I just realised I might have given some wrong advices. I think it is impossible for the management to block access or in your example, entry to car park to either the tenant or the owner. The only legal way is to cut the water supply if they owe the money or to sue the fella. Unfortunately this boils down to something similar in another thread about locking up the houses if a tenant doesn't pay.

Payment of maintenance is a separate issue compared with access. So at the moment I will stick to the legal way of doing things again, which is first to cut off water supply (you can argue that whatever he pays will go to maintenance first then water supply.. so if he ends up aging the water supply for 3 months, you can cut it off). If the bugger still refuses to budge, then write notice of demand. Honestly there is really little we can do with these parasites except to wait for the chance that they want to sell the premises and their lawyer would advise them to settle all outstandings.

In fact recently I was faced with an interesting problem. During a thunderstorm, a tree branch had fallen unto a few vehicles. Act of god normally cannot claim insurance. But who has to pay for the damage? The victim may argue about negligence, the management need to protect themselves by saying they are not aware of potential damage and pass the liabilities to landscape. Landscape would claim that under their contract, there was no mention of their responsibility to look at trees whether they are healthy or otherwise. So you can see, there are many stories from JMB without an answer and the question that TS has started truly has no resolution to date.

If you are at JMC shoes, you need to find out MOST PRACTICAL & EFFECTIVE ways to collect the bills. In fact, we have seek advices from many parties, including lawyers and local council, there is NO LEGALLY WRONG to block car entry to the premise, as long as the House Roles clearly stated that. In fact, most of them NOT RECOMMEND to CUT water. The recommend way is to reduce water pressure/supply flow to very minium instead (take 2 hours for shower! ).

We take two ways to mitigate the risks you mentioned: 1) Put notice at the entry point to state "Park at your risk!" and 2) Buy public liability insurance.

I think best if you actually get your lawyer to write to you in black and white as mentioned before, you cannot block an owner's entry to their properties. What they owe your management is a private matter. Unfortunately this debate has been going as old as the chicken and egg story. Always best to refer to the strata title act 2007, which is unfortunately a very thin book for an act (you probably can read the whole book in 2 hours) and you will find that there are specific section that deals with default and payment. Unfortunately blocking access is definitely not the solution as you have impaired a rightful owner's rights into their own abode. It is always ultimately up to the court to determine the final solution. Just because many JMB had gotten away with this ruse, it may not be the legal way to dealing with such matters.

Cutting of water supply is in fact legal as it constitute a service provision. No payment will result in no service. If the high rise has individual meters connected to the relevant state water authorities, then you cannot cut it off. Like TNB, you cannot cut it off.

All insurances do not cover Act of God unfortunately unless you specify. A notice at the toilet door saying "SLIPPERY" does not mean the shopping centre owner is devoid of liabilities if someone actually slip and fell. Unfortunately, the reality of law can be quite cruel at times which is why we pay litigation lawyers heaps of money to tell the court our actual logic of matters.

Usually will use option 2 & 3.

Michael,

Just to add in a few points.

There are generally two options open to the Management Corporation under the Strata Titles Act.

1. Recovery by way of civil suit in Court.

This is provided for pursuant to Section 52


The above ought to be read together with Section 75(2)


It is not as simple as sending a letter of demand and thereafter institute legal proceedings. Two notices must be issued. This is provided for pursuant to Section 53.



Basically a two-week notice, plus another reminder notice of another 2 weeks. Total 4 weeks before instituting a civil suit.


2. Recovery by way of attachment of movable property of proprietor

This is provided for pursuant to Section 53A.



However, the provisions of Section 53 must be complied first, i.e. the notices must be served.

This section basically empowers the LA to issue a warrant for the attachment of the movable property of the proprietor.

Under a normal Writ of Seizure and Sale, it is the Court bailiff who will execute it. Under the Act, a council member or any person authorised by the MC can execute the warrrant. This means to go to the unit and attach the property. The person doing so shall be deemed a public servant. As such, any obstruction or interference by the owner can be deemed to be interference in the duty of a public servant which is a criminal offence punishable by law.

The pros of this second method are:
1. Saves time. Easier and faster than to proceed via civil suit as the MC skips to enforcement stage immediately after the notices are sent.
2. Execution is not complicated and can be done by a MC council member.
3. Intimidation and fear factor - other residents would be aware of the attachment proceedings and would be more inclined to pay up since there is a threat of enforcement. We all know how it is in Malaysia - people are more likely to follow the law when there is a serious and visible threat of enforcement or punishment.
4. Save costs on legal fees.


Cons:
1. It is tedious to get the LA to issue the warrant for attachment. It depends on the efficiency of the LA in question. I've heard of a situation where the LA brushed aside requests for attachment and told the MC to just appoint a lawyer and sue the owner.
2. Movable property relates to movable property of the OWNER/PROPRIETOR and not the TENANT. As such, if there is a tenant using the premises, no action can be taken against him personally nor his movable property. It is an illegal to do so. As such, the MC can end up with nothing if all the movable property in the premises belong to a tenant.

Michael, if I may add in a little:

Not all cases of natural disasters fall under Act of God - thus absolving the authority from any liability for loss suffered.

If it can be shown by the claimant/victim that the authority could have taken preventary/precautionary steps to prevent/mitigate the effect from occuring AND the authority failed to take those steps, then a case of negligence would arise and the authority can no longer hide behind the shield that it was as a result of an Act of God.

For example, if the tree branches were already overgrown and not trimmed, and is of an unreasonable length and size, then there is an implied duty upon the authority to trim it. It is a reasonable duty of care upon the authority to do so. As such, even though the effect (broken branch falling on a car, causing damage) is caused by an Act of God, it could have been prevented had the branches been trimmed to a reasonable and safe length and size.

The legal remedy would be against the JMB, as it is the duty of the JMB to ensure the safety of the common property for the usage of all. As such, the JMB would be the defendant in the legal suit by the plaintiff - car owners. If JMB feels that it had delegated it's duty to a landscaping company/maintenance agent, then it must add that entity as a third party and claim indemnity from them, in the event that they are negligent. The plaintiff has no nexus with the landscaping company as no contract is entered into between them.

So, if the plaintiff is successful in his suit for negligence, then JMB has to pay to the plaintiff damages. If the third party claim is allowed, JMB would then be allowed to claim for full (or part) indemnity from the landscaping company.

Of course, the burden is upon the plaintiff to prove that JMB was negligent. JMB does not have to prove anything at all. Once negligence has been ascertained, then JMB has to study its contract with the company to see if liability can be placed on the company for negligence/breach of contract.

Thanks for your reply. Still studying your above one and couldn't absorb but I think in general you have given the full legal way of doing things (which I don't know why others here are so against of using).

This case is a bit interesting. I think they are going to sue the management company rather than JMB itself. Management company said they have purchased enough liability insurance to cover the cost of repairing the car. It can be very difficult to prove negligence as the trees are reasonably healthy and most like 10 years old tree (ie. still very young with reasonable sized branches). That particular day, there was a severe thunderstorm that not only caused havoc within the compound but outside. Many other cars were damaged outside of the compound. I would say the victim stand a very low chance of winning. But then again, I am not the judge.

There is nothing in the Act which allows the MC to cut off utiilties nor block the access card issued to the owner (who thereafter handed over them to the tenant). If access to parking is via the access card, then it is also deprivation of the right to usage of the parking in the unit. In some cases, the parking lot is a separate unit owned by the proprietor with its own strata title.

There is nothing which allows the MC to 'slow down' the water supply to the unit as well. It is similar to deprivation of enjoyment of utilities.

As such, any of the above acts is deemed to be self-help. It is often said before in this forum (especially in topics of rights and remedies of landlords against tenants who default in rental or refuse to vacate the premises) that self-help is illegal in Malaysia.

Basically, the proprietor can sue the MC for illegal deprivation of use and enjoyment of facilities. It is no defence to the MC at that stage to say that it was done because the proprietor did not pay maintenance. That is a separate issue altogether.

Two wrongs do not make a right.

If the proprietor is in default, then use the proper channels under the Act, as pointed out in my earlier post above.

Here is a famous reported case on a proprietor who successfully obtained an injunction against a MC who blocked his access card and refuse him entry into the parking lot of the condo.

If you take the time to read it, it would be very knowledgeable and I think it can answer the questions posed by TS in this topic.

This case also states that even if the House Rules/Deed of Mutual Covenant provides that the MC can block the access card of owners who do not pay maintenance, it is illegal and void as it goes against the Strata Title Act. So the posts by some forummers above that if it is provided for in the House Rules, then it can be done - with respect, that argument is not sustainable in light of the decision in this case.

To date, there is no judgment by a superior Court to overrule this case, so the law still stands despite it being a High Court decision.

John Denis De Silva v. Crescent Court Management Corporation [2006] 2 CLJ 605

 John_Denis_De_Silva.pdf ( 98.14k ) Number of downloads: 262




This post has been edited by dariofoo: May 23 2012, 06:13 PM

Dario, actually condos receive water from a main water supply from the supplier (varies from state to state). Then from the main, the MC will have many different pipes going through an in house meter to record the water usage. So I personally believe in this case, the proprietor actually applies for water supply from the MC. And the MC will provide such services as long as the proprietor pays. One trick which I like to use is that if the proprietor insists on paying for only water usage, i will take whatever money and then issue him a receipt for part payment of maintenance. Unfortunately base on MC records, the proprietor will be seen as not paying water bill since we take the oldest owing sum. I don't think this is self help right?

Access as per what I have corrected myself above. Cheers mate.

On water bills, it depends if your bill comes from management or from the state water company.

if from management, then the management can have the right to cut water.
if from state, then its not allowed to cut

same goes to power. its true especially for shops like mid valley.

If the MC is the one who is deemed to be the supplier, then there ought to be a proper agreement whereby the owner agrees that the MC retains the right to interrupt supply if there are sums due and owing. In such cases, it would not be deemed as self help, as the owner has consented to such an arrangement.

Any other scenario and it would be self-help and thus illegal.

What position are you in with regard to this scenario? A member of the MC? Tenant?

Hahaha, a proprietor with interest in the building. With such methods we have indeed reduced the cases of deliquencies. I don't like to take council members role but starting a property management company soon. So gotta get myself prepared though I won't be actively involved in the day to day running of that particular business.

There are lots of grey areas for this strata act 2007. You should know very well our law and enforcement. The burden to prove these grey areas are at the owner's hand if he/she decided to bring the case to the court.

He/She might get the injunction to temporary uplift restriction, but high change he/she has to pay additional legal costs + outstanding maintenance fees + water bills + HIGH % INTEREST (10% at my place). MC/Property Manager's legal fees will be withdraw from Maintenance account. So, even you win the case, but still need to pay the outstanding amount, and you are contributing to MC/Property Manager's legal fees as well. If you lost the case, then you have to pay more $$$$$. Worth to try?

Having say that, don't mean I'm totally right. One important thing for all strata property owners is they are liable to pay all related fees stated in the DMC. If one don't like to pay that, then choose the individual title property then.

The key objective to form the JMB is to manage the property and ensure all common facilities are well keep. The JMC is the decision maker and the Property Manager is just a runner. The ideal case case all owners pay they due on time. But, this never so easy!

1)also can put name owner list, unit number refuse to pay at near lift or gate house,let them shame
2)owner hav to clear all outstanding fees before release consent to new buyer
3)write a letter remind that hav a penalty 10% a year

done all that lo

1. People who refuse to pay have extremely thick skin, do you think they will even know the word of 'shame' ?
PS. There are also some thick skin people in this forum....

2. When vendor sells the property, this is already in the S&P. But how often do they sell ? Every 5 years, you cannot collect your fees. Too long to wait !

3. 10% penalty will work for some but not all.

This post has been edited by jalsrix: May 27 2012, 11:27 PM

Perhaps management offices can also start up a distribution list to all unit owners showing latest updates on the prop, collection status, etc.

This post has been edited by icez: May 27 2012, 11:42 PM

we are a management company that does collection for buildings such as condominiums,shop lot or any residential areas.

Any company that are having problems with maintenance fees collection can call in for further information. we also give advice to the chairman on how to go about before we come in for collection.

Thank You,

cool

hi just wonder if we take legal action against these maintenance defaulters, is it ok to charge them back the LOD fees even after they have paid immediately .