THE aim of the Strata Management Act 2013 (the SMA) is to provide for the maintenance and management of buildings and common property of multistorey buildings and sub-divided land in a proper and efficient manner to benefit and contribute to the success of the strata development.
As such, it is imperative that rigid enforcement of the SMA against offenders is affected, or otherwise the law will be ignored. If the law is not enforced, the problems that it intend to address and resolve will continue to exist. As is frequently stated, the law is only as good as the degree of its enforcement.
The SMA is equipped with administration and enforcement provisions. An officer, known as the Commissioner of Buildings (COB), is appointed for the purpose of administering and carrying out the provisions of the SMA.
The COB may perform such duties as are imposed and may exercise such powers as are conferred upon him by the SMA or any other written law. The COB may investigate the commission of any offence under the SMA.
An offence is an act contrary to, offending against, and punishable by law on conviction. When a person breaks a law or a rule, it is an offence against the law or rule. There are provisions under the SMA and regulations made there under that on conviction for the commission of an offence, punishment will be by way of a fine or imprisonment, or to both.
A tribunal known as the Strata Management Tribunal (SMT) is established under the SMA for a claimant to seek legal redress in respect of strata management disputes or complaints and claims without having to go to court.
A tribunal is a quasi-judicial institution set up with authority to judge, adjudicate on, or determines claims or disputes.
It is intended to function in a less formal, less expensive and a faster way to decide and resolve disputes in place of the ordinary courts.
The Management Corporation (MC) or the Subsidiary Management Corporation (SMC) is entitled to file a claim with the SMT in respect of a dispute or complaint concerning the performance of, or the failure to perform a function, duty or power conferred or imposed by the MC or the SMC.
For example, when a proprietor has failed to pay the service or maintenance fees at the expiry of the period specified in a notice issued to him, the MC or the SMC, being the claimant, may either file a summons or claim in a court of competent jurisdiction or before the SMT for the recovery thereof.
Alternatively, the MC or the SMC may make an application in writing to the COB who may issue a warrant of attachment authorising the attachment of any moveable property belonging to the defaulting proprietor, which may be found in the building or elsewhere in the state.
The SMA sets out the procedure on how movable property can be attached to recover sums, including the process of auctioning off the goods.
There are 14 subject matters of dispute in which the SMT has jurisdiction to hear and determine, and this is specified in Part 1 of the Fourth Schedule of the SMA. The SMT has pecuniary jurisdiction to hear and determine any claims where the total amount in respect of which an award of the SMT is sought does not exceed RM250,000 or such other amount as may be prescribed to substitute the total amount.
Pursuant to the SMA, no person other than the following persons will be entitled to file a claim to the SMT: (a) a developer; (b) a purchaser; (c) a proprietor, including an original proprietor; (d) a joint management body; (e) a management corporation; (f) a subsidiary management corporation; (g) a managing agent; and (h) any other interested person, with the leave of the SMT.
Awards of the SMT will be made without delay. Where practicable, such awards will be made within 60 days from the first day the hearing before the SMT commences. The SMT will give its reasons for its award in the proceedings.
The SMT may make one or more of the nine orders specified in Part 2 of the Fourth Schedule of the SMA.
An award of the SMT will (subject to the relevant operative provision of the SMA) be final and binding on all parties to the proceedings. It will be deemed to be an order of a court and be enforced accordingly by any party to the proceedings.
Where any person fails to comply with an award made by the SMT, he or she commits an offence and will, on conviction, be liable to a criminal penalty by way of a fine or to imprisonment, or to both.
In the case of a continuing offence, such person will be liable to a further fine for every day or part thereof during which the offence continues after conviction.
Ivan Chan is a member of the Malaysian Bar and practices at Amir Toh Francis & Partners
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