theSun Property April 2015

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ON FRIDAY APRIL 17, 2015
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Gated and guarded
neighbourhoods
>A need for urgent legislative intervention
BYDATO’ PRETAM SINGH
DARSHAN SINGH
DURING the good old days,
I recall my friends and I
cycling frommy house in
Segambut, heading towards
KennyHills, now called Bukit
Tunku. We used the tinywinding
paths that took us through the Lake
Gardens where I remember
admiring along the way, the
beautiful bungalows and its
surroundings. My friends and I
would hang around andwait by the
Lake Gardens, just to see the rich
people in their luxurious cars
making their way into the restricted
area of the club’s premises.
This morning when I drove
through the same windy roads of
Bukit Tunku on the way to the
Royal Lake Club (of which I have
nowbecome amember), I was
wondering what the future would
have been like if all the residents in
then KennyHills area were fenced
in a gated and guarded area,
thereby restricting “poor people’s
children” (likemyself then) from
engaging in observation due to
curiosity. I askmyself today, with
the rise of guarded and gated
(G&G) communities, would this
segregation or barring of sects in
society have a negative impact?
The G&Gphenomenon is taking
on quickly across many locations in
the Klang Valley and other
locations throughout the country.
In the guise of safety and security, it
seems that medieval castles are
being erected by haves against the
have-nots. And if one cannot
understand the rules of the existing
castle dwellers and live by those
rules, regulations and standards,
then new comers have no right to
reside there, or so it seems.
THE LAW
The amendment to the Strata Titles
Act 1985 vide section 6 (1A) was a
milestone inMalaysian planning
legislation, aimed to control and
manage gated communities in the
country. After three years of
implementation, has it achieved its
objective?
According to the National
Town and Country Planning
Department guidelines, “Gated
Community” (GC) is defined as a
group of residents or community
living in a guarded fenced area,
whether in high-rise property such
as an apartment, condominiumand
town-house or on landed property
such as bungalows, terraced or
detached houses with a strata title.
It is therefore apparent that there
cannot be a GC comprising houses
with landed titles.
“GuardedNeighbourhood” (GN)
on the other hand, is defined as a
residential area, controlled inwhole
or in part, in the scheme of the
PART2 inconsistent with the Sale and
Purchase Agreement these provisions
are illegal and unenforceable”
The Federal Court did not
address the issue of restriction
imposed on such property other
than the issue of boomgate. Any
attempt to restrict a property
owner’s right to his property
infringes upon his right under
article 13 of the Federal
Constitution andNational Land
Code which provides for
unrestricted access to a
proprietor (section 124(i) (a) (c),
124A, 204A 197 & 76NLC). This is
further emphasised in clause 26
of Schedule G of the Housing
Development (Control and
Licensing) Act 1989.
In a GN, the roads are public
roads as stated in section 13 and
46 of the Street Drainage and
Building Act 1974 and therefore,
subject tomaintenance by local
authority once they have been
handed over. However, the
developer delays in handing over
“the roads” which benefits the
council as the authorities do not
have tomaintain the public roads
yet they can collect the required
rates, which is a serious
abdication of their lawful duty.
The current practice of requiring
the public to submit
identification documents
(especially the driving licence
and identity card) to guards is
also not consistent with the
provisions of the law. It is quite
common now to see foreigners
guarding these places, not
withstanding the Private Agency
Circular Bill 1 Year 2006 and
Private Agency Circular Bill 2
Year 2006which only allow ex-
army personnel Gurkhas to be
guards, and yet it is quite
common to see foreigners who
are not Nepalese Gurkhas
guarding these premises.
The National Town and Country
Planning Department had come up
with guidelines in 2010 but they are
more related to planning rather than
control andmanagement.
These community living
enclaves are now regulated by
DMCs which are sometimes
lopsided in favour of developers or
initial residents.
All sorts of restrictions are being
imposed such as height of
structures, colour of façades, minor
fencings and even unimpeded entry
by residents association office-
bearers or company officials which
seem to usurp the function of the
local authority.
Without a standard deed like the
standard agreements under the
Housing Development (Control and
Licensing) Act 1966, such deeds
have become a bone of
discontentment among the
residents nomatter hownoble the
intention of the drafters may be.
Numerous public complaints
regarding forced payment and
harassment certainly calls for a
more comprehensive legislation to
cover this new trend of human
habitation, least they become
permanent fortresses and shatter a
poor man’sMalaysian dream.
Anexcitingcareer in real estate
TO date, there are approximately 1,800 registered
real estate agents in the country. Comparedwith the
10,990 professional engineers, 16,049 lawyers, 31,358
accountants and 40,000 doctors, it would be wise to
take up a real estate profession, especiallywith the
newprogramme offered at UCSI University.
A collaboration betweenUCSI University and
Hartamas Academy, the training and development
armof the Hartamas Real Estate Group, the two
award-winning establishments developed the
Executive Diploma in Real Estate (EDRE)
programme, which is offered at UCSI University.
Accredited by the Board of Valuers, Appraisers &
Estate AgentsMalaysia (BOVAEA) and approved by
theMalaysianQualifications Agency (MQA), the
course offers a one-stop learning-cum-networking
platform, where students can learn from industry
leaders and academic professionals en route to
obtaining a recognised qualification in real estate.
For more information on this programme,
register at or attend the info day.
UCSI UNIVERSITY EDRE INFO DAYS
Saturday,
April 18
9.30am to
1.30pm
Greens 3 Sport Wing, Tropicana Golf
& Country Club, Jalan Club Tropicana,
Petaling Jaya.
Saturday,
April 25
9.30am to
1.30pm
Function room, Le Quadri Hotel, UCSI
University, North Wing, Taman Taynton
View, Cheras.
* EDRE is given full exemption fromBOVAEA’s Estate Agents
written Examination part 1 & 2.1
existing housing or new land
holdings, with individual land titles.
GN schemes provide with or
without security guard services.
In terms of the law, GNnowadays
erect physical barriers on public
streets and enforce entry/exit
restrictions to the residents and the
public.
According to the Federal Court,
in the recent case of Au KeanHoe vs
Persatuan Penduduk D’Villa
Equestrian, it noted that such
physical obstruction is not
obstruction under section 46(1)(a)
of the Street Drainage Building Act.
It further noted that persons who do
not agree have to inconvenience
themselves by lifting the barrier
themselves (as this amounts to
inconvenience) which in common
law is not actionable obstruction or
actionable private nuisance. We are
of the view that the underlying rule
is a recognition that individuals live
within a community, and it is always
about the balancing of the
individuals’ inconvenience against
the communities’ interest that is of
paramount concern.
On this point, inGeorge Philip&
Ors vs Subbammal &Ors AIR 1957
Tra-Co 281, the High Court in India
observed as follows:
“Every little discomfort or
inconvenience cannot be brought on
to the category of actionable
nuisance. Consistent with the
circumstances under which a person
is living, hemay have to put upwith a
certain amount of inevitable
annoyance or inconvenience. But if
such inconvenience or annoyance
exceeds all reasonable limits, then
the samewould amount to actionable
nuisance. The question as towhat
would be a reasonable limit in a given
casewill have to be determined on a
consideration as towhether there has
been amaterial interferencewith the
ordinary comfort and convenience of
life under normal circumstances.”
Thus, in the name of safety and
security, communities are being
segregated.
Given that GC are spatially a type
of enclave, SethM. Low, among
other anthropologists, has argued
that GC has a negative effect on the
overall social capital of the broader
community, beyond the borders of
the gated area. Some GC, (usually
called guarded-gated communities
or G&G communities), are staffed
by private security guards and are
often home to high-value
properties. And some are secure
enough to resemble fortresses and
are intended as such.
STRATAOR LANDED
For newhousing development
projects, the developers have a
choice to either sell houses in a
G&G community as a strata parcel
or with a landed title. A strata parcel
development also requires licensing
by the HousingMinistry as a strata
development. I have foundmany a
development approved as “Rumah
Teres DuaTingkat” yet developers
are selling these houses as stratified
development, wherein the
completion period is 36months and
not 24months, as it is in landed
property.
Although the strata title act was
amended in 2010, to allow for landed
strata, yet there have not been any
changes made to the Housing
Development (Control and
Licensing) Act 1989 to cater to such
development. Schedule H, which
was originally intended for high-rise
development, is now supplemented
with a lengthy DMC (Deed of
Mutual Covenant) to cover the
shortcomings in the schedule.
Similarly, in cases of landed
propertywhere there are no clauses
on issues such as security and
renovation, the developer again has
to find a way around, by inserting
such clauses as a DMC. Any deed of
covenant that is inconsistent with
standardised agreements under the
Housing Act is void and illegal to
that extent.
InWoon Brothers Construction
Sdn Bhd vsMewahrembang Sdn
Bhd [2009] 1 LNS 1015, the issue was
a conflict between provisions in
Schedule H and the DMC. And in
relation to the sinking fund andHue
SiewKheng, JC held:
“After examining theDeed of
Mutual Covenant I amof the
considered view that cl. 5.02 and cl.
7.01 of theDeed are attempts to
contract out of the prescribed formof
agreement and cannot be allowed to
stand.
“To the extent that the provisions
of theDeed ofMutual Covenant are