Malaysia legislation
Section 35
Section 35
(2)
The warrant of attachment under subsection (1) shall be executed by the developer or a member of the joint management committee or by a person specially employed by the developer or the joint management body to execute such warrant, in the presence of the Commissioner or an officer from the office of the Commissioner.
(3)
If the developer or the member of the joint management committee or the person referred to in subsection (2) encounters difficulties in executing the warrant, such developer, member or person may seek the assistance of the Commissioner, and in providing such assistance, the Commissioner may request for the assistance of a police officer not below the rank of Inspector.
(4)
A person executing the warrant—
(a)
may, in the daytime, effect forcible entry into any house or building or any part of the house or building for the purpose of executing the warrant; and
(b)
shall, immediately after attachment, make an inventory of the property attached under the warrant and serve a notice in Form B of the Third Schedule on the person who, at the time of attachment, was or appeared to be in possession of the property.
(5)
Any tenant, subtenant, or occupier who, in order to avoid the attachment or sale of the movable property for non-payment of any sum due to the developer or the joint management body by the parcel owner, pays such sum may—
(a)
in the absence of any written agreement to the contrary, deduct the amount so paid by him from the rent due or to become due by him to the parcel owner; and
(b)
retain possession of the property until such amount so paid by him has been fully reimbursed to him whether by deduction from the rent or otherwise.
Act 757
(6)
The receipt issued by the developer or the joint management body for any amount so paid by any such tenant, subtenant or occupier under subsection (5) shall be deemed a discharge in full for the like amount of rent.
(7)
If any person whose property is attached disputes the legality of the attachment, he may, within fourteen days of the date of attachment, apply to the Magistrate’s Court having jurisdiction in the place of attachment for an order for the release of the property, and the Magistrate’s Court, after making such enquiry as may be necessary, shall grant or refuse to grant the order.
(8)
If the sum due is not paid within fourteen days from the date of attachment, the property attached or such portion of the property attached as may be sufficient to realize the sum shall be sold by auction conducted by the developer or the joint management body under the supervision of the Commissioner unless within that period an application is made under subsection (7), in which case, the property shall be held pending the decision of the Magistrate’s Court and shall then be dealt with as the
Magistrate’s Court may order.
(9)
If the Magistrate’s Court refuses to grant an order for the release of the property, and that decision of the Magistrate’s Court is reached within fourteen days from the date of attachment, the property shall not be sold before the expiry of that period.
(10)
Notwithstanding subsections (8) and (9), if the property is of a perishable nature, it may be sold at once, and in that case, the proceeds of sale shall be held pending the decision of the
Magistrate’s Court and shall then be dealt with as the Magistrate’s
Court may order.
(11)
In any other case, the proceeds of sale shall be applied in satisfaction of the sum due together with the costs of the attachment and sale, and any surplus and any property not sold shall be paid or returned to the person who, at the time of attachment, was or appeared to be in possession of the property.
(12)
The costs of attachment shall include the expenses of the maintenance of livestock and the custody of movable property.
(13)
Where any property is sold by virtue of subsection (10)
before the expiry of fourteen days from the date of attachment,
Strata Management 59
the reference in subsection (7) to “an order for the release of the property” shall be construed as a reference to an order for the release of the proceeds of the sale of the property.
Moneys not required for immediate use