Can condo managements in Malaysia be sued for letting your condo become run down?almost 3 years ago Mikaela A
The weather’s perfect and you’re thinking of going for a swim. You get to the pool, all ready to jump in when you notice that the pool looks disgusting. Is that moss? You then decide to go back to your home, and you remember that you have to take the stairs because the lifts aren’t working. As you walk up, you notice that the walls look like they haven’t been painted in 50 years. You’ve been paying your maintenance fee and sinking funds religiously, but now your beautiful condo is the most dreary looking one in the area.
We often hear of stories like this. Managements push residents to pay their dues on time. Residents then end up paying hefty sums each month, but a lot of the time they don’t get what they pay for. If you can relate to this, you also may have wondered if you can do something about it, other than just complaining to the management.
Firstly, it’s important to know what exactly you’re paying for. Maintenance fees are used for the upkeep of common areas and facilities, such as the pool and gym. The sinking funds, on the other hand, are used to refurbish the property whenever necessary.
Your condo management must perform certain duties
It’s your condo management’s job to ensure that your condo looks presentable and that its main facilities function well. They must also ensure that the place is safe to live in. If there’s moss growing all over your walls or if half the lights in the lobby don’t work, your condo management is responsible to fix the issue. Or if there’s a guard house in your condo but you never see a guard, your condo management is shirking from its duty of keeping the residents safe. The Strata Management Act 2013 is the law that governs matters pertaining to maintenance of condos, apartments, flats and gated and guarded communities.
Section 21 (1) of the SMA 2013 lists all the duties of the a condo management. Some of them are:
So the next time the guy at the management office tells you it’s not his job to get someone to change the torn net in the badminton court, tell him to look at Section 21.
After reading all this, you may be wondering if you can choose not to pay anything to your management because they aren’t doing their job. You can’t. You are under a legal duty to pay up and this can be found in Section 25(1) of the SMA 2013. If you fail to pay, your management could sue you instead.
What exactly can your monthly dues be used for?
The law has a specific list of what your maintenance fees and sinking funds can be used for. Your condo management is also obliged to create separate accounts for these payments. Failure to do this will incur a hefty penalty under the SMA 2013. We’re talking a huge fine and maybe even jail time!
Section 23 (3) of the SMA 2013 lists in detail the things that the maintenance fees is solely to be used for. As the list is pretty descriptive and long, here are the main ones:
- (a) maintaining the common property in good condition on a day-to-day basis;
- (b) paying the expenses incurred in providing cleaning services for the common property, security services and amenities for the occupiers of the building;
- (f) carrying out inspection of all electrical wiring systems of the common property and replacing or repairing any faulty wiring systems, if any;
Section 24 (2) lists the things that the sinking funds must be used for. Some of them are:
- (a) the painting or repainting of any part of the common property;
- (c) the renewal or replacement of any fixture or fitting comprised in any common property;
- (d) the upgrading and refurbishment of the common property;
In short, your condo management can use the maintenance fees and sinking funds only for the purposes of beautifying your condo or making it a more comfortable place to live in. Using the funds for something else can amount to a misuse of funds.
So now, what do you do if the management slacks and your money seems to be going to waste?
You CAN sue your condo management
So, just like how your condo management can sue you for not paying your maintenance fees and sinking funds, you can also sue them for failing to perform their duties.
Section 17 (3) of the SMA 2013 states:
But before you sue, you need to know exactly who you’re suing. There are actually many layers to your condo management. You would have come across names such as Joint Management Body (JMB) and Management Corporation (MC). These are the people you can sue. They are the ones who make all the decisions pertaining to the upkeep of your place. What about the people running the management office? They’re doing just that: running the management office. They have been put there by the JMB or MC to carry out their duties on their behalf.
What’s the difference between the JMB and the MC? The JMB exists only for as long as the strata titles haven’t been transferred to the purchasers or in simpler words, till you have received the title to your property. Once the strata title has been transferred, the JMB will be dissolved and the MC will be formed. The MC has the same duties as its predecessor, which can be found in Section 59 (1) of the SMA 2013. Just like the JMB, Section 39 (3) of the Strata Titles Act 1985 states that the MC may sue and be sued. As long as the JMB or MC has failed to perform their duties, they can be sued. Who you sue just depends on whether you have received the title to your property or not.
It’s important to note that going to court is always your last option and when you can’t get help through other means. There’s a Strata Management Tribunal which you can bring your claims to. The Tribunal can hear disputes involving tenants who don’t pay fees or managements that don’t perform their duties. A detailed list of the types of disputes that the Tribunal can hear is in Schedule 4 of the SMA 2013. The claims that are brought to the Tribunal cannot exceed RM 250,000.
You can go to court only if you have NOT taken your claim to the Tribunal before, or if the Tribunal struck out your claim or it was withdrawn.
Your condo management isn’t responsible for everything
You can only sue your condo management for something that comes under their duties and responsibilities. Things that need to be fixed within your own house, such as a leaky pipe in your kitchen is your responsibility, and not your management’s. However, if the walls in your home are damp because the water tank above you is leaking, your condo management will have to take care of that.
As long as they come under the duties of the management and it’s for the common use of all residents, you’re good to go. Don’t like the pattern of the tiles on your corridor? You’ll just have to live with that. Or find a new place.