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- Jamhirah said the court recognised that Icon City is a stratified mixed commercial and residential development comprising 10 distinct components.
SHAH ALAM (Dec 30): Joint management bodies (JMBs) are allowed to impose different maintenance charges on parcel owners in mixed development projects like Icon City in Petaling Jaya.
High Court Judge Jamhirah Ali said she considered all facts and circumstances in the case and considered a holistic reading of the Strata Management Act, sale-and-purchase agreements and deeds of mutual covenants as well as the relevant schedules and regulations.
“I find the JMB was entitled to impose different maintenance charges and sinking fund contributions across the different components based on the exclusive use and enjoyment of the limited common property,” she said in a 32-page written judgment.
She decided on Dec 19 to dismiss a suit filed by a group of 216 homeowners led by V Suntharalingam seeking a declaration that resolutions imposing different maintenance charges are unlawful under the 2013 law also known as Act 757.
The Act spells out responsibilities of various parties including developers, management bodies and owners, focusing on proper upkeep of common areas, fee collection, sinking funds and other matters.
The plaintiffs claim that imposing different maintenance charges for various parcels is ultra vires, or beyond the legal power, of Act 757. The defendants Icon City JMB, Icon City Development Sdn Bhd and Pelaburan Hartanah Bhd meanwhile assert that the charges reflect differing facilities available to each component and are legally justified.
Jamhirah said the court recognised that Icon City is a stratified mixed commercial and residential development comprising 10 distinct components. There is no limited common property for shop offices and shop lots while the two residential towers’ limited common property includes the swimming pool, sauna, gymnasium, roof garden, BBQ deck and picnic terrace.
The office towers’ limited common property includes a business centre with video conferencing facilities, an executive club with a lounge and a gymnasium while the components in the Volt business suites tower, the ARC hub and the car park are an en bloc parcel.
Menara Rajawali’s case
In contrast with Menara Rajawali cited by the plaintiffs arguing for a single rate for maintenance, Jamhirah said the case was fact-specific, as it did not involve common properties, additional bylaws passed and deeds of mutual covenants, making it “materially different” from the Icon City case.
“The conclusion reached in Menara Rajawali, namely that there could only be one uniform rate for all parcels, must therefore be confined strictly to its own factual and legal context,” she said.
The judge noted that a special resolution at the first annual general meeting of Icon City’s JMB passed an additional by-law granting exclusive use and enjoyment of specific common property to designated parcels.
“The statutory framework was not considered in the Menara Rajawali case, where there are no additional by-laws made by the JMB,” she said.
By executing their respective mutual covenants, the judge said, the plaintiffs were fully aware of and explicitly agreed to the concept of common properties for exclusive use, as well as their obligation to pay additional charges for their maintenance and management.
“I agree with the defendants …. it would be unconscionable for the plaintiffs to now insist that the maintenance costs of such exclusive facilities be borne by all parcel owners including those who have no access to or benefit from them,” she remarked.
Pearl Suria
Citing Pearl Suria, which was similar to the case before her, Jamhirah wrote that the statutory framework permits different rates of maintenance charges and sinking fund contributions in mixed developments.
She found that the Court of Appeal in the Pearl Suria case recognised “a clear shift in approach towards formulating maintenance charges that fairly and justifiably reflect the proportion of expenses related to different types of parcels, especially in mixed developments.”
The Icon City case similarly includes a clause in the sale-and-purchase which states that the purchaser shall pay “a fair and justifiable proportion” of the costs and maintenance and management of the common property and for the services provided, the judge noted.
Parcel owners of shop offices, shop lots, Volt Tower and the car park do not have exclusive rights to the common property enjoyed by owners of residential and office towers, making it “inequitable” to require them to contribute to facilities they cannot access, she added.
Jamhirah ordered the plaintiffs to pay costs of RM10,000 to each of the defendants.
The plaintiffs were represented by Raymond Mah and Christopher Guo from Messrs Mah Weng Kwai. Aimee Liew, An Yong Wai Nyan and Joanna Woo of Messrs YH Teh & Quek appeared for the joint management body.
Lai Chee Hoe, Angeline Ang and Mah Mun Yan of Messrs Ricky Tan & Co represented Icon City Development while Anita Sockalingam and Hanna Suhaila Haizal from Messrs Zain & Co were counsels for Pelaburan Hartanah.
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