2001 Volume 1 [2001] 1 MLJ cxiii; [2001] 1 MLJA 1132001 1 MLJ cxiii; 2001 1 MLJA 113 2001Article: DETERMINING

THE BOUNDARIES OF STRATA PARCELS UNDER THE PROVISIONS OF THE STRATA TITLES ACT 1985SY Kok LLB (Hons) (Sing) Advocate & Solicitor, High Court of Malaya

[*113] Introduction The Strata Titles Act 1985 (Act 318/85) ( the STA ) came into effect on 1 June 1985. It repealed the former strata provisions in the National Land Code 1965 ( the NLC ) which governed strata projects, including applications for subdivision of multi-storey buildings and the subsequent issuance of strata titles which were formerly called subsidiary titles . 1 The STA is a relatively short statute; it contains only 85 sections, four schedules and a few prescribed forms. However, inadequacies in the STA do, at times, make interpretation of some of its provisions difficult to comprehend. A glaring example of such shortcomings would be the lack of minute provisions to regulate party walls. This could, in turn, lead to a reliance on common law principles on this issue. At times, professionals whose sphere of work is related to the provisions of the STA have to resort to self-improvisation. Notwithstanding this observation, the STA does show a marked improvement on the former strata provisions of the NLC. 2 In addition to the above observation, certain shortcomings in the STA may be resolved by resorting to the provisions of the NLC. In fact, the STA is an extension of the NLC. Section 5 of the STA has expressly stated that the STA shall be read and construed with the provisions of the NLC as if it [*114] were a part of the NLC. However, where the provisions and rules contained in the NLC are inconsistent with those of the STA, the strata provisions shall prevail. 3

The meaning and nature of strata titles It was once remarked that strata titles are titles in the sky . The speaker, apparently, was trying to express a strata concept which is somewhat different from the conventional form of titles which relate to landed properties. It is true that conventional land titles do relate to agricultural land, dwelling houses and low-rise shop houses and factories. Such land titles relate to the respective surface areas of the landed properties which are demarcated by their boundary lines. This system of issuance of conventional land titles is in compliance with Pt 5 of the NLC which deals with the disposal of State land via its alienation by the State Authority. 4 Strata titles, on the other hand, are synonymous with cubic spaces

which are to be built skywards and the issuance of strata titles will be governed mainly by the provisions of the STA. But registrable dealings in strata parcels are regulated by the registration provisions of the NLC. The nature of strata titles, however, is similar to conventional land titles. In both instances, the titles, both the issue and register documents of title, can be issued only by the relevant Registrar of Titles or, as the case may be, the Land Administrator and no one else. If land titles or strata titles are issued by any unauthorized persons or person, such titles will be nothing more than forgeries. They will not be marketable and will not pass good titles to their possessors nor their purchasers, notwithstanding that the purchasers are bona fide persons and have purchased for value. Other than this observation, it may be said that all register copies of land titles and strata titles which have been properly issued under the hand and official seal of the relevant Registrar of Titles or the Land Administrator 5 are guaranteed by the State under one of the fundamental principles of Torrens land law. [*115] Under this basic principle which is enshrined in all Torrens statutes (the NLC, being a Torrens statute, is no exception 6 ), the State Authority, in a show of public declaration via the conclusive provisions in the statute book, assures all and sundry that the data recorded in the books of register documents of title to alienated land or to strata parcels that are kept in the strong rooms in the registry or land offices are guaranteed to be correct. that title to the land described therein is vested in the person or body for the time being named therein as proprietor; and of the conditions, restrictions in interest and other provisions subject to which the land is for the time being held by that person or body, so far as the same are required by any provision of this Act to be specified or referred to in that document. 7 Thus, the accuracy of the data which are guaranteed by the State will include: (a) the nature of the title, whether registry or land office title; (b) the particulars of the title such as the number of the title itself, the lot number, the location of the land or strata parcel, ie the mukim, the district and the state in which the land or strata parcel is situated, the nature of the title, whether it is a qualified or a final title; (c) the category of land use, whether agriculture, building or industry; (d) the land tenure, whether the land or strata parcel is held in perpetuity or for a term of years and if it is a leasehold, the expiry date of the State lease as distinct from a private lease; (e) the area of the land or the strata parcel after final survey; (f) the numbering of the RS plan and the amount of the survey fees paid; (g) the amount of the annual or quit rent; (h) whether the property concerned is located within Malay Reservation/Aboriginal Area/Aboriginal Reserve, etc and if so, the Gazette Notification number and date; (i) the express conditions and/or restrictions in interests which may affect the property concerned; (j) the sketch plan which is attached to the title deed; (k) the date of issuance of the title deed; (l) the data of the parent title if the present title is issued in continuation of the former parent title; (m) the identity and particulars of the registered proprietor or co-proprietors; (n) the registered dealings with the property concerned, including any transfer, lease (including any sub-lease), charge or grant of easement and their respective nullification thereof; and (o) other matters affecting title, such as lien-holders caveats, registrar s caveats, private caveats and trust caveats as well as miscellaneous entries on the register documents of title which will include prohibitory

orders, notices of land acquisition and transmission upon death of the registered proprietor or co-proprietors. Such books of register titles to land and to strata parcels are constantly kept in the safe custody and possession of the land registration authorities. Apart from private land title searches which are permissible under s 384 of the [*116] NLC, none of the register documents of title may be altered, defaced or removed from the land registries or land offices. 8 However, the aforesaid basic Torrens principle of conclusiveness of the register documents of title does not extend to all or any of the issue documents of title to land, including issue documents of strata title. In other words, all data on the issue document of title are not guaranteed by the State to be conclusive. The reason for this exclusion of the fundamental doctrine of conclusiveness to issue documents of title is plain. Unlike register documents of title which are always kept under the safe custody and control of the respective land registries or land offices, issue documents of title, when issued, will be given to the relevant registered proprietors and will thenceforth be retained by them. Thereafter, the State Authority will have no further possession over such titles. If the issue documents of title should fall into the hands of fraudulent persons, they might tamper with or alter the identities of the existing registered owners. Likewise, express conditions or restrictions in interest could be obliterated by such dishonest persons much to the disadvantage of innocent proprietors and to bona fide persons who should subsequently deal with the fraudulent persons without any knowledge of the fraud that has been committed. Strata titles, like other land titles, are registered interests in respect of strata parcels; they differ from registrable interests in land. 9 They are also, in the writer s opinion, registered interests of a proprietary nature. They are distinct from registered interests of an encumbrancing nature. 10 Strata titles are applicable to, inter alia, condominiums, flats and apartments, office and shopping complexes, flatted factories and workshops as well as lowcost flats. [*117] Sections 4 and 5 of the STA which contain the interpretation and construction provisions have expressly stipulated that the STA must be read and construed with the NLC as if it were a part of the NLC and its rules made thereunder. So long as the NLC provisions are consistent with the provisions of the STA and are applicable to strata parcels held under strata titles, such NLC provisions shall be applicable to strata parcels. The provisions which govern the alienation of State land, for example, will not apply to strata parcels. This is because the State does not take the responsibility to build flats and then alienate them together with the State land on which they have been erected. On the other hand, an example whereby the NLC provisions do apply to strata parcels will be the statutory provisions which regulate the permissible dealings in alienated or registered land and the restrictive provisions which control the preparation, execution, stamping and registration of the various instruments of dealing in land. In addition, the effect of s 5(1) and s 5(2) of the STA, read in conjunction with the applicable provisions in the NLC, will confer on the registered proprietor of a strata parcel an indefeasible title to his parcel of strata property. In plain language, the strata proprietor, like a registered proprietor of alienated or registered land, is conferred by statute with all the incidents of ownership of immovable property. In short, a strata proprietor can deal with his strata parcel as he deems fit but

subject to any express conditions of title or restriction in interest which might have been carried over from the parent title and endorsed on the register as well as on the issue document of strata title. Such incidents of ownership of immovable property will include the proprietary right: (a) to sell, transfer or devise the strata parcel together with the accessory parcel (if any); 11 (b) to charge the strata parcel as security for a loan (including the right to deposit his strata title with a financier as security for a loan); 12 (c) to create a lease over the strata parcel [*118] in favour of a lessee as well as the right to create a tenancy exempt; 13 or, (d) for instance, to create an easement of support, service and shelter over his servient strata parcel. 14 A strata proprietor may, like his counterpart holding alienated land, create beneficiary interest by entering a trust caveat over his strata parcel in favour of his loved ones. 15 In addition to such incidents of ownership, a strata proprietor has the right to use the common property in conjunction with the other strata proprietors. 16

Various stages for the issuance of strata titles There are several procedural steps which must be complied with before subdivision of a multi-storey building can be approved and strata titles issued. Consequently, the parent issue document of title in respect of the strata project land will eventually be taken over by the management corporation. 17 The determination of the boundaries of strata parcels, accessory parcels and common properties will come within the purview of one or perhaps more of such stages. The various stages for an application for subdivision of a high-rise building may be compartmentalized into: (a) the construction stage, that is to say, a stage when the multi-storey building is being constructed; (b) the interim stage which demarcates the time frame from the date of handing over vacant possession of the strata parcel to the date of establishment of the management corporation; 18 (c) the initial stage which, when used in relation to a management corporation, identifies the period commencing from the day on which the management corporation is formed and ending on the day on which there are sufficient strata proprietors (excluding the original registered proprietor of the strata project land who may be registered as the strata proprietor of an unsold strata parcel or leftover strata parcels or a provisional block or blocks) whose share units entitlements are at least one-third of the aggregate share units; 19 [*119] and (d) the post-management corporation stage. The first two stages will now be examined briefly in view of the limited scope of this paper.

During this stage, whilst the high-rise building must be constructed within a time span of 36 calendar months, each purchaser of a unit of strata parcel has a contractual obligation to pay the purchase price to the developer by progressive payments in accordance with the time frame set out in the Third Schedule of Payments. 20 During this construction stage, the strata developer must construct the multi-storey building, including the strata parcels

therein in accordance with approved building plans and specifications and complete the same together with common facilities (if any) and infrastructural works and then hand over vacant possession of the completed strata parcel within the stipulated 36 months from the date of the sale and purchase agreement or face the consequences of late delivery as spelt out in cl 22(2) of the standardized sale and purchase agreement. 21 It may be noted that during this construction period, no purchaser of a strata parcel is contractually obliged to pay any monthly service charges. Neither is the purchaser required, at this stage, to make contributions to the sinking fund. 22

The term interim stage is a device adopted by the writer to mark a specific period of time during the long march for obtaining subdivision and strata titles. During this stage, a score of events will occur. One such event will be that upon completion of construction of the multi-storey building or buildings, the common facilities and the infrastructure, the developer is obligated to deliver vacant possession of the strata parcel. 23 In addition, the [*120] developer needs to apply for subdivision of the high-rise building and the issuance of strata titles in respect thereof within six months from the date of completion. 24 On the other hand, if the developer has not sold any strata parcel during this interim stage but has now decided to sell the completed high-rise building as a whole block, including the piece of land on which the building has been constructed together with all the built-up facilities and infrastructural works, can the strata developer be compelled by existing strata law to apply for the subdivision of the building and thereafter, for the issuance of strata titles for its potential singular corporate or individual purchaser? Perhaps this question could be answered by a scrutiny of the provisions contained in s 8(1) of the STA which enacts as follows: The proprietor of any alienated land on which there is a completed building capable of being subdivided under s 6 shall, within the period specified in sub-s (2), apply in accordance with s 10 for the subdivision of the building if at any time he has sold or agreed to sell any parcel in such [a completed] building to any person. The local strata concept of a parcel has been defined in s 4 of the STA as: ... parcel , in relation to a subdivided building, means one of the individual units [of strata parcels] comprised therein, which (except in the case of an accessory parcel) is held under separate strata title. 25 (The words within square brackets have been added for the sole purpose of achieving clarity in interpretation.) In s 8(1), the root phrase ... if at any time he has sold or agreed to sell any parcel in such building to any person ... indicates a situation whereby the original proprietor of the alienated land on which the strata project is being developed has sold at least one unit of strata parcel to a bona fide purchaser [*121] for value. 26 This particular root phrase emphasizes the sale of at least one unit of strata parcel. Under s 8(1) of the STA, it is

mandatory for the strata developer to apply for at least a strata title for that particular strata unit that has been sold. This is to ensure that the purchaser will not be shortchanged on the question of legal ownership of his strata parcel at a later date. But the question of whether the strata developer is statutorily required to possess a developer s licence before this singular sale can be entered into is an entirely different point of law which has to be examined under a different set of applicable laws; namely, the Housing Developers (Control and Licensing) Act 1966 (Act 118/66) 27 and not under the STA. When scrutinized in the light of s 8(1) of the STA, it is mandatory that an application for subdivision of the multi-storey building and the subsequent issuance of strata titles be made if one or more strata parcels have been sold notwithstanding whether the sale or sales may not be covered by or within the ambit of the Housing Developers (Control and Licensing) Act and its related 1989 Regulations. This separate strata requirement is to ensure that the owners of strata parcels will eventually possess individual marketable titles to their respective strata parcels. As such, they would not ever need to hold their strata parcels as tenants in common, thereby sharing a common master title to the project land. But if a wholly completed multi-storey building is to be sold to a single individual or a corporate purchaser and no others, then s 8(1) of the STA will have no application to the matter. The reason for this proposition is again plain. Section 8(1) only applies to and governs the sale of individual strata parcels to various purchasers. It does not extend to the sale of a block of high-rise units provided that in such an event, the sale is to a single purchaser, whether he is an individual or a corporate player. In this instance, the building does not require any subdivision nor is it necessary to apply for strata titles under s 8(1) of the STA. But, if after acquiring the whole building, a single purchaser decides to subsequently sell one or more of the strata parcels in that building to others for profit or otherwise, then [*122] s 8(1) will be applicable. It will then be mandatory for this single purchaser to apply for the subdivision and the issuance of strata titles for his or its various purchasers notwithstanding whether he or it is a licensed developer or not. The necessity of obtaining a housing developer s licence and the requirement to subdivide the block of highrise are altogether two distinct legal issues. They merit different considerations under distinct sets of applicable laws. Before proceeding to the next stage in the application for strata titles, perhaps it would be appropriate at this juncture to comment on the root words ... any parcel in such building ... which appear also in s 8(1). These words have to refer to the completion, and not construction, stage when the high-rise building is still under construction. This observation is based on the presence of the root word completed in the opening of s 8(1) of the STA which deals with a completed building that has met the criteria specifically set down in s 6. The building, therefore, qualifies for subdivision into the three basic strata components; namely, the strata and accessory parcels and common property. The logical conclusion would be that an application for subdivision can only be made after the construction of the particular building has been completed and not before. In layman s terms, no application for subdivision is required under s 8(1) and no developer may be penalized if the block of highrise is still under construction; notwithstanding that, in the meantime, a sale has been effected. Hence, the way s 8(1) has been drafted, its provisions may partly account for the long wait in the issuance of strata titles. This, in turn, has led the writer to advocate the upstream issuance of qualified strata titles , well ahead of the construction stage 28 instead

of waiting for the construction works to be completed before an application can be submitted. However, the authorities have not responded to this proposed paradigm shift. During this interim stage, the strata developer, if properly licensed under the provisions of the Housing Developers (Control and Licensing) Act 1966, has the contractual right to collect from each of the purchasers a fair and justifiable contribution for the maintenance of infrastructural works, service charges and sinking fund. When levying service charges, the share unit entitlement of each strata parcel should be reverted to in order to impose a fair and justifiable rate. 29 It must be emphasized that the licensed strata developer, in discharging his or its contractual as well as its statutory duties to maintain and manage, during this interim stage, the common property within the strata project, should not profit from providing such services and maintenance. Any surplus from the monthly collection of [*123] service charges (the charges should be reasonable and not excessive in the first place 30 ) which is over and above the actual monthly expenses incurred for the maintenance and management of the common property should go into a sinking fund, to be handed over to the management corporation upon its formation at a later stage; namely, the initial stage as defined in s 4 of the STA. Again, during this interim period, when vacant possession has been delivered to the purchaser, the developer will be entitled to periodically collect from the purchaser a fair and justifiable proportion of the costs and expenses incurred for the maintenance of the infrastructural works 31 which may include service roads, driveways, drains, culverts, water mains and sewerage plants serving the multi-storey building that needs to be subdivided. 32 However, cl 14(3) does not expressly stipulate what is deemed to be a fair and justifiable contribution. But since the same phraseology of fair and justifiable has also been used in cl 16(2), it is submitted that the same formula should be adopted whenever the quantum of maintenance of infrastructures needs to be periodically quantified. A word of caution here: The question of what is and is not fair may only be ascertained by making reference to the share units assigned to each of the strata parcels concerned; 33 but what is justifiable is completely different from what is considered reasonable . For example, the quantum of monthly service charges, when compared with those imposed in other strata schemes of similar stature, may appear to be reasonable to the developer but the 1989 Regulations do not have this in mind. The intention of Parliament is actually reflected in cl 16(3). 34 The spirit of the law behind this standardized sub-clause is to prohibit the licensed developer from making any extra profit when he or it discharges his or its statutory duty in providing the essential daily or periodic services during this interim period. Its aim is achieved by imposing upon the developer a mandatory duty to serve on each of the purchasers a monthly service charge statement. This will, hopefully, ensure that there is no overcharging. In plain language, the developer can only [*124] collect from the purchasers monthly contributions which are based on what the developer has actually incurred or has been billed and not a cent more. If the developer wishes to subsidize the actual incurred expenditure, that will be his or its own business. The current discussion now brings to the fore the question of how strata parcels are to be separated from other component parts of the multi-storey building so that subdivision can be carried out in accordance with the provisions of the STA. Are such strata components to

be demarcated by boundary stones or by notional boundary lines of division? This question may be answered if, and only if, the boundaries of the strata parcels, the accessory parcels and the common properties could be ascertained from the approved building plans. Otherwise, an alternative method needs to be adopted.

Boundaries and their uses A boundary is an imaginary line 35 which marks the confines or abstract line of division of two or more pieces of contiguous pieces of alienated or registered land. 36 The term boundary is also used to denote the physical objects by reference to which the notional line of division is described. 37 It can also be the line of division itself. In this sense, boundaries may be classified as natural and artificial, according to whether or not such physical objects are man-made. 38 The term boundary has not been defined by the interpretation provisions of s 4 of the STA nor by s 5 of the NLC. However, this does not mean that whenever and wherever the boundaries of any piece of alienated or registered land within West Malaysia need to be determined, resort must be had to English land law. 39 The NLC, via Pt 29, contains a set of elaborate provisions for regulating the survey and the affixing of the boundaries for any alienated or registered land. Such tasks are performed by the State s Director of Survey or in his absence, his deputy; both of whom are appointed under s 12 of the NLC. This section enacts as follows: [*125] The State Authority may appoint for the State a State Director of Lands and Mines, a Registrar of Titles and a Director of Survey; so many Deputy Directors of Lands and Mines, Assistant Directors of Lands and Mines, Deputy Registrars of Titles, Deputy Directors of Survey, District Land Administrators, Assistant District Land Administrators, Survey Officers, Settlement Officers and other officers as the State Authority may consider necessary for the purpose of this Act. 40 Section 5 of the NLC then defines boundary mark to include any survey stone, iron pipe or spike, wooden peg or post, concrete post or pillar or other mark used for the purpose of marking boundaries . From this statutory definition, boundary marks can be said to be a part of any piece of alienated or registered land. Such marks, being affixed permanently into the ground, must not be tampered with, damaged, destroyed or removed. This is one of the duties which has been imposed by statute and must be observed by every registered proprietor of alienated or registered land. In fact, s 114 of the NLC has incorporated this onerous duty which legal ownership in land would entail. Section 114 states: All alienated land shall be subject to the following implied conditions relating to the boundary marks thereof that the proprietor will take all reasonable steps to prevent their damage, destruction or unlawful removal; that the proprietor will, if any of them are damaged, destroyed or unlawfully removed, give immediate notice of the fact to the Land Administrator, or to the penghulu having jurisdiction in the area in which the land is situated;

that the proprietor will, if so required by the Land Administrator, pay the cost of repairing or, as the case may be, replacing any of them which may have been damaged, destroyed or unlawfully removed; and that the proprietor will, if so required by the Land Administrator, at his own expense clear any boundary line between any of them. [*126] Should boundary marks be damaged or destroyed by the elements of nature, such as the sun, wind and rain, the proprietor cannot, of his own volition, replace the weather-beaten or destroyed boundary mark; not even if he is a licensed land surveyor. 41 In this instance, no self-help should be resorted to. The reason for this principle is again plain. Boundaries, as discussed, are notional lines of division. They act as a legal device to separate pieces of adjoining or adjacent land from one another. When this legal concept is applied to strata development, boundaries will separate a particular unit of strata parcel from adjoining or adjacent strata parcels as well as other strata parcels which are located immediately above and below that unit. Common property such as corridors, passageways or staircases (if applicable) could also be separated from that unit of strata parcel by the use of boundaries. If boundaries have been traversed upon, the common law action for trespass may then be sustainable. Thus, when boundary marks have been weather-beaten, destroyed or unlawfully removed, the registered proprietor of the land so affected is statutorily bound to give notice to the Land Administrator or, as the case may be, the penghulu, of such a fact. 42 Replacement of boundary marks will then be carried out by the Land Administrator but the cost has to be borne by the proprietor so affected. 43 Man, without skins, will become formless. Likewise, land without boundaries will be borderless and unidentifiable. Hence, land must first be located, surveyed and measured before it can be identified. The manner in which a survey of alienated or registered land can be carried out has been elaborately set out in Pt 29 of the NLC. Section 396, being one of the sections in Pt 29, states as follows: For the purposes of this Act, land shall not be taken to have been surveyed until its boundaries have been determined by right-lines; its boundaries as so determined have been demarcated on the surface of the land by boundary marks or, if by reason of the configuration thereof or for any other cause the placing of the boundary marks on the actual line of the boundary is to any extent impossible or impracticable, boundary marks have been so placed as to enable that line to be ascertained; the area enclosed by its boundaries as so determined has been calculated; a lot number has been assigned thereto by the Director of Survey; and a certified plan, showing the situation of the land, the position of its boundaries as so determined and of the boundary marks placed thereon and the area and lot number thereof, has been approved by the Director of Survey. [*127] Any plan approved by the Director of Survey under paragraph (e) of subsection (1) shall be filed in his office, and (without prejudice to the operation of section 49 in the case of land subsequently affected by any advance of the shore-line or of the bed of any river) shall be conclusive evidence of the boundaries and boundary marks of the land to which it refers, and of the area and the lot number thereof.

Any certified survey plan in respect of a piece of alienated or registered land which has been prepared in accordance with s 396(1)(e) must be submitted to the Director of Survey for his close scrutiny and approval. Upon approval, that survey plan must be filed in the office of the Director of Survey and thus becomes a public document. Thereafter, the document can be examined and a copy may be extracted therefrom upon the payment of a fee. It is interesting to observe that the boundaries, boundary marks and the area of the land to which the approved survey plan relates as well as the lot number assigned to the land which have been recorded on such survey plan are guaranteed to be conclusive other than any error or omission. 44 In layman s terms, the accuracy of such particulars in the approved survey plan, besides any excepted error or omission, is State-guaranteed. It is also necessary for an owner of alienated or registered land to note that the powers of the Director of Survey to carry out a survey or other related works can be exercised on the director s behalf by any survey officer or even by any land surveyor who has been duly licensed under the provisions of the Licensed Land Surveyors Act 1958. 45 Such powers, including the power of entry, may only be exercised during reasonable times of the day and not otherwise. 46 However, the survey provisions contained in s 396 and other related provisions in the NLC deal with the survey of alienated or registered land, including the determination of the boundaries of such land. But do such provisions apply to the survey of strata parcels, accessory parcels and common property of strata development as well as the consequential determination of their respective boundaries?

Determining the boundaries of strata parcels How strata parcels are to be delineated and ascertained and how their areas are to be determined are questions which must be closely related to the basic question of how multistorey buildings are to be subdivided. Basically, not all multi-storey buildings need to be subdivided nor do they automatically qualify for subdivision into strata parcels, etc. Only buildings which come within the ambit of s 6 of the STA will qualify for such subdivision. Under strata law, a multi-storey building, upon satisfying all [*128] the prerequisites which have been set out in s 6, can be subdivided into: (a) strata parcels; (b) accessory parcels; 47 and (c) common property. 48 Quite apart from those three strata components just referred to, no other built-up form of immovable property within a strata project (such as an extra built-up floor area) shall be capable of being created nor is entitled to legal ownership. Neither may a separate strata title be issued in respect thereof. Section 6(1) stipulates as follows: Any building or buildings having two or more storeys on alienated [registered] land held as one lot under final title (whether Registry or Land Office title) shall be capable of being subdivided into parcels; and any building or buildings having only one storey on the same land shall also be capable of being subdivided into parcels to be held under strata titles or into accessory parcels. The above root phrase, namely, ... into parcels to be held under strata titles or into

accessory parcels was inserted by the Strata Titles (Amendment) Act 1996 (Act A951/96) which came into effect on 1 August 1996. Before this amendment came into force, singlestorey buildings within a strata project could only be used as accessory parcels; they could not then be used as strata parcels. 49 Under the former 1965 subsidiary title provisions, in particular, the repealed s 151(1)(a) of the NLC, only buildings with two or more storeys constructed wholly above ground level or a superficial ground area of at least 5,000 square feet could qualify for subdivision. If the 1985 strata provisions are examined in this light, then they are indeed an improvement over the 1965 subsidiary provisions under which, due to many shortcomings, no subsidiary titles (as they were then called) have ever been issued. In addition, the latest 1996 amendment to s 6 does display some improvement in strata policy decision. The next pertinent questions to ask are: (i) who sets the boundaries of strata parcels and (ii) how are they marked? Invariably, the answer to the first question must be the land surveyor. This answer will be followed by the [*129] popular norm of marking the centre of the floor, wall and ceiling as the boundaries. This paradoxical syndrome will, of course, make things rather plain and simple to the untrained, uncaring or perhaps careless eye. Reverting to the normal answers: the first answer is correct. This is so because from an earlier discussion on the appointment as well as the powers of the Director of Survey and licensed land surveyors, it has been noted that proprietors of alienated or registered land cannot replace any damaged or destroyed boundary marks; notwithstanding that the proprietor may turn out to be a licensed land surveyor himself. 50 This principle of land law on boundaries, too, extends to strata proprietors. If this prohibition which is contained in s 114 of the NLC does not extend to strata proprietors, one would dread to imagine the artistic and beautiful facades of multi-storey buildings being pock-marked, both in the interior as well as the exterior walls, by protruding boundary stones, survey iron pipes, spikes, wooden pegs or posts, etc. The second answer, namely, the centre boundary syndrome , appears also to be correct; that is, according to the rampant and unconsidered opinion of licensed land surveyors, both in the government and private sectors. With unfeigned respect, the writer begs to differ from such a paradoxical central mindset. This apparent dichotomy, the writer submits, can only be sorted out after an in-depth examination of the relevant provisions of the STA has been undertaken and not before. The applicable laws are found mainly in Pts II and III of the STA. These provisions make reference to stages such as: (a) planning; (b) application for subdivision; (c) processing; (d) approval or rejection; and (e) strata titles issuance. Somewhere along this long march for the authority s approval of the subdivision of the high-rise building and the issuance of strata titles, the boundaries of the strata parcels will, accordingly, be determined and marked. The question is, when will they be determined? Who has the legal right to determine where to place them? Where to mark such boundaries? Lastly and most importantly, how are such boundaries to be marked?

Procedural steps for the subdivision of a multi-storey building

Section 9 of the STA, in restrictive language, imposes on the Director of Lands and Mines a mandatory duty not to allow the subdivision of any building having two or more storeys unless and until a host of conditions precedent which have been listed therein have first been stringently met or fulfilled by the applicant/strata developer to the letter of the law. One such condition would require the applicant/strata developer to ensure that the construction of the high-rise building which is to be subdivided has been completed in accordance with the approved building plans and specifications. Section 9(1)(b), in no uncertain terms, states that: in the case of any building for the erection of which planning permission was [*130] required - (i) it has been certified by an architect registered under the Architects Act 1967 or by a professional engineer registered under the Registration of Engineers Act 1967 that the building was constructed in accordance with the plans and specifications by reference to which that permission was given, stating therein the date on which such permission was given and the reference number thereof (if any). This condition will ensure that the construction of the building will be in accordance with the approved plans and that no extra levels or built-up spaces will be created in the building after its construction. If a building which needs subdivision by its owner is not constructed in accordance with approved plans and specifications but the owner s whims and fancies, the State s Director of Lands and Mines would then be imposed with a statutory duty to make doubly sure that the application for subdivision of such a building and the related issuance of strata titles in respect thereof must be rejected for breach of s 9(1)(b). Otherwise, the density for the residential development could be flouted with impunity. Prior to obtaining the development order, the boundaries of the various strata parcels which make up a portion of the high-rise building would not be determined as yet by the strata developer. However, outlines are set in the site plan to give such strata parcels their character and locations. Their respective dimensions and floor areas can only be demarcated with accuracy by the appointed licensed land surveyor when the building has been rendered into a measurable state; that is to say, when the walls in the building have been duly plastered. In local architectural practice, such boundaries, which separate strata parcels from one another and each from accessory parcels and common properties, will not be shown on the building plans. Still on the topic of building plans, this peculiar architectural practice, the writer has been told, has been adopted because the boundary lines are not relevant to the process of construction. Walls, however, are usually shown in the building plans as two parallel lines, with each line indicating an inner or an outer wall face. Sometimes, walls are dimensioned to a centre line and at times, to wall face, with the thickness of the wall shown thereon. However, the overall building dimensions will always be shown in the building plans. The scale of the drawings will be 1:100 but in the case of a location or site plan, a smaller scale of 1:1000 will be adopted. Apart from this observation, the boundaries of strata parcels will be temporary delineated by architectural lines on the floor or site plans 51 which [*131] will be attached to the standardized Sch H contract of sale. During the sale stage, the site plan is drawn for the consumption of purchasers. The permanent boundaries at this stage will not be drawn as yet because the building will still be

under construction. Furthermore, the boundaries may not be marked, during construction, by placing or embedding within the high-rise building various boundary stones, iron pipes, wooden posts or a host of other survey paraphernalia. It is also interesting to note that s 10(3)(b) of the STA would require every storey plan, which is part and parcel of the strata plans, to show and depict therein the boundaries of all the strata parcels to be constructed. These boundaries may thus be marked by referring to the floors and walls which will show the horizontal dimensions. When mapping out those boundaries, there is no necessity to indicate the bearing as well. Under the circumstances, it is well within the strata developer s proprietary right to choose, as he or it pleases, the boundaries of the various strata parcels in order to determine their varying saleable sizes. 52 This may perhaps answer the question of who may determine or set the boundaries of strata parcels. The manner of determining the common boundaries of strata parcels is left entirely to the decision of the strata developer. This decision can only be made after the walls have been constructed and plastered and the building is then in a measurable state. This pinpoints the question of when such boundaries must be set. The strata developer may, if he or it thinks fit, choose the inner surface of the wall, the upper surface of the floor and the undersurface of the ceiling as the boundary lines of the strata parcels. 53 Actually, there is no express provision in the STA which prohibits the strata developer from making such a choice. The strata developer is given an absolute free hand to choose the boundaries. But when a choice has been made, the task of marking the boundaries is then left to the appointed licensed land surveyor. On the other hand, if at the eleventh hour, that is to say, just prior to the submission of the application for subdivision of the building, a choice has not been made, then and only then could the strata developer s act of omission trigger off the operation of s 13(3). 54 However, the operation of s 13(3) is subject to one pertinent observation. This subsection can only be invoked by the Director of Survey during the stage when the application for subdivision is under processing by him but not during the planning or construction stage when it will be impossible to submit such an application [*132] whilst construction is ongoing. This observation is based on two grounds. First, the presence of the root phrase in s 13(3) of the STA: ... except in so far as it may have been otherwise provided in the relevant storey plans ... indicates a possibility as well as a probability that the boundaries of the strata parcels might already have been delineated by the appointed land surveyor in the relevant set of strata plans, which plans, by their definition in s 4 of the STA, would include the location plan as well as the storey plans. As such, there is no necessity for the Director of Survey to adopt the centre boundary syndrome whenever and wherever he is required to prepare a set of certified strata plan after the processing and approval stages. Secondly, s 13(3) forms an integral part of s 13. This section, in turn, oversees the survey works that need to be attended to by the Director of Survey especially after an application for subdivision of a multi-storey building has been approved by the Director of Lands and Mines pursuant to s 12 of the STA. As such, it is a fallacy for anyone to declare dogmatically and without any qualification or explanation that [u]nder s 13(3) of the 1985 Act, the common boundary of a parcel with another parcel or with the common property is taken to be the centre of the floor, wall or ceiling unless provided otherwise in the storey plan. This unreserved acceptance of the centre boundary syndrome can be very misleading to the survey profession in general and to readers in particular. It is also not proper for Directors of Survey and their teams of

survey officers as well as licensed land surveyors to adopt this centre boundary syndrome without having questioned the soundness of the rationale behind this very popular but inaccurate approach. The catalyst for this paradox is the blind acceptance of s 13(3). Paradoxically, weight was sought to support this fixed mindset of the centre boundary syndrome when the judgment of the Federal Court in Lee Wah Bank Ltd v Chi Liung Holdings Sdn Bhd 55 was cited. Although that case was decided just before the STA came into force, it was based on the former s 155(3) of the NLC which, in turn, was almost in pari materia with the current s 13(3) of the STA. In that case, the respondents (Chi Liung) sold to the appellants (Lee Wah Bank) the ground floor of a high-rise building known as Chi Liung Plaza. The bank installed an automated teller machine after drilling a hole through the external wall of the building complex which separated the bank s ground floor parcel from the common corridor of the building. When Chi Liung pressed for rental payment for the use of the outer face of the exterior wall, the bank refused to pay. Pursuant to the dispute, the bank subsequently sought a declaratory order from the court that the bank was entitled to install the teller machine, being the purchaser of the strata parcel concerned which purchase would include the external wall. The Federal Court correctly decided the legal issue in favour of Chi Liung and held that the bank could not install the machine without the approval from and payment of rental to [*133] Chi Liung. Basing its grounds of decision on the former s 155 of the NLC which corresponded to s 13(3) of the STA, the court decided that the ownership of the exterior wall remained with Chi Liung until a management corporation had been formed. Thus, the facade of the external wall, being common property, was not purchased by the bank. The learned judge, Mohd Azmi FJ, said (at p 265): Under s 155 of the National Land Code, after any subdivision has been approved (which is the case here) the Chief Surveyor shall prepare a plan delineating the several storeys of the building to be subdivided for the purpose of obtaining subsidiary or strata titles. For the purpose of the preparation of any such plan, it is provided by sub-s (3) of s 155 that the boundary of any parcel of a building with any other parcel or with any part of the building which is not included in any of the parcels, shall except in so far it may have been otherwise provided in the relevant storey plan, be taken to be the centre of the floor, wall or ceiling, as the case may be. When subsidiary title is eventually issued in this particular case, it is more than probable that the common boundary of the appellants premises separating it from the common areas or any other parcel of premises in the building complex would be the centre of the wall. As such the exterior wall, and certainly the wall facing the common corridor where the ATM was to be installed, could not possibly belong to the appellants unless it is so provided in the relevant storey plans. The burden in this case is on the appellants as plaintiffs to show that the common boundary is not the centre of the wall. In the absence of the surveyor s storey plan showing the contrary, we are of the view that the centre of the wall separating the appellants premises from common areas and any other parcel in the building must in accordance with s 155(3) of the NLC be the centre of the wall and consequently the appellants have no proprietary rights to the exterior part of the wall to their premises except such rights as may be provided in the sale agreement. However, the sentence [a]s such the exterior wall and certainly the wall facing the common

corridor where the ATM was to be installed, could not possibly belong to the appellants (the bank) unless it is so provided in the relevant storey plans in the judgment needs some clarification. It can be assumed that the common boundaries of the bank s premises were not delineated in the floor plan nor were the boundaries shown in the storey plan. 56 Otherwise, the Chief Surveyor (as he was then called) would not be required to assume nor should the Federal Court ever require him to adopt the assumptive centre boundary syndrome from the former s 155(3) so as to separate the bank s premises from the common corridor. Furthermore, the sentence quoted from the judgment could lead to a wrong concomitant conjecture that if it has been expressly provided for in the relevant storey [*134] plan, the outer face of the external wall in which the ATM was installed could belong to the bank and not to the strata developer until a book of strata register has been opened in the land registry or land office, as the case may be. 57 This could be a wrong and dangerous exposition of strata law because, first and foremost, if parts of the beautifully designed facade of a high-rise building can be separately owned by various strata proprietors instead of being a part of the common property, imagine how the colour scheme of the whole facade of a high-rise building would look if the respective portions of the facade were painted with different patterns, hues and colours. Secondly, the mere touch of the exterior face of such an external wall may expose an interloper to a suit for trespass. Thirdly, monthly contributions may be requested by the strata proprietors concerned for the easement of support but this action is quite unlikely to succeed in view of the implied right of support which has been expressed in s 35(1) of the STA. In favour of and against each parcel proprietor there shall be implied a right of support and a right of service. right of support means a right to subjacent and lateral support by the common property and by every other parcel capable of affording support. 58 In short, the facade of a multistorey building cannot form part of a strata parcel. The facade must be common property. But it does not necessarily follow that whilst the facade or the exterior face of the exterior wall is common property, the wall itself is not capable of being privately owned. That wall can be private property; it depends on how the boundaries of the strata parcel concerned are demarcated by the developer or through his or its licensed land surveyor.

Determining the boundaries of an intermediate unit of strata parcel If a unit of strata parcel is sandwiched or flanked on either side by other strata parcels, that intermediate unit will definitely have two party walls, one on either side. Such party walls, although internal in nature, are quite different from the other type of internal walls which are also located within the strata parcel. Whilst the latter separates, inter alia, the bedrooms from each other and each from the living room, dining room or the kitchen, the former divides one adjoining strata parcel from another. The term party wall , which separates such adjacent strata parcels from one another, has been examined and interpreted by Fry J in an old English case in the following manner: 59 What is the meaning of the term party wall , as there used? The words appear to me to express a meaning rather popular than legal, and they may, I think, be used in four different senses. [*135]

They may mean, first, a wall of which the two adjoining owners are tenants in common, as in Willshire v Sidford 1 Man & Ry 404 and Cubitt v Porter 8 B & C 257 at p 265. I think that the judgments in those cases show that that is the most common and the primary meaning of the term. In the next place, the term may be used to signify a wall divided longitudinally [vertically] into two strips, one belonging to each of the neighbouring owners, as in Matts v Hawkins (1813) 5 Taunt 20. Then, thirdly, the term may mean a wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements. The term is so used in some of the Building Acts [of England]. Lastly, the term may designate a wall divided longitudinally [vertically] into two moieties [equal strips], each moiety being subject to a cross-easement in favour of the owner of the other moiety. The STA does not contain any express provision which deals with the legal status and the rights of parties to party walls. The only strata provisions which bear some form of resemblance to party walls are located in s 35(1). But this subsection provides for, inter alia, the right of support. 60 It does not say which of the four categories of party walls will be relevant to the local strata scenario. However, in the light of s 5 of the STA, 61 any apparent lacuna in the STA on the topic of party wall may be plugged by resorting to the relevant provisions contained in the NLC. Thus, in West Malaysia, party walls (including those which separate strata parcels from one another and from common property) may be classified into the last category as enumerated by Fry J. This proposition is based on an observation of s 286 of the NLC which enacts as follows: The grant of any easement under this Chapter shall be effected by an instrument in Form 17A or, in the case of the grant by adjacent proprietors of cross-easements of support in respect of any party wall, by an instrument in Form 17B, and the easement shall come into existence on the date on which the instrument is registered. In West Malaysia, the presence in s 286(1) of the NLC of the root phrase ...in the case of the grant by adjacent proprietors of cross-easements of support in respect of any party wall... will require any party wall to be divided vertically into two strips of building material of equal thickness (eg a brick wall which will be notionally divided, but not broken, into two equal longitudinal strips by the imaginary boundary line), each strip being subject to a cross-easement in favour of the other. 62 The legal effect will be that the adjoining strata proprietor of each longitudinal half of the party wall will possess such legal rights to support and usage over the neighbouring part as he would have had under common law as qua tenant in common. 63 Although s 286(1) of the NLC has expressly stated that the cross-easement of support, inter alia, will come into existence only on the date [*136] when the instrument of grant of easement in statutory form has been duly registered in the relevant land registry or land office (especially party walls which separate terrace houses and shop houses), yet under strata law, registration of such an instrument of dealing in alienated land is not necessary. Thus, by implication, the execution of the instrument of grant of easement appears to be equally unnecessary. This is because of the use of precise and clear language in s 35(3) of the STA. This subsection states: The rights and obligations mentioned in subsections (1) and (2) shall be effective

without memorial or notification in the strata register, and there shall be implied in respect of them such ancillary rights and obligations as are reasonably necessary to make them effective. The root word memorial which appears in s 35(3) has not been defined in the STA. However, in Torrens language, this word is associated with the State s magical act of registering the various types of permissible instruments of dealings in alienated land or strata parcels which have already been issued with strata titles. In fact, the term memorial is a short form for memorial of registration . Under s 304(3) of the NLC, it is synonymous with mandatory notation of the registration of a permissible dealing in land or strata parcel on the Torrens register document of title by the registration authority. In order to be complete and effective, every memorial of registration must at least be recorded under the hand and seal of the Registrar of Titles or the Land Administrator, as the case may be. 64 To the experienced eye trained in local land law, it may appear that s 35(3) is in direct conflict with the provisions on the registration of dealings found in Pt 18 (ss 292-318) of the NLC. In actual fact, they are indeed in direct conflict with each other. But by virtue of s 5 of the STA, the conflicting non-registration provisions in s 35(3) of the STA will prevail over the registration requirements contained in Pt 18 of the NLC.

Thus, from the above discussion, the common boundary of a party wall within an intermediate unit of strata parcel has to be the centre of the party wall unless the inner face of that wall has been chosen by an ill-advised strata developer. It is quite unlikely that the latter instance will be chosen. On the other hand, since an intermediate unit has at least two party walls, each located on either side of the strata parcel so as to separate that unit from the adjoining units on either side, the width of the floor space will be from party wall to party wall, including half the thickness of each relevant party wall. In other words, the centre of the party wall on the left side of the strata parcel to the centre of the party wall on the right side will be the correct width of the floor space for that intermediate unit. In addition, the common boundary lines will at least be reflected in the strata plans of the [*137] two adjoining units. One half of the thickness of each party wall will be taken into consideration when computing the floor area. This delineation of the common boundaries of the party walls will normally take place when the building is in a measurable state. Maintenance and repair of the inner face of the party wall will be the responsibility of the strata parcel owner. 65 However, the maintenance and repair of the party wall itself must be shared between the adjoining strata owners as tenants in common. 66 Party walls, therefore, serve as a legal device to separate, inter alia, adjacent strata parcels one from the other.

It is important to determine the common boundaries of floors and ceilings in order to know exactly what legal rights and duties each parcel proprietor has or bears towards his adjoining neighbour whose unit is located adjacent, above or below his unit. Strata development, after all, involves the construction of cubic spaces in the sky. Walls are different from floors and ceilings. To the layman, the former projects a vertical image whilst floors and ceilings form horizontal projections. However, the legal implications exceed far beyond this simple explanation. In strata law, what is a ceiling to a unit of strata parcel below is essentially a built-up floor space for a unit which is directly above it. Likewise, a floor to one unit becomes a ceiling or shelter to a unit that is below it. The tendency of such units is to share the common cross-sectional horizontal boundaries in the form of the centre of the floors and ceilings. The building plans do not depict such horizontal boundaries of floors and ceilings but the dimensions or thickness of floors are shown in such building plans. Neither are such boundaries shown in floor plans. In architectural practice, the boundaries of floors and ceilings are never shown in the architectural drawings. To emphasize, s 10(2)(c) of the STA merely requires a location plan, inter alia, to be included in an application for subdivision of the high-rise building. This plan, in turn, need only show a vertical section of the floor and ceiling of each storey and also the height of each storey. But the location plan does not require horizontal boundaries of the floors and ceilings to be shown at all. If this is a statutory requirement, then perhaps s 10(2)(c) will also expressly require a delineation of the horizontal boundaries in the location plan as it did require boundaries and boundary marks for the strata project land to be marked under s 10(2)(b). The necessity to show the cross-sectional view of floors and ceilings of each storey in a building is one thing; the marking of the boundaries of the floors and ceilings is another. Incidentally, it would be prudent to bear in mind that the location plan referred to in s 10(2) of the STA, together with the storey plans in s 10(3) must be certified by a [*138] licensed land surveyor under s 10(1)(b)(i) and (ii) of the STA. As such, the location as well as the storey plans could only be prepared by the land surveyor during the application for subdivision stage or maybe slightly earlier when the progress of construction has rendered the building into a measurable state and not earlier. Incidentally, under s 4 of the STA, the location plan together with the storey plan will be known as the strata plans . If the surface of a floor and the underface of a ceiling are to be taken as the third dimensional or cubic boundaries of a unit of strata parcel, 67 then apparently, the thickness of the floor and the thickness of the ceiling of that unit will become common property. Consequently, any hook, screw or nail that is affixed onto any part of the ceiling to hold ceiling fans or light fixtures will amount to an act of trespass. This legal position is quite unsatisfactory and, therefore, that floor slab should not be considered in the first place as common property. That piece of built-up concrete slab, notwithstanding its dual purpose by serving as a ceiling for the unit below and as a floor for the unit above it, cantilevers out, at the same time, as a continuous platform of floor slabs for the other adjoining units of strata parcels as well as common areas such as the common corridor or lift lobby. Instead, it should be treated as a party floor/ceiling since it serves both the upper and lower strata parcels; the continuity aspect of that floor slab is purely incidental. The writer s concept of a party floor/ceiling will run along the same lines as the party wall concept. An imaginary horizontal line which represents the common boundary would then divide the floor slab into two equal horizontal strips; each strip will be subject to a cross-easement in favour of the

other. The legal effect will thus be similar to that of a party wall, with each strata proprietor of the upper and lower unit holding a cross-easement of support and shelter as envisaged by the relevant provisions contained in s 35 of the STA. This proposition appears to find support in s 13(3).

Determining the common boundaries of a strata parcel with common property The total area of common property within a strata project can be ascertained by simply adopting an easy process of deduction and subtraction. If the whole area of the strata project land is subtracted from the provisional block or blocks and all the strata parcels and the related accessory parcels, the resultant leftovers (including service pipes, ducts, cables wires, etc which have been referred to in s 35(4) of the STA as well as common facilities such as rooftop gardens, swimming pools, racquet courts, visitors car-parking bays, etc) will form the common property of the strata scheme. 68 Where the front portion of a strata parcel is separated from common property by an external wall, eg a common passageway or corridor [*139] or perhaps a lift lobby, the boundary for this particular front wall, in which the main entrance to the strata parcel is located, could be the inner or outer face of that front external wall or perhaps even the centre of the wall. The option is again open to the strata developer. 69 If the inner face of the front external wall of the strata parcel is chosen by the strata developer as the front boundary of the parcel concerned, which is highly unlikely, then that front external wall, including the thickness of the wall, will become common property. Other than the inner face, that piece of external wall will not become a part of the strata parcel concerned. A ridiculous situation could then possibly arise whereby any nailing from the inner face of the particular front wall to facilitate the hanging of a painting will amount to an act of trespass by the parcel proprietor. Also under such circumstances, the strata developer must be responsible for the maintenance and repair of that front external wall until that particular piece of common property has been taken over by the management corporation 70 upon its formation under s 39(1). This particular subsection provides as follows: Upon the opening of a book of the strata register in respect of a subdivided building there shall, by the operation of this section, come into existence a management corporation consisting of all the parcel proprietors including in the case of phased development, the proprietor of the provisional block or blocks. On the other hand, if the centre boundary line of that front wall is chosen by the strata developer, then the writer s commentary on party wall as stated above will also be applicable. In such an instance, the measurement of the length of the strata parcel, from the front to the rear, will be from the centre of the front external wall to the centre of the rear external wall; and half of the thickness of the front as well as half of the rear external wall will be taken into consideration for calculating the floor area of that strata parcel concerned. Thirdly, where the outer faces of the front and rear external walls are chosen to be the

boundary lines for measuring the length of the strata parcel, then the boundary lines will coincide with the outer faces of the front external wall and the rear external wall of the parcel. The outer face of the rear external wall will form a part of the facade of the building. But the outer face of the front external wall cannot form a part of the building s facade because that front external wall is normally designed to face only the internal part of the building, namely, the lift lobby or the common corridor. Such common areas will provide means of access into the strata parcel. In this particular instance, the thickness of two external walls will be included when accessing the front to rear dimensions of the strata parcel. [*140] Consequently, both the inner faces of the walls and the centre boundary syndrome will not be relevant. Maintenance and repair of the front and rear external walls, in this instance, will be the sole responsibility of the strata parcel owner. On the other hand, the outer face of the front and the facade of the rear external walls, being common property, must be maintained by the strata developer from the date of delivery of vacant possession to the date of the formation of the management corporation under s 39(1) of the STA but with proportionate monthly contributions from the strata parcel purchasers. 71 This particular form of daily and periodic maintenance will be taken over by the management corporation as soon as it has been incorporated. 72 In each of the three instances narrated and illustrated hereinabove, the chosen boundary lines will be shown in the strata plans 73 and not in the building plans. After the high-rise building has been constructed and during this particular application for subdivision stage, if an application for subdivision of the completed building is being prepared by the strata developer for submission under s 10(1) of the STA, the boundaries of the strata parcels, other than the boundaries of the accessory parcels which will be separately dealt with by s 10(5), have to be defined in the storey plan. Section 10(3) specifically stipulates that: Every storey plan shall specify the number of the lot [the alienated or registered land] and the title number of the land comprised therein, and the building and numbered storey thereof to which the plan relates; ... delineate, subject to the provisions of paragraphs (a) and (b) of subsection (5), each proposed [strata] parcel and define the boundaries thereof by reference to floors and walls showing the horizontal dimensions, without it being necessary to show the bearing;... . (Words within square brackets have been added to assist in the interpretation of the statutory provisions.) Incidentally, the boundaries of the strata parcels as shown in the storey plan must correspond to or perhaps follow the features of permanent construction as parts of the building which is to be subdivided. The boundaries must also be so certified by a licensed land surveyor partly in order to meet the statutory requirements set out in s 10(1)(b)(ii) of the STA. Furthermore, under s 10(3)(d), the approximate floor area of each [*141] strata parcel must be specified in the storey plan which is to be attached to the application form for subdivision of a multi-storey building.

Determining the boundaries of a corner unit of strata parcel

If an internal wall of a corner unit of strata parcel is adjoined by an intermediate unit, that wall which separates the corner unit from the intermediate unit will become a party wall. Hence, the writer s comment on party wall which was made earlier on will also be relevant. 74 However, if an external wall of the corner unit abuts some common property such as a common corridor, a staircase or a lift lobby, then the boundary line for that particular external wall, as already discussed in the preceding paragraphs, may coincide with the inner face, the centre line or the outer face of that external wall of the corner unit, depending on the choice of the strata developer. But the exterior face of that wall will always remain common property. If that external wall faces outwards and not inwards towards the internal parts of the building, then that outer face forms a part of the facade of the building as well. But in the absence of a choice, then the centre boundary syndrome for that external wall of the corner unit will come into play. But in another scenario where the side or the rear external wall of the corner unit abuts a column of air space and nothing else, then the boundary line of that particular external wall may, once again, coincide with either the inner or outer face of the external wall or perhaps the centre of that external wall, depending again on the choice of the strata developer. Should the outer face be chosen, then the thickness of the external wall will be included when calculating the floor area of the corner unit, notwithstanding that the boundary line of that particular external wall may overlap and become a portion of the facade of the building. The facade of the external walls of the corner unit will always remain common property. As such, the building plans (referred to in the adjustment provisions contained in cl 11 of the standardized Sch H agreement) must reflect and display the chosen boundary lines. This may be done at any time prior to the application for the subdivision of the multi-storey building, that is, when the building is in a measurable state.

Determining the boundaries of balconies and open air patios and accessory parcels The general conception of a balcony will entail a built-up floor space or platform which cantilevers out from an opening in the external wall of the strata parcel. A balcony, of course, cannot be protruding from an internal party wall because the opening to be constructed may lead to trespass onto the kitchen or bedroom of the neighbouring apartment unit. For safety reasons, balconies are surrounded by low walls or waist-high guard rails. Generally, balconies can only be accessible from the upper built-up floor areas of a house. It is normally used for sunbathing or the enjoyment of the [*142] view; the higher the balcony, the more panoramic the view becomes. On the other hand, a patio is an outdoor landed area with a built-up surface. Usually, it is located next to the side opening on the ground floor of a house. It faces the garden or whatever open space by the side of the house. This area is usually a floor space where occupants may relax, have tea or enjoy a light meal over conversation. In architectural practice, balconies are located directly above and may possibly obstruct the air column of a patio; but it is never the other way round. Fortunately, balconies are part and parcel of the respective strata parcels to which they abut or are adjacent. To say that balconies and patios are accessory parcels would be

tantamount to a misrepresentation or misunderstanding of the law governing strata development. When strata parcels and accessory parcels were discussed, one writer opined that a balcony is an accessory parcel. The legal implication for this unguarded statement of the strata law could mean that the floor area of a balcony may not be taken into consideration when calculating the total floor area of the strata parcel, whether an intermediate or corner unit. Professor Teo Keang Sood in his book Strata Titles in Malaysia: Law and Practice (Butterworths Asia, 1987) said (at p 17): It is to be noted that, unlike the former s 153(2) and (3) of the National Land Code, s 10(5)(a) and (b) of the 1985 Act enables the boundaries of an accessory parcel to include an area erected within the lot as a separate tenement or as an extension of any completed building in accordance with the building plans approved by the planning authority. The ability to extend the boundary in this way could benefit multi-storey developments by enabling open-air balconies or an enclosed garage which is physically separated from the subdivided building but located on the same lot of land to be included in the parcel. The interpolation of the root words balconies and garage in the above passage and their association with the discussion on the strata concept of an accessory parcel within the same paragraph will inevitably conjure the impression that a balcony as well as a garage are accessory parcels. Such an observation is only partly correct, because although a garage is an accessory parcel to be used in conjunction with a strata parcel, 75 a balcony is not and could not be an accessory parcel. A balcony is an extended projection of part of the built-up floor area of a strata parcel that cantilevers and protrudes beyond an opening in the external wall of the strata parcel. It is an integral part of a strata parcel; and so is a patio. The second observation on the passage quoted above is that an enclosed garage is not usually built next to a strata parcel, or at least not abutting the strata parcel if it is located on the second floor or upwards of a multi-storey building. Normally, an enclosed garage will be located away from the main high-rise building. At times, a garage is built within the high-rise building itself but it will normally be confined to the lower levels of parking bays which may be built at ground [*143] level and/or below ground level. To add variety, it may be one of the many parking bays constructed within a multi-storey block or blocks of parking bays. A garage in this sense does not positively abut a strata parcel, not even if it happens to be a ground level unit. Thirdly, it is inapt to opine that the boundaries of a strata parcel can be extended or stretched beyond their limits to include balconies and enclosed garages. This statement is too wide and is liable to be misleading. Perhaps from the passage above, if the root phrases ... the boundaries of an accessory parcel to include an area ... and ... [t]he ability to extend the boundary in this way ... by enabling open-air balconies or an enclosed garage which is physically separated from the subdivided building but located on the same lot of land to be included in the parcel are confined to garages as well as other types of accessory parcels that may be physically constructed some distance from the strata parcel concerned such as storerooms and openair parking bays which are located within the grounds of the strata project, those phrases may, in this sense, be acceptable. But when they attempt to say far too much, that is, by stating that the boundaries of an accessory parcel can be extended to include balconies, etc then this writer finds it difficult to accept that form of statement on the strata law which has been so expounded. A balcony does positively form an integral part of a strata parcel. It gives that strata parcel to which it cantilevers and abuts some character in architectural

design. Therefore, it is not an accessory parcel. As such, the boundaries of the balcony can be marked by the strata developer to form an integral part of a strata parcel so long as that balcony or patio has adequate means of access which does not have to pass through another adjoining strata parcel or common property and has adequate means of internal communication which does not traverse across any common property. 76 To arrive at a conclusion that a strata parcel can include, but not absolutely essential, an accessory parcel is acceptable. But to imply that a part of the strata parcel is accessory parcel is wholly untenable. Furthermore, to imply that the boundaries of a strata parcel can be extended by stretching them from their existing location on the floor plan to a further location in which the appurtenant accessory parcel 77 is sited will be stretching this writer s imagination a bit too far and is beyond his comprehension. Boundaries cannot be stretched or extended, clear and simple. Either there are boundaries drawn for a piece of strata property (including, if any, its appurtenant accessory parcel) or none have been provided for. In the latter [*144] event, the centre boundary syndrome will be applicable. Furthermore, the boundaries of a strata parcel and those of an appurtenant accessory parcel can only be determined under the different statutory provisions which have been provided for by the STA. 78 At this juncture, the writer wishes to make clear that accessory parcels are not absolutely essential if a strata developer does not wish to provide for the same. In other words, the STA does not impose a mandatory duty upon any strata developer to provide for accessory parcels. But building by-laws may require parking bays to be provided. However, the non-provision of accessory parcels in the form of parking bays may lead to lower prices and perhaps affect sales. Furthermore, the above partially-correct observation made by the author of the quoted passage was purportedly backed by s 10(5)(a) and (b) of the STA. Such statutory provisions will now be examined in order to see whether or not the observation is justified. It may be noted that only paras (a) and (b) of s 10(5) of the STA have been referred to and used as back-up. 79 These paragraphs were originally introduced in the STA in 1985 to determine the boundaries of accessory parcels because this strata concept of an accessory parcel was introduced for the first time on 1 June 1985. Prior to that date, the concept of an accessory parcel was relatively unknown.

Determining the boundaries of various types of accessory parcels Section 10(5) of the STA provides as follows: Where an accessory parcel consists of a building or parts thereof and is bounded by external walls, floors and ceilings, the dimensions and boundaries of such accessory parcel shall be shown in the proposed strata plan in accordance with the requirements of subsection (2) [which deals with the location plan] and subsection (3) [which deals with the storey plan]; does not consist of a building or parts thereof the external boundaries of the accessory parcel shall be ascertained from the building plans approved by the planning authority, and the accessory parcel shall be up to a reasonable height or to the extent of any projection above or encroachment below ground

level by another part of the lot; and the proposed strata plan shall show a diagram of the accessory parcel with similar dimensions as those shown on the approved plans mentioned in subparagraph (i). [*145] From a reading of s 10(5) above, it may be validly observed that the provisions therein contained do not regulate how boundaries of a strata parcel will be determined, least of all how such boundaries can be extended so as to include an accessory parcel as alleged quite incorrectly by the writer of the quoted passage. In fact, s 10(5) merely sets out the statutory formula for the determination of the boundaries of various types of accessory parcels. This essential point has not even been mentioned, least of all discussed, in that quoted passage. Subsection (5) of s 10 does, in fact, envisage at least two types of accessory parcels. First, para (a) of s 10(5) sets out how the dimensions and boundaries of an accessory parcel should be prepared by the applicant/strata developer or by its licensed land surveyor during the application stage for subdivision of the high-rise building. Under this first category, if an accessory parcel should comprise a whole building or parts thereof and that particular building or parts thereof is or are bordered by external walls, floors and ceilings (such as a multi-storey block of parking bays), then the dimensions and boundaries of that particular type of accessory parcels have to be shown in the location plan in the manner indicated in s 10(2) and in the storey plan as required by s 10(3) of the STA. On the other hand, para (b) of s 10(5) of the STA sets out the second scenario whereby an accessory parcel does not consist of a building nor does it form a part thereof; namely, an accessory parcel that is not located within a building nor is it one that has external walls as its borders. This second type will comprise mainly open-air parking bays, whether covered or uncovered. Their external boundaries which separate them from other accessory parcels or common property can be ascertained, according to the statutory provisions contained in s 10(5)(b), from the approved building plans. The construction of this second type of accessory parcel which is not situated within a building nor forms a part thereof is confined to certain height levels. The ground level of this type of accessory parcel, at the very least, must have a built-up floor area. Otherwise, it will be quite useless to the owners of the respective appurtenant strata parcels. Their height levels, if any, according to subpara (i) of s 10(5)(b), must be reasonable. For example, if there is a decision to provide covered parking bays at ground level, the strata developer is under a mandatory duty via s 10(5)(b) (i) to ensure that the vertical wooden or wrought-iron poles and roofs of the covered ground-level parking bays do not protrude skywards so as to touch or encroach upon the underface of the balcony of the first-floor strata parcel. Nor may there be any encroachment below the ground level when this type of accessory parcel is constructed. However, the root word by within the last phrase in subpara (i) poses some difficulty when interpreting that particular root phrase ... by another part of the lot . After all, this particular subparagraph focuses on the degree of projection if this type of accessory parcel is ever to be provided for in the strata scheme. The aim of this statutory provision is to control and ensure that there will be no cross-boundary protrusions or incursions, either upwards, downwards or even sideways when this type of accessory parcel is being designed and constructed. If the word by in s 10(5)(b)(i) could be substituted with the word or , then perhaps the meaning of subpara (i) could be made clearer. This amended subparagraph should then read: [*146]

[Where an accessory parcel] does not consist of a building or parts thereof the external boundaries of the accessory parcel shall be ascertained from the building plans approved by the planning authority, and the accessory parcel shall be up to a reasonable height or to the extent of any projection above or encroachment below ground level [or] another part of the lot; ... . After all, an immovable part of the project land cannot, by itself, encroach onto another part of the lot of alienated or registered land. This is palpably an impossibility. Finally, there are at least three more points on s 10(5)(b)(i) which need to be addressed. First, the main purpose of s 10(5)(b)(i) is to ascertain the external boundaries of the second category of accessory parcels which are, by themselves, not a building (eg not a multi-storey block of parking bays). Nor are they part of a building (eg subterranean or underground parking bays which are located within a high-rise building). Thus, if an accessory parcel is not a building nor is it a part thereof, then para (b) of s 10(5) will not be applicable at all. On the other hand, if the accessory parcel concerned is a building (eg an enclosed garage), or is surrounded by external walls, floors and ceilings (eg a parking bay within a block of multistorey car parks or subterranean car parks), then perhaps that accessory parcel will come within the ambit of s 10(5)(a). Consequently, its dimensions and boundaries may then be ascertained by applying the statutory provisions therein contained. Secondly, assuming that s 10(5)(b)(i) does apply to an instant case, then what method of survey must be adopted in order to ascertain the external boundaries of an accessory parcel which is not a building nor is located within a building? In a hypothetical case in which a row of 20 accessory parcels comprising covered parking bays has been constructed, the several wooden or wrought-iron poles and the waist or shoulder-high wall at the rear may be used to mark some of the relevant parts of the boundaries of such accessory parcels. But which part of the 4 inchbroad white lines that are drawn on the ground surface to separate one parking bay from another must be adopted in view of the root words external boundaries which appear in s 10(5)(b)(i)? Must a licensed land surveyor use the centre of the 4 inch-broad white line to separate one accessory parcel from the adjoining one or must the inner face or perhaps the outer face of the white line be used? If the external face is to be adopted, then what about the external boundary of the adjoining accessory parcel? This problematic usage of the words external boundaries which, surprisingly do not appear in s 10(5)(a), needs to be resolved by the parliamentary draftsman. Thirdly, it is the practice of architects not to draw on the building plans the boundaries of strata parcels; least of all, the boundaries of accessory parcels. But s 10(5)(b)(i) does say that the external boundaries of this second category of accessory parcels can be ascertained from the approved building plans. How does one resolve this incoherent impasse?

When and where to draw the boundaries of strata parcels? To reiterate, the boundaries of a strata parcel do not appear on the approved building plans. Such building plans will only be prepared, in theory, after [*147] the conversion of the project land and other related land matters have been approved by the State Executive Council ( Exco ) and a development order has been obtained by the developer from the

relevant Planning Authority. In practice, however, the preparation of the building plans will be underway whilst awaiting the development order; and after obtaining the development order, such building plans would be finalized. At this point of the mechanics of housing development, sales of housing accommodations will be launched. This will be closely followed by the construction period of 24 calendar months for landed properties and 36 calendar months for high-rise housing development. At the practical completion stage, the keys will be handed over to the purchaser concerned but no physical occupation may be made by the purchaser until and unless the newly completed house or flat has been inspected by the various governmental departments and by Tenaga Nasional Bhd. 80 If the construction of the housing accommodations is in compliance with the approved building plans and specifications as well as the conditions imposed in the development order, then unconditional certificates of fitness for occupation will be issued in due course. Thereafter, shifting in by the purchasers may commence. The 18 calendar months defect liability period will run its course from the date of delivery of vacant possession. The first indication of the outline of the strata parcel will appear in the floor or site plan which is prepared by the developer for attachment to the standardized Sch H contract of sale. This particular floor plan normally does not carry a header nor a footer but it does show to the purchaser the locations of all component parts that make up the strata parcel; such as the living and dining rooms, bedrooms, bathrooms, utility room and the kitchen as well as the wash yard, if any. The locations, measurements and boundaries of each such component are not exact and, therefore, their accuracy stretching from the sales stage to the issuance of strata titles stage is not guaranteed. 81 However, the locations, measurements, boundaries and areas of such strata components cannot remain obscure indefinitely. Their exactness and preciseness must be shown in the strata titles when they are issued in accordance with the provisions of the STA. Thus, the task of taking measurements, mapping the locations of not only the strata parcels but also the accessory parcels and common properties and amenities (if any) and the calculation of areas will be undertaken by the licensed private land surveyor who is appointed by the developer. In theory, the survey works will be carried out when the certificate of fitness for occupation in respect of the completed high-rise building has been issued by the appropriate authority. But in practice, the private land surveyor will be invited to take measurements and carry out survey works as soon as the building is in a measurable state; that is to say, when the walls have been constructed and [*148] plastered by the developer s contractor. When the application is made to the appropriate authority for the subdivision of the multi-storey building into strata parcels, accessory parcels and common property, the locations, measurements, boundaries and areas which are then shown in the strata plans (namely, the location and storey plans that have been prepared by the licensed land surveyor) may be adopted by the Director of Survey with or without amendments. Once adopted, the strata plans will be attached to the strata titles concerned when issued. Their accuracy will then be guaranteed by the State but not a minute earlier.

Adjustment provisions in cl 11 of the Sch H contract of sale

The sale and purchase of housing accommodations, including strata parcels, is controlled and regulated by the Housing Developers (Control and Licensing) Act 1966 and its related Regulations of 1989. Regulation 11 ensures that every sale of a strata housing accommodation will be made in the standardized contract of sale in the form of Sch H. 82 The position, measurements, boundaries and area of the strata parcel are regulated by the provisions contained in cl 11 of the Sch H contract of sale. Clause 11 states as follows: Position and area of [Strata] Parcel The position, measurements, boundaries and area of the said [strata] Parcel as given are believed but not guaranteed to be correct and if its measurements, boundaries and area as shown in the Building Plan shall be different from that shown in the strata title when issued, the purchase price of the said Parcel as calculated at the rate of Ringgit ..........................................($ ..................) only per square metre shall be adjusted accordingly. Any payment resulting from the adjustment and required to be paid by the party concerned shall be so paid within fourteen (14) days of the issue of the strata title. From cl 11(1), it may be observed that the position, measurements, boundaries and area of the strata parcel concerned which have been stated in the recital and depicted in the site plan that is attached to the standardized Sch H contract of sale are only believed to be correct. They are not absolutely correct, nor will their accuracy be guaranteed at the contractual stage. Therefore, because of the possibility of inaccuracy in the measurements, boundaries and area which may surface at the end of the final survey, the adjustment provisions are introduced to compensate any hardship that may affect either contractual party. Therefore, whatever data temporarily specified in the recital to the Sch H contract of sale which touches on the location, boundaries and size of the strata parcel merely give an indication to the purchaser of what he has bargained for. What is of importance is the actual strata parcel when constructed so that a comparison can be made by the purchaser on how the physical entity is [*149] identical to or different from the measurements, boundaries and area shown in the strata plans. The root words which have been used in cl 11 cover building plans and not the site plan that has been referred to in the recital to the standardized Sch H agreement and which will be attached to the strata title. These adjustment provisions will act as a double-edged sword when the relevant strata title is issued. If, upon the issuance of the strata title, the area of the strata parcel as shown therein is different from the area that has been specified earlier on, the purchase price has to be adjusted accordingly. Thereafter, the party concerned shall pay the adjusted compensation to the party who has been short-changed. Termination of the standardized contract of sale on this ground is out of the question. In a neighbouring country, a cap of 3% on the shortage of floor area has been imposed; a breach of which will entitle the aggrieved party to terminate the purchase. Return to Text

1See the statutory definitions of the terms subsidiary register and subsidiary title in s 5

of the NLC. See also Ch 4 of Pt 9 (ss 151-157); Ch 2 of Pt 10 (ss 161-163) and Ch 1 to Ch 4 of Pt 25 (ss 355-374) of the NLC. Those former provisions in the NLC which governed, inter alia, applications for subdivision of high-rise buildings and the issuance of subsidiary (strata) titles as well as strata development have since been repealed by s 83 and the Fourth Schedule of the STA.

n 2No subsidiary or strata title has, as far as the writer is aware, ever been issued under the 1965 experimental provisions which governed the subdivision of multi-storey buildings, the subsidiary register and the issuance of subsidiary titles in respect thereof.

n 3Section 5(2) of the STA expressly stipulates that: The National Land Code and the rules made thereunder, in so far as they are not inconsistent with the provisions of this Act or the rules made thereunder, or are capable of applying to [strata] parcels, shall apply in all respects to [strata] parcels held under strata titles.

n 4The relevant provisions on alienation are contained in ss 76 to 82 of the NLC. Section 76(d), in particular, imposes a mandatory duty on the State Authority to specify one of the three categories of land use for the piece of land which has been approved for alienation. Implied conditions which affect land subject to any of the three specified categories of land use are found in ss 114 to 119. For a discussion of the case law on alienation , see the writer s seminar paper on Alienation of State Land and Conversion, Subdivision, Partition and Amalgamation of Alienated Land , first delivered in the late 1980s.

5Section 88(1) NLC.

6The conclusiveness of the register documents of title is dealt with in s 89 of the NLC.

n 7Section 89 of the NLC expressly stipulates that every register document of title to immovable property duly registered under the provisions of the NLC shall, subject to the said provisions, be conclusive evidence:

n 8This was exactly what happened in the 1970s when certain forged documents of titles relating to some terraced houses in a popular location in Petaling Jaya were doctored and the affected houses were sold by conmen to unsuspecting bona fide purchasers for value. When the fraud was discovered, the books of register documents of title which related to the affected properties were frozen by the land registry and no dealings with rows of such properties, whether affected by the fraud or otherwise, could be presented for registration, which was a good precautionary measure which was adopted by the land registry to prevent further fraud from being perpetuated.

n 9See the writer s unpublished article, Statutory Prohibition Against the Entries of Further Private Caveats (written in June 1984) and A Review of the Court of Appeal Case of Luggage Distributors (M) Sdn Bhd [1995] 2 MLJ cxxv.

n 10See SY Kok, Equity in Malaysian Land Law - Pt I [1994] 3 MLJ clvii. Parts II and III of this article were withdrawn from publication: [1994] 3 MLJ ccxii. All three parts of this article were subsequently published in full in 1996 by the Malaysian Student Law Journal: [1996] April MSLJ 66 -127. See also the writer s article, The Concept of Encumbrances under the Modified Malaysian Torrens System [1995] 1 CLJ clxiii.

n 11Section 34(1)(a) of the STA states that a strata parcel proprietor shall have similar rights and powers which are conferred by the NLC on a registered proprietor in relation to his alienated or registered land. An accessory parcel must be used in conjunction with a strata parcel: s 4 of the STA. On the other hand, an accessory parcel cannot be dealt with or sold as an independent unit of property unless in conjunction with the strata parcel to which the accessory parcel has already been made appurtenant as shown on the approved strata plan: s 34(2) and s 69. See Doreen Tan Ying Ying v Chong Tet On [1986] 1 MLJ 504 (HC).

n 12See the writer s article, The Nature and Application of the Torrens Liens and LienHolders Caveats in West Malaysia [1983] 1 MLJ xl. This research paper was approved and quoted at length by the High Court in Perwira Habib Bank Malaysia Bhd v Tin Siang Sdn Bhd [1992] 4 CLJ 1875 (HC); and Nallammal & Anor v Karuppanan & Anor [1993] 3 MLJ 476 at pp 487 and 488 (HC). See also Dato Ong Kian Seng v Lim Kut Sheong @ Lim Tuck Fatt & Ors [1992] 1 CLJ 409 (HC); Heap Huat Rubber Co Sdn Bhd v United Overseas Bank Ltd [1992] 3 CLJ 1589 (HC); Perwira Habib Bank Malaysia Bhd v Loo & Sons Realty Sdn Bhd & Anor (No 1) [1996] 4 CLJ 171 (CA) and Perwira Habib Bank (M) Bhd v Megat Najmuddin bin Megat Khas & Ors [1999] 5 MLJ 334 (HC).

n 13See the writer s article, The Concept of a Tenancy Exempt from Registration under the Malaysian Torrens System [1984] 1 MLJ lxxxv.

14Section 35 of the STA.

n 15Section 332 of the NLC. In the Privy Council case of Registrar of Titles, Johore v Temenggong Securities Ltd & Anor [1977] AC 302, Lord Diplock, at p 307F, noted that trust caveats are entered on the application of the settlor or trustees and not on the application of a beneficiary . If a beneficiary wishes to protect his beneficial interest in such land or

strata parcel, he may enter a private caveat under the lesser known s 323(1)(b) of the NLC.

16Section 34(1)(b) of the STA.

n 17Section 42 of the STA governs the ownership of common property and the custody of the issue document of title relating to the singular piece of alienated land that is developed into a strata project: s 6(1) of the STA. Section 42(1) enacts: The management corporation shall, on coming into existence, become the proprietor of the common property and be the custodian of the issue document of title of the lot.

n 18There is no definition of interim period in the STA but this term is adopted by the writer to demarcate a particular period of time in the long process of applying for and obtaining strata titles.

19See the definition of initial period in s 4 of the STA.

n 20This well-known Third Schedule in the standardized Sch H contract of sale is prescribed by the Housing Developers (Control and Licensing) Regulations 1989. Strict compliance with its provisions by any licensed housing developer is mandatory: see Ch 2 of SY Kok s book, Law Governing the Housing Industry (published in 1998 by Malayan Law Journal).

n 21See the writer s articles, Does Delivery of Vacant Possession include the Energizing of Water and Electricity Supplies? [1993] 4 CLJ ix, A Sequel to the Energizing of Water and Electricity Supplies at the time of Delivery of Vacant Possession [1994] 4 CLJ xxiii and Salmah bte Sulaiman & Anor (Administratrices of the estate of Ahmad bin Ibrahim, deceased) v Metroplex Development Sdn Bhd [1997] 1 MLJ 369. See also the writer s contribution of Chapter 9 in Cagamas sponsored book, Housing in Malaysia: An Indepth Study (1997) (organized and managed by ISIS).

n 22Section 46 of the STA. The timing is such that it will be quite impossible for a management corporation to be formed under s 39 when the high-rise building is still under construction.

23See supra n 21.

n 24Section 8(2), STA. For the purposes of submitting applications for subdivision of the multi-storey building under sub-s (2) hereof, s 8(6) has stipulated that the date on which a building is deemed to be completed is the date on which it is certified by any public or local authority to be fit for occupation or use. See also cl 10(1) in the standardized Sch H sale and purchase agreement.

n 25In the writer s unpublished manuscript, The Strata Law in West Malaysia , an entire chapter has been devoted to the purposes of highlighting the similarities between: (a) strata parcels ; (b) accessory parcels ; and (c) common property and for comparing and distinguishing the various important differences between such basic property components within a strata project.

n 26The element of notice , whether actual, constructive or implied which is a salient feature in English land law, does not apply in West Malaysia to any bona fide purchaser who purchases immovable property for valuable consideration: see the statutory description of a bona fide purchaser for value in the proviso to s 340(3) which describes him as any purchaser in good faith and for valuable consideration and not, as is commonly known to those who are trained in or are familiar with English land law, a bona fide purchaser for value without notice . See the writer s analysis on this point in his article, Equity in Malaysian Land Law : supra n 10. As a matter of fact, Lord Diplock has stated that the equitable doctrine of notices which is known to English land law has no application to the modified Torrens System in West Malaysia: Eng Mee Yong & Ors v Letchumanan s/o Velayutham [1980] AC 331 at p 335E; [1979] 2 MLJ 212 at p 214B (PC).

n 27See SY Kok s book Law Governing the Housing Industry (published by the Malayan Law Journal). Chapter 4 has analyzed in-depth the meaning and scope of the root term housing development and Ch 5 has focused on the meaning of the term housing developer s licence and its related application and issuance thereof.

n 28The writer s article, A Review of Loan Agreements and Deeds of Assignment (Absolute) Under the Malaysian Torrens System [1994] 2 CLJ xxxv at p xlvi. This article has been described by the Income Tax Commissioners as a well-presented paper in the tax case of DGIR v DDHOBD [1996] 1 BLJ 125 at p 132a.

29Clause 16 of the standardized Sch H contract of sale as well as s 9(1)(g) of the STA.

n 30Clause 16(2). The developer is obligated, under cl 16(3), to attach a copy of a service charge statement to every written notice which is sent to the purchaser requesting payment of the service charges.

n 31Clause 14(3). This obscure purchaser s liability, which is usually overlooked by housing developers, reads as follows: From the date the Purchaser takes vacant possession of the said Parcel until such time when it is taken over by the Appropriate Authority or the management corporation, as the case may be, the Purchaser shall pay a fair and justifiable proportion of the costs and expenses incurred for the maintenance of the infrastructure.

32Clause 14(1).

n 33See s 36 of the STA. Under s 9(1)(g), the Director of Lands and Mines must ensure that the proposed share units which have been assigned to the various strata parcels by the strata developer are fair and equitable.

n 34Clause 16(3) states that [e]very written notice to the Purchaser requesting for the payment of service charges from the Vendor shall be supported by a service charge statement issued by the Vendor .

n 35A-G v Chambers, A-G v Rees (1859) 4 De G & J 55 at p 65; Wishart v Wyllie (1853) 1 Macq 389.

n 36A rectangular-shaped piece of land may be adjoined on all sides by other pieces of contiguous land.

37Halsbury s Laws of England (4th Ed), para 831.

n 38Ibid, fn 3. See Mackenzie v Bankes (1878) 3 App Cas 1324 at p 1339 (HL). As illustrations of natural or artificial objects forming or locating boundaries, the following may be mentioned: water ( Scratton v Brown (1825) 4 B & C 485; Bickett v Morris (1866) LR 1 Sc & Div 47; Holford v Bailey (1849) 13 QB 426); the seashore ( A-G v Chambers (1854) 4 De GM & G 206]; faults intersecting mines where the property consists of a mine ( Davis v Shepherd (1866) 1 Ch App 410); fences ( Woolrych on Party Walls and Fences 281); party walls ( Matts v Hawkins (1813) 5 Taunt 20 and Cubitt v Porter (1828) 8 B & C 257).

39See supra n 10.

n 40Section 4 of the STA defines a Director of Survey as the Director of Survey of the State and includes a Deputy Director of Survey and, in the case of the Federal Territory, the

Director-General of Survey. This definition is in line with the meaning which has been assigned to the term by s 12 of the NLC. In addition, a Survey Officer has been defined by s 5 of the NLC to mean the Director of Survey and such a statutory definition will include any Survey Officer appointed under s 12 . The two similar terms appearing in two different statute books have been defined in unison.

n 41Section 5 of the NLC defines a licensed land surveyor to mean a land surveyor who has been licensed by the Licensed Land Surveyors Act 1958 to carry on the private practice of land survey.

42Section 114(b) of the NLC.

43Ibid, s 114(c).

n 44Section 396A of the NLC. This particular section deals with the power to amend survey plans under certain specific circumstances as listed in the section even though the plans might have already been approved by the Director of Survey via s 396(1)(e). Subsection (1) (a) specifically empowers the Director of Survey to amend any survey plan, whether approved or pending approval, if he is satisfied that such plan contains an error or omission.

45Section 398(4)(a) of the NLC.

46Ibid, s 398(4)(b).

n 47Section 4 of the STA. See also s 34(2) and s 69 and the High Court case of Doreen Tan Ying Ying, supra n 11.

n 48Upon the formation of the management corporation, the common property shall be vested in it: s 42(1) of the STA. But prior to the establishment of the management corporation, the original proprietor/developer will still own the common property and, as such, is entitled to collect periodic rental derived therefrom: Lee Wah Bank Ltd v Chi Liung Holdings Sdn Bhd [1984] 2 MLJ 262 (FC).

n 49Prior to the 1996 amendment, s 6 of the STA prohibited the treatment of single-storey building or buildings erected on the strata project land as strata parcels whereby the developer could sell or let them for dwelling or commercial purposes such as provision shop, day nursery, launderette, etc instead of using such built-up spaces as garages, storerooms

or covered car-parking bays. The reason for this prohibition could only be comprehended by the policy-maker. However, with the introduction of the amendment in 1996, such onestorey spaces can now be turned into strata parcels or, as the case may be, accessory parcels and not be restricted to the latter.

50See s 114(b) and (c) of the NLC which have been referred to, supra nn 42 and 43.

n 51A floor plan is drawn by the project architect to show potential purchasers how each type of strata parcel offered for sale would look like. The location of the master and other bedrooms, the living and dining rooms, the kitchen, etc will be displayed. Normally, the floor plan does not carry a header or footer and is not drawn to scale but will usually contain perpendicular lines, arrowheads and dimensions to indicate the approximate boundaries and sizes of the strata parcels which, under cl 11 of the standardized Sch H sale and purchase agreement, are believed but are not guaranteed to be correct .

n 52The measurement of a strata parcel which is offered for sale by a strata developer must be in square metres: see the recital in the standardized Sch H sale and purchase agreement as well as cl 11(1).

n 53Such are the boundaries of a strata parcel under s 5(2)(a) of the New South Wales Act 1973.

n 54Section 13(3) of the STA stipulates as follows: For the purposes of the preparation of any such certified strata plan, the common boundary of any parcel of a building with any other parcel, or with any part of the building which is not included in any of the parcels, shall, except in so far as it may have been otherwise provided in the relevant storey plans, be taken to be the centre of the floor, wall or ceiling, as the case may be.

55Supra n 48.

n 56The term storey plan is not within the architectural vocabulary. This peculiar term first appeared in a local statute book, particularly in s 155(1)(b) of the NLC but without any precise definition. These former provisions which dealt with the old concept of subsidiary titles have been replaced by the STA: see s 10(1)(b) and s 10(3) of the STA. Currently, the term storey plan has been defined in s 4 of the STA to mean a storey plan under sub-s (3) of s 10. It forms a part of the strata plans .

57See s 39 of the STA which deals with the establishment of the management

corporation. Section 42(1) requires all common property to be vested in the management corporation upon its formation.

n 58Section 35 deals with the rights of support, service and shelter and ss 35(1) and (4) provide as follows:

59Watson v Gray (1880) 14 Ch D 192 at pp 194-195.

60See supra n 58.

61Section 5 of the STA has been discussed earlier.

62Cheshire and Burn s Modern Law of Real Property (13th Ed, 1982) at p 227.

63Ibid.

n 64What amounts to a memorial of registration was discussed at length by his Lordship Hashim Yeop A Sani J (as he then was) in Mohammad bin Buyong v Pemungut Hasil Tanah, Gombak [1982] 2 MLJ 53 at p 55B-D (HC).

n 65For a discussion of the rights and duties inter se of adjoining owners in respect of party walls under English land law, see 4 Halsbury s Laws of England (4th Ed, 1973) p 394, et seq.

n 66See the implied obligations to maintain and repair a party wall in s 35 of the STA. See also the express provisions contained in s 286(4) of the NLC.

67See s 5(2)(a)of the New South Wales Act 1973.

n 68Section 4 of the STA defines common property to mean: ... so much of the lot as is not comprised in any parcel (including any accessory parcel), or any provisional block as shown in an approved strata plan; ... .

69The writer has been informed that in land-hungry Hong Kong, a portion of the lift

lobby will be turned into a part of a unit of strata parcel.

n 70Section 42(1) of the STA categorically states: The management corporation shall, on coming into existence, become the proprietor of the common property and be the custodian of the issue document of title of the lot.

n 71See cll 15 and 16 of the standardized Sch H sale and purchase agreement which have been prescribed by reg 11 of the Housing Developers (Control and Licensing) Regulations 1989. See also Lee Wah Bank Ltd v Chi Liung Holdings Sdn Bhd [1984] 2 MLJ 262 (FC) and supra n 55.

n 72See supra n 69. In particular, the management and maintenance of the common property by the management corporation is regulated by s 43 of the STA. The standard of maintenance must be in a state of good and serviceable repair . See also supra n 70.

n 73Section 4 of the STA defines strata plan to mean a location plan as well as a storey plan .

74See an earlier discussion on this point.

n 75See infra n 77. Section 4 of the STA defines an accessory parcel to mean: any parcel shown in a strata plan as an accessory parcel which is used or intended to be used in conjunction with a [strata] parcel.

76See s 9(1)(h)(i) and (ii) of the STA.

n 77Section 34(2) of the STA has expressly prohibited any strata proprietor from dealing or disposing of his accessory parcel (if any) as an independent piece of strata property. Under this statutory provision, an accessory parcel cannot exist on its own without having been made appurtenant to a strata parcel. In view of the strata law that an accessory parcel is not capable of an independent existence, any of such built-up accessory parcels which has not been made appurtenant to a strata parcel will automatically become common property. See also s 69of the STA and supra n 74 and Doreen Tan Ying Ying v Chong Tet On [1986] 1 MLJ 504 (HC).

n 78The fixing of the boundaries of the different types of accessory parcels is controlled by s 10(5)(a) and (b) of the STA. See the writer s detailed discussion on the determination of

the boundaries of the various types of accessory parcels in accordance with the relevant strata provisions in the subsequent part of this research paper.

n 79Section 10(1), (2) and (3) are replicas of the former s 153(1), (2) and (3) of the NLC; albeit streamlined. The term location plan in s 10(2) is used to replace the former index plan whilst the term storey plan has been retained although this term is quite unknown in architectural circles.

n 80For a discussion on what tantamounts to the technical act of delivery of vacant possession, see Ch 8 of the writer s book, Law Governing the Housing Industry.

81See cl 11 of the standardized Sch H agreement.

82See generally the writer s book, op cit.

LOAD-DATE: 11/06/2009