by Chang Kim Loong
The National House Buyers Association (HBA) believes that the lack of written reasons for awards could deprive the public, persons aggrieved or affected by the Strata Management Act 2013 (SMA) of proper guidance on matters related to the SMA and the same mistakes are repeated in a vicious cycle of ignorance or misunderstanding.
This could also hamper the development of strata laws and the SMA as a whole since there is no known published body of awards by the tribunal for comparison or comprehension.
HBA have previously mooted and we reiterate our call for the publication of awards and reasons for such awards and even if not for each award, this should be done at least for those important awards that will impact the future application of laws.
Firstly, the SMA is a relatively new legislation and strata development has become more complex with the advent of mixed developments, phased developments, developments that incorporate public infrastructures such as the Mass Rapid Transit (MRT) running through, under or above strata properties and there are many lacunas which require the clarification and interpretation of the courts and the tribunal.
By preparing written reasons and thereafter publishing the same, this will enable the public to deepen their understanding and comprehension on the operation of the SMA.
As time progresses and when the law becomes clearer and more settled, there may be lesser disputes and hence reducing the need to lodge claims with the tribunal.
In addition, this will also expedite the decision-making process at the tribunal because the body of decisions will serve as a useful source of reference.
Secondly, by making the written decisions available and transparent to the public, this will instill public confidence on the awards granted by the tribunal.
The written reasons will enable the public to understand the rationale of the awards.
For example, the judiciary regularly published its grounds of judgment at its website to promote transparency and to allow the public to understand the rationale behind its decisions.
Indeed, reasoned decisions can be an additional constituent of the concept of fairness.
The Strata Management Tribunal was created pursuant to the SMA, which came into force on June 1, 2015.
It is a quasi-judicial body clothed with powers and authority to adjudicate on disputes or complaints concerning the performance of duties and exercise of powers conferred or imposed by the SMA.
Parties who are bound by the SMA would be proprietors, developers, management corporations, joint management bodies, property managers and commissioners of buildings.
In simple terms, it is an avenue where various stakeholders or affected persons under the SMA go when there are discrepancies concerning the affairs of stratified properties and to ask for adjudication of certain disputes by the tribunal.
The awards and the grounds of awards handed down by the tribunal can serve as an invaluable source of reference for the public. As a matter of fact, the SMA makes it mandatory for the tribunal to provide reasons to support its awards.
Education, information and empowerment
It was reported that the majority claims filed with the tribunal are practical in nature revolving around issues such as recovery of maintenance charges, disputes on validity of meetings, squabbles between committee members, disputes involving property managers and inter-floor leakages problems.
While these types of cases are generally or perceived as ‘run-of-the-mill’ or standard claims that rarely involve complex arguments on strata laws, the tribunal ought to seriously consider publishing its written reasons with the main purpose of making transparent awards.
This may shed light or clarify the application of various provisions in the SMA for the benefit of the public who may be proprietors, committee members sitting in a Joint Management Body, Management Corporation or SubMC.
Also, there should be a common position adopted by each tribunal for facts which are similar or the same so as to formulate a consistent policy.
We have in fact, time and again, been encouraging the Ministry of Housing and Local Government (KPKT) to be transparent and accountable by publishing the tribunal’s written reasons on KPKT’s website.
Perhaps, under a separate section called “past decisions” or “SMT resources” as a source of reference and information to the public on the award as that may be relevant to the facts of their dispute.
It could also help pre-empt any potential disputes and motivate parties to settle if the same or similar facts with the outcome from an earlier published case is already known to disputing parties.
HBA urges KPKT to consider HBA’s proposal to encourage the chairman of the Strata Management Tribunal to make available and publish their awards/ decision/ grounds in order to achieve the following:
T– Transparency in reasons
E– Empowering stakeholders, industry players and the public
A – Making the appointed Presidents accountable for their reasons
M -Creating materials as a relevant source of reference and development of laws.
This article is written by Datuk Chang Kim Loong, Hon. Sec-Gen of the National House Buyers Association (HBA), a non-governmental and not-for-profit organisation.