** The original title for this post was “Calling Legal Eagles” ** Title has changed since the eagles are not flying.
I have just been provided with a copy of an legal opinion that GCD had obtained some 18 months ago and it has to do with the role of the developer is dealing with breaches in the Deed of Mutual Covenants. This is a matter that all residents should be aware of. The name of the lawyer and the firm are redacted.
The opinion of 27 July 2011 by GCD’s lawyer reads as follows:
“The land titles show that the development is not built as a gated community within the sense contemplated under the Strata Titles Act. As such, the considerations set out in Section B, paragraphs 1 and 2 of my opinion apply – i.e. it is the common law, and not the Building and Common Property (Maintenance and Management) Act 2007.
That means that the purchasers bind each other to the mutual covenants, and it is for them to enforce the same, not the developer. The developer, if he still retains land in the development, is of course likewise bound by those mutual covenants. It will still be for the purchasers to enforce the covenants against each other.”
Below is my reply to Mr. Ben Yeoh about this opinion and I want to reproduce it so residents know what the argument is about and I hope the legal fraternity in Glenmarie Cove will lend the GCROA a hand. As you know the GCROA is not rolling in cash so any pro bono help will be very welcome.
It would be great too if Residents who read this blog but who are not members of the GCROA would care to part with RM60 per year. We’re done begging but, hey, one more time will not kill me especially when my term as President will end in a couple of months.
I refer to Mr. XXXXXXXX’s email of 27th July 2011 which I have attached for Pn Noraishah’s convenience. The reason I am copying this reply to her is that I think we need a ‘referee’ to resolve our understanding of the role of Glenmarie Cove Development Sdn Bhd (GCD or Vendor or Developer). I hope Pn Noraishah in her capacity as Head of Legal at DRB-Hicom will kindly assist in clearing up this important matter.
The subject title of that email suggests to me that it was an opinion you sought in case the matter came up when you addressed the GCROA’s inaugural AGM a few days later. I believe you came into GCD not long before that email and I have to wonder whether you had by that date read the Deed of Mutual Covenants that purchasers were required to enter into with GCD.
I wonder too whether Mr. XXX was provided a copy of the Deed. Eighteen months later you still hold the same view – one which I have to totally disagree with.
Mr. XXX was obviously correct when he said that Glenmarie Cove is not built as a gated community within the sense contemplated under the Strata Titles Act. He went on to say it is the common law, and not the Building and Common Property (Maintenance and Management) Act 2007 that is to apply.
“That means that the purchasers bind each other to the mutual covenants, and it is for them to enforce the same, not the developer. The developer, if he still retains land in the development, is of course likewise bound by those mutual covenants. It will still be for the purchasers to enforce the covenants against each other.”
In my opinion, the person who concocted the need for a Deed of Mutual Covenants ( the Deed) should be congratulated because it does seem to be the instrument that is vital to keep things together in a development that was sold as a gated and guarded community but where ‘benefits’ afforded under the Strata Titles Act are missing. In my previous community, the residents had put together a security scheme that met with more than the 90% approval by the residents within that community but only about 60%contributed to the overall costs. Dependence on the goodwill and friendliness of neighbors applied to the 40% freeloaders!
The opinion which you hang your hat on means GC is no better than the area where I came from and there are many such communities, I might add. What means does “Mr. E”
have to get his neighbor to tear down the offensive wall in the front yard? Just by speaking to him ? What happens if the neighbor refuses to do so? Based on the opinion you are inclined to say “well, there is nothing we (GCD) can do because our lawyer says you folks must sort it out among yourselves.”
I have to disagree and will venture to say your lawyer’s opinion is wrong. I would also say that GCD’s stance is rather damaging for the morale of this community. I say this because there is an agreement and below are certain extracts that surely you or Mr. XXX cannot miss if you both have actually read the document:
Agreement to Perform and Observe Covenants
“… the Purchaser jointly and severally together with the owners of the other Lots and the Vendor shall observe and perform the covenants and stipulations contained herein.
So are there covenants and stipulations that pertain to the Vendor? Consider the following provisions in the Third Schedule which are relevant to the complaint that has been raised:
Construction and Renovation of the said Building
1.1 The Purchaser hereby covenants and undertakes to erect and maintain on the said Lot a dwelling house for residential purpose only and which is of the type, design and specifications as Approved by the Vendor and the Appropriate Authority.
1.3 The Purchaser shall not carry out any renovation to any building constructed on the said Lot without the approval of the Vendor.
2(b) Fencing of the frontage of the said Lot whether by construction of brick wall or by cultivation of hedges or otherwise is permitted provided always that such fencing shall be at least thirty (30) feet or such distance as the Vendor may in its absolute discretion deem appropriate from the front boundary …..
By the way, Ben, there are numerous instances in the Third Schedule where the role of the Vendor is clearly spelled out. If there is stipulated role, GCD must also have the means and ideas to fulfill the role. Otherwise it is meaningless. If Mr. Erich agrees with the opinion, he needs to persuade his neighbor to seek GCD’s approval. By the way, the complainant is not a young man and may just laugh himself to death over this.
On a serious note, we have purchased properties in Glenmarie Cove and were required to execute the Deed that provides a role for the Vendor. Why provide a role for the Vendor in the first place if there is no desire to play a meaningful part until the responsibility is handed over to another party when the development is completed? If GCD maintains the current stance, it is my humble opinion that GCD is misleading purchasers to believe that there will order in this community by way of the Deed.
This matter is important to all residents in Glenmarie Cove and they need good advice.