Visitor No since 22-10-98
LAW & REALTY: Set up Strata Titles Board, urges Bar Council Print E-mail
Written by Roger Tan   
Friday, 20 July 2007

The Sun

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.


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