It is unlawful to privately attempt to restrict or regulate public spaces without the approval of the relevant authority.
Any attempt to close, barricade or restrict the access of a public road, drain or space, there may be a contravention of Sections 46(1) of Street Drainage and Building Act 1974, Section 80 of the Road Transport Act 1987 and Section(s) 62 and 136 of the National Land Code 1965.
In addition, provisions of the Town and Country Planning Act 1976 may also be violated where guard houses are built in the public land or road shoulders. For example, Section 46(1) of the Street Drainage and Building Act 1974 provides that any person can be held liable if he:-
a. builds, erects, set up to maintain or permit to be built, erected or set up or maintained any wall,
fence, rail, or any accumulation of any substance, or other obstruction, in any public place;
b. without the prior written permission of the local authority, covers over or obstructs any open drain
or aqueduct along the side of any street;
There is no problem with private security patrolling public roads in a housing scheme under the employment of the residents’ associations. Nevertheless, the local authority and the police should be consulted first.
It has to be noted that erecting structures to restrict access to public roads or guardhouses is another matter and would violate the law unless the relevant authority gives its approval to do so.
In recognition of a growing problem of security, various local authorities and state governments have issued guidelines for guarded communities. These guidelines do allow erection of guard houses and the employment of private security based on the consent by the residents in the area affected.
For example, in Selangor, the Housing and Property Board and the local authorities allow guard houses to be built based on certain guidelines amongst which include:-
· Applications made through the Resident Association (RA) only;
· Consent by 85% of the residents;
· Agreement must be made between RA and local authority;
· Guard house without a barrier are allowed and the location should not obstruct traffic (situated at road shoulder only);
· A written consent from Local Authority and Land Administrator (LA) for the construction of guard
house on reserved road/vacant land must first be obtained;
· Appointed security guards must be registered with Ministry of Home Affairs or with other relevant agencies;
The authorities do sometimes “turn a blind eye” to allow some form of limited barriers so long as it is backed by an overwhelming support of the local residents and it does not deny access nor unduly obstruct traffic.
Planning Requirements
A developer may elect to proceed with subdivision of land under the National Land Code 1965, or subdivision of land into land parcels to be held under strata titles, under the Strata Titles Act 1985.
Even if a developer chooses to subdivide the land under the Strata Titles Act 1985, it does not necessary mean that the developer can develop a gated and guarded scheme.
Planning law requirements as well as the State Authority have set out strict guidelines for approving gated and guarded schemes. These guidelines also take into account socio-economic factors in determining whether to allow gated and guarded schemes.
Recent Amendment to the Law
The law governing development of land involving the construction of a building having two or more storey on alienated land held under one lot is governed by the Strata Titles Act 1985. This is probably the reason why a few property developers have adopted the Strata Title Act for their development of the gated community scheme.
The problem that would however arise is when the land development of the gated community scheme involves the construction of buildings that are not feasible to be sub-divided into parcels as provided in the Strata Title Act. For instances bungalow houses, semi-detached houses, double and single storey houses.
The recent amendments to the Strata Titles Act 1985 (with effect from April 12th , 2007) by the Strata Titles (Amendment) Act 2007 now allows a gated and guarded communities to be statutorily created and regulated more effectively like other types of strata schemes.
As such, land parcels with buildings are no longer needed to be governed by the Strata Titles Act, in the same way as a high-rise building if a developer chooses to do so. This means that for the purposes of the Strata Titles Act 1985, land parcels with buildings can in certain circumstances be treated like a multi-storey building lying down on its side. There are several important qualifications though.
The effect of the Strata Titles (Amendment) Act 2007, is that only buildings of not more than four storey may be erected on the land parcels intended to be subdivided and held under separate strata titles, or an accessory parcel.
Furthermore, any DMC entered into between the developer and a purchaser of a parcel in a gated and guarded community scheme agreement can be now easily enforced by the bylaws under the Strata Titles Act 1985.
The enforcement and management can now also be carried out under the Building and Common Property (Maintenance and Management) Act 2007, when the Management Corporation has not come into existence. This is a huge step forward from the past practice which was problematic to say the least.
Conclusion
The development of gated and guarded community schemes in Malaysia now seems to be part of the features of the housing industry. It is undoubtful that most of these schemes are of the high cost residential types that will be attractive to developers due to higher returns and the increasing demand from the market, especially in the urban areas like Kuala Lumpur, Shah Alam, Penang and Johore Bahru.
Finally, it must be understood and appreciated that all purchasers of houses in a gated and guarded community will have to pay considerably higher charges for the maintenance, sinking fund, security fees, electricity and water and other services because the cost of all facilities within the boundary of gated and guarded community will have to be borne by them in addition to the usual quit rent and assessment rates levied by the local authorities
References:
https://www.hg.org/
By: Jayadeep Hari & Jamil
ABOUT THE AUTHOR: Stanley Gabriel
The author is the Head of the Conveyancing Department in Messrs Jayadeep Hari & Jamil. Having been in legal practice for over 12 years, he has vast experience in matters concerning real estate and probate. Copyright Jayadeep Hari & Jamil
