Wednesday, 13 September 2017 | MYT 12:00 AM
Assets that cannot be seized
I REFER to the report “Knock, knock, we are coming for you” (The Star, Sept 5) and the letter “Tenants may suffer if owners default on fees” by Thomas Foo (Sept 9) respectively.
The municipal councils’ commissioner of buildings units (COB) are indeed exercising their legal powers under the Strata Management Act 2013 (SMA 2013) when they authorise the attachment of the movable property of defaulters. Under the SMA 2013, it is the duty of the purchaser or proprietor to pay the charges and contribution to the sinking fund in respect of his parcel to the developer or joint management body (JMB), or management corporation(MC) as the case may be, for the maintenance and management of the buildings and the common property in a development area.
Attachment of movable property is an alternative method of obtaining the unpaid charges apart from filing a case in a court of competent jurisdiction, where the COB, upon a sworn application in writing made by the developer, JMB or MC, issues a warrant of attachment.
If the sum due still remains unpaid within 14 days from the date of attachment, the movable property or such portion of the property attached as may be sufficient to realise the sum shall be sold by auction conducted by the developer, JMB or MC under the supervision of the COB.
Will the tenants be affected? Yes, but the tenant may pay up the sum due by the parcel owner and claim the amount paid from the parcel owner and retain possession of the property until such amount so paid by the tenant is recovered.
However, looking at the picture as a whole, the reluctance of some residents to pay in some areas is due to the fact that their building is poorly maintained. So they question why they should pay for unsatisfactory service.
In this situation, although under SMA 2013 the resident has an obligation to pay the charges, it is vital that the managing body exercises its duty properly, failing which Part 1 of the Fourth Schedule of the SMA 2013 provides an avenue for the resident to file a case.
Residents must be aware too of their rights under the SMA 2013. In a situation where their property is attached, the resident, if he disputes the legality of the attachment, may within 14 days of the date of attachment apply to the magistrate’s court for an order to release the property. The court will then decide on the matter.
In the event the auction proceeds, the resident again must be aware that any surplus and any property not sold shall be paid or returned to him/ her.
Before any attachment of any movable property is done, it is advisable for the parties to ensure the resident is not a bankrupt. When a person is adjudged bankrupt, the property will become divisible among his creditors and shall vest in the director-general of Insolvency. One must be cautious not to auction off property vested in the director-general of Insolvency.
In community living, residents will frequently meet their neighbours who may be members of the managing body. Therefore, having a bad relationship with these residents will not be beneficial to strata living. In this aspect, it would be advisable for the managing body to enquire first on a friendly basis the reason for non-payment of the charges by the resident before any notice is served on the defaulter.
A concerned and caring concept developed by the managing body will sustain a closer relationship among the residents.
With regard to the property attached, although it is within their power, the COB must have a guideline of the appropriate item that they may attach.
It was reported that rice cookers and gas tanks were taken away to be auctioned. Even in bankruptcy, the tools of trade are not touched. Rice cookers and gas tanks are meant for cooking. These are basic items for residents which should not be taken away. The resident may be nursing a sick child who needs food. If the law is silent on this, then perhaps the SMA 2013 must be amended to insert the items that cannot be attached.
ARIFF SHAH R.K