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We’ve covered all areas of Act 318 over the past several months, from what a Management Corporation (MC) does to the elected council’s responsibilities and the insurances. Today, we’ll take a look at the last part which is the termination of a subdivided building.

A subdivided building has to be terminated when one of the following scenarios occurs:

• The building is completely destroyed¹, or
• The proprietors seek to demolish the building or, if the building as partially destroyed, the remaining parts of the building², or
• There is only one proprietor for all the parcels³.

In order for a building to be terminated, there must be a unanimous resolution by the MC to do so⁴. In some cases, this is the point where a court of law may step in with an order if an application for such is made by the MC, or proprietor, or a registered chargee of a parcel⁵. The court of law can either:

• Direct the MC to terminate the building despite the absence of a unanimous resolution⁶, or
• Prohibit the MC from terminating the building, despite a unanimous resolution being reached⁷.

Regardless of whether a court of law directs to do so or not, if the decision to terminate is reached, the MC must lodge with the Registrar a Form 8 notification and the issues documents of land titles and parcel titles⁴.

Upon receiving the notification, the Registrar will make a memorial of the notification in the register and strata register⁸, and inform the Director of Survey of the act⁸. Upon the making of a memorial, the subdivision will be terminated and all the proprietors shall cease to be proprietors of the parcels and provisional blocks of the said building⁹. Instead, the MC will become the proprietor of the lot as the trustee of the former proprietors¹⁰.

Now, here’s where a slightly tricky part comes in. Although the proprietors of the individual parcels and provisional blocks are no longer considered to be proprietors, each of these former proprietors will continue to be members of the MC¹¹ and will have the same voting rights as s/he had immediately before the termination of the subdivision¹¹. The MC’s role is simply to hold and manage the lot for the benefit of these former proprietors¹².

The former proprietors have the right to direct the MC (by unanimous resolution) to transfer the lot to any one or more of the former proprietors, or to any other person/body¹³. Again, if a court is involved, the court may make an order at this juncture for the MC to wind up its affairs¹⁴. The MC will then continue to exist as long as is necessary to settle all its affairs before being terminated¹⁵, upon which the Registrar will cancel the book of strata register¹⁶. However, the book of strata register will continue to exist while the MC remains the proprietor of the lot¹⁷ and the book may be used as evidence of a record of matters relating to the subdivision before its termination¹⁷.

Some last-minute finances will also need to be settled at this time as well. If a parcel has outstanding charges registered to it, the charge automatically becomes the personal obligation of the charger to settle what is due to the chargee¹⁸. If there were any profits arising from the management of the lot (including any purchase monies received on a transfer), the MC will distribute the profits to the former proprietors in proportion to the share units which they held immediately before the termination of the subdivision¹⁹.

Once all affairs are settled, the MC will cease to exist and the building is considered terminated.

References:

Disclaimer: This post is brought to you by Highrise.my for your information only and does not constitute legal advice. Highrise.my shall not be liable for any losses as a result of relying on this blog.

The whole point of having regulations such as Act 318 is to grant everyday citizens with rights that are protected by the law. So, what rights does Act 318 grant a purchaser? That’s what we’ll be having a look at this week.

In general, Act 318 grants each proprietor:

• The powers conferred by the National Land Code on a proprietor in relation to his/her land¹, and
• The right of a user which s/he would have if s/he and the other proprietors were co-proprietors of a common property².

The rights granted to a proprietor apply not only to his/her parcel but also to any accessory parcels and to the common property. A proprietor’s rights to an accessory parcel and to the common property are viewed as extensions of his rights to his/her parcel. A proprietor’s rights to an accessory parcel cannot be disposed of independently of the parcel which the accessory parcel is attached to³. Similarly, a proprietor’s rights in the common property can only be disposed of as an accessory to the parcel⁴. Thus, if a proprietor disposes of his/her parcel, it is automatically implied (even without an expressed reference to such) that the proprietor’s rights in the common property is also disposed of⁴.

Act 318 specifically grants a proprietor two types of rights:

• Right of support⁵, and
• Right of service⁵.

The right of support refers to a proprietor’s right to have his/her parcel (physically) supported by the common property and any other parcels which make up the building⁶. In other words, each proprietor is entitled to have his/her parcel sheltered by all parts of the subdivided building which are capable of providing shelter⁷. This also gives a proprietor the right to enter the common property or any other parcel for the purposes of replacing, renewing or restoring any such shelter if there is a need to do so⁷.

A proprietor’s right of support goes into immediate effect without memorial or notification in the strata register⁸. It is also implied that any supplementary rights and obligations are automatically conferred in order to make the proprietor’s right of support come into effect⁸.

A proprietor’s right of service refers to the rights to the passage or provision of water, sewage, drainage, gas, electricity, garbage, artificially cooled or heated air and any other services required (including telephone, radio and television services) through or by means of pipes, wires, cables or ducts⁶.

References:

Disclaimer: This post is brought to you by Highrise.my for your information only and does not constitute legal advice. Highrise.my shall not be liable for any losses as a result of relying on this blog.

With Chinese New Year almost upon us, Chinese households are sure to be busy doing some last-minute cleaning. The living area is the most public area of any home. This is where guests usually gather when they come to visit, so it’s important to keep the area clutter-free. Here’s some tips on what you can do to de-clutter and spruce things up a little.

Go through all the reading materials that you store in the living area, such as newspapers and magazines. Put the old ones aside and either sell them to the newspaper man (a.k.a. old newspaper buyer) or have them recycled. As for the newspaper and magazines that you intend to keep, file them away in their respective boxes.

Some newspaper men will also buy back envelopes. So this would be a good time to go through your mail as well, particularly the junk mail. Cut out the coupons that you want and file them away. Check that they haven’t expired. Put the remaining ones aside to be sold or recycled.

If you keep batteries in your living area with your remote control, check that they still have juice in them. Otherwise, toss them out. Also remember to check that none of them have leaked. You want to toss those out as well. But make sure to wash your hands properly after you do.

If you have a collection of DVDs or console games, you might want to go through them and set aside those that you do not watch or play with anymore. Sell or toss those out. If you’re old school and still use the VCR, check your VCR tapes to see if any of them are growing mould. Those that have mould cannot be saved. So, kiss them goodbye and toss them out.

Check the wiring of your electrical goods. Make sure the wires are still in good condition and neatly put away. If not, re-tie the wires together with plastic ties or rubber bands. Worse, if the wires are fraying, have them replaced immediately as these are a potential fire hazard.

Throw pillows and cushions should be washed or dry cleaned. The same goes for any throws that you have on your sofa. If your furniture is made of leather, wipe them down. While we’re on the subject of wiping things down, don’t forget to do the same for table lamp shades and all your decorational items, such as fake plants, fake flowers and your Feng Shui enhancing figurines.

If you have carpets, have them professionally cleaned if you can afford it. Dry cleaning is another option. If not, at least vacuum it thoroughly.

If you’re doing this at the year end, you might want to replace your calendar with one for the upcoming year.

Do you have any other advice on what to do to de-clutter a living area? Share them here in the comments below.

Previously, we shared with you about some of the things you can do to de-clutter your bedroom and bathroom when it’s time for a major cleaning. This week, let’s take a look at another area of the home which definitely requires some de-cluttering at least once a year – the kitchen.

The most obvious thing to do, of course, is to throw out any foods that have expired. Go through your refrigerator, your cupboards, your medicine cabinet and your pantry (if you have one). Check through canned foods, condiments, bottled sauces, frozen foods and medicines. Frozen foods may be able to last longer but that does not mean that it will never spoil.

While we’re on the subject or refrigerators, you should clean out the entire refrigerator. Wipe down all shelves and de-frost your refrigerator. Reset the temperature if you have to.

Some of us keep the plastic containers that we get from take-out foods to re-use as storage containers. Go through your container collection and toss out the ones that can no longer be used, for example, if it’s cracked. If you think that you have more than enough of these containers, throw some out too or give them away.

For those storage containers that you purchased specifically, check that they are in good condition. Some brands of containers, such as Tupperware, will replace these containers (or parts of containers) that are cracked or leaky. Just bring your old one in for an exchange at any of their outlets.

The same goes for your plates, bowls and glasses. Those that are chipped or cracked can be thrown out, especially if you have plenty more to spare. Utensils and cutlery that are rusted should be tossed out too.

If you store wooden utensils in a drawer, remove them from the drawer and check that there are no moulds growing on them. This can happen if you haven’t used the utensil in a while. If one is mouldy, you do not have to throw it away. Just make sure that you scrub it clean thoroughly.

Re-organize all your utensils and cutlery in their respective holders.

Put away your kitchen appliances in your cupboards and toss the boxes away. These boxes usually take up more space than is necessary because of the Styrofoam packaging that comes with it. Don’t forget to keep the manuals or warranty cards though. You may need those again some day.

If you keep your recipes in the kitchen, go through them and get rid of the recipes that you do not use anymore. If they are in the form of books, sell or donate them. If they are printed out, don’t throw the printouts away. Sell them to the newspaper man (a.k.a. old newspaper buyer) or have them recycled. File away those that you still want to keep.

Now would also be a good time to clean the vents and the stove-top, assuming you do not use an electrical stove.

What other tips do you have for cleaning out your kitchen? Post them here in the comments below.

We’ve gone over some of the regulations that govern the by-laws of a Management Corporation (MC) as outlined in section 44 of Act 318. This week, we’re going to take a look at the specific by-laws itself which must make up part of the by-laws of any MC as outlined in the Third Schedule of Act 318. As mentioned before, these rules must be present in the by-laws of all MCs¹. They cannot be amended¹ but they can be added to by way of a special resolution².

First, are the duties of a parcel’s proprietor. These include:

• Giving the MC and its agents permission to enter his/her parcel at a reasonable time provided reasonable notice is given (except during the case of an emergency)³. Entrance should be granted for the purposes of:

  • Inspecting the parcel⁴, or
  • Maintaining, repairing or renewing pipes, wires, cables and ducts that are used by any other parcel or as part of the common property⁵, or
  • Maintaining, repairing or renewing the common property⁶, or
  • Executing any work or performing any act necessary to perform an MC’s duties or to enforce these by-laws or other by-laws affecting the building⁷.
  
   
• Carrying out any work ordered by a public/statutory authority with regards to his/her parcel other than work that would benefit the building generally⁸
• Paying for all assessments, charges and outgoings which are payable in respect of his/her parcel⁸
• Repairing and maintaining his/her parcel to keep it in a state of good repair, reasonable wear and tear, with the exception of being damaged by fire, storm, tempest or an act of God⁹
• Not using and disallowing his/her parcel to be used in such a manner as to cause a nuisance or danger to another proprietor or their family¹⁰
• Not using his/her parcel for any other purpose other than that shown in the plan as approved by the relevant authorities¹¹
• Notifying the MC of any intended change in proprietorship of the parcel (or any other dealings related to the parcel) of which s/he is aware of¹²

A parcel proprietor is also not allowed to:

• Use his/her parcel for any purposes (whether illegal or not) which may damage the reputation of the building¹³
• Use any substance or material as a fuel which may give rise to any smoke, fumes or obnoxious smells¹⁴
• Dispose of any refuse or rubbish on the common property or anywhere else in the building, except in the proprietor’s own trash bins or refuse chutes provided by the building¹⁵
• Keep any animal in his/her parcel or on the common property which may cause annoyance to another proprietor¹⁶

The by-laws also list some responsibilities of the MC, which includes:

• Maintaining the fixtures and fittings (including lifts) existing on the lot which are used by more than one parcel or on the common property, in a state of good and serviceable repair¹⁷
• Establishing and maintaining suitable lawns and gardens on the common property where practical¹⁸
• Maintaining, repairing and renewing any sewers, pipes, wires, cables and ducts on the existing lot which are used by more than one parcel or on the common property¹⁹
• Producing all insurance policies effected by the MC and the corresponding receipts for the last premiums paid against the policies upon receiving a written request from a proprietor (or registered chargee, or any persons authorised in writing by a proprietor or chargee)²⁰
• Entering any changes to the strata roll immediately upon being notified of such²¹

The by-laws state that a proprietor has the right to use and enjoy the common property in such manner as not to interfere with another proprietor’s (or another proprietor’s family’s) use and enjoyment of the said common property²². But the responsibility for controlling, managing and administering the common property lies with the MC²³. However, the MC is also allowed to grant a proprietor exclusive use and enjoyment of a particular part of the common property²³. The MC can also make an agreement with a particular proprietor to provide certain amenities or services specifically for his/her parcel²⁴.

Reference:

Disclaimer: This post is brought to you by Highrise.my for your information only and does not constitute legal advice. Highrise.my shall not be liable for any losses as a result of relying on this blog.

Under the management of the Joint Management Body (JMB), a development operated under a set of house rules. These are known as by-laws under the management of a Management Corporation (MC). The purpose of the by-laws are to regulate the control, management, administration, use and enjoyment of the subdivided building or land¹. However, unlike Act 663, Act 318 actually specifies specific regulations that must be included and enforced in the by-laws.

The specific regulations are set out in the Third Schedule of Act 318 and they must be enforced at every subdivided building or land immediately upon the opening of the strata register book². These regulations also cannot be amended by the MC². However, the MC is free to make additional by-laws – or amendments to any such additional by-laws – by special resolution on the condition that the by-laws or amendments are consistent with those set in Act 318¹.

The by-laws must be observed by the MC and the proprietors as if the by-laws were legal agreements between:

• The MC and the proprietors³, and
• One proprietor to another⁴.

In terms of the by-laws, it is the MC’s responsibility to:

• Keep a record of the by-laws in force from time to time⁵
• Provide a copy of the by-laws when requested to do so in writing by a proprietor or someone duly appointed by the proprietor at a reasonable cost⁶
• Provide the by-laws (for inspection) to anyone who submits a written request and satisfies the MC that he/she has a proper interest in viewing the by-laws⁷

The by-laws must not:

• Prohibit or restrict the transmission, transfer, lease or charge of any of the parcels in the subdivided building⁸, and
• Destroy or modify any proprietor’s right created by Act 318⁹, including any right or obligation stipulated in section 35 of Act 318 for a proprietor¹⁰

The MC must lodge a certified true copy (under the MC’s common seal) of any additional by-laws or amendments to by-laws with the Commissioner of Buildings (COB) within 30 days of passing the resolutions¹¹. The MC or proprietor is also entitled to apply to a court of law for an order to enforce the by-laws or to prevent a breach of one¹². If a by-law is breached, the MC can apply to a court of law to recover any damages incurred in the breach¹³. Everyone is bound to the by-laws and are required to obey them, whether it’s the MC, the administrator of an MC, or any individual persons¹⁴. Thus, if a breach occurs, the court will make the order against either the MC, the administrator or any individual person as it thinks fit¹⁴.

Next week, we’ll take a look at the specific regulations as set out in Act 318’s Third Schedule.

References:

Disclaimer: This post is brought to you by Highrise.my for your information only and does not constitute legal advice. Highrise.my shall not be liable for any losses as a result of relying on this blog.

It’s December once again. The year is winding down and a new year is just on the horizon. I for one like fresh starts to the new year, and that includes kicking the year off with a spotless room. Besides an arguably borderline OCD-style (that’s obsessive compulsive disorder for those of you who were not aware) cleaning extravaganza, I also de-clutter my belongings. So today, I thought I’d share with you on what to do during a major cleaning (besides actually cleaning). I basically live out of one bedroom and bathroom, so those are the areas that these tips focus on.

All stuffed animals should be dry cleaned or, at the very least, dusted. Carpets should be dry cleaned. Pillows and comforters should also be taken to the laundromat for a cleaning, especially if you tend to drool in your sleep. Grandmothers will advise that you let these items “bake” under the sun for a few hours to kill any germs. It’s good advice. Do it if you have access to a washing line.

Check the condition of your clothes, particularly socks. Those with holes should be mended or tossed. Please do not donate hole-y clothes to the less privileged. They may be less privileged, but it does not mean they deserve any less respect.

If you keep cleaning products in your bathroom, check to make sure none of the products are leaking. These are chemicals, so you should either transfer the leaky products to a non-leaking container or toss the product altogether. Some products also have expiration dates which you might also want to check.

Ladies (and gentlemen, too), check your facial products and makeup as well. Items that are too old should be tossed and no longer used. Do not follow in the footsteps of my mother who thought it was such a waste to throw out an old tube of cream and slathered it on her face instead. You do not want to end up with a lobster red face like my mother did.

If you keep items in their original packaging, consider grouping them together if you have multiple boxes. For example, all your bandages can reside in one instead of multiple boxes if you have more than one box already opened.

If you store your belongings in individual containers like I do, re-consolidate the items if you need to. If your containers are labelled, update the labels if necessary.

Any item which you no longer use or want to keep around can either be sold or donated. There are numerous online auction websites that make it easy to sell off your old items. And if you plan on donating them, give the organization a call before you drop by. Do not assume that simply because you want to donate something, they should simply accept it. These organizations are not dumping grounds for your unwanted.

Like I said, these tips are more for the bedroom and bathroom, but some can be applied elsewhere in the house as well.

What do you do during a major cleaning and de-cluttering? Share them here with others.

In most cases, a Management Corporation (MC) will either engage a managing company or handle its own management and maintenance. There are some cases, however, where a managing agent is appointed by a Commissioner of Buildings (COB)¹ to handle the work instead. The COB will usually appoint a managing agent to exercise the powers and discharge the duties and functions of an MC if²:

• Complaints were lodged by a proprietor (or any other person/body with a registered interest in a parcel) stating that the MC has not functioned satisfactorily², and
• The COB determined that it would be in the interest of the proprietors to have a managing agent in place².

If the COB appoints a managing agent, the COB can also specify whether the agent will have:

• all the powers, duties and functions of the MC or the MC’s council for the subdivided building or land to which the appointment relates³
• any one or more of those powers, duties or functions specified in the appointment⁴
• all of those powers, duties and functions except those specified in the appointment⁵

Any expenses incurred by the managing agent are to be applied towards the MC’s management fund⁶.

In some cases, it is the court of law that appoints an administrator for the MC⁷. This only happens if the MC, a proprietor, or any other person/body with a registered interest in a parcel applies for such an appointment of an administrator for the MC⁷. A court of law will then appoint the requested administrator for either a fixed or indefinite period of time based on certain terms and conditions (such as remuneration) as determined by the court⁷. The appointed administrator must then lodge a copy of the court order making his/her appointment with the Registrar once appointed⁸.

The administrator will be given the power and responsibility of performing the duties of the MC in such a way as directed by the COB (to the exclusion of the MC) provided that the MC still retains the right to have the administrator removed or replaced⁹. The court may remove or replace the administrator if such a request is submitted by the MC or any person/body entitled to make such an application to the court of law¹⁰. If a court order to remove or replace an administrator has been granted to a person/body, the person/body is required to lodge a copy of the said order with the Registrar¹¹.

Again, the expenses of the administrator shall be charged on the management fund of the MC¹². For any of the applications made under this subsection, the court may order the payment of costs as it thinks fit¹³.

References:

Disclaimer: This post is brought to you by Highrise.my for your information only and does not constitute legal advice. Highrise.my shall not be liable for any losses as a result of relying on this blog.

Managing a development as a Management Corporation’s (MC) council member is a voluntary position. It’s a position which requires time, dedication and in some cases, hard work. But it’s also a position which carries some risk because under Malaysia’s statutory laws, council members can be sued on various grounds¹.

Lawsuits occur when mistakes or (worse still) accidents happen on the development, whether as a result of negligence or failure on the part of the MC. Examples of such incidents which can lead to lawsuits are:

• A visitor is injured
• Cars are damaged by fallen trees
• People are killed in a fire
• Drowning occurs in the swimming pool
• The property wrongly insured or not insured properly
• Mismanagement of funds

Today’s resident is empowered with the knowledge and awareness of their rights. As a result, it is more common to find residents who are willing to take legal action against a council member for breach of duties, breach of trust, neglect, error, misleading statement, omission, breach of warranty of authority, or any other acts done wrongly.

According to Act 318, council members can be held liable and legally sued either personally, jointly or severally for negligence errors and omissions alleged to have been committed in the course of managing the affairs of the MC¹. There are also other laws besides Act 318 under which a council member can be held liable:

• Damages can be claimed as part of the common law duty of care to a third party or to non-contracting parties
• Liabilities that are stated under a contract or agreement and are breached fall under the Contract Law

Thus, in an attempt to protect an MC and its council members, five different types of insurance schemes were enacted under the Management Corporation Strata Title (MCST) insurance scheme:

• Error & omission insurance
  This protects council members against claims and legal expenses arising out of their fiduciary and statutory duties.
   
• Third Party Liability insurance
  This insurance protects against lawsuits brought on by the public for any loss, damage or injury due to negligence.
   
• Fire and/or lightning insurance
  As its name suggests, this scheme covers damages which may occur to a building in the case of a fire or any similar type of emergency.
   
• Fidelity guarantee insurance
  This guarantee enables council members to obtain compensation as a result of a dishonest or criminal act of another council member or another MC employee.
   
• Money insurance
  This indemnifies a building management from the loss of monies as a result of burglary.

There are several insurances companies in Malaysia which offer the above insurance products to MCs. Elected councils should consider whether it would be in their best interest to effect any of the above insurances during the course of their management of the MC. Of course, prior to effecting any of the above insurances, a resolution will have to be agreed upon by the MC’s members during one of their general meetings.

For more information or further advice, readers are encouraged to contact their respective insurance companies that provide insurance policies for MCs and/or JMBs.

References:

Source: HBA

We know that a Management Corporation (MC) is responsible for executing and insuring the subdivided building(s) in a development from any risk (such as fire)¹. Thus, the MC is considered:

• To have an insurable interest in the subdivided building equal to its replacement value in order to effect any insurance under subsection 43(1)b) or subsection 43(1)c) of Act 318²
• To have an insurable interest in the subject matter of the insurance in order to effect any insurance under subsection 43(1)d)³

Any insurance policy taken out by the MC (under section 43 of Act 318) on the building cannot be brought into contribution with any other policy of insurance, except another policy taken out under this section in respect of the same subdivided building⁴.

In the unfortunate event that a subdivided building is damaged but is not totally destroyed, there are two options available in terms of how the building can then be used:

• Reinstate the building, or
• Continue using the building (whether in part of in whole) as it is.

The MC, purchasers, or a registered chargee of any parcel can apply to a court of law to settle a scheme in either of the two options above⁵. The court will settle the scheme and may also order the transfer of the interests of purchasers whose parcels have been wholly or partially destroyed to other purchasers in proportion to their share units⁵.

When exercising its powers, the court may make any orders as it deems necessary to give effect to the scheme, including orders such as:

• Directing the use of insurance monies received by the MC in respect of damage to the building⁶
• Directing the payment of monies by the MC or parcel owners⁷
• Directing any amendments or replacements of the certified strata plan and such consequential amendment or replacement of the strata register as the court thinks fit⁸
• Imposing any terms and conditions that the court thinks fit⁹

If a court of law becomes involved, any insurer who has effected an insurance on the building to which the application relates to has the right to appear on the hearing of the application¹⁰.

However, if the building is damaged to the point where it is totally destroyed, the MC has the option to opt to terminate the subdivision altogether. This, we’ll cover at a later time.

References:

Disclaimer: This post is brought to you by Highrise.my for your information only and does not constitute legal advice. Highrise.my shall not be liable for any losses as a result of relying on this blog.