What Is the Role of the Commissioner of Buildings (COB) in Strata Management?

In strata management, one authority frequently mentioned is the Commissioner of Buildings, commonly referred to as the COB.

Many owners, Joint Management Bodies (JMBs) and Management Corporations (MCs) assume that the COB can resolve all strata problems. Some complaints to the COB involve arrears, neighbour disputes, meeting decisions, access cards, renovation works, management accounts, committee elections and actions of the management body.

However, the role of the COB must be properly understood.

The COB is an authority with certain administrative and supervisory functions in strata management. The COB is not the JMB. The COB is not the MC. The COB is not the Strata Management Tribunal. The COB is also not the Court.

This is important because if an issue is brought to the wrong forum, the resolution may be delayed, ineffective or unable to achieve the remedy that is actually required.

This article provides a simple explanation of the role of the COB, the relevant statutory provisions, the limits of the COB’s powers and several important court decisions concerning the COB, including Diamond F and Mar Vista.

1. Who Is the COB?

The COB is the Commissioner of Buildings appointed under the Strata Management Act 2013.

The main provision on the appointment of the COB is section 4(1) of the Strata Management Act 2013.

In brief, section 4(1) allows the State Authority to appoint a COB, Deputy COB and other officers for the purpose of administering and carrying out the provisions of the Strata Management Act 2013 within a local authority area or other relevant area.

In simple terms, the COB is an administrative authority supervising certain aspects of strata management.

However, appointment under section 4(1) does not mean that the COB has unlimited powers. The COB may only act within the scope of powers given by the Act.

2. The COB Acts Within the Framework of the Strata Management Act 2013

The COB’s powers come from statute.

This means that the COB cannot act merely on general discretion, administrative practice or the requests of parties if there is no basis under the Strata Management Act 2013.

In strata management, the COB may play a role in certain administrative, supervisory and compliance matters.

However, the COB cannot take over the functions of the Tribunal or the Court.

The COB also cannot create new powers that are not provided by law.

The basic principle is simple: the COB may supervise and administer within the scope of the Act, but the COB cannot determine disputes like a court or Tribunal unless the law clearly gives such power.

3. The COB Is Not the JMB or MC

A common misunderstanding is that owners assume the COB can replace the JMB or MC.

That is not correct.

The JMB or MC is the management body responsible for the day-to-day management of the building, maintenance of common property, collection of charges, payment of contractors, implementation of meeting decisions and enforcement of by-laws.

The COB, on the other hand, is a supervisory or administrative authority under the law.

The COB may play a role in compliance issues, complaints and certain administrative matters, but the COB is not the body that carries out the day-to-day management of the building.

For example, the COB should not be seen as the party responsible for choosing cleaning contractors, determining security patrol schedules, approving every minor building work or managing the daily accounts of the JMB or MC.

4. The COB Is Not the Tribunal

The COB is also not the same as the Strata Management Tribunal.

The Tribunal is a dispute resolution forum that may hear certain claims and give awards.

The COB is not a trial forum for claims like the Tribunal.

If a party wants to obtain a monetary award for arrears, a specific order against another party or a resolution of a dispute falling within the Tribunal’s jurisdiction, the more appropriate channel may be the Tribunal, not the COB.

The COB may receive certain complaints and look into administrative or compliance issues, but the COB cannot necessarily grant an award like the Tribunal.

Therefore, a complainant must identify the objective of the complaint.

If the objective is administrative action or compliance supervision, the COB may be relevant.

If the objective is to obtain an award against another party, the Tribunal may be more appropriate, subject to the Tribunal’s jurisdiction.

5. The COB Is Not the Court

The COB is also not the Court.

The court has wider judicial powers, including in matters such as injunctions, judicial review, enforcement of judgments, complex legal disputes, certain civil claims and challenges against decisions of public bodies.

The COB should not be treated as a substitute for the court.

If an issue requires a court order, court action or complex legal interpretation, a complaint to the COB may not be sufficient.

This is important because some parties wait too long for COB action when the real issue requires Tribunal or Court action.

6. Provisions Relating to AGMs and Documents Filed With the COB

In the context of general meetings, the Second Schedule to the Strata Management Act 2013 is important.

Generally, paragraph 10 of the Second Schedule concerns the duty to hold annual general meetings.

Paragraph 7(8) of the Second Schedule is also important because it concerns certain documents to be filed after a general meeting, including documents such as minutes of meeting, resolutions and related documents presented or passed at the meeting.

Paragraph 7(5) of the Second Schedule is important because minutes of meeting signed by the chairman of the meeting or the secretary have value as prima facie evidence of the facts stated in them.

These provisions show that the law provides a documentary mechanism for recording meeting decisions.

The COB should not add further requirements or additional documents not stated by law, unless there is clear power to do so.

7. Diamond F: The COB Has No Adjudicatory Power

In Perbadanan Pengurusan Diamond F & Ors v Pesuruhanjaya Bangunan Kuala Lumpur & Anor, the High Court emphasised that the COB’s powers are limited to those given by the Strata Management Act 2013.

The Court stated that the COB’s role is administrative and supervisory. The COB has no adjudicatory power under the Act.

This means that the COB cannot enter into disputes between owners or committee members as if the COB were a Court or Tribunal.

In that case, there was a dispute concerning the lawful committee members of the MC and whether the COB could issue a “letter of recognition” recognising certain committee members.

The Court held that the Strata Management Act 2013 did not empower the COB to issue “letters of recognition” for newly elected committee members of an MC.

The Court also emphasised that if there is a dispute concerning the validity of a meeting or election, the parties should bring the dispute to the appropriate forum, such as the Tribunal if the matter is within its jurisdiction, or the Court.

The practical principle from Diamond F is that the COB cannot act as the adjudicator of committee election disputes. The COB must remain within its administrative and supervisory function.

8. Diamond F: The COB Cannot Add Its Own Document Requirements

Diamond F is also important because the Court considered paragraph 7(8) of the Second Schedule to the Strata Management Act 2013.

The Court stated that the documents required to be filed after an AGM are the documents specified in paragraph 7(8) of the Second Schedule.

The COB cannot impose additional requirements such as requiring a statutory declaration or other documents not stated in that provision merely to prove the identities of the elected committee members.

This is important in practice because there are situations where banks, owners or third parties ask for a “COB recognition letter” before accepting a new committee.

Diamond F clarifies that the management of the building does not depend on a COB recognition letter if the AGM documents required by law have been properly filed and there is no Tribunal or Court order saying otherwise.

9. Mar Vista: The COB Cannot Postpone an AGM Without Clear Power

In Pesuruhjaya Bangunan Kawasan Pentadbiran Majlis Bandaraya Pulau Pinang v Perbadanan Pengurusan Mar Vista Resort, the key issue was whether the COB had the power to allow the postponement of an annual general meeting.

The Court of Appeal held that the COB has no power under the Strata Management Act 2013 to suspend the operation of the Act or any of its provisions, including allowing the adjournment or postponement of a strata scheme’s AGM.

This case is important because it rejects the approach that the COB may use general administrative power to suspend or postpone obligations fixed by law.

In Mar Vista, the Court of Appeal explained that section 4(1) of the Strata Management Act 2013 concerns the appointment of the COB to administer and carry out the Act. It does not confer a general power on the COB to suspend the operation of the Act.

The Court also considered section 1(7) of the Strata Management Act 2013. The power under section 1(7), namely the power to suspend the operation of the Act or any provision of the Act in a particular area, is a power of the State Authority and must be exercised according to the conditions stated in that provision. It is not a power that can automatically be treated as belonging to the COB.

10. Practical Principles From Diamond F and Mar Vista

Diamond F and Mar Vista provide several important practical principles.

First, the COB may only act within the powers given by the Strata Management Act 2013.

Second, the COB’s role is administrative and supervisory, not adjudicatory.

Third, the COB cannot act as the adjudicator of committee election disputes or meeting validity disputes where those issues should be determined by the Tribunal or Court.

Fourth, the COB cannot add document requirements not required by law.

Fifth, the COB does not have a general power to postpone an AGM or suspend the operation of the Act.

Sixth, if there is a serious dispute, the parties must bring the issue to the correct forum instead of merely waiting for the COB to make a decision that may be outside its powers.

11. Common Issues Brought to the COB

Although the COB’s powers have limits, the COB still plays an important role.

Common issues brought to the COB include:

a. issues relating to the establishment of a JMB

b. issues relating to general meetings

c. issues relating to filing of documents after meetings

d. issues relating to compliance with certain procedures

e. complaints concerning actions of the management body

f. issues relating to management accounts and documents

g. issues concerning a failure by the developer or management body to perform certain obligations

h. issues relating to the transition of management from the developer to the JMB or from the JMB to the MC

i. strata administration issues within the scope of the COB’s powers

However, each complaint must be assessed based on its facts, documents and the applicable powers of the COB.

12. A Complaint to the COB Must Be Clear

If an owner or management body wishes to make a complaint to the COB, the complaint must be clear.

A complaint that is too general, such as “the management is bad”, “the committee is not transparent” or “I am not satisfied”, may be difficult to deal with if it is not supported by facts and documents.

A proper complaint should explain:

a. who the complainant is

b. the strata development involved

c. the actual issue

d. the date or period of the incident

e. the parties involved

f. supporting documents

g. steps taken before the complaint was made

h. what action is requested from the COB

It is easier for the COB to assess a complaint if the issue is clearly stated and supported by proper documents.

13. Important Documents for a Complaint to the COB

Documents play an important role in any strata complaint.

Relevant documents may include:

a. complaint letters

b. minutes of meetings

c. meeting notices

d. meeting resolutions

e. statements of account

f. invoices

g. payment receipts

h. correspondence with the JMB, MC or property manager

i. photographs or videos

j. by-laws

k. communication records

l. documents from the developer, JMB, MC or previous COB correspondence

A complaint without documents is usually weaker.

In strata management, good records are very important because most disputes depend on documents.

14. When Is a Complaint to the COB Suitable?

A complaint to the COB may be suitable if the issue involves administrative compliance or the supervisory functions of the COB.

For example, if there are issues concerning general meetings, delivery of documents, establishment of the management body, failure to comply with certain procedures or administrative complaints against the management body, the COB may be a suitable initial channel.

However, if the issue is a monetary claim between parties, a claim for arrears, a claim for damages or a request for a specific award, the Tribunal or Court may be more appropriate.

The important question is: what outcome is being sought?

If the desired outcome is administrative supervision or COB intervention within its powers, a complaint to the COB may be suitable.

If the desired outcome is an award, order or binding resolution of a dispute between parties, another channel should be considered.

15. When Is the Tribunal More Suitable Than the COB?

The Tribunal may be more suitable if the claimant wishes to obtain an award against another party in a matter that falls within the Tribunal’s jurisdiction.

For example, claims for arrears of maintenance charges, certain disputes relating to common property, by-laws or issues falling within the Fourth Schedule to the Strata Management Act 2013 may be more suitable for the Tribunal.

The Tribunal can hear claims, consider documents and give awards.

The COB cannot necessarily grant the same remedies.

Therefore, if the objective is to obtain a binding decision between parties, the Tribunal may be more appropriate, subject to its jurisdiction.

16. When Is the Court More Suitable Than the COB?

The Court may be more suitable if the issue involves more complex matters or requires remedies that cannot be granted by the COB or Tribunal.

For example:

a. injunctions

b. judicial review

c. enforcement of certain judgments or awards

d. title disputes

e. complex contractual issues

f. substantial damages claims

g. challenges against decisions of public bodies

h. serious issues of legal interpretation

i. matters outside the Tribunal’s jurisdiction

In such situations, a complaint to the COB may not be sufficient.

The parties should obtain advice to determine whether court action is more appropriate.

17. Common Mistakes When Making a Complaint to the COB

Common mistakes include:

a. assuming that the COB can resolve every strata problem

b. making a complaint without documents

c. failing to state the issue clearly

d. asking the COB to grant an order that actually requires the Tribunal or Court

e. waiting too long without taking other action

f. mixing administrative issues with personal claims

g. failing to distinguish between a complaint, a claim and legal action

h. assuming that the COB can recognise a committee through a recognition letter

i. assuming that a complaint to the COB automatically stops the duty to pay maintenance charges

These mistakes may cause delay and frustration.

It is better for a complainant to identify the correct forum from the beginning.

18. Does a Complaint to the COB Stop the Duty to Pay Charges?

Not necessarily.

If an owner makes a complaint to the COB about building management, this does not mean that the owner may stop paying maintenance charges.

The duty to pay maintenance charges and sinking fund contributions generally continues as long as the charges are imposed according to law and are not set aside by a competent forum.

If an owner disagrees with the charges or the management body’s actions, the owner must use the correct channel to challenge or obtain a decision.

Stopping payment without proper basis may lead to arrears, claims and the risk of an award or enforcement against the owner.

19. Conclusion

The COB plays an important role in strata management, but its role must be properly understood.

The COB is an administrative and supervisory authority. It is not the JMB, not the MC, not the Tribunal and not the Court.

Under section 4(1) of the Strata Management Act 2013, the COB is appointed to administer and carry out the provisions of the Act. However, that power does not give the COB licence to act outside the statute.

Diamond F explains that the COB’s role is administrative and supervisory, not adjudicatory. The COB cannot act as the adjudicator of committee election disputes or issue a “letter of recognition” without clear statutory power.

Mar Vista explains that the COB has no power to suspend the operation of the Strata Management Act 2013 or postpone a strata scheme’s AGM.

In strata management, choosing the correct forum is very important.

A valid complaint filed in the wrong forum may waste time. On the other hand, a clear issue, complete documents and the correct channel may help resolve the dispute more effectively.

Prepared by:
Khairul Shahrizan bin Hamizi
Advocate and Solicitor
High Court of Malaya

Brief Note

This article is prepared for general information only and should not be treated as specific legal advice. Each issue concerning a complaint to the COB, the powers of the COB, a claim at the Tribunal or court action must be assessed based on the facts, documents, type of complaint, remedy sought, the provisions of the Strata Management Act 2013 and the applicable laws.