PETALING JAYA: The soon-to-be-implemented
Strata Management Tribunal will have two enforcement tools — civil and
criminal.
An award of the tribunal can be executed by civil actions such as the seizure
and sale of the properties of the judgement debtor in the courts; garnishing the
money in the hands of a third party like a bank; a judgement debtor can be made
a bankrupt; if it is a company, it could be wound up; and other available
remedies.
“The Strata Management Tribunal is set to provide a more flexible,
cost-efficient and quicker resolution for strata management issues, which
require quick resolutions,” said Yong Yung Choy, past president of the Home
Buyers Tribunal for nine years, who had arbitrated many disputes between
developers and purchasers in the housing industry.
He was speaking at a seminar at The Real Estate and Housing Developers’
Association (Rehda) Institute.
Yong is also a senior Advocate and Solicitor of the Malaysian Bar and a
member of the Malaysian Mediation Centre and the Kuala Lumpur Regional Centre
for arbitration.
He emphasised that while the new tribunal may be more flexible, it will have
to comply with the fundamental provisions of the Strata Management Act 2013.
The more flexible arrangements of the strata management tribunal are more
user friendly compared to court laws. They allow the judge to perform on-site
inspections, set the time and place of the proceedings, draw on their own
experience and expertise on the subject matter without being bound by the
Evidence Act 1950.
“Strata Management is a complicated and technical matter. The tribunal will
provide the expertise and specialists,” Yong said.
Former housing and local government minister Datuk Seri Chor Chee Heung said
tribunal members will comprise retired judges and lawyers with at least 10 years
of experience in the field. They will take turns to sit on the tribunal.
To further enhance efficiency, he said the Commissioner of Buildings (COB)
Department in local councils will have a full-time deputy to address problems
relating to high-rise buildings.
“The department will also have an additional four to five employees. This is
all at the expense of the Federal Government,” Chor said.
The move was introduced as some COBs are also local council presidents or
mayors who may not be available to address issues due to their other
responsibilities, he said.
According to Yong, the largest monetary value of a dispute permitted under
the jurisdiction of the tribunal is RM250,000. Also, cases cannot be filed with
courts and the tribunal at the same time. If a case has been filed with a court,
it cannot be filed again with the tribunal. If it is already filed with the
tribunal, then it must be withdrawn.
People who are eligible to file claims include the developer, purchaser,
proprietor including the original proprietor, joint management body, management
corporation, subsidiary management corporation, management agent, any person
with leave of the strata management tribunal (if the tribunal sees fit) or a
COB.
All disputes relating to performance and enforcement of all duties and powers
are under the Strata Management Act, while all costs and repairs on a parcel and
its common property are subjected to Section 16N(2) of the Housing Development
Act 1966. According to the act, claims must be filed within 12 months from the
certified completion and compliance, date of expiry of defects during the
liability period and date of termination of the sale and purchase agreement.
The tribunal needs to resolve a case within 60 days and to give a reason for
the settlement in writing based on the relevant provisions of the Strata
Management Act. If the tribunal makes a reference to the High Court, it is bound
by the decision of the High Court.
Failure to comply is considered an offence which will result in a fine not
exceeding RM250,000 or jail sentence not exceeding three years or both. A
further fine of RM5,000 will be imposed for a continuing offence. Prosecution
cannot occur without consent from the public prosecutor in writing.
The High Court has the power to review settlements, set them aside or remit
back to the tribunal for re-consideration.
This article first appeared in The Edge
Financial Daily, on April 18, 2014.
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