Appeals Court allows RA to impose condition to non-paying members to operate boom gate themselves

https://www.sinardaily.my/article/194155/malaysia/national/appeals-court-allows-ra-to-impose-condition-on-non-paying-members-to-operate-boom-gates-themselves

PUTRAJAYA: A registered residents’ association within the Petaling Jaya City Council (MBPJ) can impose conditions on members who do not contribute towards security and maintenance, the Court of Appeal has ruled.

A three-member bench chaired by Justice Has Zanah Mehat said a condition set by the Parkville residents’ association requiring non-paying members to operate the boom gates themselves is reasonable.

Has Zanah said the decision was in line with a 2015 Federal Court ruling in the case of Au Kean Hoe v Persatuan Penduduk D’Villa Equestrian.

In that case, the apex court ruled that the construction of a guardhouse and boom gates did not amount to an “obstruction” under Section 46(1)(a) of the Street, Drainage and Building Act 1974.

Section 46(1)(a) makes it an offence for any person to erect an obstruction in any public place.

“There has to be a balance between the interests of the community as a whole and the individuals (non-paying residents),” said Has Zanah when allowing the appeal by Parkville residents’ association president Chow Hau Mun.

Has Zanah, who sat with Justices Che Ruzima Ghazali and See Mee Chun, said it would be unreasonable for non-paying residents to enjoy the benefits of a security system without having to contribute towards it.

The oral decision was delivered online after the bench heard submissions by parties.

Lawyers Malik Imtiaz Sarwar and A Surendra Ananth represented Chow, while Yatiswara Ramachandran appeared for MBPJ.

Chow was appealing the decision of the Shah Alam High Court last year dismissing his judicial review application.

Justice Shahnaz Sulaiman had held that the residents’ association could not impose such conditions on those who refuse to pay the monthly service fees.

She said MBPJ’s gated community guidelines do not allow associations to discriminate against non-paying residents and non-members.

Chow had filed for the judicial review after MBPJ in 2021 rejected the association’s application for permission to make non-paying members and non-members operate the boom gates themselves.

Dismissing the application, the judge ruled that MBPJ could prohibit any association under its authority from imposing unreasonable conditions on homeowners.

She said MBPJ’s decision not to allow the association to impose the rule was not illegal, irrational or unreasonable.