Firstly, APAC would like to thank all of you who took the trouble to attend the press conference held on the 14 nov 2008 Friday. Please read through the points i have raised below and try to append your proposals in blue. My current list is not complete so guys help me to prepare the memo. As agreed, we will submit a 'Memorandum' to YB Iskandar and COB MBPJ as soon as possible with regard to the following issues:
Lembaga Perumahan - YB Iskandar
Uniform interpretation of Act 663 to cover all 12 PBTs in Selangor
A. CLAUSE 5 – Duty of developer to convene meeting
Proxy votes if allowed must be scrutinized by COB to ensure transparency and prevent manupulation
B. CLAUSE 6 – First meeting of Joint Management Body
C. CLAUSE 10- Extraordinary general meeting
D. CLAUSE 33- Recovery of arrears of charges
E. CLAUSE 34- Failure or refusal to pay charges
Should ensure and fastrack the establishment of a Secretariat or Department at PBT level specifically to address all Condos and Apartments Issues staffed by
a. a Panel of Senior or experienced Lawyers b. a Panel of Accountants to review accounts submitted by developers and JMCs c. Enforcement officers to act against errant developers and JMCs d. a Budget allocated to finance the setting up of the Secretariat. All these must be fastracked at PBTs level as problems are piling up as we speak
COB - MBPJ
a. databank on all condominium and apartments to be maintained into 3 categories - high-end condos - medium cost Condos - Low cost Apartments b. to fastrack the establishment of a Secretariat without further delay c. enforcement officers
Problems faced by all Condo and Apartment Owners
formation of JMBs and JMCs
First JMB meeting - preferably to be scrutinized by COB
to conduct workshops to train JMCs to hold meetings and manage the buildings
errant developers
accounts and various documents not given to JMCs such as owners listings
building drawings - structural & M&E drawings
sinking funds
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5 comments:
My opinion is we do away with proxies. If the owner is not interested then he/she loses his/her rights to vote. Just like the election. Proxy should only be allowed in the case of joint ownership, as it is in the S & P...not appointing outsiders.Others look ok.We also need opinions from those who did not attend the meeting.
Nicholas Phuah wrote
COMMENTS ON PRESS CONFERENCE 14 NOV 2008
Preamble
I am a chairman of my management council (MC) in TTDI. We did not have the benefit of Act 663 then. Initially, we had many problems with the developer and later we had problems with the Management Council (MC) members. We secured 25% signatures and got the CoB’s directive to convene an EGM and reelect new MC members. I was elected Chairman and we proceeded to set up proper Standard Operating Procedures to ensure smooth future management operations. (This may help an issue raised by one of the participants.)
I attended this conference as an advisor to an aggrieved party. My firm is a registered valuation firm and we have also been appointed as managing agent by the CoB to manage a problematic shopping complex. We also conduct 1st meetings. Kindly allow me to share some thoughts.
1. Act 663
a) The concept of this Act started way back in 1999, due to many issues during the period after vacant possession to strata titles being issued. Owners accuse developers of mismanagement, and developers accuse owners for lack of understanding developers’ problems, etc, etc.
b) Generally the Act is meant to protect the weak individual owners, while ensuring that the developer is still responsible for certain issues.
c) The question of Chairmanship and proxy, from my understanding is quite clear. The developer (and/or agent) convenes, the eligible members present decides the Chairman to conduct the meeting thereafter, including election of the JMC.
d) Joint owners only are allowed a proxy (to ensure that only 1 vote per unit by multiple owners of 1 lot). No mention of corporate purchasers. We adopted the principle that directors are the legal representatives of the company. Thus upon sight of the proper company forms, resolution etc, we allow 1 director per unit as proxy.
e) The question of car park bays being sold after formation of JMB. One will need to check the submission of building plans to the authorities. If there are no parcel numbers or accessory parcel numbers, then such car parks are common property.
2. Powers of CoB & State Authorities
a) Clause 1, sub-clause (7) empowers the State Authority to suspend the operation of this Act or any provision of this Act, if in its opinion, it would not be contrary to the public interest, and the interest of the purchasers.
b) Clause 3, sub-clause(1) empowers the State Authority to appoint the Commissioner of Building and such officers as may be necessary...
c) Clause 3, sub-clause (2) ..Commissioner, subject to any general or special direction of the State Authority…
d) Clause 38, sub-clause (1)(a) empowers the Commissioner or any authorized person to carry out investigation to determine any offence committed and may seize any books, accounts or documents…
e) Clauses 39 (1) – (5) empowers the CoB or authorized person in the examination of person acquainted with case.
f) Clause 40 (1) – (3) gives the CoB the power to compound any offence.
g) Clause 41 ….decision of the State Authority shall be final and shall not be questioned in any court.
h) Clause 46..Public Authorities Protection Act 1948..basically the CoB and/or any officer or agent is protected in respect of any act, neglect or default done or committed in good faith.
Note: There is no clear definition of “State Authority” but I presume that for Selangor, this will refer to the Mentri Besar or State Exco.
Clearly, the Act empowers the State Authority and CoB to protect the public interests and purchasers against any misdeeds of the developers and JMCs.
3. Conclusion
I observed a lot of frustrations and anger by many participants against the CoB. To be fair, this is a relatively new Act and they may not be sure of the proper interpretations. There will probably be court cases to test any decisions made either way.
Thus the short term solution would be for the State Authority to direct the CoBs to interpret the provisions in the best interest of purchasers and act accordingly. If there is need to amend or vary some provisions, State Authority should act without fear or favor.
I may not be a lawyer but my reading of the Act in its overall context and its intentions leads me to believe that for all its weaknesses, the Act as it stands is still better than none at all. The Strata Title Act 1985, was only recently amended in 2007!
In my humble opinion, there are positive powers for the State Authority to apply wisely and quickly for the benefit of frustrated owners and the general public.
Thank you.
R.Rama Chandran wrote
I fully agree with Tengku. But we must be prepared to face strong objection from developers who own subtantial number of units. I can foresee legal suits on ' owner's rights' on this matter by developers or mutli- owners. We must find a way to avoid abuse of the proxy system.
Andrew Tan wrote
I agree in cases of joint ownership, the proxy should be either one of the joint name.
I also think should allow proxy in cases like proxy the spouse. Some times the unit is a 2nd unit (not 2nd hand but new house number 2), so buy under spouse name.
peter chong wrote:
I suggest that it should be copied to all PBT's as it involves them too. As the issues are related to the ACT, it should thus also be copied to the Ministry of Housing and Local Government. The memorandum should also be moe specified: **we want a uniformed interpretation of the ACT; is too general. Specifically what is the intepretation we want. **if developer does not convene meeting by given dateline than COB must convene that first meeting by a specific dateline. **voting is by show of hands, thus it is necessary for proxy because some people own a few units. Thus if proxy is not allowed, the owner is actually denied his right, penalised of his rights by virtue of no proxy ruling. However, proxys cannot hold office. We cannot deny owners of their rights just because some people may abuse it. Two wrongs do not make a right! **the secretariat at each PBT should have an umbrella body at the state level, ie Lembaga Perumahan in order to have uniformity.......it also allows for "economies of scale" and sharing of manpower. **a state financed independent Resource Center that can act as a mediator; provide support and training etc for JMB/MC should be set-up.
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