Time to Publish Decisions of Strata Management Tribunal for Transparency

The Strata Management Tribunal("Tribunal") was created pursuant to the Strata Management Act 2013("SMA"), which came into force on 1 June 2015. It is a quasi-judicial body endowed with the powers and authority to adjudicate disputes or complaints concerning the performance of duties and the exercise of powers conferred or imposed by the SMA.

Parties bound by the SMA include proprietors, developers, management corporations, joint management bodies, property managers, and commissioners of buildings.

In simple terms, it provides an avenue for various stakeholders or affected persons under the SMA to seek adjudication from the Tribunal when there are discrepancies concerning the affairs of stratified properties. Much has been written about the overview of the functions and powers of the Tribunal.

Malaysia inherited a common law system from its former colonial masters. This means that decisions and grounds of decisions handed down by the courts and other judicial bodies in the country form a body of case law which is binding on the courts below. Rulings and decisions by the Federal Court, Court of Appeal, and High Court must be followed by the Sessions Court and Magistrates Court.

In other circumstances, the body of case law becomes persuasive authority for courts confronted with similar cases. One of the advantages of the common law system is that it promotes consistency in decisions.

Grounds of Decision by the Tribunal

‍In the context of the SMA, the awards and the grounds of awards handed down by the Tribunal can serve as an invaluable reference for the public. In fact, the SMA mandates the Tribunal to provide reasons to support its awards. Section 117(2) of the SMA states, "The Tribunal shall in all proceedings give its reason for its award in the proceedings."

This provision is similar to Section 16AAof the Housing Development (Control & Licensing) Act 1966, relating to the Tribunal for Homebuyer Claims, and Section 114 of the Consumer Protection Act1999, relating to the Tribunal for Consumer Claims. In interpreting these provisions, the courts have consistently held that this statutory requirement to give reasons is mandatory. Failure to do so will render the award illegal and liable to be quashed by the courts.

Alternatively, the aggrieved party may apply for a mandamus from the courts to compel the Tribunal to give its reasons. However, Section 117 of the SMA does not specify whether reasons shall be given in written form or if it is sufficient to merely provide oral reasons for any awards made.

Hitherto, the courts have taken a rather narrow approach, considering the requirement satisfied as long as the Tribunal has given its oral reasons for its award. In other words, written reasons or grounds of decisions for any award are optional.

The direct consequence of this is that the reasons supporting the awards of the Tribunal become shrouded in secrecy or make the award incoherent, where the public may not be able to understand the rationale of the awards, or they could be weighed down with legal language delivered orally, bearing in mind parties are not permitted to be represented by an advocate and solicitor unless it involves complex issues of law.

While the ruling on the sufficiency of oral reasons appears to be motivated by the need to have disputes disposed of speedily at the Tribunal, there are instances where it would be desirable to prepare written reasons and make them available to the public. For example, publishing the Tribunal’s awards and grounds of decision or reasons on the official website of KPKT.

Making the Grounds of Decision Available on the Official Website

The National House Buyers Association(HBA) believes that the lack of written reasons for awards could deprive the public and persons aggrieved or affected by the SMA of proper guidance on matters related to the SMA, leading to a vicious cycle of ignorance or misunderstanding where the same mistakes are repeated.

This situation 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.

The HBA has previously advocated for the publication of awards and their reasons, and we now reiterate our call for this practice. Even if not for each award, this should be done at least for important awards that will impact the future application of laws.

Firstly, the SMA legislation has been in place since mid-2015, and strata development has become more complex with the advent of mixed developments, phased developments, and developments incorporating public infrastructure such as the Mass Rapid Transit (MRT)running through, under, or above strata properties. There are many gaps that require clarification and interpretation by the courts and the Tribunal.

By preparing written reasons and subsequently publishing them, the public will be able to deepen their understanding and comprehension of the operation of the SMA. As the law becomes clearer and more settled over time, there may be fewer disputes, there by reducing the need to lodge claims with the Tribunal. Furthermore, this practice will expedite the decision-making process at the Tribunal, as the body of decisions will serve as a useful reference.

Secondly, making written decisions available and transparent to the public will instill confidence in the awards granted by the Tribunal. The written reasons will enable the public to understand the rationale behind the awards. For example, the judiciary regularly publishes its grounds of judgment on its official website to promote transparency and allow the public to understand the rationale behind its decisions. Indeed, reasoned decisions can be an essential component of the concept of fairness.

‍Education, Information and Empowerment

‍It was reported that the majority of claims filed with the Tribunal are practical in nature, revolving around issues such as the recovery of maintenance charges, disputes on the validity of meetings, squabbles between committee members, disputes involving property managers, and inter-floor leakage problems.

While these types of cases are generally perceived as 'run-of-the-mill' or standard claims that rarely involve complex arguments on strata laws, the Tribunal should seriously consider publishing its written reasons with the primary purpose of making its awards transparent.

This would shed light on or clarify the application of various provisions in the SMA for the benefit of the public, including proprietors and committee members sitting in a Joint Management Body, Management Corporation, or Sub MC.

Furthermore, a common position should be adopted by each Tribunal for similar or identical facts to formulate a consistent policy.

We have repeatedly encouraged the Housing and Local Government Ministry (KPKT) to be transparent and accountable by publishing the Tribunal’s written reasons on the KPKT website.

This could be done under a separate section called “Past Decisions” or “SMT Resources” as a source of reference and information for the public on awards relevant to the facts of their disputes.

Such a practice could also help pre-empt potential disputes and motivate parties to settle if the same or similar facts, along with the outcomes from previously published cases, are already known to the disputing parties.

HBA urges KPKT to consider our proposal to encourage the chairman of the Strata Management Tribunal to make available and publish their awards, decisions, and grounds, thereby providing a dedicated section on the KPKT website for these publications, ultimately achieving TEAM, the acronym by HBA for:

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.

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This article is written by Datuk Chang Kim Loong, the Honorary Secretary-General of the National House Buyers Association (HBA), a non-profit, non-governmental organisation manned by volunteers. He was also a Councillor with the then Subang Jaya Municipality Council (now conferred Subang Jaya City Council status) in years 2008 – 2018.‍‍‍

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‍Disclaimer: Any opinions expressed are entirely the author’s own and do not necessarily reflect the views of PropertyGuru and its entities.

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