Ownership of partition walls dividing apartments

Whether the partition wall dividing two apartments is a common area or belongs to the owners is to be determined by a search for the intention of the parties to the first sale and purchase and the Deed of Mutual Covenant. This intention is to be found in the instruments which can be interpreted in the light of the factual matrix at the time that they were entered into.

In The Incorporated Owners of Westlands Garden v Oey Chiou Ling and Wong Fung Ling ([2011] HKEC 254) the appellants were two sisters who owned adjoining apartments.  They  wanted to remove the partition wall between their flats so as to create a single larger unit. The Court of Appeal noted that this is not uncommon (para. 54). At first instance (see the blog entry below) it was held that the partition wall was a common area and so the sisters did not have the right to remove it. They brought this appeal. Ownership of the partition wall is significant because, as the sisters argued, it confers control over what is to happen to the wall. It also has implications as to whether repair and maintenance are the responsibility of the incorporated owners or of the neighbours who share the partition wall.

Whether internal partition walls are common areas depends on the intention of the developer and the first purchaser of a unit in the development as expressed in the assignment and DMC construed in the light of the factual matrix at that time.  The intention should be clearly expressed in the Deed of Mutual Covenant and the first assignment  of unit.  If this is not done then the court has to try and make a guess as to what they intended. This is difficult because the parties may well not have thought about the matter at all. The Court of Appeal made the powerful point that it was unlikely that the developer intended, at the time of the first sale, to turn all of the partition walls into common areas. To do have done so would have made it unlawful for it later to redraw the size of units or itself to turn smaller units into larger ones.

This case takes a different line from other Hong Kong judgments that have found an intention in circumstances such as this that the owner of an apartment would only have exclusive use of the air space within an apartment. The Court of Appeal felt that it could distinguish the facts in the earlier case from those in the present case.

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