strata titles

04/11/23Ainul Jaria Maidin 1

STRATA TITLES

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Meaning of strata titles

'titles in the sky' as a strata concept is different from conventional form of titles to landed properties.

land titles relate to respective 'surface' areas of landed properties which are demarcated by boundary lines.

Strata titles, are synonymous with 'cubic' spaces which are to be built skywards and the issuance of strata titles will be governed mainly by provisions of STA.

Nature of strata titles

Both idt & rdt, can be issued by Registrar of Titles or Land Administrator.

If titles are issued by any unauthorized persons or person, such titles will be nothing more than forgeries.

They will not be marketable and will not pass good titles to their possessors nor their purchasers, notwithstanding that the purchasers are bona fide persons and have purchased for value.

Need for strata title

Post independence economic development & social restructuring led to influx of rural communities into urban settlements caused pressure on existing housing & increased demand for proper housing & infrastructure.

government decided to build high rise building to promote organised development & to prevent mushrooming of squatter dwellings

Need for proper housing brought about government policy to promote various types of housing projects. To provide affordable housing for low income group since land in urban areas were getting expensive.

Law Governing Strata Titles

Strata Titles Act 1985 (Act 318/85) came into effect on 1 June 1985. STA is applicable only to West Malaysian states.

Modeled after New South Wales Strata Titles Act 1973 and Singapore Land Titles (Strata) Act

Sarawak –Sarawak Strata Titles Ordinance 1974 (No.3 of 1974)

Sabah – Sabah Land (Subsidiary Title) Enactment 1972 (No.9 of 1972)

It repealed the former strata provisions in NLC which governed strata projects, including applications for subdivision of multi-storey buildings and the subsequent issuance of strata titles which were formerly called 'subsidiary titles'

effect on 1st of 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 been issued in this country, and that no strata titles exist.”

Application of NLC 1965

Certain shortcomings in STA may be resolved by resorting to NLC provisions since STA is an extension of NLC.

S.5 STA has expressly stated that STA shall be read and construed with the provisions of NLC as if it were a part of it.

Where the provisions and rules contained in NLC are inconsistent with those in STA, the strata provisions shall prevail

S. 5 of NLC on definition Ch 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 buildings and issuance of subsidiary (strata) titles as well as strata development have since been repealed by s.83 and Fourth Schedule of STA.

No subsidiary or strata title has, ever been issued under NLC 1965 experimental provisions which governed subdivision of multi-storey buildings, the 'subsidiary register' and the issuance of 'subsidiary titles'

Application of NLC 1965 Application of NLC 1965 provisionsprovisions

S.5(2) of STA expressly stipulates: 'The National Land Code and the rules made

thereunder, in so far as they are not inconsistent with the provisions of this Act or the rules made thereunder, or are capable of applying to strata parcels, shall apply in all respects to strata parcels held under strata titles.'

The relevant provisions on 'alienation' are contained in ss 76 to 82 of the NLC. Section 76(d), in particular, imposes a mandatory duty on the State Authority to specify one of the three categories of land use for the piece of land which has been approved for alienation. Implied conditions which affect land subject to any of the three specified categories of land use are found in ss 114 to 119

Application for Subdivision of Building

Part II STA s.6 STA- Buildings capable of being subdivided Conditions for Subdivision of Building into parcels

to be held under strata titles or into accessory parcels

a. Any building or buildings having one, two or more storeys

b. Building built on alienated land

a. held as one lot under final title or qualified title.

b. In 1996 Amendment STA provided that land held under qualified title which has been duly surveyed and in respect of which a certified plan has been approved by Director of Survey are also capable of being applied for subdivision.

Compulsory Application for Subdivision of Building

s.151A (2)(c)(I)NLC 1965 - application for subdivision must be made within 6 months from date of completion of building.

S.8(1) STA -proprietor must apply for subdivision only if he sold or agreed to sell any parcel in building to any person.

Director for Land & Mines can pursuant to s.8(5) STA extend time for application once.

Failure to apply – offence Punishment –fine RM5000 and RM1000 per day

as continuing offence.

Lee Wai Kin v Yulek Sdn. Bhd. [1986] 2 MLJ 417 –proprietor of land to apply for strata titles

Syed Azman Bin Syed Mohamed v Lian Seng Construction Co. Sdn Bhd [1992] 2 MLJ 842 – HC - failure to comply with time limits stipulated in s.8(2) &(4) does not mean court cannot compel proprietor to apply for strata title.

Esther Tan Wooi Hong & Ors v Saujana Holding Sdn Bhd & Ors [1997]3 CLJ 79

HC - failure to comply with time limits stipulated in ss (2) & (4) does not mean that court cannot compel proprietor to apply for subdivision of building so as to obtain strata titles.

Although the proprietor would be considered as having committed an offence, upon payment of the fine stipulated therein, he could still apply for subdivision of building to Director of Lands and Mines or Land Executive Committee, has power to deal with such application.

In the circumstances, the contention of proprietor that it was too late for court to order him to apply for subdivision of building was rejected.

The onus is on the proprietor of any alienated land upon which there is a completed building capable of being subdivided to apply for strata titles.

Submission of Application for Subdivision –s.10 STA

Prescribed application fees

Proposed strata plan comprising of location plan, storey plan in respect of each building containing details prescribed in s.10(4) &s. 10(6)

Responsibility for payment of charges & expenses incurred in applying for strata title is on proprietor - Lee Wai Kin v Yulek SB [1986] 2 MLJ 417.

Certificate from licensed land surveyor that building is wholly situated in land.

Certificate of registered architect that building is in accordance with approved building plans.

written consent from registered interest holders in land.

Original IDT to land.

not contrary to any written lawnot contrary to restrictions in interestsProposed share units assigned to parcel

proprietors are equitableNo outstanding land revenue Each of the proposed parcel has adequate

means of access not passing through another parcel

Conditions for Approval

Director of L&M or the LEC will approve application if satisfied that conditions in s. 9 STA are satisfied

Processing of applications

Application is made to Land Administrator, who upon satisfied that the documents are in order will forward application to the Director of Survey.

Director of Survey will forward the application to the Director of L&M or LEC for approval.

Approval by Director of Land & Mines

Director of L&M will approve application if all conditions stipulated in s.9& s.10(1) STA are fulfilled.

He will instruct Director of Survey to prepare Certified Strata Plan

Issuance of Strata Titles

Copies of certified strata plan to be forwarded to Director for L&M or LEC who shall direct Registrar of Titles to issue strata title for subdivided building in accordance with s.5&6 STA

Problems in applying & processing of Strata Titles applications

Problems of building encroaching onto a road or over other roads.

building to be situated within boundary of the land

Minor changes carried out to building after approval of building plan.

plans must be resubmitted for approval - cause further delay in application

REGISTRATION OF STRATA TITLES

S.15-Preparation & maintenance of strata register by Registrar known as strata register.

Definitions

Parcels

In relation to a subdivided by building means one of the individual units comprised therein which is held under separate strata title.

Accessory Parcels

means any parcel shown in a strata plan as an accessory parcel which is used or intended to be used in conjunction with a parcel e.g. Car parks

COMMON PROPERTYthe area not comprised in any parcel

(including any accessory parcel) or any provisional block as shown in an approved strata plan

Golden Connection S.B. v CSH Enterprise Sdn Bhd [1995] 3 MLJ 731 – issues as to whether a void (empty space) above ground level was common property within STA. HC-held that it was common property as the void on the level of the mezzanine floor was capable of being used in connection with the enjoyment of more than one parcel I.e.by both mezzanine and ground floor owner.

See also Faber Merlin (M) Sdn Bhd & Ors v Lye Thai Sang & Anor [1985] 2 MLJ 380.

KOTA VILLA

STRATAPARCEL

LAND PARCEL

COMMON PROPERTY

KOTA VILLASTRATAPARCEL

LAND PARCEL

COMMON PROPERTY

FEDERAL HILL

COMMON PROPERTY

LAND PARCELLAND PARCEL

FEDERAL HILL

COMMON PROPERTY

LAND PARCEL

PORT DICKSON

Phases in the Maintenance and Management of Buildings &

Common Property

Management of Strata Schemes

Delivery of vacant possession Before 12th month

Maintained by Developer Maintained by Joint Management Body Maintained by Management Corporation

1st meeting of Management Corporation

Entire period is Supervised and Overseen by Commissioner of Building

Established to manage the affairs of the building and other related aspects

MANAGEMENT CORPORATION

Establishment of MC

S.39 STA-upon opening of a book of strata register in respect of a subdivided building MC consisting of all parcel proprietors including in the case of phased development, the proprietor of the provisional block or blocks must be established.

MC is not subject to Companies Act 1965 (Act 125) or Societies Act 1966 (Act 335) as it is not established pursuant to either of these Acts but ‘upon the opening of a book of the strata register’

NAME OF MC

MC shall be known by the name appearing in the book of the strata register relating to a subdivided building, and shall be a body corporate having perpetual succession and a common seal

MC BODY CORPORATE

MC may apply to Registrar for a certificate certifying that MC is a body corporate constituted under STA on the day specified in the certificate

MC can sue or be sued

The capacity to sue or be sued is not only confined to contracts made by the MC.

MC can sue a person who has converted the corporation’s personal property or damaged the common property to recover the property or damages.

MC must resort to the civil or criminal law to find its cause of action in any action instituted by it.

In RSP Architects Planners & Engineers v Ocean Front Pte Ltd and anor appeal [1996] 1 SLR 113, MC sued developers of the condominium for faulty construction of certain areas of common property.

Singapore CA held that MC has certain rights and obligations with respect to common property under the Singapore Land Titles (Strata) Act and any breaches or failure to perform any of the duties imposed by the same Act, would entitle it to bring and maintain an action under the Act against the developers for damages.

As to the cause of action which the MC had against the developers, CA made it clear that it had none in contract.

This was because the benefit of the relevant clauses in the spa was intended to govern the relations only between developers and their purchasers, as the developers clearly did not intend to benefit the subsequent purchasers down the line.

Despite this, MC could still recover its losses because it had a cause of action in tort. The degree of proximity between developers & MC was sufficient to give rise to a duty on the part of developers to take care to avoid causing damage to MC.

In Body Corporate Strata Plan No 4304 v Albion Insurance Co Ltd [1982] VR 699, a person has a cause of action against MC for damage or injury arising out of its failure to maintain common property properly.

In Black’s case, plaintiff obtained damages against the MC for injuries he suffered as a result of a fall from an external stairway forming part of the common property. His fall was caused by the defective condition of a handrail fitted to the stairway which was a concealed danger known to MC but not to him.

Council of MC

MC shall elect a council which, subject to any restriction imposed or direction given by MC at a general meeting, shall perform MC’s duties and conduct MC’s business on its behalf, and may for that purpose exercise any of MC’s powers.

Duties & Powers of MCS.43 STA

Duties of MC

(a) to manage & properly maintain common property & keep it in state of good & serviceable repair;

(b) to insure the subdivided building to the replacement value against fire & such other risks prescribed under STA;

(c) to effect other insurances for the building as may be required by law;

(d) to insure against such other risks as proprietors may by special resolution direct;

e) to apply insurance moneys received by it in respect of damage 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 by any competent public or statutory authorities requiring the abatement of any nuisance on the common property, or ordering repairs or other work to be done in respect of the common property or any building or other improvements on the lot;

(h) to comply with notices or orders made in respect of parcels, if proprietor fails to do so within a reasonable time;

(i) to prepare & maintain a strata roll for the subdivided building; and

(j) to pay rent of the lot.

In Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412, Needham J - power & duty of MC extended to such things as draught resistors and waterproof flashings in order to make the common property waterproof.

Word “repair” in New South Wales Act 1973 s.68(1)(b) clearly included renewal and making good of that which was not initially sound.

Holland J in Jacklin & Ors v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15 -MC cannot abdicate or diminish its statutory responsibility for the administration & maintenance of any part of common property.

Allen v Proprietors Strata Plan No 2110 [1970] 3 NSWR 339.

However, where part of the common property has been granted by agreement to a parcel proprietor for his exclusive use and enjoyment thereof pursuant to by-law 3 of the Third Schedule, the MC may be relieved of its obligation to maintain and keep in a state of good and serviceable repair that part of the common property referred to above.

Jacklin’s case - much would depend on the construction of the terms of the grant itself.

Powers of MC

(a) to recover from parcel proprietor sums spent in respect of that proprietors parcel in complying with notices or orders

(b) to purchase, hire or otherwise acquire movable property for use by parcel proprietors in connection with enjoyment of common property;

(c) to borrow moneys required to perform its duties

(d) to secure the repayment of moneys borrowed by it and the payment of interest thereon by negotiable instrument or by a charge of unpaid contributions to the management fund, (whether already levied or not) by a charge of any property vested in it or by a combination of any of those means;

(e) to collect during the initial period by way of contributions from proprietors in proportion to the share units or provisional share units of their respective parcels or provisional blocks; and

Duties & powers of proprietor before establishment of MC

S.61 STA

(1) During period before MC comes into existence, duties of original proprietor are—

(a) to control, manage, administer, and keep the common property in good repair;

(b) to pay rent of the lot; (c) to insure the building to its replacement

value against fire and to keep it so insured; (d) to effect such other insurance policies of

the buildings as may be required by law; (e) subject to any court order, to apply

insurance moneys received by it in respect of damage to the building in rebuilding and reinstating the building, so far as it may be lawful to do so and to pay the premiums on any policy of insurance effected by it;

Strata Titles Board - s 67A STA

Strata Titles Board consisting of a President & Deputy Presidents and other members will be established to hear disputes between MC & Proprietors, MC & other parties

Weaknesses of STA

STA is a relatively short statute containing 85 sections, four schedules & forms.

Inadequacies in STA at times, poses difficulty in interpretation of some of its provisions.

Glaring example of such shortcomings would be the lack of provisions on regulating party walls.

This lead to reliance on common law principles.

At times, professionals whose sphere of work is related to the provisions of STA have to resort to self-improvisation.

04/11/23Ainul Jaria Maidin 74 MAY ALLAH BLESS ALLOF YOU WITH SUCCESS

My sincere and deepest regrets

if I have hurt your feelings in any way through

my words, conduct or

actions during our short

acquaintance . May Allah bless all of you with success in your

future undertakings. Best Wishes

Ainul Jaria Maidin

strata titles

Education

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