Malaysia Real Estate

Dazzle · Joined: 06 Oct 2006 Posts: 10

Hi,

Please advise on how can I take legal action against developer and management office on the breach of security in my Apartment.

What happened is that 5 units of apartments was broken in on 9/11/2006 within 12pm-6.30pm in the same block and our security is not even aware of the incident.

This is not the first time and the developer or the management is not taking any action at all to maximise the security of the apartment. The only thing the developer will do is to change the management or the management just change the security firm. By which this does not solve the issue of security in the area.

Please advise. Thanks!

cynthusc · Joined: 16 Sep 2005 Posts: 489

Hi,

Please advise on how can I take legal action against developer and management office on the breach of security in my Apartment.

What happened is that 5 units of apartments was broken in on 9/11/2006 within 12pm-6.30pm in the same block and our security is not even aware of the incident.

This is not the first time and the developer or the management is not taking any action at all to maximise the security of the apartment. The only thing the developer will do is to change the management or the management just change the security firm. By which this does not solve the issue of security in the area.

Please advise. Thanks!

There are two avenues for legal action IMHO: contractual and tortious.

You can agree with the other owners and take a class action against the Developer. Was there a breach in the Deed of Mutual Covenants with respect to the security. Look at the agreement carefully.

If the agreement was not breached then an action in tort may be successful; i.e.; negligence in the provision of adequate security that led to the theft.

Dazzle · Joined: 06 Oct 2006 Posts: 10

Even if there is no breach of DMC, the DMC is a one sided agreement which means all the terms are set by developer and we have no rights to ammend. In that case, can the agreement still be valid??

Because in normal circumstances, purchasers sign the S & P and the DMC together and developer never allow to ammend the DMC. On top of that, since the DMC is created by the developer's lawyer and it will definitely side developer. Am I right to say so??

In that case, legal action under contractual and tortious still valid?

cynthusc · Joined: 16 Sep 2005 Posts: 489

Dazzle · Joined: 06 Oct 2006 Posts: 10

How can we prove negligence??

With the record of the number of break-ins which has been happening within 2006, is it sufficient?

by the way, are you a lawyer?? Are you interested in this case?

cynthusc · Joined: 16 Sep 2005 Posts: 489

johnny · Joined: 25 Sep 2006 Posts: 66

Dazzle, just showing the number of break-ins might not be sufficient. For a solid case you need extra information such as any brochures or advertisements by the Developer purporting to have good security, or any other similar documents.

Dazzle · Joined: 06 Oct 2006 Posts: 10

Hi Johnny

Considering that I have been paying my maintenance fees and no outstanding.

And in the DMC, second schedule, developer has indicated that provision of security guard services will be provided.

Is this sufficient that there is already a breach in contract??

On top of that, I am now insisting from management to give me a report on how many security guards were on duty during the day of break in and how many rounds have the security guard made during the day.

Will the above help too??

cynthusc · Joined: 16 Sep 2005 Posts: 489

Dazzle · Joined: 06 Oct 2006 Posts: 10

Great to hear from you again !!

I have actually compiled a rough statistic from Jalil Damai Forum on the number of burglary which has happened since 29/08/2005.

In total - 47 cases of burglary and 96% of the 47 cases are a few houses was broken in during the same day

nicklee · Joined: 15 Aug 2006 Posts: 71

i think there is a case reported in the newspaper whereby the court held the developer responsible for the break in. Perhaps tigermy may be able to locate the news.

cynthusc · Joined: 16 Sep 2005 Posts: 489

cynthusc · Joined: 16 Sep 2005 Posts: 489

nicklee · Joined: 15 Aug 2006 Posts: 71

Thanks cynthusc but hhhmmm .. doesnt look like it. There is another one and was reported in the papers stating specifically that the dev or property manager were liable for the losses suffered due to the break in. Let me try to find it.

nicklee · Joined: 15 Aug 2006 Posts: 71

GOT IT .........

The Star 8/05/2004 BY CHELSEA L.Y. NG

KUALA LUMPUR: A businessman whose bungalow in a gated community here was broken into has been awarded RM486,988 after the High Court held that the terms laid down in its brochures and sale-and-purchase (S&P) agreement had been breached.

Justice Azmel Ma’amor ruled that the developer, Kumpulan Sierramas (M) Sdn Bhd, and its management corporation were liable for the special damages suffered by Datuk Soo Lai Sing due to the lack of security at the Sierramas Resort Homes in Sungai Buloh, contrary to the promises made in the brochure and the S&P agreement.

The judge handed down the ruling on Thursday after deliberating on submissions by counsel for the parties. Soo’s counsel, Olivia Ho, had argued that representations made in brochures and newsletters which materialised into agreed contractual terms in the S&P agreement and Deed of Mutual Covenants dated March 17, 1995, were of probative value and should be considered by the court.

Soo, 53, who was also awarded interest on the damages sum, filed his suit in July 2000.

In the suit, he said he bought the bungalow unit in 1995 as he was attracted to the unique concept which promised excellent security facilities for its residents.

He said he even agreed to pay, upon delivery of vacant possession, a service charge stated in the S&P agreement in return of facilities, which included maintenance of security.

Soo, 53, moved into his home in October 1999 and at 8am on March 10, 2000, his house was burgled.

He lost close to half a million ringgit after knife-wielding robbers escaped with cash S$100,000 (RM250,000) and RM5,000, a shotgun, four Rolex watches, jewellery and other items.

There was undisputed evidence that the robbers had gained access into the housing estate by cutting through the electronic perimeter fencing, which was supposedly armed with an alarm system and CCTV cameras, he said.

Soo added that he had attempted to fix some fences as additional security to secure the premises, but this was objected to by the defendants on the grounds that the additional height contravened the terms of the Deed.

He said that after the robbery, the robbers managed to escape detection by the defendants’ security control.

He claimed that the misstatement and negligence by the defendants had caused him to incur losses and damages.

In their defence, the developer and the management company, represented by Maidzuara Mohammed, said they had informed the residents via their in-house newsletter, Berita Sierramas, about the malfunctions in the security system.

They said that residents had been reminded, through a circular, to take precautions to safeguard their valuables.

They denied any contribution to the losses or damages suffered by Soo.

johnny · Joined: 25 Sep 2006 Posts: 66

nicklee, in sierramas, the price of the land is so high because of security. when advertising, they boast about their hi-tech security system. that case was based heavily on this fact. See this phrase : "contrary to the promises made in the brochure and the S&P agreement".

i have also personally seen their brochures. their security is supposed to be the best in the country. land price is almost tropicana price.

"representations made in brochures and newsletters which materialised into agreed contractual terms in the S&P agreement and Deed of Mutual Covenants"

"he was attracted to the unique concept which promised excellent security facilities for its residents. "

i know this case well. this is why i told Dazzle to look for all these things. they are important as rarely will the DMC or S&P say something like : "excellent security".

Dazzle · Joined: 06 Oct 2006 Posts: 10

Just received a letter dated 06/11/2006 from developer stating that they have forwarded the necessary Insurance policies to my financier.
The policies are:
1) Burglary Policy
2) PUblic Liability Policy
3) Fire and Allied Peril Policy

All this are underwritten by Commerce Assurance Bhd. When I received the letter, I was surprised that the developer is kind enough to actually insured our property against burglary.

Unfortunately, this is never the case. I called up Commerce Assurance yday and the agent who handle the developer account has informed me that developer bought the Burglary Policy is specifically to cover the Management Office and Common Facilities only. Not for private property.

In that case, this is very obvious that developer and management is very aware of the rampant burglary in the area but they are only protecting themselves and our private property is left exposing to burglary.

johnny · Joined: 25 Sep 2006 Posts: 66

Dazzle, that will not be enough. You need representations, either verbally from the sales people or written.

Does the fact that the Developer has taken fire insurance mean that the place is prone to fire and the Developer should have insured your unit as well?

Further, the Developer will not be allowed to insure a unit that it doesn't own. That duty lies with you. The Developer also does not owe you a duty to advice you to take our insurance.

Your action here will be based on breach of contract (unlikely), misrepresentation (very likely, as in sierramas case) or negligence.

Dazzle · Joined: 06 Oct 2006 Posts: 10

From what I have found out from PIAM, under strata act fire insurance is compulsory. And as long as developer has bought the policy, we do not need to buy a separate policy.

However my point here is, since the developer and management has bought a burglary policy to cover themselves and the common facilities. Which means that they are aware of the high risk of burglary but they are still negligence in their duty to care for our property.

Dazzle · Joined: 06 Oct 2006 Posts: 10

I have found the developer's advertisement in The Star Newspaper dated June 22, 2002.

One of the point in the ad says:

24-hr Security with perimeter fencing.

And in the project brochure, developer has indicated:
When completed, Bandar Bukit Jalil will be one of the most distinctive townships in the Klang Valley with a world class environment.

Would the above information help?

johnny · Joined: 25 Sep 2006 Posts: 66

I think it might. But it is still 50-50. You should see a lawyer if you really want to pursue this further.

loucus · Joined: 22 Oct 2005 Posts: 5 Location: USA

That's why we have "Home Owners" insurance. If anyone is EXPECTING a developer to insure their personal property, they must be in never- never land. AS I wrote above "Caveat Emptor" either you protect yourself and your property or GOOD LUCK! Boy how "innocent" can people be... anything to save some $ now and possibly suffer a much larger $$$ loss later - penny wise, pound foolish. Thougt I am sorry for your loss.... Sad

_________________
The ultimate measure of a man is not where he stands in moments of comfort, but where he stands at times of challenge and controversy.
~Martin Luther King, Jr.

Dazzle · Joined: 06 Oct 2006 Posts: 10

The news is out in Malay Mail today.

BY the residents:
Apartment folk don’t feel safe
-by SANGEETHA NAIR -
HOME is where we feel safe.

But, this is not the case for residents of the Jalil Damai Apartments in Bukit Jalil.

Not when at least 48 house break-ins have been reported since they moved into the scheme in January, 2005.

They are now up in arms against their management company for its lackadaisical attitude in protecting their properties and belongings.

A resident, who wished to be identified only as Tang, said most of the cases occurred when owners were away at work.

The latest cases, he said, were on Nov 9 when his unit was broken into along with three other units, when he and other owners were at work.

“Our international passports, jewellery, RM6,000, watches and camera were stolen. The burglar managed to open our padlocks using an Allen key and forced open our wooden door,” said Tang.

He said another owner, living in the same block but on a different floor, also lost passports, laptops and valuables.

“The management is aware of the frequent burglaries but refuses to do anything to protect us,” he claimed.

“Whenever we bring this matter up, their excuse is that not everyone pays the maintenance fee. But how about those who pay? Aren’t we entitled to some form of security?” asked Tang.

Tang also claimed that management only has an insurance policy to protect the common facilities against burglary.

“The day our house was broken into, my wife was so scared that she wanted to move out immediately. I had to spend more than RM1,000 to install an alarm system and buy new padlocks,” said Tang.

Another resident, K.H. Ang, said the scheme’s security guards should be more alert and pro-active by patrolling the blocks regularly.

However, that is not the case when residents allegedly caught the guards sleeping while on duty.

Residents association committee chairman Raymond Ananth said the management should not shift the blame to residents who failed to pay the maintenance fees.

“What about those who pay?” he asked.

By the Management:
Security measures beefed up at Jalil Damai
-by MASAMI MUSTAZA -
JALIL Damai Apartment’s management company has clarified that they have stepped up security measures at the scheme.

Raine, Horne and Zaiki Property Management Sdn Bhd operations manager T.

Silvakumaran said they have nine guards on every shift, and they are stationed at all the blocks and the scheme’s entrance and exit.

“We also make sure that only one entrance and one exit are open at any one time so the guards can monitor closely.

Besides, we also have some of our guards dressed in plainclothes,” he said.

He said the management also plans to install automatic gates at all entrances and exits which will only be accessible to residents with access cards.

Silvakumaran said the burglaries that took place on Nov 9 had been reported to the Cheras police.

Cheras police chief ACP Rosli Ahmad said burglaries and break-ins are common in high rise buildings, so the management and residents need to co-operate in coming up with a solution.

“There will always be conflicts between residents who pay and do not pay the maintenance fees.

Though some people feel that paying for security is a waste of money, you have to consider that this is about your home and your family,” he said He said that the management should also maintain a professional attitude and not skimp on security services because some residents are unwilling to pay.

“The management should also implement guidelines such as ensuring that units are only leased to local families as there have been cases where foreigners rented apartments or condominium units to rob their neighbours.

He said they will continue making their rounds in the area to ensure the safety of residents.

Dazzle · Joined: 06 Oct 2006 Posts: 10

Another article out in China Press today:

.://..chinapress.com.my/content_new.asp?dt=2006-11-30&sec=local&art=1130lk01.txt

Translation of China Press Central (Article published on November 30, 2006)
Anxiety amongst Jalil Damai Apartment residents as a result of the loose apartment security measures !!

Based on the complaints by the residents, the burglaries happened in daytime while most residents were out at work. The burglars were suspected to use “special key” to break into the units and stole away residents’ precious belongings. The maximum no of incidents ever recorded in a day reached 5 units!

In 2006, a total of 43 cases was noted in JDA. Despite there are security guards in place within the compound of JDA, burglary cases remain recurring.

JDA comprises of 6 block apartments with total 960 units. Residents gradually moved in at beginning of 2005. Despite the numerous complaints by the residents to the management, the security measures remain loose.

Based on sources, the burglars targeted at the units with same type of “locks”. Some cases occurred at dawn whilst residents are asleep or during daytime when units are mostly vacant. Some victim residents are even affected twice in the break ins. However, affected residents are worried about the inconvenience aspect and therefore did not report the cases to police. As a result, police authority is not aware of the crime rates that had taken place in JDA.

After receiving complaints by the residents, [China Press Central] visited JDA for a full accounts of the same. In doing so, it was noted that the reporters are allowed to gain access to JDA and the guards did not, at all, require the reporters to show their identity cards and/or reason for visit, for recording purposes. This reflected the security measure in JDA is indeed not vigilant !

The management of JDA advised they have tighten the security control measures in JDA, including but not limited to, register the visitors details and vehicle no, and increase the frequency of patrolling the apartments, with a view to minimize the burglary incidents.

The representative of management further advised, they have hired a total no of 15 guards with 2 shifts, to fully overseeing the security within JDA.

For the 7am to 7pm shift , there is a total of 7 guards on duty, and for the 7pm to 7am shift, there is 8 guards on duty. In addition, the guards practice to patrolling at each floor of each block on daily hourly basis.

With regard to the queries by the residents for tight security measures, management advised due to limited funds, and that some of the residents have not been paying their maintenance fees, the management is unable to recruit more guards for better control.

Management informed that the earlier batch of management, due to their lack of competency and unable to deliver services which is acceptable to the residents, was replaced 2 month ago.

Management advised they are planning to in future, implement the access card system and CCTV, so as to ensure that the security of residents and their properties are not at stake.

The management are hopeful that the residents will pay up the outstanding maintenance fees, in order that the above measures can be implemented as soon as possible.

ilyashukri · Joined: 11 Jun 2007 Posts: 594

similar case happen to me and neighbour a few days ago. pls advice on what to prepare to further actions!