Can you demolish a partition wall between two flats?

Whether a partition wall belongs to the owners of the relevant flats or is a common part is a question of construction of the relevant instruments (the DMC and the assignments). One would expect the allocation of exclusive use of any part of a building to be dealt with expressly in the text of the instrument (rather than being merely an inference from notes on a plan referred to in the instrument). A wall can be structural even if it is not load-bearing.

In Tam Sze Man v Incorporated Owners of Shan Tsui Court ([2011] HKEC 111) the owners of two adjoining flats wanted to demolish the partition wall dividing the two flats. They claimed that they were co-owners of the wall. The Incorporated Owners argued that it was a common part. The CFI noted that the DMC and the assignment did not allocate exclusive use of the wall to the flat owners. An assignment of ‘Flat X’ includes the floor and ceiling surfaces in the Flat and the air space between them (Nation Group Development Ltd v New Pacific Properties Ltd ([2000] 3 HKCFAR 427 at 436G). The fact that the plan of the flat attached to the assignments followed the line of the wall did not help the flat owners’ case. One would not expect exclusive ownership to be inferred solely from notes on a plan. Rather, one would expect it to be dealt with in the text of the instrument (at para. 30). The walls were a common part and did not belong to the owners of the flats.

The term ‘structural alteration’ in a DMC indicates ‘permanent physical alteration to the fabric of the building affecting the common interests of the owners.’ (at para. 43). A wall can be structural even if it is not load-bearing.

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