Finding a just resolution to disputes at highrises

Danau Kota Flats Management Corporation has brought three cases to the Housing and Strata Management Tribunal. – GLENN GUAN/The Star

ONE of the perennial problems in stratified properties is non-payment of maintenance fee by unit owners.

The Housing and Strata Management Tribunal (TPPS) was set up under the Strata Management Act 2013 (Act 757) to address this and similar cases involving commercial and residential buildings.

TPPS helps aggrieved parties seek redress for unpaid maintenance fees besides other matters that crop up among tenants, owners and management bodies.

When such cases are brought to the tribunal, it can make an order for unit owners to pay up.

Danau Kota Flats Management Corporation (MC) chairman CK Lim said they had turned to the tribunal several years ago to compel a property owner to pay up.

The owner of a shop and residential unit at the flats had an outstanding maintenance and sinking fund bill of almost RM40, 000.

“We decided to file a claim against the owner at TPPS in 2015 to compel him to pay the arrears for his shoplot.

“It was a substantial amount and we won the case in 2016.

“However, the owner failed to pay up, ” said Lim, who added that they planned to take legal action to recover the sum.

“It is rather time-consuming as we have to go through all the processes again in civil court.

‘’I feel that the Commissioner of Buildings (COB) should seal the units of owners who continue to ignore outstanding bills, ” he added.

This was one of three cases in which the MC had filed claims at TPPS against unit owners who had defaulted on their maintenance payment, amounting to between RM15, 000 and RM20, 000.

TPPS chairman Azwarnida Affandi said the tribunal received an average of between 5, 000 and 6, 000 cases annually, with unpaid maintenance charges being the most common.

“Maintenance charges are used for the upkeep of a strata building, including the cleanliness of common areas and smooth operations of facilities as well as amenities such as lifts.

“The management can file a claim in the tribunal against defaulters to ensure they fulfil their responsibilities, ” she said.

Another common case brought up to TPPS was inter-floor leakage.

Azwarnida said an affected owner or tenant may file a claim with the tribunal if the management body failed to take action.

“The tribunal president may appoint an expert to determine the cause of the inter-floor leakage.

“After taking into consideration all the evidence available, the president can issue an award or dismiss the claim.

“The award is final and binding and parties can proceed to enforce it at the magistrate’s court, ” she told StarMetro.

TPPS is a department under Housing and Local Government Ministry and its jurisdiction is spelled out in Part 1 of the Fourth Schedule of the Act.

The total amount of an award cannot exceed RM250, 000.

Azwarnida said people turned to TPPS when disputes in relation to strata management could not be resolved directly between the parties. (See chart on process)

The tribunal has jurisdiction on any building with two or more storeys intended to be subdivided into parcels as well as any land on the same lot to be held under a separate title, she said. Other cases brought up to the tribunal include not convening annual general meetings (AGM), disputes over revoking amendments to by-laws and even insurance matters.

Arbitration before tribunal

COB, on the other hand, is the main body that ensures stratified properties are managed in a fair and effective manner.

If disputes arose and could not be resolved by COB, parties could turn to TPPS, she said.

COB’s purview includes ensuring the joint management body (JMB) is established in a proper manner, resolving disputes between unit owners and developers on matters regarding account maintenance and formation of JMB as well as conducting periodic checks on the building management’s audited accounts and administrative management.

Azwarnida explained that the COB had very wide powers and duties under the Act.

COB comes into the picture even before a strata building is built, where developers have a statutory duty to submit to the COB the schedule of parcels intended to be built.

“The COB also has enforcement authorities under the Act to ensure its provisions are adhered to, ” Azwarnida highlighted.Law enforcers

Ampang Jaya Municipal Council COB head Muhammad Rosizhar Abdul Rahim said that to put it simply, COB was the police that enforces the law while TPPS was the judge that governed that law enforcement.

He said educating unit owners on the importance of paying the maintenance fees on time was one of the challenges faced by COB.

“Other challenges include educating tenants on the laws involving the rearing of domestic animals aside from vandalism of shared properties and facilities such as lifts and common areas.

“We also tackle problems such as insufficient funds faced by

JMBs and MCs due to unsatisfactory collection of maintenance fees, ” he added.

On cases where the management body was not willing to hold an AGM or emergency general meeting (EGM), Muhammad Rosizhar said COB would step in to resolve the matter.

“For cases like this, COB will identify qualified parcel owners or any third party to hold an EGM.

“MPAJ has on numerous occasions appointed qualified parcel owners as well as third parties, namely registered agents, to hold EGMs when there is a need as identified by the COB.

“The COB will assist in terms of providing advice and other related needs for a successful EGM, ” he added.

Tribunal’s power

Lawyer Derek Fernandez said TPPS was a quasi-judicial body.

“The decision of the tribunal is final and is deemed to be an award of the court and can be enforced accordingly by the party to the proceedings as per Section 120 (1) (b) of the Strata Management Act 2013.

“Section 123 of the Act states that any person who fails to comply with an award commits an offence and shall, on conviction, be liable to a fine not exceeding RM250, 000 or imprisonment for a term not exceeding three years or both. And for a continuing offence, a further fine not exceeding RM5, 000 for every day or part thereof during which the offence continues after conviction, ” he elaborated.

He said bringing a case to the tribunal saved time and costs.

Another reason, he said, certain matters such as non-payment of maintenance fees could not be brought to court without first going to the tribunal.

Fernandez cited examples of respondents failing to abide by the tribunal’s decision regarding non-payment of maintenance and sinking fund and had later been penalised by a Magistrate’s Court.

“In July 2020, Subang Jaya Magistrate’s Court convicted a defaulter for outstanding charges and imposed a fine of RM5, 500.

“There were two other similar cases in February and March 2020 where the defendants were fined RM1, 500 or in default five days’ imprisonment and RM3, 500 or in default three days’ imprisonment, respectively, ” he added.

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