By Saraswathy Shirke Deo and Datuk Chang Kim Loong
The presence of Covid19 patients in strata communities is seen to have increased drastically as the rate of infection increases. This inadvertently changes the way homeowners can use or enjoy the common areas of their subdivided buildings.
While residents and tenants are expected to contribute to the maintenance, management and upkeep of the strata development as a whole, their rights to use and enjoy the common areas have come under significant control and regulation.
The promulgation of the movement control order (MCO) under the Prevention and Control of Infectious Diseases Act 1988 (PCIDA), the Police Act 1967, and the recent emergency declaration has led strata dwellers increasingly ask themselves whether something is permissible in law or not.
One such subject is whether the joint management bodies (JMBs), management corporations (MCs) or sub-MCs has the power to disclose personal details such as the names or unit numbers of Covid-19 patients to other residents.
For ease of discussion, the reference here will be made to the MC alone. The MC is a body corporate with perpetual succession and a common seal that may sue and be sued - Section 17(4) Strata Titles Act 1985.
The authority that the general body exercises is carried out on behalf of all proprietors for their common benefit in relation to their common property.
Its powers are limited to regulating control over maintenance and management of the subdivided property and the common areas in the strata development, pursuant to the Strata Management Act 2013 (SMA 2013).
Misquotes and erroneous citations
While strata proprietors presently struggle to decipher misinformation and conflicting accounts of what is permissible and prohibited, a worrying trend has emerged in the Malaysian property management scene where a frenzy of misquoting and erroneous citing of legislation in circulars, notices and newspaper articles are widespread.
Although most of them are inadvertent laymen's mistakes, such instances could have been avoided. Reference was made to the Personal Data Protection Act 2010 (PDPA) by some circles stating that MCs cannot disclose residents' personal data.
The common ground is that the personal data of Covid19 patients or that of their families cannot be disclosed to other residents, but making reference to the PDPA is wrong.
The Court of Appeal in Amber Court Management Corp & Ors vs Hong Gan Gui & Anor (2016) stated that the MC is neither a trading nor a non-trading corporation.
It follows, therefore, that an MC is not a commercial entity and its dealings with proprietors are not commercial in nature. In the absence of any case precedent, any suggestion that the PDPA applies to MCs is perhaps stretching the legislative intent a little too far.
The PDPA is intended to regulate the processing of personal data of data subjects in commercial transactions with data users, and it provides for matters connected therewith and incidental thereto.
The pandemic showed the need for management bodies and their appointed property managers to improve their communication and crisis management skills.
It includes alerting the relevant authorities when coronavirus cases were detected, displaying appropriate notices for residents and handling matters pertaining to home quarantine.
Keeping the community informed of the latest SOPs are necessary. This is because no one knows how long this pandemic will last or when the next transmissible disease will break out.
It is of utmost importance that essential services such as utilities, security and cleaning service are not disrupted.
Prejudice cases may arise
Not understanding the prevailing laws will give rise to some misguided property managers proposing to management committees to issue consent forms and templates to coerce residents to consent to disclose their personal details.
Purportedly, such disclosure would enable most residents to take extra precautions to stay safe from any potential infection.
Even so, the minority's right to peacefully recover in their own homes while under quarantine or the right to return to their homes after treatment without being subjected to unpleasant shunning and social stigma must turn the scales against the will of the majority.
Also, to leave such annihilatory decisions to the province of property managers or the management committees is frankly inappropriate and could lead to wide-ranging negative social and legal consequences.
Social distancing need not lead to social division. Although the powers to collect and deal with personal data are limited and restricted to performing their duties and functions under the SMA, there is more to this than meets the eye.
The truth is, in carrying out the statutory duties, it can, and often do, collect personal data. This data includes names of proprietors, their contact details, identity card numbers, copies of strata titles, names of visitors, email addresses, proprietors' vehicle numbers, details of parcel share units, emergency contacts and their details, the names and addresses of the SPA lawyers who acted for the proprietors and even thumbprints.
Property managers and security guards of a condominium are all data intermediaries who collect and processes personal data on behalf of the MC. This means that there is a possibility that these data intermediaries may abuse the residents' personal data.
The SMA and the regulations do not clearly spell out the remedies available to proprietors in this regard. However, dealing with residents' personal data must conform to what is expressly provided for in the SMA.
For example, the MC has no business collecting marriage certificates, bank statements or school report cards. It is trite law that a body created by a statute only has powers granted expressly or by implication in that statute.
The obligations and powers of the management corporation are set out in Section 59 of the SMA wherein subsection (2) reads, "The powers of management corporation shall be as follows..."
Gaps to be filled
Although it is not always imperative, it is correct to hold that the phrase is couched in mandatory conclusive terms. Therefore, to solve the conundrum of whether MCs can disclose personal details to other residents, one needs to look no further than the SMA.
There is no real attempt to develop and implement policies on the proper handling of personal data by management corporations. This was hardly even debated adequately when the SMA was enacted.
When proposals for reform of SMA are put forth, and it hoped that Bar Council, Malaysia would lead the discourse and pave the way to introduce the necessary safeguards against abuse of personal data.
These are legal questions on the rights and liabilities of proprietors and the management corporation's duties and powers, and such discourse must involve adequate legal analysis.
This article is jointly written by legal practitioner Saraswathy Shirke Deo (left) and National House Buyers Association (HBA) honorary secretary-general Datuk Chang Kim Loong. HBA is a voluntary non-government and not-for-profit organisation manned wholly by volunteers.