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THERE have been cases of residents who have had their water supply disrupted by the management when they defaulted on paying their maintenance charges and contribution to the sinking fund.
The drafters of the Strata Management Act 2013 (Act 757) gave the future managing bodies of a stratified development area one grave reminder of its purport and intent, enshrined in the preamble, that this act provides for the maintenance and management of buildings and common property, and for related matters.
There is a dispute on whether a joint management body (JMB) or management corporation (MC) are allowed to disrupt the water supply of residents who have defaulted on their payments.
Due to the importance of having funds to manage a stratified building, the law makes it mandatory for charges and contributions to be paid into the maintenance account and the sinking fund. There is evidence to prove that lack of funds leads to damning consequences, especially with regard to the maintenance of common property.
What happens when these monies are not paid up?
First, JMB or MC is a creature of the act. Its rights and obligations arises from the act.
Hence, the method for recovery of funds from parties that have defaulted must be in accordance with the law and procedure of the act.
Upon receiving a notice from the managing body, the resident shall, within 14 days, pay the charges. If he defaults, the managing body may serve on him a written notice demanding payment of the sum within the period as may be specified in the notice.
These notices shall be in Form 11 or Form 20 of the Strata Management (Maintenance and Management) Regulations 2015 depending on the period of management.
If the sums are still unpaid, the managing body may file a summons or claim in a court or in the Strata Management Tribunal for the recovery of the said sum.
Non-compliance with Form 11 or Form 20 without reasonable excuse, is an offence and can be liable upon conviction to a fine or imprisonment or both.
Without serving Form 11 or Form 20 on the person who defaulted, any action filed by the managing body in court or the tribunal is premature.
However, by reading the Third Schedule of the said regulations together with the relevant sections of the act, there exists another option after the expiry of the first notice.
The managing bodies have a choice to display the list of defaulters on the notice board or deactivate any electromagnetic access device issued to the defaulter or prevent a defaulter from using the common facilities or even enter into an instalment payment scheme with the defaulter.
Alternatively, after the service of Form 11 and Form 20 and the sum remains unpaid, a warrant of attachment of movable property may be obtained from the Commissioner of Buildings against the defaulter, that authorises the attachment of any movable property of the defaulter which may be found in the building or elsewhere in the state to recover the unpaid sum.
There seems to be no rational explanation for managing bodies not to adhere to the legal mechanism to recover the sums due as provided by the act.
Act 757 does not confer the power on managing bodies to disrupt water supply of defaulters. Disruption of water supply is illegal and ultra vires.
Ariff Shah R.K. from George Town, Penang