ART_Nature of Strata Title

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2001Volume 1

[2001] 1 MLJ cxiii; [2001] 1 MLJA 1132001 1 MLJ cxiii; 2001 1 MLJA 113

2001Article: DETERMINING THE BOUNDARIES OF STRATA PARCELS UNDER THE

PROVISIONS OF THE STRATA TITLES ACT 1985SY Kok LLB (Hons) (Sing) Advocate &Solicitor, High Court of Malaya

[*113]

Introduction

The Strata Titles Act 1985 (Act 318/85) ( the STA ) came into effect on 1 June 1985. It

repealed the former strata provisions in the National Land Code 1965 ( the NLC ) which

governed strata projects, including applications for subdivision of multi-storey buildings andthe subsequent issuance ofstrata titles which were formerly called subsidiary titles . 1

The STA is a relatively short statute; it contains only 85 sections, four schedules and a few

prescribed forms. However, inadequacies in the STA do, at times, make interpretation of

some of its provisions difficult to comprehend. A glaring example of such shortcomings

would be the lack of minute provisions to regulate party walls. This could, in turn, lead to a

reliance on common law principles on this issue. At times, professionals whose sphere of

work is related to the provisions of the STA have to resort to self-improvisation.

Notwithstanding this observation, the STA does show a marked improvement on the former

strata provisions of the NLC. 2

In addition to the above observation, certain shortcomings in the STA may be resolved byresorting to the provisions of the NLC. In fact, the STA is an extension of the NLC. Section 5

of the STA has expressly stated that the STA shall be read and construed with the

provisions of the NLC as if it [*114] were a part of the NLC. However, where the

provisions and rules contained in the NLC are inconsistent with those of the STA, the strata

provisions shall prevail. 3

The meaning and nature ofstrata titles

It was once remarked that strata titles are titles in the sky . The speaker, apparently, wastrying to express a strata concept which is somewhat different from the conventional form

oftitles which relate to landed properties. It is true that conventional land titles do relate

to agricultural land, dwelling houses and low-rise shop houses and factories. Such land

titles relate to the respective surface areas of the landed properties which are demarcated

by their boundary lines. This system of issuance of conventional land titles is in compliance

with Pt 5 of the NLC which deals with the disposal of State land via its alienation by the

State Authority. 4Strata titles, on the other hand, are synonymous with cubic spaces
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which are to be built skywards and the issuance ofstrata titles will be governed mainly by

the provisions of the STA. But registrable dealings in strata parcels are regulated by the

registration provisions of the NLC.

The nature ofstrata titles, however, is similar to conventional land titles. In both

instances, the titles, both the issue and register documents oftitle, can be issued only bythe relevant Registrar ofTitles or, as the case may be, the Land Administrator and no one

else. If land titles or strata titles are issued by any unauthorized persons or person, such

titles will be nothing more than forgeries. They will not be marketable and will not pass

good titles to their possessors nor their purchasers, notwithstanding that the purchasers

are bona fide persons and have purchased for value. Other than this observation, it may be

said that all register copies of land titles and strata titles which have been properly issued

under the hand and official seal of the relevant Registrar ofTitles or the Land Administrator5 are guaranteed by the State under one of the fundamental principles of Torrens land law.

[*115]

Under this basic principle which is enshrined in all Torrens statutes (the NLC, being aTorrens statute, is no exception 6 ), the State Authority, in a show of public declaration via

the conclusive provisions in the statute book, assures all and sundry that the data recorded

in the books of register documents oftitle to alienated land or to strata parcels that are

kept in the strong rooms in the registry or land offices are guaranteed to be correct.

that title to the land described therein is vested in the person or body for the time

being named therein as proprietor; and

of the conditions, restrictions in interest and other provisions subject to which the land

is for the time being held by that person or body, so far as the same are required by any

provision of this Act to be specified or referred to in that document. 7 Thus, the accuracy of

the data which are guaranteed by the State will include: (a) the nature of the title, whether

registry or land office title; (b) the particulars of the title such as the number of the titleitself, the lot number, the location of the land or strata parcel, ie the mukim, the district

and the state in which the land or strata parcel is situated, the nature of the title, whether

it is a qualified or a final title; (c) the category of land use, whether agriculture, building or

industry; (d) the land tenure, whether the land or strata parcel is held in perpetuity or for a

term of years and if it is a leasehold, the expiry date of the State lease as distinct from a

private lease; (e) the area of the land or the strata parcel after final survey; (f) the

numbering of the RS plan and the amount of the survey fees paid; (g) the amount of the

annual or quit rent; (h) whether the property concerned is located within Malay

Reservation/Aboriginal Area/Aboriginal Reserve, etc and if so, the Gazette Notification

number and date; (i) the express conditions and/or restrictions in interests which may

affect the property concerned; (j) the sketch plan which is attached to the title deed; (k)the date of issuance of the title deed; (l) the data of the parent title if the present title is

issued in continuation of the former parent title; (m) the identity and particulars of the

registered proprietor or co-proprietors; (n) the registered dealings with the property

concerned, including any transfer, lease (including any sub-lease), charge or grant of

easement and their respective nullification thereof; and (o) other matters affecting title,

such as lien-holders caveats, registrar s caveats, private caveats and trust caveats as well

as miscellaneous entries on the register documents oftitle which will include prohibitory
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orders, notices of land acquisition and transmission upon death of the registered proprietor

or co-proprietors. Such books of register titles to land and to strata parcels are constantly

kept in the safe custody and possession of the land registration authorities. Apart from

private land title searches which are permissible under s 384 of the [*116] NLC, none of

the register documents oftitle may be altered, defaced or removed from the land registries

or land offices.8

However, the aforesaid basic Torrens principle of conclusiveness of the register documents

oftitle does not extend to all or any of the issue documents oftitle to land, including issue

documents ofstrata title. In other words, all data on the issue document oftitle are not

guaranteed by the State to be conclusive. The reason for this exclusion of the fundamental

doctrine of conclusiveness to issue documents oftitle is plain. Unlike register documents of

title which are always kept under the safe custody and control of the respective land

registries or land offices, issue documents oftitle, when issued, will be given to the relevant

registered proprietors and will thenceforth be retained by them. Thereafter, the State

Authority will have no further possession over such titles. If the issue documents oftitle

should fall into the hands of fraudulent persons, they might tamper with or alter theidentities of the existing registered owners. Likewise, express conditions or restrictions in

interest could be obliterated by such dishonest persons much to the disadvantage of

innocent proprietors and to bona fide persons who should subsequently deal with the

fraudulent persons without any knowledge of the fraud that has been committed.

Strata titles, like other land titles, are registered interests in respect ofstrata parcels;

they differ from registrable interests in land. 9 They are also, in the writer s opinion,

registered interests of a proprietary nature. They are distinct from registered interests of an

encumbrancing nature. 10Strata titles are applicable to, inter alia, condominiums, flats and

apartments, office and shopping complexes, flatted factories and workshops as well as low-

cost flats. [*117]

Sections 4 and 5 of the STA which contain the interpretation and construction provisions

have expressly stipulated that the STA must be read and construed with the NLC as if it

were a part of the NLC and its rules made thereunder. So long as the NLC provisions are

consistent with the provisions of the STA and are applicable to strata parcels held under

strata titles, such NLC provisions shall be applicable to strata parcels. The provisions

which govern the alienation of State land, for example, will not apply to strata parcels. This

is because the State does not take the responsibility to build flats and then alienate them

together with the State land on which they have been erected. On the other hand, an

example whereby the NLC provisions do apply to strata parcels will be the statutory

provisions which regulate the permissible dealings in alienated or registered land and therestrictive provisions which control the preparation, execution, stamping and registration of

the various instruments of dealing in land. In addition, the effect of s 5(1) and s 5(2) of the

STA, read in conjunction with the applicable provisions in the NLC, will confer on the

registered proprietor of a strata parcel an indefeasible title to his parcel ofstrata property.

In plain language, the strata proprietor, like a registered proprietor of alienated or

registered land, is conferred by statute with all the incidents of ownership of immovable

property. In short, a strata proprietor can deal with his strata parcel as he deems fit but


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subject to any express conditions oftitle or restriction in interest which might have been

carried over from the parent title and endorsed on the register as well as on the issue

document ofstrata title. Such incidents of ownership of immovable property will include

the proprietary right: (a) to sell, transfer or devise the strata parcel together with the

accessory parcel (if any); 11 (b) to charge the strata parcel as security for a loan (including

the right to deposit his strata title with a financier as security for a loan);12

(c) to create alease over the strata parcel [*118] in favour of a lessee as well as the right to create a

tenancy exempt; 13 or, (d) for instance, to create an easement of support, service and

shelter over his servient strata parcel. 14 A strata proprietor may, like his counterpart

holding alienated land, create beneficiary interest by entering a trust caveat over his strata

parcel in favour of his loved ones. 15 In addition to such incidents of ownership, a strata

proprietor has the right to use the common property in conjunction with the other strata

proprietors. 16

Various stages for the issuance ofstrata titles

There are several procedural steps which must be complied with before subdivision of a

multi-storey building can be approved and strata titles issued. Consequently, the parent

issue document oftitle in respect of the strata project land will eventually be taken over by

the management corporation. 17 The determination of the boundaries ofstrata parcels,

accessory parcels and common properties will come within the purview of one or perhaps

more of such stages. The various stages for an application for subdivision of a high-rise

building may be compartmentalized into: (a) the construction stage, that is to say, a stage

when the multi-storey building is being constructed; (b) the interim stage which demarcates

the time frame from the date of handing over vacant possession of the strata parcel to the

date of establishment of the management corporation;18

(c) the initial stage which, whenused in relation to a management corporation, identifies the period commencing from the

day on which the management corporation is formed and ending on the day on which there

are sufficient strata proprietors (excluding the original registered proprietor of the strata

project land who may be registered as the strata proprietor of an unsold strata parcel or

leftover strata parcels or a provisional block or blocks) whose share units entitlements are

at least one-third of the aggregate share units; 19 [*119] and (d) the post-management

corporation stage. The first two stages will now be examined briefly in view of the limited

scope of this paper.

During this stage, whilst the high-rise building must be constructed within a time span of 36

calendar months, each purchaser of a unit ofstrata parcel has a contractual obligation to

pay the purchase price to the developer by progressive payments in accordance with the

time frame set out in the Third Schedule of Payments. 20 During this construction stage, the

strata developer must construct the multi-storey building, including the strata parcels
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therein in accordance with approved building plans and specifications and complete the

same together with common facilities (if any) and infrastructural works and then hand over

vacant possession of the completed strata parcel within the stipulated 36 months from the

date of the sale and purchase agreement or face the consequences of late delivery as spelt

out in cl 22(2) of the standardized sale and purchase agreement. 21

It may be noted that during this construction period, no purchaser of a strata parcel is

contractually obliged to pay any monthly service charges. Neither is the purchaser required,

at this stage, to make contributions to the sinking fund. 22

The term interim stage is a device adopted by the writer to mark a specific period of time

during the long march for obtaining subdivision and strata titles. During this stage, a score

of events will occur. One such event will be that upon completion of construction of themulti-storey building or buildings, the common facilities and the infrastructure, the

developer is obligated to deliver vacant possession of the strata parcel. 23 In addition, the

[*120] developer needs to apply for subdivision of the high-rise building and the issuance

ofstrata titles in respect thereof within six months from the date of completion. 24 On the

other hand, if the developer has not sold any strata parcel during this interim stage but has

now decided to sell the completed high-rise building as a whole block, including the piece of

land on which the building has been constructed together with all the built-up facilities and

infrastructural works, can the strata developer be compelled by existing strata law to apply

for the subdivision of the building and thereafter, for the issuance ofstrata titles for its

potential singular corporate or individual purchaser? Perhaps this question could be

answered by a scrutiny of the provisions contained in s 8(1) of the STA which enacts asfollows:

The proprietor of any alienated land on which there is a completed building capable of

being subdivided under s 6 shall, within the period specified in sub-s (2), apply in

accordance with s 10 for the subdivision of the building if at any time he has sold or agreed

to sell any parcel in such [a completed] building to any person.

The local strata concept of a parcel has been defined in s 4 of the STA as:

... parcel , in relation to a subdivided building, means one of the individual units [of

strata parcels] comprised therein, which (except in the case of an accessory parcel) is held

under separate strata title. 25

(The words within square brackets have been added for the sole purpose of achievingclarity in interpretation.)

In s 8(1), the root phrase ... if at any time he has sold or agreed to sell any parcel in such

building to any person ... indicates a situation whereby the original proprietor of the

alienated land on which the strata project is being developed has sold at least one unit of

strata parcel to a bona fide purchaser [*121] for value. 26 This particular root phrase

emphasizes the sale of at least one unit ofstrata parcel. Under s 8(1) of the STA, it is
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mandatory for the strata developer to apply for at least a strata title for that particular

strata unit that has been sold. This is to ensure that the purchaser will not be short-

changed on the question of legal ownership of his strata parcel at a later date. But the

question of whether the strata developer is statutorily required to possess a developer s

licence before this singular sale can be entered into is an entirely different point of law

which has to be examined under a different set of applicable laws; namely, the HousingDevelopers (Control and Licensing) Act 1966 (Act 118/66) 27 and not under the STA. When

scrutinized in the light of s 8(1) of the STA, it is mandatory that an application for

subdivision of the multi-storey building and the subsequent issuance ofstrata titles be

made if one or more strata parcels have been sold notwithstanding whether the sale or

sales may not be covered by or within the ambit of the Housing Developers (Control and

Licensing) Act and its related 1989 Regulations. This separate strata requirement is to

ensure that the owners ofstrata parcels will eventually possess individual marketable titles

to their respective strata parcels. As such, they would not ever need to hold their strata

parcels as tenants in common, thereby sharing a common master title to the project land.

But if a wholly completed multi-storey building is to be sold to a single individual or a

corporate purchaser and no others, then s 8(1) of the STA will have no application to thematter. The reason for this proposition is again plain. Section 8(1) only applies to and

governs the sale of individual strata parcels to various purchasers. It does not extend to

the sale of a block of high-rise units provided that in such an event, the sale is to a single

purchaser, whether he is an individual or a corporate player. In this instance, the building

does not require any subdivision nor is it necessary to apply for strata titles under s 8(1) of

the STA. But, if after acquiring the whole building, a single purchaser decides to

subsequently sell one or more of the strata parcels in that building to others for profit or

otherwise, then [*122] s 8(1) will be applicable. It will then be mandatory for this single

purchaser to apply for the subdivision and the issuance ofstrata titles for his or its various

purchasers notwithstanding whether he or it is a licensed developer or not. The necessity of

obtaining a housing developer s licence and the requirement to subdivide the block of high-rise are altogether two distinct legal issues. They merit different considerations under

distinct sets of applicable laws.

Before proceeding to the next stage in the application for strata titles, perhaps it would be

appropriate at this juncture to comment on the root words ... any parcel in such building ...

which appear also in s 8(1). These words have to refer to the completion, and not

construction, stage when the high-rise building is still under construction. This observation

is based on the presence of the root word completed in the opening of s 8(1) of the STA

which deals with a completed building that has met the criteria specifically set down in s 6.

The building, therefore, qualifies for subdivision into the three basic strata components;

namely, the strata and accessory parcels and common property. The logical conclusionwould be that an application for subdivision can only be made after the construction of the

particular building has been completed and not before. In layman s terms, no application for

subdivision is required under s 8(1) and no developer may be penalized if the block of high-

rise is still under construction; notwithstanding that, in the meantime, a sale has been

effected. Hence, the way s 8(1) has been drafted, its provisions may partly account for the

long wait in the issuance ofstrata titles. This, in turn, has led the writer to advocate the

upstream issuance of qualified strata titles , well ahead of the construction stage 28 instead
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of waiting for the construction works to be completed before an application can be

submitted. However, the authorities have not responded to this proposed paradigm shift.

During this interim stage, the strata developer, if properly licensed under the provisions of

the Housing Developers (Control and Licensing) Act 1966, has the contractual right to

collect from each of the purchasers a fair and justifiable contribution for the maintenance ofinfrastructural works, service charges and sinking fund. When levying service charges, the

share unit entitlement of each strata parcel should be reverted to in order to impose a fair

and justifiable rate. 29 It must be emphasized that the licensed strata developer, in

discharging his or its contractual as well as its statutory duties to maintain and manage,

during this interim stage, the common property within the strata project, should not profit

from providing such services and maintenance. Any surplus from the monthly collection of

[*123] service charges (the charges should be reasonable and not excessive in the first

place 30 ) which is over and above the actual monthly expenses incurred for the

maintenance and management of the common property should go into a sinking fund, to be

handed over to the management corporation upon its formation at a later stage; namely,

the initial stage as defined in s 4 of the STA.

Again, during this interim period, when vacant possession has been delivered to the

purchaser, the developer will be entitled to periodically collect from the purchaser a fair and

justifiable proportion of the costs and expenses incurred for the maintenance of the

infrastructural works 31 which may include service roads, driveways, drains, culverts, water

mains and sewerage plants serving the multi-storey building that needs to be subdivided. 32

However, cl 14(3) does not expressly stipulate what is deemed to be a fair and justifiable

contribution. But since the same phraseology of fair and justifiable has also been used in cl

16(2), it is submitted that the same formula should be adopted whenever the quantum of

maintenance of infrastructures needs to be periodically quantified. A word of caution here:

The question of what is and is not fair may only be ascertained by making reference to theshare units assigned to each of the strata parcels concerned; 33 but what is justifiable is

completely different from what is considered reasonable . For example, the quantum of

monthly service charges, when compared with those imposed in other strata schemes of

similar stature, may appear to be reasonable to the developer but the 1989 Regulations do

not have this in mind. The intention of Parliament is actually reflected in cl 16(3). 34 The

spirit of the law behind this standardized sub-clause is to prohibit the licensed developer

from making any extra profit when he or it discharges his or its statutory duty in providing

the essential daily or periodic services during this interim period. Its aim is achieved by

imposing upon the developer a mandatory duty to serve on each of the purchasers a

monthly service charge statement. This will, hopefully, ensure that there is no over-

charging. In plain language, the developer can only [*124] collect from the purchasersmonthly contributions which are based on what the developer has actually incurred or has

been billed and not a cent more. If the developer wishes to subsidize the actual incurred

expenditure, that will be his or its own business.

The current discussion now brings to the fore the question of how strata parcels are to be

separated from other component parts of the multi-storey building so that subdivision can

be carried out in accordance with the provisions of the STA. Are such strata components to


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be demarcated by boundary stones or by notional boundary lines of division? This question

may be answered if, and only if, the boundaries of the strata parcels, the accessory parcels

and the common properties could be ascertained from the approved building plans.

Otherwise, an alternative method needs to be adopted.

Boundaries and their uses

A boundary is an imaginary line 35 which marks the confines or abstract line of division of

two or more pieces of contiguous pieces of alienated or registered land. 36 The term

boundary is also used to denote the physical objects by reference to which the notional line

of division is described. 37 It can also be the line of division itself. In this sense, boundaries

may be classified as natural and artificial, according to whether or not such physical objects

are man-made. 38

The term boundary has not been defined by the interpretation provisions of s 4 of the STAnor by s 5 of the NLC. However, this does not mean that whenever and wherever the

boundaries of any piece of alienated or registered land within West Malaysia need to be

determined, resort must be had to English land law. 39 The NLC, via Pt 29, contains a set of

elaborate provisions for regulating the survey and the affixing of the boundaries for any

alienated or registered land. Such tasks are performed by the State s Director of Survey or

in his absence, his deputy; both of whom are appointed under s 12 of the NLC. This section

enacts as follows: [*125]

The State Authority may appoint for the State -

a State Director of Lands and Mines, a Registrar ofTitles and a Director of Survey;

so many Deputy Directors of Lands and Mines, Assistant Directors of Lands and Mines,

Deputy Registrars ofTitles, Deputy Directors of Survey, District Land Administrators,Assistant District Land Administrators, Survey Officers, Settlement Officers and other

officers as the State Authority may consider necessary for the purpose of this Act. 40

Section 5 of the NLC then defines boundary mark to include any survey stone, iron pipe or

spike, wooden peg or post, concrete post or pillar or other mark used for the purpose of

marking boundaries . From this statutory definition, boundary marks can be said to be a

part of any piece of alienated or registered land. Such marks, being affixed permanently

into the ground, must not be tampered with, damaged, destroyed or removed. This is one

of the duties which has been imposed by statute and must be observed by every registered

proprietor of alienated or registered land. In fact, s 114 of the NLC has incorporated this

onerous duty which legal ownership in land would entail. Section 114 states:All alienated land shall be subject to the following implied conditions relating to the

boundary marks thereof -

that the proprietor will take all reasonable steps to prevent their damage, destruction or

unlawful removal;

that the proprietor will, if any of them are damaged, destroyed or unlawfully removed,

give immediate notice of the fact to the Land Administrator, or to thepenghulu having

jurisdiction in the area in which the land is situated;


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that the proprietor will, if so required by the Land Administrator, pay the cost of

repairing or, as the case may be, replacing any of them which may have been damaged,

destroyed or unlawfully removed; and

that the proprietor will, if so required by the Land Administrator, at his own expense

clear any boundary line between any of them. [*126]

Should boundary marks be damaged or destroyed by the elements of nature, such as the

sun, wind and rain, the proprietor cannot, of his own volition, replace the weather-beaten or

destroyed boundary mark; not even if he is a licensed land surveyor. 41 In this instance, no

self-help should be resorted to. The reason for this principle is again plain. Boundaries, as

discussed, are notional lines of division. They act as a legal device to separate pieces of

adjoining or adjacent land from one another. When this legal concept is applied to strata

development, boundaries will separate a particular unit ofstrata parcel from adjoining or

adjacent strata parcels as well as other strata parcels which are located immediately above

and below that unit. Common property such as corridors, passageways or staircases (if

applicable) could also be separated from that unit ofstrata parcel by the use of boundaries.

If boundaries have been traversed upon, the common law action for trespass may then besustainable. Thus, when boundary marks have been weather-beaten, destroyed or

unlawfully removed, the registered proprietor of the land so affected is statutorily bound to

give notice to the Land Administrator or, as the case may be, the penghulu, of such a fact.42 Replacement of boundary marks will then be carried out by the Land Administrator but

the cost has to be borne by the proprietor so affected. 43

Man, without skins, will become formless. Likewise, land without boundaries will be

borderless and unidentifiable. Hence, land must first be located, surveyed and measured

before it can be identified. The manner in which a survey of alienated or registered land can

be carried out has been elaborately set out in Pt 29 of the NLC. Section 396, being one of

the sections in Pt 29, states as follows:For the purposes of this Act, land shall not be taken to have been surveyed until -

its boundaries have been determined by right-lines;

its boundaries as so determined have been demarcated on the surface of the land by

boundary marks or, if by reason of the configuration thereof or for any other cause the

placing of the boundary marks on the actual line of the boundary is to any extent impossible

or impracticable, boundary marks have been so placed as to enable that line to be

ascertained;

the area enclosed by its boundaries as so determined has been calculated;

a lot number has been assigned thereto by the Director of Survey; and

a certified plan, showing the situation of the land, the position of its boundaries as so

determined and of the boundary marks placed thereon and the area and lot number thereof,has been approved by the Director of Survey. [*127]

Any plan approved by the Director of Survey under paragraph (e) of subsection (1) shall

be filed in his office, and (without prejudice to the operation of section 49 in the case of land

subsequently affected by any advance of the shore-line or of the bed of any river) shall be

conclusive evidence of the boundaries and boundary marks of the land to which it refers,

and of the area and the lot number thereof.


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Any certified survey plan in respect of a piece of alienated or registered land which has been

prepared in accordance with s 396(1)(e) must be submitted to the Director of Survey for his

close scrutiny and approval. Upon approval, that survey plan must be filed in the office of

the Director of Survey and thus becomes a public document. Thereafter, the document can

be examined and a copy may be extracted therefrom upon the payment of a fee. It is

interesting to observe that the boundaries, boundary marks and the area of the land towhich the approved survey plan relates as well as the lot number assigned to the land which

have been recorded on such survey plan are guaranteed to be conclusive other than any

error or omission. 44 In layman s terms, the accuracy of such particulars in the approved

survey plan, besides any excepted error or omission, is State-guaranteed. It is also

necessary for an owner of alienated or registered land to note that the powers of the

Director of Survey to carry out a survey or other related works can be exercised on the

director s behalf by any survey officer or even by any land surveyor who has been duly

licensed under the provisions of the Licensed Land Surveyors Act 1958. 45 Such powers,

including the power of entry, may only be exercised during reasonable times of the day and

not otherwise. 46

However, the survey provisions contained in s 396 and other related provisions in the NLC

deal with the survey of alienated or registered land, including the determination of the

boundaries of such land. But do such provisions apply to the survey ofstrata parcels,

accessory parcels and common property ofstrata development as well as the consequential

determination of their respective boundaries?

Determining the boundaries ofstrata parcels

How strata parcels are to be delineated and ascertained and how their areas are to bedetermined are questions which must be closely related to the basic question of how multi-

storey buildings are to be subdivided. Basically, not all multi-storey buildings need to be

subdivided nor do they automatically qualify for subdivision into strata parcels, etc. Only

buildings which come within the ambit of s 6 of the STA will qualify for such subdivision.

Under strata law, a multi-storey building, upon satisfying all [*128] the prerequisites

which have been set out in s 6, can be subdivided into: (a) strata parcels; (b) accessory

parcels; 47 and (c) common property. 48 Quite apart from those three strata components

just referred to, no other built-up form of immovable property within a strata project (such

as an extra built-up floor area) shall be capable of being created nor is entitled to legal

ownership. Neither may a separate strata title be issued in respect thereof. Section 6(1)

stipulates as follows:Any building or buildings having two or more storeys on alienated [registered] land held

as one lot under final title (whether Registry or Land Office title) shall be capable of being

subdivided into parcels; and any building or buildings having only one storey on the same

land shall also be capable of being subdivided into parcels to be held under strata titles or

into accessory parcels.

The above root phrase, namely, ... into parcels to be held under strata titles or into
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accessory parcels was inserted by the Strata Titles (Amendment) Act 1996 (Act A951/96)

which came into effect on 1 August 1996. Before this amendment came into force, single-

storey buildings within a strata project could only be used as accessory parcels; they could

not then be used as strata parcels. 49

Under the former 1965 subsidiary title provisions, in particular, the repealed s 151(1)(a) ofthe NLC, only buildings with two or more storeys constructed wholly above ground level or a

superficial ground area of at least 5,000 square feet could qualify for subdivision. If the

1985 strata provisions are examined in this light, then they are indeed an improvement

over the 1965 subsidiary provisions under which, due to many shortcomings, no subsidiary

titles (as they were then called) have ever been issued. In addition, the latest 1996

amendment to s 6 does display some improvement in strata policy decision.

The next pertinent questions to ask are: (i) who sets the boundaries ofstrata parcels and

(ii) how are they marked? Invariably, the answer to the first question must be the land

surveyor. This answer will be followed by the [*129] popular norm of marking the centre

of the floor, wall and ceiling as the boundaries. This paradoxical syndrome will, of course,make things rather plain and simple to the untrained, uncaring or perhaps careless eye.

Reverting to the normal answers: the first answer is correct. This is so because from an

earlier discussion on the appointment as well as the powers of the Director of Survey and

licensed land surveyors, it has been noted that proprietors of alienated or registered land

cannot replace any damaged or destroyed boundary marks; notwithstanding that the

proprietor may turn out to be a licensed land surveyor himself. 50 This principle of land law

on boundaries, too, extends to strata proprietors. If this prohibition which is contained in s

114 of the NLC does not extend to strata proprietors, one would dread to imagine the

artistic and beautiful facades of multi-storey buildings being pock-marked, both in the

interior as well as the exterior walls, by protruding boundary stones, survey iron pipes,

spikes, wooden pegs or posts, etc. The second answer, namely, the centre boundarysyndrome , appears also to be correct; that is, according to the rampant and unconsidered

opinion of licensed land surveyors, both in the government and private sectors. With

unfeigned respect, the writer begs to differ from such a paradoxical central mindset. This

apparent dichotomy, the writer submits, can only be sorted out after an in-depth

examination of the relevant provisions of the STA has been undertaken and not before. The

applicable laws are found mainly in Pts II and III of the STA. These provisions make

reference to stages such as: (a) planning; (b) application for subdivision; (c) processing;

(d) approval or rejection; and (e) strata titles issuance. Somewhere along this long march

for the authority s approval of the subdivision of the high-rise building and the issuance of

strata titles, the boundaries of the strata parcels will, accordingly, be determined and

marked. The question is, when will they be determined? Who has the legal right todetermine where to place them? Where to mark such boundaries? Lastly and most

importantly, how are such boundaries to be marked?

Procedural steps for the subdivision of a multi-storey building
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Section 9 of the STA, in restrictive language, imposes on the Director of Lands and Mines a

mandatory duty not to allow the subdivision of any building having two or more storeysunless and until a host of conditions precedent which have been listed therein have first

been stringently met or fulfilled by the applicant/strata developer to the letter of the law.

One such condition would require the applicant/strata developer to ensure that the

construction of the high-rise building which is to be subdivided has been completed in

accordance with the approved building plans and specifications. Section 9(1)(b), in no

uncertain terms, states that: in the case of any building for the erection of which planning

permission was [*130] required - (i) it has been certified by an architect registered under

the Architects Act 1967 or by a professional engineer registered under the Registration of

Engineers Act 1967 that the building was constructed in accordance with the plans and

specifications by reference to which that permission was given, stating therein the date on

which such permission was given and the reference number thereof (if any). This conditionwill ensure that the construction of the building will be in accordance with the approved

plans and that no extra levels or built-up spaces will be created in the building after its

construction. If a building which needs subdivision by its owner is not constructed in

accordance with approved plans and specifications but the owner s whims and fancies, the

State s Director of Lands and Mines would then be imposed with a statutory duty to make

doubly sure that the application for subdivision of such a building and the related issuance

ofstrata titles in respect thereof must be rejected for breach of s 9(1)(b). Otherwise, the

density for the residential development could be flouted with impunity.

Prior to obtaining the development order, the boundaries of the various strata parcels

which make up a portion of the high-rise building would not be determined as yet by thestrata developer. However, outlines are set in the site plan to give such strata parcels their

character and locations. Their respective dimensions and floor areas can only be

demarcated with accuracy by the appointed licensed land surveyor when the building has

been rendered into a measurable state; that is to say, when the walls in the building have

been duly plastered. In local architectural practice, such boundaries, which separate strata

parcels from one another and each from accessory parcels and common properties, will not

be shown on the building plans. Still on the topic of building plans, this peculiar architectural

practice, the writer has been told, has been adopted because the boundary lines are not

relevant to the process of construction. Walls, however, are usually shown in the building

plans as two parallel lines, with each line indicating an inner or an outer wall face.

Sometimes, walls are dimensioned to a centre line and at times, to wall face, with thethickness of the wall shown thereon. However, the overall building dimensions will always

be shown in the building plans. The scale of the drawings will be 1:100 but in the case of a

location or site plan, a smaller scale of 1:1000 will be adopted. Apart from this observation,

the boundaries ofstrata parcels will be temporary delineated by architectural lines on the

floor or site plans 51 which [*131] will be attached to the standardized Sch H contract of

sale. During the sale stage, the site plan is drawn for the consumption of purchasers. The

permanent boundaries at this stage will not be drawn as yet because the building will still be
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under construction. Furthermore, the boundaries may not be marked, during construction,

by placing or embedding within the high-rise building various boundary stones, iron pipes,

wooden posts or a host of other survey paraphernalia. It is also interesting to note that s

10(3)(b) of the STA would require every storey plan, which is part and parcel of the strata

plans, to show and depict therein the boundaries of all the strata parcels to be constructed.

These boundaries may thus be marked by referring to the floors and walls which will showthe horizontal dimensions. When mapping out those boundaries, there is no necessity to

indicate the bearing as well. Under the circumstances, it is well within the strata developer

s proprietary right to choose, as he or it pleases, the boundaries of the various strata

parcels in order to determine their varying saleable sizes. 52 This may perhaps answer the

question of who may determine or set the boundaries ofstrata parcels. The manner of

determining the common boundaries ofstrata parcels is left entirely to the decision of the

strata developer. This decision can only be made after the walls have been constructed and

plastered and the building is then in a measurable state. This pinpoints the question of

when such boundaries must be set. The strata developer may, if he or it thinks fit, choose

the inner surface of the wall, the upper surface of the floor and the undersurface of the

ceiling as the boundary lines of the strata parcels.53

Actually, there is no express provisionin the STA which prohibits the strata developer from making such a choice. The strata

developer is given an absolute free hand to choose the boundaries. But when a choice has

been made, the task of marking the boundaries is then left to the appointed licensed land

surveyor. On the other hand, if at the eleventh hour, that is to say, just prior to the

submission of the application for subdivision of the building, a choice has not been made,

then and only then could the strata developer s act of omission trigger off the operation of

s 13(3). 54 However, the operation of s 13(3) is subject to one pertinent observation. This

subsection can only be invoked by the Director of Survey during the stage when the

application for subdivision is under processing by him but not during the planning or

construction stage when it will be impossible to submit such an application [*132] whilst

construction is ongoing. This observation is based on two grounds. First, the presence of theroot phrase in s 13(3) of the STA: ... except in so far as it may have been otherwise

provided in the relevant storey plans ... i

Documents

ART_Nature of Strata Title