By-laws governing strata property in Malaysia, part 3

General prohibitions of a proprietor according to the Third Schedule of Strata Management Regulation 2015

A PROPRIETOR shall not use his strata parcel for any purposes, illegal or otherwise, which may be injurious to the reputation of the development area; use as fuel of any substance or material which may give rise to smoke or fumes or obnoxious smells or shall not use any substance which the management corporation in a general meeting shall decide; and throw or allow to fall, any refuse or rubbish of any description on the common property or any part thereof except in refuse bins maintained by him or in refuse chutes or in refuse bins in common refuse chambers provided in the building.

PROHIBITION OF NUISANCE
A proprietor shall not use language or behave in a manner likely to cause offence or embarrassment or nuisance to any other proprietor or to any person lawfully using the common property.

APPEARANCE, FAÇADE AND COLOUR OF EXTERIOR
A proprietor shall not change the appearance, colour code and façade to any part on the exterior of his parcel without the prior written approval of the management corporation and, where necessary, the approval of the appropriate authority.

PEST CONTROL
A proprietor shall take all necessary steps to prevent his parcel from infestation by termites, vermin, rodents, pests and insects provided that any netting installed shall first be approved by the management corporation.

KEEPING OF ANIMALS IN A RESIDENTIAL BUILDING
A proprietor shall not keep any particular animal in his strata parcel or on the common property thereof that may cause annoyance or nuisance to the other proprietors or which may be dangerous to the safety or health of the other proprietors or which contravenes any written law or rules and regulations of the relevant state or the local authority.

DRYING OF LAUNDRY
In a building used for residential or dwelling purposes, a proprietor shall not, except with the prior written approval of the management corporation, hang any washing, towel, bedding, clothing or other article on any part of his strata parcel in such a way as to protrude outside, other than at the areas designated for such purpose and leave them there only for a reasonable period.

IDENTIFICATION FOR SECURITY PURPOSES
The management corporation may require any person on the common property to identify himself for security purposes and any person who refuses to comply and who is not a proprietor to leave the common property or the development area immediately.

PROHIBITION OF OBSTRUCTION
All fire escape routes, including but not limited to, the stairways, landings and passageways in the building or the common property shall not be obstructed by the proprietor at any time and the management corporation may, without prior notice, remove or confiscate any property of a proprietor, including but not limited to, bicycles, potted plants, vases, furniture, trolleys, boxes,goods or objects of any kind whatsoever. The management corporation may put up a notice of any removed or confiscated property which may be claimed by the proprietor within fourteen days from date of the notice subject to payment to the management corporation of a charge not exceeding RM200. If a removed or confiscated property is not claimed at the expiry of the period of fourteen days, the management corporation may discard or dispose of such property as it deems fit without any liability to the proprietor.

GARDEN, LAWNS AND POTTED PLANTS
A proprietor shall not damage any lawn, trees, shrubs, plants or flowers in the common property.

ENCROACHMENT ON COMMON PROPERTY AND OTHER PARCELS
A proprietor shall not do anything to his strata parcel which may encroach on any part of the common property or any other strata parcels. A proprietor shall not mark, paint, put up posters or banners or notices, drive nails or screws, or fasten brackets or the like into, or otherwise damage or deface, any part of the common property except with the prior written approval of the management corporation. An approval given by the management corporation shall not authorise any addition(s) to the common property.

VEHICLES
Every vehicle shall be properly parked in the designated parking bay without causing any obstruction to any adjacent vehicle or the flow of traffic. An improperly parked vehicle may be towed away or wheel-clamped by the management corporation, at the vehicle owner’s cost without prior notice, and in such a case, the wheel clamp will only be removed after payment to the management corporation of a charge imposed by the management corporation which shall not exceed RM200, and with any towing cost and holding charge actually incurred by the management corporation.

SOLID WASTE DISPOSAL
A proprietor shall not cause any unsightly accumulation of dirt, garbage, rubbish or debris in his strata parcel and accessory parcel that is visible from the outside and affecting the appearance or façade of the building or common property.

RENOVATION WORKS AND REPAIRS
A proprietor shall not carry out any renovation works to his strata parcel without first obtaining a prior written approval from the management corporation and, where necessary, from the appropriate authority.

RESTRICTIONS IN RENOVATION WORKS
Unless prior approval in writing has been obtained from the appropriate authority and the management corporation, a proprietor shall not:
• construct another floor level to his strata parcel (e.g. to split the level of any portion of the existing floor in the strata parcel by adding platforms);
• relocate any external door or window of his strata parcel;
• remove or make changes to any building safety feature in his strata parcel and notwithstanding such approvals, the proprietor shall indemnify and keep indemnified the management corporation against any liability which may be incurred or suffered as a result of such removal;
• shift any plumbing and sewerage system in a strata parcel;
• change or upgrade the whole electrical system in a strata parcel; or
• illegally connect or tap electricity supply.

POWER OF THE MANAGEMENT CORPORATION 

Where the condition of any strata parcel(s) in the development area affects or is likely to affect the support or shelter provided by that parcel for another parcel in the same building or the common property, or causes or is likely to cause damage or destruction to another parcel or any property therein in the same building or the common property; and the proprietor of the parcel in that condition has neglected or refused within a reasonable time of two written notifications of at least fourteen days each from the management corporation to take such action as is necessary to have that condition rectified; the management corporation may, as agent for the proprietor of the parcel in that condition, take such actions and proceedings as are necessary to have that condition rectified and the management corporation may recover the cost and expense of such actions and proceedings from the proprietor of the parcel in that condition as a debt due to the management corporation.

CHANGES TO BY-LAWS 

A developer during the developer’s management period may make additional by-laws or make amendments to such additional bylaws, not inconsistent with the bylaws in the Third Schedule, with the approval of the Commissioner of Building.

A joint management body may, by a special resolution, make additional by-laws or make amendments to such additional bylaws, not inconsistent with the bylaws in the Third Schedule, for regulating the control, management, administration, use and enjoyment of the building or land intended for subdivision into parcels and the common property, including all or any of the following matters:
• safety and security measures; • details of any common property of which the use is restricted;
• the keeping of pets;
• parking; • floor coverings;
• refuse control;
• behaviour;
• architectural and landscaping guidelines to be observed by all strata parcel owners; and
• imposition of a fine, not exceeding RM200 against any parcel owner, occupant or invitee who is in breach of any of the by-laws.

Follow our article next week on The Strata Management Tribunal, highlighting criminalising nonpayment of service charges.

BY DATUK PRETAM SINGH DARSHAN SINGH, The Sun

Related posts:

• 

  By-laws governing strata property management in Malaysia, part 1

  Third Schedule of Strata Management Regulation 2015 WITH the demise of the Deed of Mutual Covenants, the Third Schedule of the Strata...

• By-laws governing strata property management in Malaysia, part 2 ... 

• 

  A strata property living nightmare: leakage

  The party responsible is not your upstairs neighbour but the management Stiff penalty: Whoever fails to give access to the party ca...

A strata property living nightmare: leakage

The party responsible is not your upstairs neighbour but the management

Stiff penalty: Whoever fails to give access to the party carrying out the inspection commits an offence. The fine imposed is up to RM50,000 or imprisonment of up to three years or both, under regulation 63(2).

IF you live in a high rise building and have an inter-floor leakage issue, you can be rest assured that you are not alone. Inter-floor leakage is without a doubt one of the biggest problems faced by many dwellers of high rise buildings.

Whilst the leakage may appear only in a particular parcel, the source of the leakage may lie in the parcel above or even elsewhere. The cooperation of more than one party is therefore required; without which one cannot even begin to identify the problem, let alone solve it.

Two issues must be identified when there is an inter-floor leakage. Firstly, the source of the leakage and secondly, the person or body responsible for repair or rectification. Who is supposed to identify the source of the leakage to start with? The person or body responsible of course, you may say, but how do you know who is responsible before the cause of the problem is ascertained? A bit of a chicken and egg situation arises.

New Act

Will the new management Act answer to all ceiling leakages?

In February 2013 the Strata Management Act 2013 (SMA) was passed by Parliament. With that came a presumption in law, under Section 142 of the SMA, that if the leakage is on the ceiling, then such leakage is presumed to be from the parcel above unless it is proven otherwise. So, if you have a leakage from your ceiling, go to your upstairs neighbour and tell him/her that he/she is responsible and must therefore find the source of the leakage and do the repair. What if he/she disclaims responsibility? Simple, You just quote Section 142 of the SMA. What a magical section with a “one fits all” answer to ceiling leakages! I thought so too when I first read Section 142, but I was not completely right for the law does not place the entire responsibility squarely on the upstairs parcel owner.

It was to be another couple of years before the SMA was implemented in June 2015 but the good news is that with that came also the implementation of the Strata Management (Maintenance & Management) Regulations 2015 (SMR). Many thanks to those (including HBA volunteers) who worked tirelessly on drafting and fine tuning the provisions of the SMR, we now have some definite answers on what to do if you have a leakage from your ceiling.

Who is responsible?

In dealing with inter-floor leakage one must not just look at Section 142 of the SMA but also Part XV of the SMR. Indeed it is Part XV of the SMR which tells you what to do if you discover dampness, moisture or water penetration from your ceiling or if you were to go home one day only to find that it is raining in your apartment.

Go to the developer if you are still covered by the defects liability provisions.

If the leakage is still covered by the provisions of your sale and purchase agreement (SPA), follow the provisions of your SPA. For homebuyers, these are typically cases where the leakage or defect occurs during the defects liability period, and which the housing developers are required to rectify, as provided in the statutory SPA.

JMB/MC/Management first in the line of responsibility – regulation 56

If the leakage is not one which is covered by the SPA, then notice may be served by the owner of the affected parcel on the developer or the joint management body (“JMB”) or the management corporation (“MC”) or the subsidiary management corporation (“sub-MC”), as the case may be.

This is provided for in regulation 56(1) of the SMR. What regulation 56 essentially means is that you serve notice on the body responsible for the maintenance and management of the common property, which for convenience I shall refer to as “the management”. So, now you see, the party first in the line of responsibility is not your upstairs neighbour but the management.

Once notice is received, the management must, within seven days, carry out an inspection to determine the cause of the leakage and the party responsible for rectification (regulation 57). Thereafter, the management must issue a “Certificate of Inspection” stating the cause of the inter-floor leakage as well as the party responsible for rectification (regulation 59). A standard form certificate for this purpose can be found in Form 28 under the Second Schedule of the SMR.

So, what is the purpose of Section 142, you may ask? Section 142 merely creates a presumption that the defect lies in the parcel above. In practical terms, this does nothing towards resolving any inter-floor leakage issues other than perhaps as a starting point for inspection. After all, one cannot possibly rectify a defect which causes the leakage until and unless the actual defect is identified. The legal implication of Section 142, however, is perhaps best left to those much more qualified than I but I do wonder if this statutory presumption alone can be a valid ground for holding the upstairs parcel owner responsible and if so under what circumstances in light of the provisions of the SMR.

Determining factor(s)

Under regulation 58 of the SMR, the management must take into account not just the aforesaid presumption but also the following matters which to my mind are far more relevant once the defect is identified:-

(1) that any defect in something which serves more than one parcel is a common property defect; and

(2) that any defect in something which serves only one parcel is a defect of that particular parcel even though that something is situated in common property or in void space.

In other words, the determining factor is not the location of that defective something but which parcels that something serves. If it serves just one parcel, that particular parcel owner is primarily responsible and must rectify the defect failing which the management shall carry out the rectification works and charge the expenses to that particular parcel owner. I say primarily because whilst regulation 61 of the SMR imposes the obligation on a specific parcel owner such obligation is expressly stated to be without prejudice to that parcel owner seeking indemnity from someone else.

That of course begs the question of who can be held liable for such indemnity; a question which is beyond the scope of this article but I certainly will not rule out any parcel owner, including the affected parcel owner, who contributes towards the defect or any delay in the rectification of the defect.

The decision of the management is, as expected, not final. Anyone not satisfied with a decision made against him/her may refer to the Commissioner Of Buildings (COB) who shall ascertain the cause of the leakage and the party responsible in accordance with regulation 64(1) & (2) and the decision of the COB shall be complied with by all parties concerned.

Grant access for inspection or risk prosecution

It goes without saying: that neither inspection nor rectification works can be effectively carried out without access to all relevant parcels and common property. Hence, the imposition of a statutory obligation on all relevant parties to give access as provided by regulation 63(1) of the SMR comes as no surprise at all.

Whoever fails to give access to the party carrying out the inspection commits an offence! And the punishment is severe too; a fine of up to RM50,000 or imprisonment of up to three years or both, under regulation 63(2).

Given that the lack of cooperation on the part of some parcel owners/occupiers has remained one of the main causes of delay in resolving inter-floor leakage problems, these provisions are definitely a step in the right direction. It does puzzle me, however, that whilst a failure to give access for inspection tantamount to an offence, the same does not seem to apply to a failure to give access for rectification.

Some of you cynics out there may be tempted to brush this aside as something unlikely to be enforced by the authorities but do you want to take that chance? Do you really want to risk prosecution over something as simple as giving access for inspection and/or rectification?

Beside, now that the Strata Management Tribunal has been set up you may be slapped with an order much sooner than you think.

By Chang Kim Loong Buyer Beware

Chang Kim Loong AMN is the honorary secretary-general of the National House Buyers Association: www.hba.org.my , a non-profit, non-governmental organisation manned purely by volunteers.

Related posts:

• 

  By-laws governing strata property management in Malaysia, part 1

  Third Schedule of Strata Management Regulation 2015 WITH the demise of the Deed of Mutual Covenants, the Third Schedule of the Strata...

• By-laws governing strata property management in Malaysia, part 2 ... 

Scientists Finally Discover How the Obesity Gene Works

Scientists have finally figured out how the key gene tied to obesity makes people fat, a major discovery that could open the door to an entirely new approach to the problem beyond diet and exercise.

The work solves a big mystery: Since 2007, researchers have known that a gene called FTO was related to obesity, but they didn’t know how, and could not tie it to appetite or other known factors.

Now experiments reveal that a faulty version of the gene causes energy from food to be stored as fat rather than burned. Genetic tinkering in mice and on human cells in the lab suggests this can be reversed, giving hope that a drug or other treatment might be developed to do the same in people.

The work was led by scientists at MIT and Harvard University and published online Wednesday by the New England Journal of Medicine.

The discovery challenges the notion that “when people get obese it was basically their own choice because they choose to eat too much or not exercise,” said study leader Melina Claussnitzer, a genetics specialist at Harvard-affiliated Beth Israel Deaconess Medical Center. “For the first time, genetics has revealed a mechanism in obesity that was not really suspected before” and gives a third explanation or factor that’s involved.

Independent experts praised the discovery.

“It’s a big deal,” said Dr. Clifford Rosen, a scientist at Maine Medical Center Research Institute and an associate editor at the medical journal.

“A lot of people think the obesity epidemic is all about eating too much,” but our fat cells play a role in how food gets used, he said. With this discovery, “you now have a pathway for drugs that can make those fat cells work differently.”

Several obesity drugs are already on the market, but they are generally used for short-term weight loss and are aimed at the brain and appetite; they don’t directly target metabolism.

Researchers can’t guess how long it might take before a drug based on the new findings becomes available. But it’s unlikely it would be a magic pill that would enable people to eat anything they want without packing on the pounds. And targeting this fat pathway could affect other things, so a treatment would need rigorous testing to prove safe and effective.

The gene glitch doesn’t explain all obesity. It was found in 44 percent of Europeans but only 5 percent of blacks, so other genes clearly are at work, and food and exercise still matter.

Having the glitch doesn’t destine you to become obese but may predispose you to it. People with two faulty copies of the gene (one from Mom and one from Dad) weighed an average of 7 pounds more than those without them. But some were obviously a lot heavier than that, and even 7 pounds can be the difference between a healthy and an unhealthy weight, said Manolis Kellis, a professor at MIT.

Related: More U.S. Adults Are Now Obese than Overweight

He and Claussnitzer are seeking a patent related to the work. It was done on people in Europe, Sweden and Norway, and funded by the German Research Center for Environmental Health and others, including the U.S. National Institutes of Health.

Researchers can’t guess how long it might take before a drug based on the new findings becomes available. But it’s unlikely it would be a magic pill that would enable people to eat anything they want without packing on the pounds. And targeting this fat pathway could affect other things, so a treatment would need rigorous testing to prove safe and effective.

The gene glitch doesn’t explain all obesity. It was found in 44 percent of Europeans but only 5 percent of blacks, so other genes clearly are at work, and food and exercise still matter.

Having the glitch doesn’t destine you to become obese but may predispose you to it. People with two faulty copies of the gene (one from Mom and one from Dad) weighed an average of 7 pounds more than those without them. But some were obviously a lot heavier than that, and even 7 pounds can be the difference between a healthy and an unhealthy weight, said Manolis Kellis, a professor at MIT.

Related: ‘Healthy Obesity’ Turns Unhealthy Over Time

He and Claussnitzer are seeking a patent related to the work. It was done on people in Europe, Sweden and Norway, and funded by the German Research Center for Environmental Health and others, including the U.S. National Institutes of Health.

“It’s a potential target” for drug development, said Dr. Sam Klein, an obesity researcher at Washington University in St. Louis. He called the work “an amazing study” and “a scientific tour de force.”

Dr. Rudolph Leibel, an obesity expert at Columbia University in New York, used the same term — “tour de force.” Still, some earlier research suggests the FTO gene may influence other aspects of obesity such as behavior and appetite.

“It’s possible there are several mechanisms being affected,” and that fat-burning is not the whole story, he said.

Read This Next: There Are 6 Types Of Obesity — And Each Should Be Treated Differently

- Associated Press