The gated and guarded communities have been around in Malaysia since the late 1990s. It is only until the early 2000s that stratified gated communities are introduced and the rest, as we say, is history.
A quick fact you might find interesting, the first few strata-titled gated community in Klang Valley is Seri Pilmoor, Ara Damansara, completed in 2013. This comes after the Strata Title Act (1985) introduced proper guidelines around gated communities. Another prominent early strata development is Desa Parkcity which further fueled the popularity of the gated and guarded community in Malaysia.
So what exactly is a gated and guarded community?
In Malaysia, the gated community is different from the guarded community. The difference is in the parcel title, responsibility, legal binding and obligation.
The definition of gated community in Malaysia
A gated community is established under the Strata Titles Act 1985 and is considered a formal implementation of security functions in the community. The law on strata titles prescribes that the owner of a stratified property is also the joint owner of all common facilities provided in the development, including security functions.
To put it simply, the strata law stipulates that all facilities and landscape within the development is private property If you own a strata title property, be it a terrace house, bungalows or condominium, you are also the joint owner responsible for the upkeeping and maintenance of all common facilities within the residential compound.
Hence, the law also stipulates the need for a management committee of the Joint Management Body (JMB). The individual owners of stratified properties within the development can then contribute to the proper maintenance of common facilities through the JMB.
To further distil this information, a strata development is private property with individual parcels sold to multiple different owners. Because it is considered private property, all common facilities (incl. security measures) are to be managed by the Joint Management Body formed by the different owners. Hence, having a gated community complete with fencing and permanent fixtures such as guard posts and boom gates are well within the rights of the JMB.
The definition of guarded community in Malaysia
A guarded community is not empowered by the law. This community consists of residential properties held under individual land titles and is not governed by the Strata Title Act 1985. Despite this, individual property owners can decide collectively to form a similar structure, known as a guarded community.
This form of guarded community is essentially the provision of security services and cannot have any permanent fixtures. Hence, guard posts and boom gates for guarded communities are typically temporary structures that can be removed at convenience. Besides that, the guarded community may not enforce any access restrictions on the residents and the public.
This is clearly stipulated under section 46(1)(a) and (b), Street, Drainage, and Building Act 1974,
“(1) Any person who –
(a) builds, erects, sets up or maintans 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..”
To simplify it, unlike stratified property owners, residential property owners do not jointly own the common facilities (street, street lighting, roads and pavement). Instead, the common facilities are property of the local municipal and are managed by the local municipal. Hence, it is considered public space and legally cannot be obstructed. Hence, if a security service is to be implemented, the structures must not be permanent and should not obstruct access to the residence and public.
Having said that, it is possible for a guarded neighbourhood to be converted into a proper gated community, allowing them rights to restrict entry into the community.
Converting a guarded community into a gated community
If you are wondering, yes, a guarded community can be converted into a gated community.
In the 2010 Guideline for the Gated Community and Guarded Community, a guarded community can apply to the local government for the conversion on the condition it fulfils all guidelines as per clause 7.2, covering the formation of residents’ association, premise Certificate of Completion and Compliance (CCC) and a majority consensus.
To apply for the conversion of a guarded community, the representative of the residents’ association must complete said application with the local government. Once the local government deems the application to fulfil all the needed guidelines, it will be approved and the community is permitted to set up barriers to entry.
Here are the general pre-requisites, summarised, as per the 2010 Guideline for the Gated Community and Guarded Community,
- A residents’ association must be registered with the Registrar of Societies.
- The application must be made through the residents’ association to the local government.
- All premises within the guarded community must have received the Certificate of Completion and Compliance (CCC).
- The application must be made with the 85% majority consensus of the residents without any form of coercion.
Can I be taken to court for not paying monthly security fees?
There will always be those neighbours within the community that refuses to pay, claiming that they are unaware or simply refusing to pay the monthly charges.
Depending on the situation, homeowners can be taken to court for defaulting on management fees if the development is under a Strata Title or if there is a signed Deed of Mutual Covenants. Beyond that, the residents’ association for a guarded community cannot take defaulting homeowners to court if there is no legal binding between both parties.
Situation 1: Gated Community under Strata Title
For properties under strata title, the collection of maintenance payment through the developer is expressly stipulated in the Strata Management Act 2013 (SMA), under section 9 – for the recovery of maintenance fees and sinking funds. This is subsequently stated for the Joint Management Body (section 21) and Management Committee (section 59).
Because there is legislative guidance on the matter, Strata Management Act, the JMB is empowered to take legal action against homeowners who default on their management fees.
Situation 2: Guarded Community with Deed of Mutual Covenants (DMC)
For guarded communities not within the jurisdiction of the SMA, Deed of Mutual Covenants is commonly practised to introduce additional obligations for the individual residences in relation to the formation of residents’ association, management of common facilities and the formation of security measures.
The Deed of Mutual Covenants (DMC) does not fall under the SMA but is implemented under Contracts Act 1950. Hence, a DMC that is validly executed will contractually bind the developer and purchaser to the agreed terms. If said obligations failed to be executed, the responsible party can be taken to the civil court.
Situation 3: Guarded Community without Deed of Mutual Covenants (DMC)
For communities that are self-managed, the responsibility of hiring security services is done through the Residents’ Association. According to the law, in the absence of SMA and DMC, the residents’ community cannot force any of the homeowners to pay the security fee if they do not wish to.
That is the unfortunate truth for guarded communities without DMC. If there is no legal binding, the residents who refuse to pay for security have the right to do so. In such circumstances, the most the residents’ association could do is to request non-paying residents and visitors to register their vehicles every time they enter the community. Again, I emphasise the word “request”.
Can the guards stop me from entering the community?
I think by now, the idea of registering yourself at the guardhouse to visit your friend is no longer foreign to us. In fact, it is a common practice for many high-rise developments and affluent housing communities.
However, can the guards actually stop me from entering the neighbourhood? Again, that depends on the situation.
Situation 1: Gated community for stratified properties
The guards for the strata-titled gated community can stop you and restrict you from entering the housing compound. These communities are subjected to the SMA regulations and the JMB is empowered to refuse entry to unauthorised visitors.
So if you intend to have a few friends for the Chinese New Year, it is important to seek approval from the JMB by informing them of the number of people, date, time and vehicle registration numbers.
Situation 2: Guarded community of individual residential properties
The make-shift security service for the guarded communities has no right, by law, to restrict you from entering the housing compound. Hinted under section 46(1)(a) of the Street, Drainage, and Building Act 1974, the access is public and therefore, should not be obstructed by any structure or fixture.
In such cases, the security forces can request for you to register with them at the guard post and you should be permitted to enter the compound.
Is a gated community better than guarded community?
Generally, a gated community is better than a guarded community. The added layer of security, empowered by law, gives better privacy and security for residents. On top of that, the Strata Management Act empowers the Joint Management Body to collect management fees which helps keep the security in place.
A guarded community without DMC is not governed by law. This also means the security measures can be removed at any time if deemed to obstruct public access.
What are the advantages and disadvantages to gated community?
Stratified gated communities are gaining popularity in the Klang Valley. We are seeing many new landed developments in Bukit Jalil being introduced with gated security in place.
As purchasers, you should not make any purchases until you are aware of the advantages and disadvantages of a stratified gated community.
Advantage 1: Better privacy and security
If it is not made known yet, gated communities are good for privacy and security. In a community with a high crime rate, having an added layer of security can give a better comfort feeling, knowing that you are well protected.
Advantage 2: Better serenity
With the guardhouse installed and restricted access into the gated community, one can expect less traffic passing through the housing area. Hence, with less traffic and lower noise pollution, residents can rest well in their homes.
Disadvantage 1: Higher cost to purchase and maintain
The main downside to a strata-titled gated community is that it is more expensive than the standard housing community. Not only does the property cost 10% – 20% more, there is also higher maintenance charges for the upkeeping of the community.
Final Word
While there are regulations and governance now in place for developers and residents’ associations to collect and maintain gated/guarded communities, it still remains a largely unregulated area, especially for guarded communities.
For purchasers and investors alike, the convenience and benefits of a gated community is largely personal and should be decided based on personal priority.
Thank you for reading this article. I hope you found it helpful in deciding on your property investments and I look forward to sharing more articles on other investment-related topics.
Until then, take care.
