This article discusses some of the key changes to the Building Maintenance and Strata Management Act (Cap. 30C, 2008 Rev Ed) brought about by the Building Maintenance and Strata Management (Amendment) Act (No. 35 of 2017). The key changes include a revision of the definition of common property, insertion of new section 37A which permits the installation of safety equipment by a subsidiary proprietor on his strata lot, conferring power on MCSTs to rectify contraventions to section 37(3) of the BMSMA, codification of the existing practice of MCSTs utilising management funds towards legal fees, and allowing service of notices by electronic means.
The Building Maintenance and Strata Management (Amendment) Bill (Bill No 29 of 2017) (BMSMAB 2017) was first passed in Parliament on 1 August 2017. It is the first comprehensive amendment of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (BMSMA) since it came into effect on April 2005. The much-awaited BMSMAB 2017 is a result of a review carried out over five years, comprising three rounds of public consultation, focus group discussions and town hall dialogues.
Key amendments to the BMSMA include:
The amendments are expected to come into force soon. This article discusses some of the key changes to the BMSMA.
The definition of “common property” in the BMSMA and its predecessor, the Land Titles Strata Act (Cap 158, 1999 Rev Ed) (LTSA 1999) has been subjected to two previous rounds of amendments with each amendment seeking to further clarify and fine-tune the definition.
Following feedback received by the Select Committee that the definition of “common property” should be simplified and should apply to both strata and non-strata developments, the definition took its current form in the BMSMA. This was a marked change from the previous definition of “common property” set out in the LTSA 1999, which expressly specified an illustrative list of structures and features forming part of common property.
However, the Building and Construction Authority (BCA) received feedback during this round of review that the current definition of “common property” in the BMSMA should revert to the definition under the LTSA 1999 as the generality of the current definition had resulted in disputes arising between subsidiary proprietors (SPs) and MCSTs as to whether foundations, columns and beams of a development fall within the ambit of the definition, and whose responsibility it is to maintain such structures. 2
As a result, while retaining the generic definition of “common property”, the BMSMAB 2017 now specifies certain key structural elements and features that, the BCA opined, should be maintained by the MCST.
The amended definition is set out below:
“common property” … means:
The generic definition of “common property” in the present BMSMA has come under fire in the recent cases of Sit Kwong Lam v MCST Plan No 2645 [2017] SGHC 57 (Sit Kwong Lam) and Wu Chiu Lin v MCST Plan No 2874[2018] SGHC 43 (Wu Chiu Lin). The issue that arose was how the second limb of the definition of “common property” (Second Limb) ought to be interpreted.
In Sit Kwong Lam, Kannan Ramesh JC accepted that in some cases there could be areas in a development that are not comprised in any strata lot and yet are not used or capable of being used or enjoyed by any SP at all. The appellant argued that such an area or installation was not common property as it did not satisfy the Second Limb, but is “uncategorised” and to be regarded as “no-man’s land”. Ramesh JC rejected the appellant’s argument and resolved the conundrum by reading into the Second Limb, a requirement that an area or installation, forming part of the common property, must not be for the “exclusive use of any particular subsidiary proprietor”.
However in Wu Chiu Lin, Chan Seng Onn J opined in obiter that the Second Limb is meant to be construed broadly, such that even prospective and intangible forms of interaction by SPs with a particular area in a development will be sufficient for that area to satisfy the Second Limb. Chan J’s view was that there is no third category of property in a development that was neither common property nor part of a SP’s strata lot.
Most recently in Sit Kwong Lam v MCST Plan No 2645 (Sit Kwong Lam CA), the Court of Appeal endorsed Chan J’s reading of the Second Limb in Wu Chiu Lin, holding that the Second Limb is to be interpreted broadly and the words “use” and “enjoy” should be read according to their dictionary meanings. Even parts of the development (such as roof trellises and external walls) which cannot be “used”, can still be “enjoyed” by SPs without having physical access to it, as the word “enjoy” connotes a broader meaning to encompass even intangible forms of interaction such as appreciation.
While the amendments in the BMSMAB 2017 and Sit Kwong Lam CA provide greater clarity on what comprises common property, it remains to be seen whether further issues with this amended definition of “common property” will arise in future cases.
The BMSMAB 2017 introduces new definitions for the terms “structural defect” and “structural element” under section 2(1) of the BMSMA.
