Court of Appeal: JMBs can deactivate access cards but cannot bar owners from their units
Malaysia's Court of Appeal has ruled that joint management bodies (JMBs) may deactivate access cards over unpaid maintenance charges but cannot prevent owners from entering their own units. The unanimous decision overturned a High Court ruling and set aside costs, granting nominal damages to the app
PETALING JAYA (Oct 27): Joint management bodies (JMBs) may deactivate access cards over unpaid maintenance charges, but cannot prevent owners from entering their own units, the Court of Appeal has ruled. In a unanimous decision on Monday (Oct 26), the court allowed an appeal by SL Land Sdn Bhd and Foong Wei Ching against the JMB managing Sentral Bazar shopping mall in Nilai, Negeri Sembilan, Free Malaysia Today (FMT) reported.
The three-member bench, chaired by Justice Alwi Abdul Wahab and comprising Justices Shahnaz Sulaiman and Ong Chee Kwan, overturned a High Court ruling that had upheld the JMB’s power to impose entry conditions on defaulters under the Strata Management (Maintenance and Management) Regulations 2015. Delivering the broad grounds, Justice Ong said the regulations permitted measures including deactivating access cards, requiring defaulters to sign a register when seeking assistance to enter or leave the building, and suspending their use of common facilities and services.
“The sanction it authorises is an inconvenience and a record. It presupposes entry. It does not authorise exclusion,” Justice Ong was quoted as saying. He said preventing owners from entering their units was a more drastic measure that interfered with their right to use and enjoy the property. Such a power required clear legal provisions, which the regulations did not contain.
The court declared unlawful the JMB’s refusals to allow SL Land’s directors and authorised agents into its units on May 4 and June 20, 2023. It also ruled that requiring the company’s shareholders to be present or consent before entry was not authorised by law. The judges granted an injunction preventing the JMB from blocking access, while preserving its powers under the regulations and reasonable, non-discriminatory security arrangements applicable to all proprietors.
SL Land was awarded nominal damages because it had not proved substantial loss. The court also set aside the High Court’s RM30,000 costs order and ordered the JMB to pay RM50,000 in costs for proceedings in both courts. The prescribed by-laws provide further context on the sanctions available to management bodies. Paragraph 6 of the Third Schedule permits deactivation of a defaulter’s access card, tag or transponder after 14 days from receipt of the relevant notice if the outstanding sum remains unpaid.
During deactivation, management may require the owner to sign a defaulters’ register whenever assistance is needed to enter or leave the building or development area. Any charge imposed for reactivating the device is capped at RM50. Management may also suspend the use of common facilities and services, including a parking bay within common property designated for the defaulter’s use.
Separately, Section 34 of the Strata Management Act 2013 allows a JMB to serve a written demand giving an owner at least 14 days to pay. If the sum remains unpaid, it may pursue recovery through a competent court or the Strata Management Tribunal. Section 35 provides an alternative route through attachment of the defaulting owner’s movable property. This requires a warrant issued by the Commissioner of Buildings following a sworn written application, with execution in the presence of the commissioner or an officer from that office. The by-laws also allow a written instalment payment scheme, whose terms may include withholding access-card deactivation and common-facility restrictions while the owner settles the arrears.
