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New Beginning In Strata Management

The Sunday Star (16 December 2012)
by Roger Tan

With more and more people living in stratified buildings, the new Strata Management Act is timely in helping to reduce animosity among residents and owners during dispute resolutions.

LAST Sunday, I attended the annual general meeting (AGM) of the management corporation of an upmarket condominium as a proxy for my wife. Its last AGM was held in September last year.

This AGM was by far the most heated and disorderly since the management corporation was set up some six years ago. A fight almost broke out despite the presence of representatives of the Commissioner of Buildings (COB) and the police.

Let me now share with you my personal thoughts about the AGM, before examining whether the new Strata Management Act (SMA), when it comes into force, will help minimise and remove such animosity which appears to be rather prevalent and common among occupants living and undertaking business in stratified buildings.

In fact, trouble was already brewing before the AGM. In the AGM notice sent to owners of all the 170 parcel units, all the three outgoing 2011/2012 Council (CM2012) members – in their 30s (let’s call him CM1), 60s (CM2) and 70s (CM3) – jointly signed and attached a three-page letter containing allegations of impropriety against the previous Council (CM2011) members.

The CM2011 members, through their lawyers, demanded that their written explanatory response also be circulated to all the parcel owners before the AGM. This was refused.

Drama-charged

The situation was aggravated when CM2, the outgoing CM2012 chairman, used his welcoming speech, delivered in Mandarin, to reply to CM2011 members’ written explanatory response, which was also not circulated during the AGM. He also attempted to make more allegations of impropriety against CM2011 members until I intervened because the latter had not first been given any opportunity to be heard. Procedurally also, this should not have been done before first electing the chairman of the AGM.

I also observed that each time someone spoke up against any resolution proposed by CM2012, CM3 would shout and try to interrupt and intimidate the speaker. A fight almost ensued when some parcel owners confronted CM1 and CM3 during the break. They wanted to know why their parcel unit numbers had been displayed on the notice board as not having settled a one-time payment of RM400 for upgrading work, approved in the 2010 AGM. The parcel owners felt aggrieved that they had been publicly shamed, claiming and showing proof that at the time the notice was put up, CM1, CM2 and CM3 as Council members themselves had failed to pay maintenance charges for a few months, but their parcel unit numbers were not mentioned in the said notice. CM3 then raised his walking stick cum foldable chair, wanting to strike his fellow septuagenarian CM2011 member who questioned him until he was restrained by police and the former’s wife.

(Interestingly, I was informed by the COB that a fight virtually broke out before him during the extraordinary general meeting of a nearby condominium on Oct 28 when chairs were also thrown! Fortunately, goodwill prevailed when the injured decided not to press any criminal charges.)

The AGM then proceeded with election of 2012/2013 Council members. The House decided to elect only seven Council members. Eight owners were nominated. When the COB suggested that voting could be dispensed with if the House decided to change the number to eight, CM2 strenuously objected. CM2 vociferously proclaimed that he could not accept the CM2011 Chairman into the new Council. When one of the eight said he would withdraw so that the number could be reduced to seven, CM2 objected too because that would mean CM2011 Chairman would get elected. It was obvious to everyone present that there is a lot of bad blood between CM2 and CM2011 Chairman. Then almost half of those present who are owners living in the condominium walked out in protest.

Nevertheless CM1, CM2 and CM3 were elected even though it was obvious that they did not enjoy any support from the live-in owners. Their support came, instead, from the proxies. Twelve proxies who were present actually represented owners of 48 parcel units. CM1, CM2 and an estate agent who is also an owner (EA), were also each a proxy to several parcel unit owners. It was abundantly clear that these proxies were mainly CM2’s friends.

When challenged whether these proxies knew who the principals/owners they were representing, the mainly Mandarin-speaking group just remained silent. But CM2 openly instructed them on how to vote and they voted according to his instructions. If voting had been done by show of hands, CM1, CM2 and CM3 could have lost, but it was done by poll where the proxies’ votes are calculated according to all their principals’/owners’ shares of the parcel units.

In fact, this expressly went against the COB’s circular that a person can be a proxy to only one owner at any one general meeting. According to the management office, just like last year, CM2012’s supporters’ completed proxy forms were submitted in bulk by CM2 and EA, that is, they were not submitted individually by either the owners/principals or their proxy holders. No verification was also done whether the owners/principals did personally execute the proxy forms or whether the owners/principals and proxies knew each other.

It is sad to see that the live-in owners who were present were powerless to decide on the affairs of their condominium which they know most. Instead, these outsiders (one of them a former gardener at the condominium), who appeared bored and lost throughout the proceedings when English was used, had the ultimate say.

To my mind, the entire AGM is invalid as the legality of the proxies’ appointment and voting is seriously in doubt because it has also gone against the law of agency.

In fact, I had raised this issue of manipulating the proxy voting system even way back in June last year in my article, “Resolving tenancy disputes” (Sunday Star, June 12, 2011). I also subsequently had a brief SMS discussion with the Housing and Local Government Minister Datuk Seri Chor Chee Heung.

I am glad that the SMA has now made the one-proxy-one-owner rule clear in paragraph 18 of the Second Schedule. However, in light of the above and the relaxation of quorum requirement, paragraph 18 should be amended to state that only an owner’s immediate family member, tenant or attorney (appointed by way of a power of attorney) is qualified to be his proxy. If the owner is a corporation or organisation, the same principle should also apply in that there should be a close nexus between the owner and his proxy.

This will also compel owners to take more responsibility and a keen interest in the management affairs of their properties by making an effort to attend the general meetings. Such an amendment is not required to be tabled before Parliament as the minister is empowered to do so under Section 152 of the SMA.

Timely law

That said, assuming the SMA is in force now, the above fiasco could have been avoided. Under the new law, the Council will be known as a management committee and no committee member shall hold office for more than three consecutive terms. Also, a committee member will be deemed to have vacated his office if his conduct brings discredit on the management committee.

Most importantly, any dispute or altercation among owners living in stratified buildings can be resolved through the Strata Management Tribunal. Hence, the Tribunal ought to be set up expeditiously unlike the Strata Titles Board which was never set up since the enabling provision was first inserted in the Strata Titles Act, 1985 (Act 318) in December 2000.

With an effective and efficient dispute resolution mechanism in place, this will help promote peace and good neighbourliness in stratified buildings. A lot of precious time can also be saved during general meetings. For example, in the Dec 9 AGM, CM2011 and CM2012 members seemed to be more obsessed with each other instead of discussing real issues such as lax enforcement of House Rules, the recent robbery-cum-rape case that reportedly took place and the appearance of a large crack on the exterior wall of the building next to one of its columns.

Similarly, the performance of the managing agent engaged by CM2012 at RM8,000 per month was not discussed. In my view, the performance of CM2011 members in managing the condominium is better than the said managing agent’s. Not to mention, they did it voluntarily. In this respect, I must register my agreement with Chor that registered valuers should not have monopoly over the management of stratified properties because strata owners must be allowed to have a choice and the right to decide who is best to manage their building.

As a whole, congratulations are in order for Chor, Datuk Seri Douglas Uggah Embas, Minister of Natural Resources and Environment (NRE) and their ministry officials in revamping the laws relating to strata management. When the SMA comes into force, the Housing and Local Government Ministry will take over from the NRE in monitoring the management of all stratified buildings and the operation of the SMA. Act 318 has also been amended and the Building and Common Property (Maintenance and Management) Act 2007 will be repealed.

Time will only tell how successful the SMA is in coming to grips with multifarious problems faced by those who live and do business in stratified buildings. But it cannot be gainsaid that this new law marks a new beginning of a comprehensive legal framework in strata management.

*The writer is a former Chairman of the Conveyancing Practice Committee of the Malaysian Bar Council.

TRANSLATION

随着越来越多的人生活在分层建筑物里,新的分层建筑物管理法能适时的帮助减少居民和业主在解决纠纷时的敌意。

上周日,作为我妻子的代理我参加了高档公寓管理机构的周年大会 (Annual General Meeting, AGM)上一次的周年大会在去年9 

这次的周年大会是自管理机构在大约六年前成立以来最激烈和无秩序的。尽管房屋建筑总监(Commissioner of Buildings, COB) 和警方的代表都有出席,还是险些发生了打架事件。

现在,让我与你分享我对周年大会的个人看法,再研究新的分层管理法令 (Strata Management Act, SMA
),在其生效时,会否帮助减少及消除这似乎是在分层建筑的住户与业务者间相当普遍和常见的仇视。

事实上,在周年大会举行前,麻烦就已经开始酝酿了。在发送给所有170间单位的周年大会通知函里,所有即将离任的三位2011/2012年度委员会成员(CM2012- 年纪大约是30多岁(让我们称呼他为CM1),60多岁(CM2)和70多岁(CM3 - 共同签署并附上了长达三页具有对前委员会(CM2011)成员不当之处的指控的文书。

CM2011的成员,通过他们的律师要求他们回复该文书的书面答辩在周年大会举行前也派发给所有的单位业主。这遭到了拒绝。

充满戏剧性的大会

使情况更加恶化的是CM2,即将离任的CM2012主席用中文陈述他的欢迎词来答复CM2011成员的书面答辨,该陈述词也没有在周年大会上分发。他也试图指控CM2011成员更多的不当行为直到我的介入,因为后者并未被给予任何辩解的机会。在程序上也是,这在还未选出周年大会主席前不应被提出。

我也注意到当每次有人发言反对任何CM2012提出的决议案时,CM3都会呼喊并试图中断和恐吓该发言者。当一些单位业主在大会休息时质问CM1CM3时,他们几乎都快打起来了。他们想知道为什么自己的单位号码被显示在公告板上为未缴付RM400,即于2010年周年大会上批准的一次性付款的升级改造工程费。那些单位业主感到不满,觉得他们已经被公开侮辱,并声称及提出证明在通知书被张贴在公告板上时,CM1CM2CM3作为委员会成员本身都并未交付数个月的维修费,但上述通知书中并没提到他们自己的单位号码。CM3然后举起他的拐杖兼折叠椅,想打那质疑他的年逾七旬的CM2011成员,直到他被警察和他的妻子给阻止了。 
 
(有趣的是,我从COB处获悉在1028
日,附近的一个公寓大楼的特别大会有打架事件在他面前发生,也是扔椅子!幸运的是,受伤者出于好意决定不采取任何刑事行动。)

周年大会上接着进行2012/2013年度委员会成员的选举。众议院决定只选出7个委员会成员。8位业主被提名。当COB建议如果众议院决定改变人数到8,投票就可以免除,CM2极力地反对。CM2大声疾呼宣称他无法接受CM2011的主席进入新一届委员会。当八个代表中的一位说他将退出以让人数减少到7位时,CM2还是反对,因为这将意味着CM2011的主席会被当选。这让在场的每一个人都很明显的意识到 CM2CM2011的主席之间有很多的不愉快。因此,在场几乎尽半的公寓业主都走了出来以示抗议。 

尽管如此,CM1CM2CM3还是当选了,即使他们很明显的没有得到任何住在公寓的业主的支持。他们的支持来自代理人。出席的十二位代理实际上代表的是48个单位的业主。CM1CM2和一位也是业主的地产代理人(Estate Agent, EA),都是几个单位业主的代理。很明显的,这些代理主要是CM2的朋友。

当被质问到这些代理是否认识他们所代表的业主/委托人时,那些主要以中文来沟通的团体只是保持沉默。但CM2公开教导他们如何投票,而他们也根据他的指示来投票。如果投票以举手方式进行表决,CM1CM2CM3可能就落选了,但它是由投票方式进行,而代理人的票数是根据他们所代表的单位业主数来计算的。 

其实,这明确地违背了COB所发的通函(Circular),既一个人在任何一个大会只可以成为一位业主的代理人。据管理处,就像去年,CM2012的支持者所填好的代表委任表格是以一整叠的方式来提交的,而不是分别由业主/委托人或代理人分别提交。而业主/委托人是否亲自签署代理委任表格或业主/委托人和代理是否互相认识并没有被查证。

可悲的是现场出席的住在公寓的业主无力决定他们所最熟知的公寓的事。相反的,这些外来者(其中一人是公寓的前园丁),在使用英语的过程中表现得无聊及恍神,反而有最终的决定权。

在我看来,这整个周年大会是无效的,由于违背了代理人法,让人强烈怀疑选立代理人及投票的合法性。

事实上,早在去年6月份在我的文章,“解决租务纠纷”Resolving Tenancy Disputes (2011612 Sunday Star)我已经提出了有关操纵代理投票制度的问题。我也随后与房屋及地方政府部长拿督斯里曹智雄进行了简短的简讯(SMS)讨论。

我很高兴SMA目前于附表二第18段明确规定了一个业主一个代理的规则。然而,根据上述所说及会议定额人数的放宽,第18段应修订为只有一个业主的直系亲属,承租人或代理人(通过授权委托书委托的)才拥有成为他代理人的资格。如果业主是一个公司或组织,也是同样的规则,既该业主和他的代理之间应该有密切的关系。 

这也将迫使业主通过出席会议来承担更多的责任和让他们对产业管理有浓厚的兴趣。这样的修正案不须提交国会议会因为SMA的第152条文授权部长这样做。 

及时的法律 

这么说,假设SMA现在已经生效了,上述的混乱是可以避免的。根据新的法律,该委员会将被称为管理委员会,而没有委员能连任超过三次。此外,如果委员会成员的行为抹黑了管理委员会,他将被视为已停任。

最重要的是,生活在分层地契建筑物的业主之间的任何争议或口角可以通过分层管理审裁处解决。因此,审裁处应该尽快成立, 别像从来没成立过的分层地契局, 尽管该条文已自200012月插入分层地契法令,1985年(第318号法)(Strata Titles Act, Act 318)。

有了一个有效的争端解决机制将有助于促进分层建筑物的和平及睦邻友好。在会议上也可以节省很多宝贵的时间。例如在129日的周年大会上,CM2011CM2012的成员似乎更加在意彼此,而不是讨论真正的问题,如公寓的规矩 (House Rules)执法不严,近期发生的抢劫兼强奸案及出现在建筑外墙上的一个大裂缝。

同样的,CM2012以每月RM8000聘用的管理代理人的表现并未被讨论。在我看来,CM2011成员管理公寓的表现比上述管理代理人的好。更何况,他们这样做是自愿的。在这方面,我必须赞同曹部长,注册估价师不应该垄断分层物业的管理,因为分层地契的业主应有选择权来决定谁是最适合管理他们建筑物的人。 

总的来说,曹部长、拿督斯里道格拉斯(Datuk Seri Douglas Uggah Embas), 天然资源与环境部(NRE)的部长和部门官员对有关分层管理法律的改革是被祝贺的。当SMA生效时,房屋及地方政府部将取代NRE来监控所有分层建筑物的管理和SMA的执行。法令318亦已被修改,而建筑和公共财产(维修及管理)法令2007Building and Common Property (Maintenance and Management) Act 2007)将被废除。

只有通过时间才能知道SMA能多成功地解决住在分层建筑物和在该建筑物做生意的人所面对的各种各样的问题。但不能否认的是,这个新法律标志着一个全面的分层管理法律架构全新的开始。

*作者是马来西亚律师公会不动产委员会的前主席。

 

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