Q: I’m a tenant who barely ever uses the gym at my condo. One day, I finally decided to check it out, but just as I was about to walk in, a security guard stopped me and said I needed a special access card. The catch? I must pay a one-time fee of RM50 for it.
I’m confused because my landlord has been paying the maintenance fees and sinking fund every month, and I’ve got the receipts to prove it. Now I’m wondering: Can the condo management really charge extra for gym access? And what can my landlord or I do about it?
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Hi there, thank you for sending in a great question! To answer it, there are a few important points that you or your landlord need to be aware of.
Firstly, when you are renting a unit in a condominium, it’s really important to know the building management rules that apply to your condo. In Malaysia, condominiums are usually managed under the Strata Management Act 2013 (“SMA”) and its related regulations, such as the Strata Management (Maintenance and Management) Regulations 2015.
These laws lay out what the Joint Management Body (“JMB”) or Management Corporation (“MC”) has to do to maintain the common areas and facilities. The SMA also says that all unit owners, including landlords, need to pay for the maintenance fee and sinking funds.
Condo management is typically overseen by either a JMB or an MC, depending on the stage of the development. The JMB takes care of things during the early stages, and then the MC steps in once the strata titles are issued.
These bodies mainly maintain the condo’s common areas, such as the gym, swimming pool, and other shared amenities. They’re also responsible for collecting maintenance fees from unit owners. However, how those funds are used or whether extra charges can be added is typically laid out in the condo’s by-laws or house rules.
What is the Difference Between By-laws in a Condominium and the Strata Management Act 2013?
The Strata Management Act 2013 (SMA) is a federal law laying the framework for managing condos and other strata properties. It spells out what the JMB or MC has to handle, including collecting maintenance fees, handling the sinking fund, taking care of the common facility, and ensuring the by-laws are properly followed.
But it doesn’t get into the specifics of how each facility should be run or if they can charge extra for certain shared amenities. The SMA also establishes the Strata Management Tribunal, which is basically there to help sort out any disputes between residents and the management. As a tenant renting the condo, you are also bound by the SMA as well as the by-laws.
While the SMA sets the overall legal framework, the specific day-to-day rules for managing your condo are usually detailed in the by-laws. Think of these by-laws as the “house rules” that the unit owners agree on during the Annual General Meeting (AGM) or an Extraordinary General Meeting (EGM).
The JMB or MC then puts these rules into action. The by-laws cover a lot of things, like how we use common facilities, noise levels, parking rules, and any extra fees on shared amenities that might come up.
While the SMA provides the big-picture legal framework, the by-laws address the nitty-gritty and are tailored to fit the needs and preferences of the people living in that particular condo.
Can the Building Management to Impose Such Fees?
Whether the management can charge different fees for access to facilities like gyms isn’t directly spelt out in Malaysian law, so there’s some room for interpretation. However, you can look at a few key legal principles and provisions to get a better idea.
One big question that comes up with gym access fees is whether the gym counts as a common facility. In most condos, common facilities are the shared areas and amenities that everyone uses, and they’re usually funded by the maintenance fees that each unit owner pays.
You can find the definition of common property under the SMA, which defines common property as anything in the condo that isn’t part of an individual unit. So, this usually covers stuff like hallways, elevators, swimming pools, and, yes, even the gym. Since the gym is a shared amenity, it’s typically considered part of the common property. That means the costs for maintaining and running it are usually covered by the maintenance fees that the property owners pay.
Sometimes, the gym isn’t actually part of the condominium’s common property and, as a result, isn’t considered part of the condo itself. When that’s the case, you’ll usually find this mentioned in the Deed of Mutual Covenant (DMC) you get when you buy the property. The DMC will typically spell out that there are extra fees for using the gym facilities.
Does the Fee Comply with the Condo By-laws?
The fee must also comply with the condominium’s by-laws. If the by-laws passed during AGMs or EGMs specifically allow the JMB or MC to charge extra for the gym, then that fee could be legally enforceable. The by-laws should lay out the conditions for these fees, for example, how much they’ll be and whether they apply to everyone or just those who actually use the gym.
But if the gym is considered a common property and the by-laws say that all common facilities are covered by the general maintenance fees without mentioning any extra charges for gym access, then charging a separate fee for the gym could be legally questionable, and you should question the JMB or MC.
If the management introduced the fee without proper approval, it might be seen as overstepping their authority. In that case, property owners, including you or your landlord, have every right to challenge the legitimacy of the fee.
The fee must also be fair and in line with the services provided. For example, charging a small, one-time fee like RM50 for a gym access card could be reasonable if it’s just to cover administrative costs or the card itself. But the fee shouldn’t be excessive or seen as management trying to profit unfairly from the residents.
What Can You, as the Tenant or Your Landlord, Do?
If you’re a tenant facing this situation, it’s essential to know your rights and the steps you can take to address the issue:
First, grab a copy of the condominium’s by-laws and give them a good read. You can get this from your landlord or the management office. The by-laws will clarify whether the JMB or MC is allowed to charge extra for gym access and under what conditions.
If the by-laws do back up the fee, you might need to accept it to use the gym. But if the by-laws don’t mention this fee at all, you could have a solid reason to question its validity.
But if you think the fee is unfair or doesn’t match up with the by-laws, you or your landlord should take it up with the JMB or MC. Ask them to explain why the fee was introduced and how it got approved. This can help you figure out if the fee is actually legit. If they refuse to address your concerns or their explanation doesn’t make sense, you might need to escalate the issue.
However, if you’re not sure where you stand legally, it’s a good idea to consult a lawyer who knows strata management law. They can help you understand your options and represent you in talks with the JMB or MC or in legal action.
If raising it up to the JMB or MC doesn’t work, you or your landlord might be able to challenge the fee through the Strata Management Tribunal. This Tribunal deals with disputes about managing and maintaining strata properties, including whether extra charges are legal.
Figuring out if management can charge extra for gym access and other shared amenities in a condo can be tricky, especially since Malaysian law doesn’t address it directly.
Generally, if the gym is part of the common property, it should be covered by the regular maintenance fees. But exceptions might be allowed if they’re clearly outlined in the by-laws and the DMC and agreed upon by everyone. Hence, it is key to chat with your landlord and check the rules to make sure any fees imposed are fair and legal.
I hope I’ve addressed your concerns. Wishing you a great day!
Best Regards,
Tsu Jean Yinn, Legal Associate, Melissa Lim & Associates
*The terms common property and common facility have been used interchangeably in the answer provided.
