Q1: What law governs inter-floor leakage and party wall damage in strata schemes?
A: Inter-floor leakage and party wall damage are specifically governed by Regulations 55 to 67 of the Strata Management (Maintenance and Management) Regulations 2015.
Q2: What is inter-floor leakage?
A: An inter-floor leakage occurs where there is evidence of dampness, moisture or water penetration on the ceiling or any furnishing material that is attached, glued, laid or applied to the ceiling (including plaster, panel and gypsum board) which forms part of the interior of a parcel, accessory parcel or common property.
Q3: What is a party wall?
A: A party wall is a wall between separate parcels or located between a parcel and common property.
Q4: What is party wall damage?
A: Party wall damage occurs where there is evidence of dampness, moisture, water penetration or other damage on the wall or any furnishing material that is attached, glued, laid or applied to the wall (including plaster, panel and gypsum board) that forms part of the interior of a parcel, accessory parcel or common property.
Q5: What should I do about inter-floor leakage/party wall damage in my strata parcel?
A: You must first give notice of the leakage/damage to the developer, joint management body (JMB) or management corporation (MC), as the case may be.
Q6: How should the notice be prepared?
A: Although the Strata Management (Maintenance and Management) Regulations 2015 does not provide a specific format for the notice, it is advisable that the notice is in writing with sufficient particulars and that acknowledgement of receipt of the written notice is obtained.
Q7: What happens after I give notice of the inter-floor leakage/party wall damage?
The developer, JMB or MC, as the case may be, has to carry out an inspection on the affected parcel, any other parcels or common property.
Q8: How soon will the developer, JMB or MC carry out the inspection?
A: As soon as practicable or within seven days from the date of receipt of the notice.
Q9: What is the purpose of the inspection?
A: The purpose of the inspection is to determine (i) the cause of the inter-floor leakage/party wall damage and (ii) the party responsible for rectifying any defect that has caused the leakage/damage.
Q10: Must parcel owners allow access to the persons carrying out the inspection?
A: Yes. Provided seven days' written notice is given to the parcel owner or occupier, the persons carrying out the inspection shall be given access to the affected parcel or any other parcels. The seven days' notice requirement will not be applicable in cases of emergency (including the likelihood of flooding or danger to life or property), and forcible entry is permitted in those cases.
Any parcel owner or occupier who fails to give access to the affected parcel or any other parcels to the persons carrying out the inspection commits an offence and shall, on conviction, be liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding three years or to both.
Q11: What happens after the inspection?
A: Within five days from the date of the inspection, the developer, JMB or MC, as the case may be, shall issue a Certificate of Inspection (Form 28) which will state (i) the cause of the inter-floor leakage/party wall damage and (ii) the party responsible for rectifying it.
Q12: What are the possible causes of inter-floor leakage/party wall damage?
A: The Strata Management (Maintenance and Management) Regulations 2015 provides four possible causes/circumstances:
- Defective workmanship/materials or the parcel was not constructed in accordance with the plans and description approved by the authorities and the leakage/damage occurred within the defect liability period;
- Defective workmanship/materials or the common property was not constructed in accordance with the plans and description approved by the authorities and the leakage/damage occurred within the defect liability period;
- Caused by or is attributable to a parcel; and
- Caused by or is attributable to common property and leakage/damage which occurred after the defect liability period.
Q13: What are the remedies for each of the causes/circumstances mentioned above?
A: For cause (i) above, the parcel owner may make a claim against the developer pursuant to the sale and purchase agreement entered into with the developer.
For cause (ii) above, the parcel owner may make a claim against the Common Property Defects Account.
For cause (iii) above, the parcel owner shall take all necessary steps and measures to rectify the inter-floor leakage/party wall damage within seven days of receipt of the Certificate of Inspection (Form 28). This will be without prejudice to his right to seek indemnity from any other party, including the developer in (i) above.
For cause (iv) above, the developer, JMB or MC, as the case may be, shall take all necessary steps to rectify the inter-floor leakage/party wall damage within seven days of the date of issue of the Certificate of Inspection (Form 28). This will be without prejudice to their right to seek indemnity from any other party, including the developer in (ii) above.
Q14: For cause (iii) above, what happens if the parcel owner fails or refuses to rectify the inter-floor leakage/party wall damage?
A: The developer, JMB or MC, as the case may be, shall immediately take all the necessary steps and measures to rectify the inter-floor leakage/party wall damage, and thereafter shall charge and recover all costs and expenses from the parcel owner responsible for the rectification.
Q15: What happens if the parcel owner refuses to give access to the developer, JMB or MC to carry out the rectification?
A: Similar to Q10 above, provided seven days' written notice is given to the parcel owner or occupier, the persons carrying out the rectification shall be given access to the affected parcel or any other parcel. The seven days' notice requirement will not be applicable in cases of emergency (including the likelihood of flooding or danger to life or property), and forcible entry may be effected in those cases.
Q16: What should I do if I do not agree with the findings/determination of the inspection stated in the Certificate of Inspection (Form 28)?
You may refer the dispute to the Commissioner of Buildings (COB) and the COB shall determine the cause of the inter-floor leakage/party wall damage and the party responsible for rectifying the leakage/damage.
Although the Strata Management (Maintenance and Management) Regulations 2015 does not provide a specific format for the reference to the COB, it is advisable that the reference is in writing with sufficient particulars and that acknowledgement of receipt of the written reference is obtained.
Q17: Can I skip all the procedures above and proceed to file a Strata Management Tribunal claim or civil suit?
A: That is not advisable. The High Court in the case of Badan Pengurusan Bersama Mahkota Parade v Pesuruhjaya Bangunan Majlis Bandaraya Melaka Bersejarah [2016] 1 LNS 1080 held that if the legislation provides the remedies for the resolution of the dispute, the aggrieved party must exhaust those remedies before seeking the assistance of the Court. This principle may apply to the Tribunal as well.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
