Who manages the stratified area that you live in?


The writer Lai Chee Hoe, a lawyer practising at Messrs Chee Hoe & Associates, is a member of the Conveyancing Practice Committee, Bar Council, Malaysia.

WHO manages the stratified area that you live in?

In a typical stratified building/land parcel development area in Peninsular Malaysia, the Strata Management Act 2013 (SMA) provides for the proper management of its common property. A common property is not part of any parcel and which can be used or enjoyed by occupiers of two or more parcels.

Management is initially taken care of by the developer and later, by the joint management body (JMB) or, when strata titles are issued, by the management corporation (MC).

Day-to-day management, however, is under the purview of a joint management committee of JMB or, a management committee of the MC (Committee). The Committee takes care of the nitty-gritty parts of managing and maintaining the common property of the condominium. It will, among others, undertake mundane jobs, manage the security guards, the rubbish collectors and the cleaners, ensure the lights in the common areas are functioning and attending to repairs of lifts.

Decisions of the Committee are taken by a simple majority vote. If the votes are equal, the chairman shall have a second vote, also called a casting vote.

Major issues are decided at a general meeting of the JMB/MC. They will, for example, elect members of the Committee and determine the rate of maintenance charges and impose the fines for breach of by-laws.

What is a general meeting?

It is essentially a forum to allow proprietors to discuss and to decide on important matters affecting the management of the condominium. It is also a mechanism to provide a check and balance on the powers of the Committee.

By law, it must be held once in each calendar year. This is called the annual general meeting.

A general meeting, called an extraordinary general meeting, can also be held at other times when decisions on urgent and important matters need to be made.

Different types of resolution

A decision made at a general meeting is called a resolution. The current statutory regime provides for four different types of resolution: (a) ordinary, (b) special (c) unanimous, and (d) comprehensive.

> Ordinary resolution

This is passed by a simple majority. At least 14 days’ notice is needed for a meeting to pass this resolution.

An ordinary resolution is required when a matter involves:

- determining charges and contributions to the sinking fund,

- removing any member of the Committee from office, or

- applying all payments of moneys from the insurer to rebuild.

> Special resolution

This must be passed by a majority of not less than three-quarters. At least 21 days’ notice is needed for a meeting to pass it. A special resolution is required to do the following:

- make additional or amendments to by-laws, or

- effecting insurance against risks other than a damage policy.

> Unanimous resolution

This must be passed by all the valid votes cast. At least 21 days’ notice is needed for a meeting to pass it.

A unanimous resolution is required to do the following:

- acquire land outside the development area,

- grant or accept the burden of an easement imposed on the development area for the benefit of some other land,

- accept the benefit of an easement imposed in favour of the development area on some other land,

- exercise the powers in relation to the common property conferred by the National Land Code on a proprietor in relation to its land, and

- terminate the subdivision of the building or land.

> Comprehensive resolution

This must be passed by a majority of not less than two-thirds. At least 30 days’ notice is needed for a meeting to consider this resolution. Following the meeting, there is a voting period of 60 days

A comprehensive resolution is required for purposes of designating limited common property, adopting special plan to create a subsidiary management corporation.

The vote

As in every democracy, generally, every proprietor is entitled to vote at a general meeting unless he is disqualified. Typically, he would be disqualified if he owes any money to the JMB or MC seven days before the meeting.

Voting is usually by a show of hands, where each parcel will have one vote. If a poll is demanded, the vote will correspond with the number of share units.

In the case of equality of votes, whether on a show of hands or poll, the chairman shall be entitled to a second vote, also called a casting vote.

How can proprietors vote?

A natural person can vote in person or through a proxy,

Joint proprietors can only vote with a jointly appointed proxy, except when a unanimous resolution is required.

A company, society and statutory body or any other body can vote through a duly authorised representative or by an appointed proxy.

Lai Chee Hoe, a lawyer practising at Messrs Chee Hoe & Associates, is a member of the Conveyancing Practice Committee, Bar Council, Malaysia. This column does not constitute legal advice and the views expressed are solely that of the writer.


   

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