Who owns structural walls between two apartments?

Whether all or part of a structural wall between two units in a multi-occupied building belongs to the owner of the units in question (or is a common part belonging to neither) is a question of the intention of the parties to the first sale of the units. The terms of the DMC and of the BMO and the policy underlying their treatment of common parts can be important in helping to determine the relevant intention.

In Central Management Ltd v Light Field Investment Ltd ([2010] HKEC 1955, CA) the defendants owned two adjoining units and wanted to remove the wall between them so as to create a single larger unit. The separating wall was partly structural and partly non-structural. The dispute concerned the structural element. The defendants sought to rely on the plan attached to the sale of the first unit in the building as a guide to the intention of the parties to it. This sale is relevant, presumably, because it is made at the time that the DMC is entered into and so establishes the scheme for the whole development. That plan (also used in the assignment of the units in question) indicated the position of the structural walls. A note on the plan stated that such walls could only be moved with the consent of the Building Authority. The defendant invited the court the infer from this that the structural walls were included in the sale to the owners of the units. The Court of Appeal (Cheung JA giving the principal judgment) rejected this. The defendants placed too much weight on the note to a plan. Far more persuasive were the terms of the DMC and its definition of ‘common areas and facilities’ and the definition of ‘common parts’ in section 2 of the Building Management Ordinance. The policy to be inferred from these definitions were that structural walls should be common parts. This is sensible since the interests of all owners of the development are at stake. The common parts had been kept back from the sales of units and ownership had been transferred to the plaintiff. The structural parts of the walls did not belong to the unit owners.

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