On 28th January 2021, YB Ismail Sabri has made a statement that “the management of condominiums and residential complexes has the right to require residents to submit Covid-19 test and bar those who fail to comply”. He had then on the following day explained that his statement was referring to “foreign residents and tenants and that it is not applicable to local residents”.
Now, this particular statement has caused confusions to the public at large on whether Joint Management Body (JMB) and Management Corporation (MC) of condominiums and residential complexes have the right to do so even with the purpose of ensuring its residents’ safety during this difficult time.
Can the JMB and MC act in accordance to the suggestion made by YB Ismail Sabri?
JMB and MC are governed by the Strata Management Act 2013 (SMA 2013) in which the said Act was passed by the Parliament to confer specific duties and powers to the JMB and MC in relation to the “proper maintenance and management of buildings and common property, and for related matters”. The JMB and MC can’t in any way exercise any other powers which are not granted by the SMA 2013 such as demanding or forcing its residents to do Covid-19 test and barring those residents suspected to be infected from entering their units.
At all material time, in handling issues related to Covid-19 or any other infectious diseases, the JMB and MC are bound to act in accordance to the Prevention and Control and Infectious Diseases Act 1988 (PCIDA 1988) and this Act does not confer any powers to the former to act inhumanely towards its residents should they be infected with any infectious diseases. Denying its residents, be it local or foreigner, from seeking shelter in their own home is illegal, amounts to a violation of one’s constitutional right “to move freely throughout the Federation and to reside in any part thereof” [Article 9(2) of the Federal Constitution] and discriminatory in nature.
Now, what are the duties and powers that have in actual fact been granted to the JMB and MC?
The powers of the JMB have been enumerated in Section 21(1) and (2) of the SMA 2013 while the powers that have been granted to MC can be found in Section 59 (1) and (2) of the same Act.
In general, the duties and powers of the JMB and MC are all related to the proper maintenance and management of the building and its common property as mentioned earlier and that includes inter alia:-
- collection of maintenance fee and sinking fund;
- recovering of any sum spent by the JMB and MC in complying to any order made by the local authority or competent public authority to eliminate or reduce any nuisance on the common property, as well as to carry out reparation or other improvement works in respect to the common property;
- enforcement of additional by-laws for the proper maintenance and management of the land or buildings meant to be subdivided into units or parcels, as well as the common property by virtue of Section 150 of the SMA 2013; and
- to do all things reasonably necessary for the performance of their duties under the SMA 2013 and for the enforcement of the by-laws.
None of the powers conferred allowed neither the JMB nor the MC to pass and enforce any by-laws ordering its residents to carry out Covid-19 test and to bar them from entering their units should they be infected. By doing so, they are said to have acted discriminatorily, unconstitutionally and have breached the common and criminal law, all at once. Therefore, it is advisable for JMB and MC to seek legal opinion before making such demands.