LETTER | I had recently come across an article written by the legal adviser and the honorary secretary-general of the National House Buyers Association (HBA) on the need of having laws to deal with “neighbours from hell” and I’m glad that the HBA has spoken on this issue. I’m optimistic that if this issue garners more attention from the media and especially lawmakers, we can finally put it to rest. This issue has plagued our communities for as long as it shouldn’t have, especially those living in high-rise buildings like myself. The focus of this article will be on noise nuisance.
As stated earlier, my family and I, too, met one such nuisance creating family who rented a unit directly above ours. The worst of the noise nuisance issue is it happened not only in the day but past midnight as well. Once, the police found them chopping up chicken feet on the floor at 1am, certainly something anyone would do. To illustrate, this sounds exactly like a renovation going on. In short, we have tried to peacefully communicate with them only to be treated with much hostility. We had then addressed our complaints to the Management Corporation (MC), Adun’s office, city council and the police.
The Adun’s office referred me to a city councillor who then liaised with the city council’s Commissioner of Building (COB). The COB stated that they are only empowered to give a verbal and written warning to the nuisance creator and instruct the MC to look into the matter. The MC on the other hand said that they, too, could only give verbal and written warning.
The police were initially reluctant to take a report on the matter as they deemed it to be a civil dispute. At this juncture, I feel the need to highlight that PDRM needs to ensure its men and women in blue understand that minor offences are offences. Section 107(4) of the Criminal Procedure Code (CPC) states that a police officer shall be duty-bound to receive any information concerning any offence committed anywhere in Malaysia.
The issue was resolved after a kind lawyer issued a notice of demand to the nuisance creator and the unit owner, who would always ask us to handle the matter on our own when contacted.
In Malaysia, there is no specific law on nuisance caused by neighbours but there are provisions which would arguably make this an offence.
Section 268 of the Penal Code provides for the offence of public nuisance, essentially meaning that people living in the vicinity are affected. The issue with this provision is that oftentimes other neighbours, although affected, are afraid to lodge a police report due to retaliation and the mentality that they are less affected in comparison to the dwellers occupying directly above or below the nuisance creator.
Section 13(1) of the Minor Offences Act 1955 makes it an offence to make excessive noise between 12am to 6am. Time and again, I have highlighted this provision to the PDRM but they opined otherwise. Such an irony that a few weeks after lodging police report, the PDRM posted a message on its official Facebook page saying that it is an offence to make excessive noise by virtue of the same provision and they encourage anyone having this issue to lodge a police report.
Although noise nuisance is not specifically provided under the Local Government Act 1976, Section 81(k) of the act empowers the local authority to declare any matter to be a nuisance. It is my humble opinion that if the lawmakers do not pass a specific act targeting nuisance created by neighbours, the local authority should at least make good use of this provision to declare such to be a nuisance.
Setting aside the differences in the legal system of the United States and Malaysia, we could look at how the City of Portland, Oregon, prevents a nuisance creator from creating further nuisance upon receiving a fine. Their local authority is authorised to issue fine of up to US$5,000 for each separate violation. This is one of the many issues that the lawmakers would have to consider when passing new legislation targeting neighbour disputes.
It is worth noting that the HBA has also called for the establishment of a tribunal to handle neighbour disputes. Further or in the alternative, it is my humble suggestion that it may be established as a process similar to the small claims procedure to allow individuals to take neighbour disputes to court to be heard by magistrates and/or a registrar who may grant an injunction.
Although in support of passing new legislation for this purpose, I do wish to highlight that careful consideration and procedures would have to be put in place i.e. who and how to determine the existence of such nuisance as reported, to prevent any potential false claims or worse, retaliation.
It is very unfortunate that the civil justice system is not easily accessible by the general public mainly due to expense. Apart from civil action and until new legislation as proposed by the HBA is passed, based on existing legislation, those who suffer from nuisance created by “neighbours from hell” can lodge a police report and ask for the matter to be investigated under Section 13(1) Minor Offences Act 1955.
As it is a non-seizable offence, if the investigation officer decides not to investigate, he shall refer the complainant to the magistrate, by virtue of Section 108(1) CPC. If the IO classifies the case as NFA (no further action), one should insist on what is right, but please do so politely. Everyone is afforded equal protection of the law, but even if there is adequate protection, will there be adequate enforcement?
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.