Are non-load-bearing walls between neighbouring units common parts?

Non-load-bearing-walls dividing units are common parts unless the right to the exclusive use of the wall has been granted to any owner (or owners) in an instrument registered in the Land Registry. Parts (a) and (b) of the definition of ‘common parts’ in section 2 of the Building Management Ordinance are to be read disjunctively.

In Incorporated Owners of Westlands Garden v Oey Chiou Ling ([2010] 5 HKLRD 150) two sisters owned neighbouring flats. They removed the partition wall separating the flats. The Incorporated Owners brought proceedings seeking reinstatement of the partition wall on the grounds that it was a common part. The Lands Tribunal agreed. There was no instrument registered in the Land Registry that gave exclusive use of the wall to any owner. The owners had only a right to use the surface of the walls but did not have exclusive use of the location of the wall. Thus, the partition wall fell within part (a) of the definition of ‘common parts’ in section 2 of the Building Management Ordinance. It did not matter that it was not one of the elements in part (b) of the definition. Parts (a) and (b) were to be  read disjunctively. Removal of the wall thus amounted to the conversion of a common part to private use in breach of section 34I(1)(a) of the Building Management Ordinance. It was also a breach of the latter part of Sch. 2, clause  4 of the Ordinance.

 

This decision was reversed by the Court of Appeal (see blog entry above)

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