful, if you can identify the Rights of the proprietors and what had been Abused by the respective parties!!
Pay for the chicken to enjoy eggs........
It is going to be a lengthy tell tale when touching on the STA, HDA etc. ,all those zests! It looks like each and every of us who are apartment dwellers have become legal professionals speaking their jargons in forum after forums.
To put things straight as requested, I must list the cause of events in the following chronological order:-
1988 - 8 blocks of LMC with total units of 1700+ parcels were planned and developed by a renown developer (claimed to be one);
1992 - 2 out of the 8 blocks were completed and having OC issued;
1997 Sept. - Strata Titles were issued to the said 2-blocks (180+260 units) after 1 & 1/2 year initial period (presume); 1/3 quota achieved and thus, 1st AGM was convened and MC was officially formed and handed over management of common property to the councils on Oct. 97. Hand-over process was witnessed by the then Land Administrator En Md.Noor B.Rejab who should be praised for his good service and set out guidance for the Developer to hand over audited accounts, surplus of service charges (transformed to management funds), sinking funds (principal without interests cuz had been spent), relevant docs. etc according to our requirements.
Of course there were few shortfalls such like original invoices from vendors, accrued interests on FD accounts amounting to RM30k+. We failed to recover after long pursuit, appeal to the Land Administrator to no avail as it was "ultra vires" unless we pursued with "the court of competent jurisdiction"- the civil court case. We gave up ultimately cuz proprietors objected to pay legal fees!
It fact, we had gone through choppy seas at the beginning stage tussling with the Developer preventing our residents to be unduly victimized by the developer via:
1) Organised all the 8 blocks protem committees into one bigger Action Committee which consisted of almost 30-members;
2) Held monthly meetings and dialogues with Developer's officers to thrash out problems concerning accounts, maintenance services, grievances etc.tc.;
3) Pursued to ensure strata titles were being applied within the 6+3 time-frame as stipulated in laws (STA); monitor step by step their progress with aid from PTG (where I should praise again the then ADO Mr Wong Hin Fatt for his good experience and compassion towards helping the people);
4) We set a precedence of taking up with the Developer to contest their unjust increment of price based on the then clause 11A (Schedule H, HDA) where the developer claimed that the area of parcels were bigger than stipulated in SnP when the strata survey was taken place! We protested to the then Housing Minister Datuk Ting, set out our claims, grievances in memorandum lodged with his office. Regreted that he never gave a heed! Instead just assigned his two malay officers to meet us in a meeting convened in the ministry's office ,who before helping us, had threaten that we would have lost the case cuz there's no ground for the homebuyers. He even cited that we were lucky cos our master grant (land titles) was not mortgaged by the "good" developer as there had been such incidents happened in KL. The result after that meeting was a letter of reply from the Ministry citing "ultra vires" in power and asked us to resort to civil pursuit should we want it! (I wish I can disclose the letter that I replied to the Housing Minister).
The battle continued with involment of pulling the MP and YB and thanks to MP Wong Kam Hoong who did help and relate the people's grievances to the new Housing Minister D.Seri Ong KT. He ultimately amended clause 11A to 13A(if not mistaken) and effective year 2000, clause 11A had been replaced by 13A which truly protect the rights of the homebuyers. Talking about the YB (a Dr.), he is shit yang bodoh! He did nothing to help but just talked cock!
Sorry, am a bit exhausted and let me voice my will to all those my same rankers, the apartment dwellers, do not take the MC into political scenario. We are all in the family, housed under one roof. Do not play opposition partiies in the MC, use round table talks to solve any problems, thrash out differences and compromise amicably without prejudice to the Councils (cuz they can be elected and re-elected). If they are not efficeint and not fit to do the jobs, outcast them and others will take over! Refrain yourself from any discrimination, even somebody is the council, he is not the boss like our PM, he is indeed your servant! He relies on you as the boss to pay for the service charges so as he will be able to perform his duties and responsibilities to serve you in maintenance and upkeep of properties therein you have shares based on "shares units"! Remember always, he/they are not paid to do such jobs! Don't believe? Then try it out yourself, you become the council ! You will then realise the sweet and sour of such miserable life!
To read more, pls refer to next chapter..................................... Bye!
Pay for the chicken to enjoy eggs........
Thanks for the briefing.
Obviously, you and your others purchasers are victims of the unscrupulous Developer as well as those politicians and especially MOH. The HDA has given MOH the overall jurisdiction (Rights) on controlling the Developers since 1966 from S&P to the handing over until 1st AGM. Unfortunately, HDA has provided all the Rights for MOH but no Obligations but with immunity and no penalties. The Acts in one way had excluded the purchasers even the basis rights as a consumer to take action in the consumer (tribunal) court.
The Flow Chart of MOH had been well "advertised" on their websites. But, how well those jobs have been followed by MOH are well testified by the so many problems on late delivery, late application or issue of ST, or even abandon projects. They are the stumbling block towards a normal monitoring, as no one else can do it if they do not do it!
Taking from what you had presented chronologically and if they are 100% precise (not doubting the truth) some are quite confusing with possible loopholes. Most probably it was and still is a very common phenomenons that purchasers had taken a full belief on what was offered or operated by the Developer with the belief that they were under the monitor of MOH as stipulated by the HDA where Developer has to get approval for their sales & advertisement, etc..!!
1. Schedule H only in force since April 1989, therefore, your Developer was quite ahead if they did use Schedule H for their launch of the project in 1988.
2. Similar they are quite ahead to collect sinking fund when it was only started in 2002 under HDA. Therefore, your chasing after the interest most probably cannot be succeeded.
3. Initial period is period after the date of issue of Strata title (the date when MC is officially there) until the Council is officially elected during the First AGM. Therefore, your information may not be precise. Except this could happen to LC apartments where ST were given to the purchasers and the First AGM was also convened at the same time.
4. How an amendment of HDA in 2000 should help you when your S&P was in 1998? And, what is 11 or 13A?
Anyway, the confusion in law and practice are the main reasons of loopholes besides poor enforcement by MOH.
5. In the transfer, did the Developer handed in the common facilities accordingly as it seems that yours are phrased development?
6. All purchasers should have applauded the work of the Committee and the then Council for the kind of work done! But, had the purchasers refused also to hire a legal advisor on the overall matter?
7. So, the 30K +/- (interest) was for 2 blocks? How about the ST and the transfer for the remaining 6 blocks?
8. Is the "cool" reaction from the purchasers started ever since the matters/problems were out or it happened after some failures?
The missing of proper legal guideline or assistance from the respective offices or councillor, including MOH are the key reason for all the confusions. The ignorance in not getting a legal adviser is common as many people are only thinking of their monthly contributions and not an overall when 440 x monthly charge x period is already a good sum (and much more if 1700+ are accounted) to get a good and competent lawyer to do a good job (if there are competent lawyer to do the job!!).
THE SYSTEM HAD MADE PURCHASERS SICK! The CONFUSION of the purchasers by the INDOLENCE of the OFFICERS had made purchasers ignorant! So the respective Developer, MOH care not!! Eventually, any Trust to a system under the STA or HDA? The system had turned owners into NOT owners!! Housing industry into a industry for a BIGGGGGG LOOPHOLES SEE Short History under
Building and Common Property (Maintenance & Management) Bill
Unless some legal action can be taken against the Developer or and even, MOH, it will be hard to put law onto any un -cooperative owners you mentioned. SHOULDN'T MOH BE ENFORCING THE LAW IN THE FIRST PLACE? Or continue to mislead people with "amendments"?
ALL PURCHASERS MUST STAND UP TO SUPPORT THOSE WHO DO WORK FOR THE COMMON INTEREST OF THE PURCHASERS. Unless working together, the DIM of the Housing Industry will remain which will NOT ONLY BLE UNABLE TO MAINTAIN YOUR HOME/PROPERTIES but also DIM to be a WORTHY investment!!
I did work for the good of all my neighbours and I got all the problems which are much worse than your case where I need a good lawyer!!
In comparison, you are still lucky to have assistance from PTG
Suggestion: Any arrear of Maintenance Charge before the MC should be write off as legally only the registered proprietor had the liability to pay and the rights of MC to collect!! The chasing after the Developer might be too late. Hope this will help you job ahead!
AGAIN THE "CREDIT" SHOULD BE GIVEN TO THE MOH OR RELATED MINISTRY TO HAVE SET UP TWO DIFFERENT ACTS (AND NOW THREE) FOR ONE PROPERTIES AND MANY DEPARTMETNS DEALING WITH IT!!
Malaysia Boleh!!!