The public could use this road to get to other parts of Kota Kemuning previously without hindrance. At times, I have even been asked to produce my IC before I was allowed access on some public roads.
By the police? No, I am talking about private guards. Do these guards have the authority or power to set up “permanent” roadblocks on a public road and to stop, question and deny access to the public?
Under section 78 of the Road Transport Act, 1987 (Power to set up road-blocks), “any police officer in uniform authorised in writing by a senior police officer of the rank of Inspector and above” or “any road transport officer in uniform authorised in writing by the Director” may erect or cause to be erected or placed any barrier as prescribed on or across any road.
Under section 21 of the Police Act 1967, it “shall be the duty of police officers ? to keep order on public roads, streets, thoroughfares and landing places and at other places of public resort and places to which the public have access.”
Thus, if any other person (other than a police officer or road transport officer in uniform, duly authorised by a senior police officer or Director) erects or cause to be erected or placed any barrier on or across any road, he “shall be guilty of an offence” pursuant to section 119 of the Road Transport Act.
But residents claim that the local authorities have approved such permanent roadblocks or barriers.
Well, section 9 (10) of the Street, Drainage and Building Act 1974 provides that “no person shall erect or maintain or permit to be erected or maintained any obstruction in any street ?”
Section 46 of the same Act then provides that “any person who ? builds, erects, sets up or maintains or permits to be built, erected or set up or maintained any wall, fence, rail, post ? or other obstruction, in any public place ? shall be guilty of causing an obstruction and may be arrested without warrant by any police officer or any officer or employee of the local authority ?”
Section 46(4) of the 1974 Act reserves to our local authorities the power to only allow “any temporary erections in any public place or the temporary use of any part of a public place on occasions of festivals and ceremonies.”
It is thus quite obvious in my view that our local authorities do not have the power to authorise any such “permanent” roadblocks or barrier on or across any public road.
Security is important, but can the public’s rights and freedom be curtailed unlawfully in the name of security?
If residents want security, the guards can follow any person who passes or enters their areas but they have no right to stop, question or prevent any person from accessing public roads and enjoying public amenities such as playgrounds, badminton and basketball courts, fields, etc in these public areas.
I thus hope that the IGP and the minister in charge of local government will take the necessary action to stop such unlawful roadblocks on public roads and also ensure that local authorities do not exceed their powers by giving approvals in disregard of the above Acts of Parliament.
AGAINST UNLAWFUL ROADBLOCKS,
Petaling Jaya.
Source:
https://www.hba.org.my/main.htm
11/08/2007
The Star
_____________________________________________Can neighbourhood guards block roads in Malaysia?
You are driving down a shortcut that you have used countless times and as you are snickering over gaining the upper hand, you notice a barrier obstructing the road and slam on your brakes. You are confused as to why there is a barrier in the middle of the road and some security guards manning it and roll down your window to ask.
The security guard then demands for your IC/licence and explains that the residents in the area have decided to implement certain security measures and only residents and registered visitors can enter the housing area. Angry over losing your favourite shortcut home, two questions pop into your head:
Can they block off the roads?
Can they demand for our IC or licence for registration purposes?
These also happen to be the most-asked questions every time we publish something related to housing or security but since they involve different areas of the law, this article will cover the legalities surrounding the first question while the IC issue will be covered in a separate article.
What is the difference between condominiums and landed property?
To be more accurate, the difference lies in the title to your property. Land titles for residential areas in Malaysia are divided into strata and non-strata (known as individual titles). Typically, strata titles are for condominiums, apartments, and certain landed properties. The main defining feature for strata properties is not how high it is built but rather owners of strata properties will jointly own what is known as common properties. These are facilities that is provided for by the developer and managed by the management committee and they are things such as roads, gyms and swimming pools.
On the other hand, non-strata (individual) titles are for landed properties alone. The owners of such properties only own the land that their house is situated on and any other facilities that may be in the area, such as roads, and parks, will be public property under the management of the local authorities.
Strata properties can legally block roads
For strata titles, having guards and boom gates is less of an issue because for strata properties, you are not only the owner of your property, you are also the joint owner of all the common facilities provided for you in the development. This means that anything within the development is essentially private property and is managed by the developers themselves or the management committee.
Since it is private property, the developers are allowed to set up their own gated communities by putting in an application to the relevant authorities. This was allowed after the 2007 amendment to the 1985 Strata Titles Act.
For example, in Selangor, in order to establish a gated and guarded community (“GACOS”), the developer must fulfil certain guidelines laid down by the Selangor government. We don’t have a link to the guidelines and they are pretty long to reproduce here but just know that when it comes to strata properties (ranging from condominiums to exclusive townships), the developers must seek the approval of the authority before creating a GACOS community.
The point of contention for many arises when the owners of landed properties with individual titles try to set up their own barriers and employ their guards. This is especially true for older, non-GACOS developments. To put it simply, older neighbourhoods usually don’t fall under the GACOS scheme which only came into existence in the 2000s.
As these owners merely own the land their unit is situated on, everything else around them is considered public property such as the roads, drainage systems, and parks. Given their public status, you might not be surprised to learn that…
It’s actually “illegal” for non-strata properties to block roads
Under section 46(1)(a) and (b) of the Street, Drainage, and Building Act 1974, it is an offence for anyone to erect or maintain any obstruction or cover any open drain:
“(1) Any person who—
(a) builds, erects, sets up or maintains or permits to be built, erected or set up or maintained any wall, fence, rail, post or any accumulation of any substance, or other obstruction, in any public place;
(b) without the prior written permission of the local authority covers over or obstructs any open drain* or aqueduct along the side of any street...”
Before you go driving around and refusing to stop for the guards, security concerns have created an understanding that such non-GACOS neighbourhoods could be converted into guarded communities if the Resident’s Association (“RA”) applies for permission from their local authorities. Whether or not their application will be approved depends on whether they fulfil the guidelines given by the Ministry of Urban Wellbeing, Housing, and Local Government. One of the pre-requisites for putting in such an application is that the RA must get at least 85% consent from the residents, though the local authority can accept a lower percentage in some cases.
However, the problem with this is two-fold. The first is that some of the Resident’s Association will not apply for permission and second, guidelines don’t have the force of law. This created some confusion and strife in certain communities and the municipal authorities would come and demolish barricades which were built illegally or when they failed to obtain the minimum consent from the residents.
While the law has been clarified by the highest court in our country, it is clear that many RAs are still not complying with the guidelines given. According to DBKL, from 2011 to 2017, 158 RAs in KL implemented the guarded communities but only 65 applications were approved by DBKL. This showed that many security schemes are operating illegally and this became a thorn to users of the public areas.
Another important point to note is this, while such residential areas can be guarded, they cannot be gated. The difference between guarded areas and gated and guarded areas lies in the fact that if the area is guarded, access is merely regulated. If the area is gated and guarded, then there will erection of fences and the sorts which can obstruct roads. This is why areas with public roads are only allowed to be guarded.
However, many of us still get confused over which security measures are allowed for public areas. The best example of this would be the fact that boom gates which are operated by access cards are actually against MBPJ’s guidelines. This leads us to our final point of…
If you don’t know it, just ask your local council
If you are unsure about what guidelines your local authorities would have, it is always best to ring them up and ask. It is much better for you to ask them and make sure that you get all the proper permissions before erecting barriers as illegal barriers which get torn down will just end up wasting the residents’ money and leave you guys in a limbo. Aside from that, it is important to note that even if you have procured permission from the relevant authorities, you can never restrict someone’s access into a public area or restrict their access to use the public roads.
We will discuss the issue of demanding ICs and licences in a separate article but as a teaser...requesting for ICs is illegal. At the end of the day, while we all appreciate enhanced security and a sound sleep at night, whatever security system that is implemented should not fall foul of the law nor infringe upon another person’s rights.
AskLegal.my
by Denise C
https://asklegal.my/p/neighbourhood-security-guards-registration-block-roads-malaysia
____________________________________________
Illegal fencing must go, residents told
Housing estates that have illegally fenced up their areas must now pull down the structure before Johor Baru City Hall takes action against them.
This is the city hall warning to residents who have illegally created gated communities.
Mayor Datuk Mohd Naim Nasir said it has identified 14 housing estates that have illegal fencing.
“We have issued three notices to three housing estate communities in the last two weeks. We will take action against the other 11 soon.”
He said records showed that none of the 14 housing estates had sought approval before installing the fences.
He warned that the city hall would in future tear down fences without giving notice.
Mohd Naim said this on Tuesday after launching SP Setia Bhd “Road to Charity” drive at Setia Tropika.
He said the council had no choice but to act against offenders as such fences had caused inconvenience to adjoining residential estates.
He said only standalone housing project that is isolated from other residential or business areas would be allowed to have a gated community.
“We know residents put up such fences to ensure their safety and security. However, this is not allowed.
“Alternatively, they should organise a neighbourhood watch like Rukun Tetangga.”
He said any housing estate that set up the neighbourhood watch scheme would be entitled to a RM4,800 subsidy to buy equipment such as torch lights.
Source:
https://www.hba.org.my/main.htm
03/03/2007
The Star
By Meera Vijayan
______________________________________________
No legal right to block public road
Your report on gated and guarded communities and its current popularity (StarMetro May 10) did highlight one point which is an issue for concern as well.
The point mentioned is the right of passage of roads.
I am staying in Bukit Jalil and in order for me to access my house, I have to travel through Jalan 7/155B across Taman Esplanad to connect to Jalan 3/155B.
The problem is that this public road has been blocked by the residents of Taman Esplanad by erecting a barrier to stop outside vehicles from entering the public road.
Each time, I have to seek permission from the guards to get access through the public road to reach my house at the other end.
Sometimes the guards are not so obliging and I have to argue my way through. This is really getting out of hand at the public ‘sexpense.
I understand the residents of Taman Esplanade’s concern over security, but to block off a public road and cause inconvenience to others is not a solution.
Furthermore, they have no legal right to erect the barrier on a public road, especially so if it is used by other residents to gain access to their home via the same road and also there are bus stops located along the road.
Is the local authority able to act on this since the area is under the purview of DBKL?
LWS ,Kuala Lumpur
Source:
https://www.hba.org.my/main.htm
24/05/2007
The Star
____________________________________________Wrong to retain documents
I REFER to the SMS sent by a reader on the issue of whether security guards in apartments or condos have the right to inspect and retain a visitor’s identity card. This practice is common in both stratified and non-stratified residential areas.
With reference to the National Registration Regulations 1990, these security guards do not have the authority or power to inspect or detain a visitor’s identity card.
Regulation 7 on the production and inspection of identity card states:
Any registration officer, police officer, customs officer or any member of the armed forces while on duty, and any other officer or class or description of public officer authorised in writing in that behalf by the director-general may inspect the identity of any person.
LETTERS
Friday, 31 Aug 2018
https://www.thestar.com.my/
TAGS / KEYWORDS:
Letters , Security , MyKad , IC
Read more at https://www.thestar.com.my/opinion/letters/2018/08/31/wrong-to-retain-documents/#um08DUrJRI4fmRUJ.99
__________________________________________Guarded & Gated Community makes it difficult for local authorities to render services
Living in a gated community is not entirely trouble-free as residents in such places have to bear with a major problem such as getting the local authorities to provide services such as garbage collection, clearing drains and covering potholes. As ratepayers, the residents are entitled to such services.
However, the physical barrier put up at the guarded and gated community makes it difficult for the local authorities to render such services.
Alinah: ‘Access roads that are blocked do not belong to the residents’
“We know the local authority is supposed to provide us with the services but then when we contacted them, they say they could not come in. They said we should do away with the security guard and barrier at our main entrance. But then again, if we remove the guards and the gates what is the point of calling it a gated community,” said Janet Leong who has been residing in one of the oldest gated community in Shah Alam.
Leong, who wished not to reveal the location of her house, claimed that they have been facing the problem for several years.
She said her residents association had been arguing with the local authority and their management company for quite sometime on the issue.
Such problems are quite common, said Selangor Housing and Real Property Board executive director Datin Paduka Alinah Ahmad.
She said usually residents or housebuyers were the ones at the losing end.
“Previously there were no clear guidelines for the developers to follow, leaving many grey areas which at the end leads to problems,” she said during a talk on the Implementation of Gated Community Development in Selangor held at Carlton Holiday Hotel and Suites, Shah Alam recently.
The problems include the public’s right to access a gated area without screening, legal rights of management corporations to the common areas and service charge collection.
Alinah said the access roads to the residential development were usually blocked to allow access to residents only.
“However, these blocked access roads do not belong to the residents living in such housing schemes,” she said, adding that once the developer applied for the titles for the individual homes in the area, the access roads had to be handed over to the local authority.
“The problem will arise when the application is made for individual titles for the houses in the area as the title was released without the access roads and other common areas being handed over to the local council. That means the local authority cannot go in and maintain the road and provide service to the residents,” she said.
Selangor state housing committee chairman Datuk Mokhtar Dahlan said the implementation of the new guidelines on gated communities would ensure that residents get their services from the local authority without sacrificing the security and safety they wanted.
“The state government hopes the guidelines will cover the grey areas and provide common solutions to problems faced by local authorites, developers and residents or housebuyers,” he added.
Source:
https://www.hba.org.my/main.htm
10/05/2007
The Star
_____________________________________________
Living in gated areas while crooks go free
I REFER to The Star report on the new rules for gated and guarded housing areas as I am very concerned about the level of crime in Malaysia.
Only the security companies profit, while the criminals will eventually find ways to defeat the security.
I am a post-graduate student currently studying in New Zealand.
While it is not true to say that there is no crime there, the houses are not as heavily barricaded as they are in Malaysia, and people can walk freely without fear of motorcycle-riding purse snatchers.
Malaysians should not look at the increasing number of gated communities as a sign of “progress”. Rather, it is a symptom of our communities reacting to the disease of crime.
Clearly, the solution to this problem is not merely to build higher walls, but to remove the criminals from our streets.
Source:
https://www.hba.org.my/main.htm
22/03/2007
The Star
By Ariff Khalid, Hamilton, New Zealand
