Meaning of strata titles06/14/13Ainul Jaria Maidin5titles in the sky as a strata concept is differentfrom conventional form of titles to landedproperties.land titles relate to respective surface areas oflanded properties which are demarcated byboundary lines.Strata titles, are synonymous with cubic spaceswhich are to be built skywards and the issuance ofstrata titles will be governed mainly by provisionsof STA.
Nature of strata titles06/14/13Ainul Jaria Maidin6Both idt & rdt, can be issued by Registrar of Titles orLand Administrator.If titles are issued by any unauthorized persons orperson, such titles will be nothing more than forgeries.They will not be marketable and will not pass goodtitles to their possessors nor their purchasers,notwithstanding that the purchasers are bona fidepersons and have purchased for value.
Need for strata title06/14/13Ainul Jaria Maidin7Post independence economic development & socialrestructuring led to influx of rural communities intourban settlements caused pressure on existinghousing & increased demand for proper housing &infrastructure.government decided to build high rise building topromote organised development & to preventmushrooming of squatter dwellingsNeed for proper housing brought about governmentpolicy to promote various types of housing projects.To provide affordable housing for low income groupsince land in urban areas were getting expensive.
Law Governing Strata Titles06/14/13Ainul Jaria Maidin8Strata Titles Act 1985 (Act 318/85) came into effect on 1June 1985. STA is applicable only to West Malaysianstates.Modeled after New South Wales Strata Titles Act 1973and Singapore Land Titles (Strata) ActSarawak –Sarawak Strata Titles Ordinance 1974 (No.3of 1974)Sabah – Sabah Land (Subsidiary Title) Enactment 1972(No.9 of 1972)
06/14/13Ainul Jaria Maidin9It repealed the former strata provisions in NLC whichgoverned strata projects, including applications forsubdivision of multi-storey buildings and the subsequentissuance of strata titles which were formerly calledsubsidiary titleseffect on 1stof June 1985 vide PU (B) 276/85.Faber Merlin (M Sdn. Bhd. & Ors. V Lye Thai Sang, Ct -“It is not in dispute that strata title have as yet never beenissued in this country, and that no strata titles exist.”
Application of NLC 196506/14/13Ainul Jaria Maidin10Certain shortcomings in STA may be resolved byresorting to NLC provisions since STA is an extensionof NLC.S.5 STA has expressly stated that STA shall be readand construed with the provisions of NLC as if it were apart of it.Where the provisions and rules contained in NLC areinconsistent with those in STA, the strata provisionsshall prevail
06/14/13Ainul Jaria Maidin11S. 5 of NLC on definitionCh 4 of Pt 9 (ss 151-157); Ch 2 of Pt 10 (ss 161-163) and Ch 1 to Ch 4 of Pt 25 (ss 355-374) NLC.The provisions in NLC which governed, inter alia,applications for subdivision of high-rise buildingsand issuance of subsidiary (strata) titles as well asstrata development have since been repealed bys.83 and Fourth Schedule of STA.
06/14/13Ainul Jaria Maidin12No subsidiary or strata title has, ever been issuedunder NLC 1965 experimental provisions whichgoverned subdivision of multi-storey buildings, thesubsidiary register and the issuance of subsidiarytitles
Application of NLC 1965 provisionsApplication of NLC 1965 provisions06/14/13Ainul Jaria Maidin13S.5(2) of STA expressly stipulates:The National Land Code and the rules madethereunder, in so far as they are not inconsistent withthe provisions of this Act or the rules made thereunder,or are capable of applying to strata parcels, shall applyin all respects to strata parcels held under strata titles.
06/14/13Ainul Jaria Maidin14The relevant provisions on alienation are contained inss 76 to 82 of the NLC. Section 76(d), in particular,imposes a mandatory duty on the State Authority tospecify one of the three categories of land use for thepiece of land which has been approved for alienation.Implied conditions which affect land subject to any ofthe three specified categories of land use are found inss 114 to 119
Application for Subdivision ofBuilding06/14/13Ainul Jaria Maidin15 Part II STA s.6 STA- Buildings capable of being subdividedConditions for Subdivision of Building into parcels to beheld under strata titles or into accessory parcelsa. Any building or buildings having one, two or morestoreysb. Building built on alienated land
06/14/13Ainul Jaria Maidin16a. held as one lot under final title or qualified title.b. In 1996 Amendment STA provided that land heldunder qualified title which has been duly surveyedand in respect of which a certified plan has beenapproved by Director of Survey are also capable ofbeing applied for subdivision.
Compulsory Application forSubdivision of Building06/14/13Ainul Jaria Maidin19s.151A (2)(c)(I)NLC 1965 - application for subdivisionmust be made within 6 months from date ofcompletion of building.
06/14/13Ainul Jaria Maidin20S.8(1) STA -proprietor must apply for subdivision onlyif he sold or agreed to sell any parcel in building to anyperson.Director for Land & Mines can pursuant to s.8(5) STAextend time for application once.Failure to apply – offencePunishment –fine RM5000 and RM1000 per day ascontinuing offence.
06/14/13Ainul Jaria Maidin21Lee Wai Kin v Yulek Sdn. Bhd.  2 MLJ 417 –proprietor of land to apply for strata titlesSyed Azman Bin Syed Mohamed v Lian SengConstruction Co. Sdn Bhd  2 MLJ 842 – HC -failure to comply with time limits stipulated in s.8(2)&(4) does not mean court cannot compel proprietor toapply for strata title.Esther Tan Wooi Hong & Ors v Saujana Holding SdnBhd & Ors 3 CLJ 79
06/14/13Ainul Jaria Maidin22HC - failure to comply with time limits stipulated in ss(2) & (4) does not mean that court cannot compelproprietor to apply for subdivision of building so as toobtain strata titles.
06/14/13Ainul Jaria Maidin23Although the proprietor would be considered as havingcommitted an offence, upon payment of the fine stipulatedtherein, he could still apply for subdivision of building toDirector of Lands and Mines or Land Executive Committee,has power to deal with such application.In the circumstances, the contention of proprietor that it wastoo late for court to order him to apply for subdivision ofbuilding was rejected.The onus is on the proprietor of any alienated land uponwhich there is a completed building capable of beingsubdivided to apply for strata titles.
Submission of Application forSubdivision –s.10 STA06/14/13Ainul Jaria Maidin24Prescribed application feesProposed strata plan comprising of location plan,storey plan in respect of each building containingdetails prescribed in s.10(4) &s. 10(6)Responsibility for payment of charges & expensesincurred in applying for strata title is on proprietor -Lee Wai Kin v Yulek SB  2 MLJ 417.
06/14/13Ainul Jaria Maidin25Certificate from licensed land surveyor that building iswholly situated in land.Certificate of registered architect that building is inaccordance with approved building plans.written consent from registered interest holders in land.Original IDT to land.
06/14/13Ainul Jaria Maidin26not contrary to any written lawnot contrary to restrictions in interestsProposed share units assigned to parcel proprietorsare equitableNo outstanding land revenueEach of the proposed parcel has adequate means ofaccess not passing through another parcel
Conditions for Approval06/14/13Ainul Jaria Maidin27Director of L&M or the LEC will approve application ifsatisfied that conditions in s. 9 STA are satisfied
Processing of applications06/14/13Ainul Jaria Maidin28
06/14/13Ainul Jaria Maidin29Application is made to Land Administrator, who uponsatisfied that the documents are in order will forwardapplication to the Director of Survey.Director of Survey will forward the application to theDirector of L&M or LEC for approval.
Approval by Director of Land &Mines06/14/13Ainul Jaria Maidin30
06/14/13Ainul Jaria Maidin31Director of L&M will approve application if all conditionsstipulated in s.9& s.10(1) STA are fulfilled.He will instruct Director of Survey to prepare CertifiedStrata Plan
Issuance of Strata Titles06/14/13Ainul Jaria Maidin32
06/14/13Ainul Jaria Maidin33Copies of certified strata plan to be forwarded toDirector for L&M or LEC who shall direct Registrar ofTitles to issue strata title for subdivided building inaccordance with s.5&6 STA
06/14/13Ainul Jaria Maidin35Problems of building encroaching onto a road or overother roads.building to be situated within boundary of the landMinor changes carried out to building after approvalof building plan.plans must be resubmitted for approval - causefurther delay in application
REGISTRATION OF STRATA TITLES06/14/13Ainul Jaria Maidin36S.15-Preparation & maintenance of strata register byRegistrar known as strata register.
Parcels06/14/13Ainul Jaria Maidin38In relation to a subdivided by building means one ofthe individual units comprised therein which is heldunder separate strata title.
Accessory Parcels06/14/13Ainul Jaria Maidin39means any parcel shown in a strata plan as anaccessory parcel which is used or intended to be usedin conjunction with a parcel e.g. Car parks
06/14/13Ainul Jaria Maidin40COMMON PROPERTYthe area not comprised in any parcel (including any accessoryparcel) or any provisional block as shown in an approved strataplan
Golden Connection S.B. v CSH Enterprise SdnBhd  3 MLJ 731 – issues as to whether avoid (empty space) above ground level wascommon property within STA.HC-held that it was common property as the void onthe level of the mezzanine floor was capable ofbeing used in connection with the enjoyment ofmore than one parcel I.e.by both mezzanine andground floor owner.See also Faber Merlin (M) Sdn Bhd & Ors vLye Thai Sang & Anor  2 MLJ 380.06/14/13Ainul Jaria Maidin41
Phases in the Maintenance andManagement of Buildings & CommonProperty06/14/13Ainul Jaria Maidin50Management of Strata Schemes
06/14/13Ainul Jaria Maidin51Delivery of vacant possession Before 12thmonthMaintained by Developer Maintained by Joint Management Body Maintained byManagement Corporation1stmeeting of Management CorporationEntire period is Supervised and Overseen by Commissioner of Building
Established to manage the affairs of the building and otherrelated aspects06/14/13Ainul Jaria Maidin52MANAGEMENT CORPORATION
Establishment of MC06/14/13Ainul Jaria Maidin53S.39 STA-upon opening of a book of strataregister in respect of a subdivided building MCconsisting of all parcel proprietors including in thecase of phased development, the proprietor of theprovisional block or blocks must be established.MC is not subject to Companies Act 1965 (Act125) or Societies Act 1966 (Act 335) as it is notestablished pursuant to either of these Acts but‘upon the opening of a book of the strata register’
NAME OF MC06/14/13Ainul Jaria Maidin54MC shall be known by the name appearing in the bookof the strata register relating to a subdivided building,and shall be a body corporate having perpetualsuccession and a common seal
MC BODY CORPORATE06/14/13Ainul Jaria Maidin55MC may apply to Registrar for a certificatecertifying that MC is a body corporate constitutedunder STA on the day specified in the certificate
MC can sue or be sued06/14/13Ainul Jaria Maidin56The capacity to sue or be sued is not only confined tocontracts made by the MC.MC can sue a person who has converted thecorporation’s personal property or damaged thecommon property to recover the property or damages.MC must resort to the civil or criminal law to find itscause of action in any action instituted by it.
06/14/13Ainul Jaria Maidin57In RSP Architects Planners & Engineers v OceanFront Pte Ltd and anor appeal  1 SLR 113,MC sued developers of the condominium for faultyconstruction of certain areas of common property. Singapore CA held that MC has certain rights andobligations with respect to common property underthe Singapore Land Titles (Strata) Act and anybreaches or failure to perform any of the dutiesimposed by the same Act, would entitle it to bringand maintain an action under the Act against thedevelopers for damages.
06/14/13Ainul Jaria Maidin58As to the cause of action which the MC had againstthe developers, CA made it clear that it had none incontract.This was because the benefit of the relevantclauses in the spa was intended to govern therelations only between developers and theirpurchasers, as the developers clearly did not intendto benefit the subsequent purchasers down theline.Despite this, MC could still recover its lossesbecause it had a cause of action in tort. The degreeof proximity between developers & MC wassufficient to give rise to a duty on the part ofdevelopers to take care to avoid causing damageto MC.
06/14/13Ainul Jaria Maidin59In Body Corporate Strata Plan No 4304 v AlbionInsurance Co Ltd  VR 699, a person has acause of action against MC for damage or injuryarising out of its failure to maintain common propertyproperly.In Black’s case, plaintiff obtained damages againstthe MC for injuries he suffered as a result of a fallfrom an external stairway forming part of thecommon property. His fall was caused by thedefective condition of a handrail fitted to the stairwaywhich was a concealed danger known to MC but notto him.
Council of MC06/14/13Ainul Jaria Maidin60MC shall elect a council which, subject to anyrestriction imposed or direction given by MC at ageneral meeting, shall perform MC’s duties andconduct MC’s business on its behalf, and may forthat purpose exercise any of MC’s powers.
Duties & Powers of MCS.43 STA06/14/13Ainul Jaria Maidin61
Duties of MC06/14/13Ainul Jaria Maidin62(a) to manage & properly maintain common property &keep it in state of good & serviceable repair;(b) to insure the subdivided building to thereplacement value against fire & such other risksprescribed under STA;(c) to effect other insurances for the building as may berequired by law;(d) to insure against such other risks as proprietorsmay by special resolution direct;
06/14/13Ainul Jaria Maidin63e) to apply insurance moneys received by it in respect ofdamage to the building in rebuilding & reinstating,subject to any order made by court under section 56;(f) to pay insurance premiums;(g) to comply with any notices or orders in or made byany competent public or statutory authorities requiringthe abatement of any nuisance on the common property,or ordering repairs or other work to be done in respect ofthe common property or any building or otherimprovements on the lot;
06/14/13Ainul Jaria Maidin64(h) to comply with notices or orders made in respect ofparcels, if proprietor fails to do so within a reasonabletime;(i) to prepare & maintain a strata roll for the subdividedbuilding; and(j) to pay rent of the lot.
06/14/13Ainul Jaria Maidin65In Proprietors of Strata Plan No 6522 v Furney  1NSWLR 412, Needham J - power & duty of MC extendedto such things as draught resistors and waterproofflashings in order to make the common propertywaterproof.Word “repair” in New South Wales Act 1973 s.68(1)(b)clearly included renewal and making good of that whichwas not initially sound.
06/14/13Ainul Jaria Maidin66Holland J in Jacklin & Ors v Proprietors of Strata PlanNo 2795  1 NSWLR 15 -MC cannot abdicate ordiminish its statutory responsibility for theadministration & maintenance of any part of commonproperty.Allen v Proprietors Strata Plan No 2110  3NSWR 339.
06/14/13Ainul Jaria Maidin67However, where part of the common property hasbeen granted by agreement to a parcel proprietor forhis exclusive use and enjoyment thereof pursuant toby-law 3 of the Third Schedule, the MC may berelieved of its obligation to maintain and keep in a stateof good and serviceable repair that part of the commonproperty referred to above.Jacklin’s case - much would depend on theconstruction of the terms of the grant itself.
Powers of MC06/14/13Ainul Jaria Maidin68(a) to recover from parcel proprietor sums spent inrespect of that proprietors parcel in complying withnotices or orders(b) to purchase, hire or otherwise acquire movableproperty for use by parcel proprietors in connectionwith enjoyment of common property;(c) to borrow moneys required to perform its duties
06/14/13Ainul Jaria Maidin69(d) to secure the repayment of moneys borrowed by itand the payment of interest thereon by negotiableinstrument or by a charge of unpaid contributions to themanagement fund, (whether already levied or not) by acharge of any property vested in it or by a combinationof any of those means;(e) to collect during the initial period by way ofcontributions from proprietors in proportion to the shareunits or provisional share units of their respectiveparcels or provisional blocks; and
Duties & powers of proprietor beforeestablishment of MCS.61 STA06/14/13Ainul Jaria Maidin70
06/14/13Ainul Jaria Maidin71(1) During period before MC comes into existence,duties of original proprietor are—(a) to control, manage, administer, and keep thecommon property in good repair;(b) to pay rent of the lot;(c) to insure the building to its replacement valueagainst fire and to keep it so insured;(d) to effect such other insurance policies of thebuildings as may be required by law;(e) subject to any court order, to apply insurancemoneys received by it in respect of damage to thebuilding in rebuilding and reinstating the building, sofar as it may be lawful to do so and to pay thepremiums on any policy of insurance effected by it;
Strata Titles Board - s 67A STA06/14/13Ainul Jaria Maidin72Strata Titles Board consisting of a President & Deputy Presidents andother members will be established to hear disputes between MC &Proprietors, MC & other parties
Weaknesses of STA06/14/13Ainul Jaria Maidin73STA is a relatively short statute containing 85sections, four schedules & forms.Inadequacies in STA at times, poses difficulty ininterpretation of some of its provisions.Glaring example of such shortcomings would bethe lack of provisions on regulating party walls.This lead to reliance on common law principles.At times, professionals whose sphere of work isrelated to the provisions of STA have to resort toself-improvisation.
06/14/13Ainul Jaria Maidin74 MAY ALLAH BLESS ALLOF YOU WITH SUCCESS
06/14/13Ainul Jaria Maidin75My sincere and deepestregrets if I have hurtyour feelings in anyway through my words,conduct or actionsduring our shortacquaintance . MayAllah bless all of youwith success in yourfuture undertakings.Best WishesAinul Jaria Maidin