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Showing posts with label HBA. Show all posts
Showing posts with label HBA. Show all posts

Sunday, August 23, 2015

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.

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Tuesday, November 19, 2013

Increase transparency in property prices

Companies factor in freebies into the cost of the property

 
The marketing tactic of offering lifestyle-oriented freebies is often quite effective when it comes to high-end premium homes

DEVELOPERS often offer sales gimmicks and marketing ploys like free legal fees, rebates, air-conditioners and furniture. Budget 2014, however, seems to make it a requirement that developers be transparent about their property prices.

The adage “There’s no such thing as a free lunch” rings true in this instance. While developers are quick to advertise various blandishments such as “free legal fees/stamp duty, etc”, such freebies are always factored into the property price. These freebies should be translated into cash incentives to be deducted from the purchase price of the property, as otherwise, it becomes meaningless to offer these gimmicks, which are usually recovered in the form of substandard materials. Here, we again thank our Prime Minister for announcing that developers, when offering their products, should disclose the value of the freebies to the buyers. Such transparency is a move in the right direction so that buyers would know what they are letting themselves in for. The enforcers of the law should be able to count on the Urban Wellbeing,

Housing and Local Government ministry to do its job to ensure that there is strict compliance and observance.

Whilst such a requirement will not deter speculation, it will hopefully educate house buyers on what makes up their final property price and not to be misled by developers advertising such freebies.

Additional measures

The National House Buyers Association (HBA) reiterates its call on the Government to take additional measures to stem the steep rise in property prices. There are basically two ways to reduce speculation: increasing the entry cost and increasing the exit cost.

Whilst Budget 2014 has increased the exit cost in the form of the higher real property gains tax or RPGT, more measures are needed to increase the entry cost to further reduce speculation.

The current stamp duty payable for the transfer of properties is based on the value of the property. This does not deter speculators, as the stamp duty payable is the same, regardless of the number of properties already held or bought.

The Government’s current low stamp duty regime has been misused by property speculators to accumulate multiple properties, driving up these prices by creating false demand and denying genuine buyers the opportunity to buy such properties.

It is every Malaysian’s wish to buy at least one property in their lifetime for their own dwelling, and perhaps an additional piece of property as a long-term investment or to fund their children’s education.

Hence,HBA has proposed that the current scale stamp duty remains the same for the first two properties bought, but is increased to a flat rate based on the property price for the third and subsequent properties to discourage speculative buying.

(See table for a comparison between the current stamp duty and the stamp duty proposed by HBA.)

With the same scaled stamp duty payable regardless of the previous number of properties held, speculators are not deterred from buying multiple properties.

Even for properties costing RM600,000, the stamp duty payable is only 2% of the value of the property.

The HBA-proposed stamp duty would not cause any disruption to genuine house buyers who can only afford two properties in their lifetime (one for their dwelling and one for long-term investment).

On the other hand, property speculators would be discouraged as the stamp duty greatly increases their entry cost.

RPGT will not lead to higher property prices 

Certain parties with vested interest are claiming that the revised RPGT rate would lead to higher property prices, as speculators would definitely factor in the RPGT into their property prices, only for the subsequent buyer to end up paying the RPGT indirectly.

Such statements only confirm that speculators are indeed responsible for driving up property prices.

If indeed the speculators factor in the additional 20% to 30% RPGT into their property prices, then it would make the property prices unattractive to the next buyer.

Financial Institutions may be unwilling to finance such exorbitantly overpriced properties, as such institutions have their own market intelligence to determine the fair value of such properties.

RPGT will lead to an orderly property sector
 
The aspiration of every rakyat is to own a roof over their heads and shelter their young rather than making money from properties. Hence, having the RPGT in place would deter speculators, and eventually lead to a more orderly property sector driven by market demand and not speculative forces.

Therefore, HBA supports the Government’s RPGT proposal and urges the public to support such a move to curb the current excessive speculation in the property sector.

HBA strongly believes that the cost of a roof over one’s head should not be left to market forces. The repercussions whereby a large section of society is deprived of affordable housing is serious and far-reaching. The present property price increase does not commensurate with the present rise in wages. The affordability of house ownership is becoming an elusive dream to the present generation. Controlling the upward spiral of property costs is not in the interest of housing developers. In fact, they certainly favour it. Therefore, it would be totally unrealistic to expect any developer to be interested in bringing down property prices.

Contributed by Buyers Beware Chang Kim Loong

CHANG KIM LOONG is the honorary secretary-general of the National House Buyers Association (www.hba.org.my), a non-profit, non-governmental organisation (NGO) manned by volunteers. He is also an NGO councillor at the Subang Jaya Municipal Council.

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