Construction of agreement to sell a canopy protruding from a building

An agreement to sell the canopy protruding from a building means, in the absence of anything to indicate the contrary, that the sale is of the whole of the canopy and not just one or more of its surfaces. The right to exclusive use of, for example, a flat generally means the right to use the air space between the floor and the ceiling; it does not include any surfaces.

Nation Group Development Ltd v New Pacific Properties Ltd ([2001] 1 HKLRD 375, CFA) concerned an agreement to sell the first floor of a building and the canopy attached to it. A dispute arose between the parties. The seller contended that it had only agreed to sell the upper surface of the canopy. The CFA rejected this and held that the sale agreement and the DMC for the property did not provide any reason for supposing that ‘the canopy’ meant anything other than the whole canopy. Ribeiro PJ also stated obiter that an agreement to sell, for example, one floor of a building referred only to the air space between the floor and ceiling. It did not include any surfaces.

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