Hello Sifu-sifu sekalian!
I'm sure everyone has heard of the news lately that a nurse was murdered in her condo by an African, and her body was found after 3 days. This is just one of the many cases where many foreigners causing nuisance for locals at their residential area.

Taking this into consideration, being a JMC committe member myself, we are planning to introduce Foreign Tenant Background screening at our condo. As we can't discriminate or stop a certain ethnicity from staying in a place, this appears to be the ideal call to give assurance to the local residents that the foreigner is indeed safe and not blacklisted from a criminal or financial aspect.

When we brought this suggestion to our lawyer, he said it's like opening a pandors box as certain things can backfire us. For info, our AGM was just held, and we incorporated this agenda into our house rules which was accepted and supported by almost all residents. We are also aware that the screening can be done only after the foreign tenant signs a consent form, as he's allowing the company to do a background screening on him. The question is, what if the tenant refuses? Though it's in the house rule, how to go about if he still refuse for a background screening and his stand is supported by the landlord?

Need your opinion on this guys!

Parking for info

Who do you actually want to prevent from renting, foreigners or criminals? If you're targeting criminals, why limit yourself to foreigners? If your goal is to ban foreigners, why bother yourself with a background check? Your idea is unworkable, let alone immoral.

Hi there,
The idea of us to implement this is to enable us to have records for foreign tenants who are staying at our place. Without the relevant data, it is difficult for us to monitor the the foreign tenants who are renting at our place.

As a matter of fact, when we ask the owners to provide details on their foreign tenants, they wouldn't bother since they don't live here. For them, as long as they're getting the rental and the maintenance fee is paid, rest is least of a concern.

After going thru a turmoil with our previous Management company, we have just established on getting things back on track. Foreigners issues are considered as one of the major thing at our place, as we have had cases of harassment, stalking, extortion, drunk, fighting, threatening, late night party, expired student visa, overstay and even murder attempt. When we look into the percentage of cases that was filed by the residents at our place for the past 1.5 years, a very large number was pointing towards them.

Looking at all this, the thought of implementing this will enable us to have records of their credit checks, status verification & criminal records. It is also viewed from a prospect where if I have nothing to hide, I am confident of a background check. Hence, upon doing the check and results found satisfactory, it would be safe to assume that the foreigners who are staying here are generally acceptable. And in the event of any misconduct, we have details pertaining them if any authority approaches.

For info, this tenant background screening is practiced in many countries such as USA, Canada & The UK for landlords who would want to rent their property especially for an international tenant.

For the local tenants, we have no qualms as we generally do not have any issues in getting their particulars and they are typically cooperative. As such, you can see the need why we would want to implement this for the foreigners who are refusing to provide their actual details.

Talking about immoral, I believe there are many condos out there which are putting up banners saying 'No Africans Allowed', which is blatant racism or coming up with a petition from the fellow residents to stop people renting to foreigners, Africans especially. This is unethical, let alone inhumane.

We were in a dire need to come up with such rules especially since it was a hot topic during the previous AGM. Hence, need your input on how we can go about this.

Thank you

Under strata title act, JMB/MC has no right to screen/choose tenant on behalf on owner,
but JMB/MC has the right to request tenant profile from the owner, just like JMB/MC has the list of all owners profile for the entire building.

This is something JMB/MC can work on.

Does this mean that JMC reserves all the rights to request for the foreign tenant profile and can take a copy of the documents (passport/letters) related to them? And if they still refuse, up to what extend can we go? Blocking access card can be an option?

First off, what do you think you can find out about a foreigner here?

Beyond their immigration status there isn't anything as a JMB you can find out.
Credit checks? Most likely if they are crooks they live under the radar of CCRIS/CTOS.

Reference checks? These can very easily be forged for tenancy purposes.

Also what are you going to do if the following happens?

Owner overseas. Gives it to the care of a managing agent. Agent finds a tenant who is an agent for foreign tenants, everything checks out perfectly because the JMB would not have known that person is an agent, after 2 weeks a bunch of Africans moves in and assumes the tenancy? What could have your background checks have done to prevent that?
Absolutely nothing at all.

As a JMB chairperson, I can tell you any type of system you can think off there will be a way to circumvent it.

Your points are indeed a harsh truth

From your perspective as a chairperson, what would you reckon we can do? Make it compulsory to have owners /agents submit their tenant's profile to the MO? Can be made mandatory?

This post has been edited by ariesguy: May 22 2019, 01:23 PM

Technically, JMB/MC has right to request those info as a list who are staying in their managed condo/property, so that in any disastrous event happened (building collapse/fire etc), they have info to look to assist for rescue effort, potential list of victim etc.

A lot of stratified property has problem of owner to pay up on time, or some even refuse to pay the maintenance fee, some even beat up security when their car being clamped due to parking in not designated lot.
Lack of cooperation may be the key problem for enforcement.
Yet, it is a SOP to get those info, and actually quite important JMB/MC to have those info.

Fyi
JMB/MC has the right to block common facilities access if owner/tenant breach house rules, but no right to block access to individual parcel unit.

I will give you these advice :-

1) You can't do everything on your own. Does not matter whether it is a RM100psf junk grade condo or a RM2000psf elite condo, unless you have people on board with you nothing will happen.

2) They say when it comes to cars it can be fast, good or cheap pick 2. When it comes to a strata development the JMB can have 3 aspects which are cheap, great in maintenance or great in security, you will have to choose 2 to pick. You want great maintenance and great security? Sure no problem, maintenance fees must go up. You want great security at a low cost? Doable, just you have to cut down on other things such as maintaining the lawns or facilities for example.

What I see is if your development is having issues with crime then initially invest more in security, more CCTVs, more security guards, more patrols by security guards. Stricter visitor controls. But first and foremost make sure accounts are up to date, go after those that don't pay and don't give too much leeway.

First and foremost screening is useless because your providers are local (example CTOS [CCRISS only available for banks], bankruptcy search, criminal records) and you are implementing it on foreigners.

I have heard of "certificate of good conduct" issued by the respective embassy/consular. Basically, this is intended to confirm that the person has no criminal records in their home country. I will let you guys do research on this point.

I think the key point to note here is:
(1) you can't restrict landlords from letting out their property;
(2) you can't discriminate; and
(3) you can't prevent a person from going to their parcel.

Before they get to their parcel however, they need to pass through "Common Area". This is where JMB/MC have most control over residents.

The strategy here is to deploy various paperwork, access card followed up by strict enforcement. Shady characters will typically find this challenging to comply and will naturally opt out of the tenancy.

Strategy 1:
Issuance of a separate access card (example for barrier gates, lifts etc...) for tenants and owners.

If you have facilities, you may want to consider a seperate access card system, if you can afford it(or already in place)

Note: This will be a huge exercise and you will need to pass this as an agenda during AGM.

Strategy 2:

Control over property agents. All property agents must register themselves with the management office. Registered property agents will be published on the notice board. Reason being, if there are nasty tenants and the property agent does not assist to rectify, they will be barred from entering the property.

Strategy 3

Before obtaining access card, the tenant must provide the following information:-
(1) the property agent must appear in person and provide details to management;
(2) tenancy agreement (full set);
(3) identification document (passport together with proof of stay ex: study pass);
(4) if student, letter from university/college;
(5) certificate of good conduct from the tenant's respective home country;
(6) emgency contact details (email, phone) of the tenant's parents/guardians; and
(7) terms of use of the access card.

The terms of use of the access card should be signed-off by the tenant. If the tenant misbehaves, their access card will be revoked and they have to sign-in each and every time and they have to produce identification documents/tenancy agreements and a letter showing JMB/MC has provided temporary access to the tenant (if applicable). At entry point in the guard house, at the lobby (if guards are posted) and the common facilities (if guards are posted). The tenant will be escorted or tapped-in by guards.

Strategy 4
If the tenant manages to get past the documentation phase but behave badly, have their access card disabled based on the "terms of use of the access card". (refer to sign-in every time).

The above arrangement can also be used to defeat renting out of units to Airbnb occupants.

The procedures should be adopted via AGM.

I have to say your point sounds pretty much effective. And thank you for the listed suggestion!

I have made my research pertaining to Certificate of Good Conduct' which can be done online and it's only RM20. But the only setback is the duration takes approx 1-2 months, and the foreigner who intends to apply it must have reside in Malaysia at least 12 consecutive months under their long term visa:




If the tenant is in a move in condition and the owner wants him to move in immediately, it may seem a little difficult from our end especially from compelling owners.

For the agents listing, this is indeed a great approach. We are actually in the midst of replacing the access card, and this will be the time to get the full listing of the agents and we will register them under us.

You were saying that 'The terms of use of Access card' can be implemented to to restrain the use of units as AirBnb. From our previous conversation with our local COB, he mentioned that currently there are no law to prevent such thing, as many owners are buying these units for such investment. If I am an owner for the homestay unit, all I have to do is just may my monthly maintenance fee, and pass the access card to the person who booked. If he/she did not cause any nuisance, I would assume everything is fine. But from JMB's perspective, how can be curb or prevent from such person renting it for a short term stay at our place?

Thanks once again!

I just think about the following:-

1) Under SMA Act, there are some prescribed by-law stated in Third Schedule;
2) Any additional by-law made by JMB/MC need to filed a copy to COB, and those addtional by-law cannot contradict with prescribed by-law;
3) To make sure any new owner/tenant or however enter into the building should registered with the Management Office to provide their basic info;
4) JMB/MC also can issue written notice to any proprietor/tenants pertaining to the complaint toward them, after 2 written notices send, JMB/MC may proceed with further action.
5) for AirBnB, if this building is under residential title, just report to PTG/licensing Dept where they are misuse residential parcel for commercial use;
6) If this is commercial title, introduce additional by law for air-bnb, for example, to install emergency sign at all common staircase, to install mimic diagram, just imagine if u in a hotel, what u will see and impose those to airbnb owner.
7) This is due to under current law, if this is commercial title, u cannot restrict them to use as commercial. U only can create more rules to make them difficult to carry such business.
8) Another way is to create some access point to mail room like access card, so that those people unable to access to the mail room to take the key.

TQ

airbnb still falls under residential use.

No, if this is airbnb, it will considered as commercial usage, because it will act similar to hotel operator.

If this is residential title, i think you can report this to COB/licensing/PTG..

You may refer the case:

Verve Suites Mont Kiara Management Corporation v Innab Salil and 20 Others (Kuala Lumpur High Court Civil Suit No. WA-22NCVC-461-09/2017)

In this case, MC held an EGM for additional by-law prohibited short-term rental of the parcels and obtained majority vote. airbnb owner/operator dissatisfied and file to strata title tribunal to nullift this addtional by-law.

Decision of the Court

Short term rental guests are mere transient lodgers and in fact the airbnb terms of service describes the booking as a "license". Short term rental guests can be more appropriately be described as akin to hotel guest.

"House guests" who have booked their unit online are in law mere "licensees" who have been allowed to enter the licensor's parcel for a consideration. No proprietary rights passed to them.

From the facts that short term rental activities severely disrupted the peace and quiet of Verve Suite, as such the additional by-law introduced by MC is valid and enforceable.

Restricting short term rental activities can be made through passing a resolution at a general meeting and introducing additional by laws. Imposition of fine of RM200 is for each infringement.

You may search online for this case for more details.

thank you.

This is indeed a good case to study about...thanks for sharing this bro!

TQVM for this case study.

if u read carefully, they did mentioned "No proprietary rights passed to them", from my interpretation, it may refer to those guests only can stay in the unit but cannot enjoy all the common facilities likes gym or swimming pool.

May be u can explore how to draft those additional by law on this. Suggest u engage a lawyer who is very familiar in strata management to assist u on this.

Sorry for the delay in response. I was waiting for the responses to die down before I respond.

I think i just open myself another can of worms i.e. Airbnb.

All the procedures that I have proposed is not intended for an "outright" prohibition but making it difficult by putting paper work in place. If assuming the tenant (or Airbnb occupants) observe all the terms and conditions to the letter, it will be very difficult for you to filter out and they will be out of your hair.

It's only when they appear on the radar than you will use the tools available:

(1) disabling access card for security reasons because house is registered with Owner A but visitors have been seen coming in and out of the house; or
(2) requiring registration and show of documents at entry points [this is to catch Airbnb or tenants, they don't have transportation. Disable their access card, request them to produce documents i.e. passport/NRIC, tenancy agreement as proof of their occupancy].

Disclaimer: Whoever is reading this/ To whom it may concern... Before I begin, forum is a public space and information are obtained from public source. If you are in doubt, please check with a professional i.e. lawyer or your building manager. The information is intended for public discussion.

Okay, looks like we going on serious mode here. My answers and question in bold:

1) Under SMA Act, there are some prescribed by-law stated in Third Schedule;
There are two modes of recovery of maintenance due to management:
(a) through tribunal (s34/78); or alternatively
(b) attachment (section 35/79) i.e. seize the owners property and sell it off to recover maintenance fee due.

Doesn't quite aid the OP/TS (forgot this forum use which one to refer to question starter) question, please elaborate further on your point. Would help with discussion.



2) Any additional by-law made by JMB/MC need to filed a copy to COB, and those addtional by-law cannot contradict with prescribed by-law;

First hurdle, by-laws cannot contradict regulations made under section 150:-

The point where in cannot contradict refers to those laws created under section 150, example below:-
1. PU(A) 107/2015 STRATA MANAGEMENT (MAINTENANCE AND MANAGEMENT) REGULATIONS 2015 (refer to preamble of the Regulation)
2. PU(A) 116/2019 STRATA MANAGEMENT (COMPOUNDING OF OFFENCES) REGULATIONS 2019 (refer to preamble of the Regulation)

Second hurdle (section 32 or 70):

Maybe additional requirements, depending whether you are a JMB or MC (Please note). Your by-laws must fall within the following category:-

(a) safety and security measures;
(b) details of any common property of which the use is restricted;
© the keeping of pets;
(d) parking;
(e) floor coverings;
(f) refuse control;
(g) behaviour;
(h) architectural and landscaping guidelines to be observed by all parcel owners; and
(i) imposition of fine not exceeding two hundred ringgit against any parcel owner, occupant or invitee who is in breach of any of the by-laws.

Third hurdle

The by-law needs to be passed by a special resolution.

Special Resolution means:


Fourth hurdle

File with COB.

section 32(6):


section 70(6)


3) To make sure any new owner/tenant or however enter into the building should registered with the Management Office to provide their basic info;

What is basic information and where do we cross the threshold of too much information?

My reason to each of the information requested as follows (but i am sure you guys can think a better one than mine):-

(2) tenancy agreement (full set);
- Reason why full set is requested is because we want to ensure that there is a contract in place. Example: what if he provide you all pages except for signature page OR what if he provides you with the cover page and signature page only? Does it mean there is a signature?

(3) identification document (passport together with proof of stay ex: study pass);
Not only we would want to know that the person is legitimately in this country but also for the security of the rest of the residents, their stay should correspond to their purpose. Also, if there is fire or emergency, it would be easier for management to carry out headcount

(4) if student, letter from university/college;
Same as (3) above

(5) certificate of good conduct from the tenant's respective home country;
Same as (3) above

(6) emgency contact details (email, phone) of the tenant's parents/guardians; and
[B]Same as (3) above

Coincidentally, section 32 and 70 also mention, JMB/MC can make by-laws that are:-



[/B]


4) JMB/MC also can issue written notice to any proprietor/tenants pertaining to the complaint toward them, after 2 written notices send, JMB/MC may proceed with further action.

Action can be taken if the by-laws provides for it. I presume what you say means the by law already provides for it.

5) for AirBnB, if this building is under residential title, just report to PTG/licensing Dept where they are misuse residential parcel for commercial use;
no comment.


6) If this is commercial title, introduce additional by law for air-bnb, for example, to install emergency sign at all common staircase, to install mimic diagram, just imagine if u in a hotel, what u will see and impose those to airbnb owner.
no comment but i would agree even if its for residential property as additional by law requirement.

7) This is due to under current law, if this is commercial title, u cannot restrict them to use as commercial. U only can create more rules to make them difficult to carry such business.
Same concept applies for residential.

8) Another way is to create some access point to mail room like access card, so that those people unable to access to the mail room to take the key.
yes, one way is to introduce more access control points.


Can't comment without any proper reference.

Typically common law occupancy principles on a land is classified as follows:-
(a) trespassers
(b) visitors
© licensee
(d) tenant
(e) lessees

Each type of different occupant would impose different type of obligation on the owner.

Example: the owner digs a pit on his land, assuming you are a trespasser and you fall and injure yourself, compared to a tenant, what is the liability to the owner? Would a trespasser have more right compared to a tenant or vice versa?

In simplest of terms an Airbnb is merely a licensee.

This post has been edited by aurora97: Jun 3 2019, 02:03 PM

I totally agreed with this statement.
In most of the case, we only provide our view point / suggestion, however you should make your own decision.
If you are not clear of which/what decision to make, please consult with a professional, i.e. lawyer for advise.

Thank you.