Dog Bite Dog

** 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.

Here goes:

Dear Ben,

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.

Best regards,

signature anim II

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14 Responses to Dog Bite Dog

  1. trulyfrustrated says:

    I think GCD dont bother about the deed of mutual covenants and simple wash hands. like that then why we should care about it also. can BURN the DMC la. why not we do this during the GCROA AGM on 24 march 2013. anyone want to join me?

  2. santok1950 says:

    I have never heard such rubbish. Instead of dealing with the problems created by their own incompetence they are trying to come up with this stupidity. How can GCD say that it needs to be dealt with by the residents when they issued the DMC and listed themselves as the Vendors. We should test this out in court.

    • Santok,

      Chinese New Year around the corner. Don’t be so angry man.

      Seriously, I hope we’ll be able to reach an understanding on this matter and GCD accepts they have proactive and meaningful role to play. Then it will just be a matter of both parties coming together so personnel on their side like Security Manager Rafiq and Maintenance Department’s Balachandran and Gunasegaran know exactly how to respond in any difficult situation. The wall pictured in the post should not be there. What had gone wrong to lead to this? The neighbor (BIL) gettin’ old and therefore not being a good enforcer of the appropriate covenant?

      It is important for GCD to resolve this because there are two more precincts to develop and these problems will not go away.

      This reminds me of the saga involving the House Rules which we spent hours on drafting and discussing at the request of Community Manager Balachandran. With the new clubhouse nearing completion it is important that residents are aware of the number of guests they can bring into the clubhouse to use the facilities, especially the swimming pool and the gym. I can foresee problems from certain residents who are not averse to bringing in a large group of people on a regular basis. We can see this happening at the Precinct 2 jetty.

      Why are the House Rules still in limbo? We feel silly, having agreed to help Balachandran we now see all the efforts remain on the shelves, somewhere. So why? Was GCD (mis)guided by the ‘let dog bite dog ‘ opinion they received 18 months ago? If this is not fair, then I ask Ben Yeoh to outline clearly how the wall pictured in the post could have been avoided. For example, i have been informed the owner does not have MPK’s approval as I write and the DMC says he must. Only GCD has the practical means and power to stop the works, not the complainant. So why was building activity allowed? Also, what happens if there is a conflict, where MPK may allow a certain thing to be built but the DMC does not? This conflict will arise if MPK allows the owner’s retrospective application for approval of the wall.

      On Wednesday, February 6, 2013, Glenmarie Cove Residents and Owners Associati

      • wkchoo says:

        Based on the photo taken I’m quite sure it does not contravence MPK’s by law as it was built within the permitted requirement (height wise etc) as many others estate. However, I bought the property here because of it uniques (open concept) and if GCD is allowing it then it is called deceiving!! How screw up is the DMC??

        • How screw up is the DMC?

          Not at all in my view. Check your DMC but I do not think there is precise language in the Deed that says in the event of conflict, the DMC shall prevail. But remember the purchaser has executed the Deed and he has therefore agreed to be bound by the stipulations listed in the Deed. Thus in my opinion, the Deed prevails. The crux of the matter is whether GCD is prepared to uphold the Deed and use Security as the bully pulpit to have purchasers toe the line. We shall soon get to see! How interesting!

          On Thursday, February 7, 2013, Glenmarie Cove Residents and Owners Associati

      • dl2a15 says:

        Johann,
        Ya, I noticed too there always a big crowd in one of the boat at Jetty 2, having picnic in the boat. I thought the boat belongs to GCD? Or is it privately owned?

        • If you are talking about the catamaran, that belongs to GCD. I’ve seen activites in the boat on a number of occasions. I suppose you too can picnic in the boat since GCD does not seem to mind at all. Call Security ahead of time and tell them you want to dance on the boat, heh heh.

          On Thursday, February 7, 2013, Glenmarie Cove Residents and Owners Associati

  3. Dear boyscout2b, Yin and WK Cjhoo,

    Your views on the DMC are wrong.

    We have the same point of view and that is GCD must do its part under the Deed and perform the stipulated role. I hope a proper understanding can be reached so we can proceed from there. We are not lawyers and the interpretation should be left to the legal experts. This does not, however, stop us from asking whether the legal opinion makes any sense at all, given that the role of GCD is in ink.

    There are people who encourage others to live in peace and harmony. People who espouse tolerance. Very nice words indeed but the job of the Committee is not a cake walk because we always get to hear from people who are unhappy over this or that issue and we have to deal with the complainant the best way we can.

    We should pay for the security and maintenance services because that is part of our bargain. We pay for services rendered to us, period. We can of course take issue with the quality of the services received. Thus some have opted not to pay until the quality improves or rectifications are made. I know of at least one person who pays the security portion but refuses to pay the maintenance bit. But once the issues are resolved, we must all pay.

    I hold the view that the DMC is a darn good thing. No one is saying the DMC is not applicable, least of all GCD. The letters issued by GCD’s lawyer to demand for overdue payments rest on the DMC. I am not sure how anyone can be sued if the lawyer does not cite the DMC as the basis for the demand.

    The issue is the legal opinion in respect of the enforcement of the covenants in the DMC; residents must enforce the covenants against each other and I wonder how that can be effectively done.

    wall at front boundary

    Above is a picture of the wall that has been constructed at the front boundary of a unit in Precinct 2. It has upset certain people because it can block the view of the neighbours and breaks the ‘open front yard concept’ that many expects. Some neighbours are willing to take it as it comes and some will not. We get to hear from the latter,of course. Someone will have to persuade the house owner to tear down this wall. What happens if the owner refuses to do so? Go to MPK?

    My contention is this problem could have been avoided if GCD had done its job because approval must be obtained from GCD under the Deed. We all sought approval when we renovated our homes pursuant to the Deed but over the past 18 months certain owners have apparently not done that and not paid the security deposit as required under GCD’s renovation guidelines.

    Mind you, some people may not be aware of the rules even though they have executed the Deed – because they never read the document. Some may have read but just don’t bother for one high sounding reason or another. One owner even claimed he was not aware that he could not extend his walls right up to the boundary of the property.

    GCD could have prevented this if they stuck to their own renovation guidelines or rules and exercised security procedures that would prevent workers and materials on a site where no approval has been granted. But this is not happening. Rome wasn’t built in a day. Neither was the wall in the picture above. So no one goes around on a daily basis and report to the management what is happening? I guess there wasn’t a need for this because the legal opinion relieves so many headaches. Let the residents sort things out between themselves.

    • yfyin says:

      You can’t say that : you are not aware that you could not extend your walls right up to the boundary of the property because when you applied the extension permit from MPK, the guidelines of 3 meter boundary is stated and even if the contractor do not know this, GCD will report this to MPK, and officer from MPK will come to give you the notice to remove what you have built.
      Another way is, the neighbour can lodge a report with MPK to have the illegal wall taken down.

    • wkchoo says:

      That’s was the whole idea of having DMC which was agreed and signed by purchaser and developer. The developer must enforce it and it’s ridiculous to expect the residents to sort things out between themselves as “tension and bad blood” might occurs. ( even worst…if neighbour reported to MPK!!!!!….and have a permanent disgrunted and long face neighbour. There goes the harmony living.)
      My stand never change and blame it on the developer which they conveniently pick and choose what they wanted to enforce ie choosing to enforce the monthly fees which most of us did not complain but close one eye/both eyes on many breaches which make most of us reluctant to do our part.

  4. yfyin says:

    Johann, if under strata title is not a gated community ,and DMC is not applicable, does it mean that we are all not bind by the DMC?.

  5. boyscout2b says:

    Isn’t the DMC a binding Contract between the vendor and purchasers? Shouldn’t GCD be liable to perform its stipulated role under the contract? And if GCD refuses to honor its contractual role, should the purchasers be bound by the GMC? If GC is not a gated community under the law, then why pay to GCD’s for security or maintenance? Why do we need to refer to GCD as the “approving authority” for renovations, chopping down trees, digging up/laying a (second) driveway straight onto the main road, land grabbing the road shoulders and public paths, etc.

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