The definition of “common parts” in section 2 of the Building Management Ordinance

The definition of ‘common parts’ in section 2 of the Building Management Ordinance has two elements. The Court of Appeal has recently suggested that if an element of a building or complex falls within Schedule 1 of the Ordinance then there would need to be strong evidence in an instrument that it had been designated as being for the exclusive use of an owner.

In Incorporated Owners of Westlands Garden v Oey Chiou Ling ([2011] HKEC 254) the Court of Appeal had to consider whether the internal partition wall dividing two apartments was a common part. This is primarily a question of interpretation of the Deed of Mutual Covenant and of the assignment to the first purchaser of a unit in the development. The Court of Appeal (in the judgment of Tang ACJHC) turned to the definition of  ‘common parts’ in the Building Management Ordinance for guidance.

Section 2 defines ‘common parts’ to mean:

‘(a) the whole of the building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of  the owner; and

(b) unless so specified or designated, those parts specified in Schedule 1.’

Schedule 1 lists building elements that are common parts and includes, for example, external and load-bearing walls. This definition seems to offer two alternative routes under which an element of a building or complex might be deemed to be a common part: it can either be clear that it is part of the building that has not been designated as being for exclusive use or it can fall within Schedule 1.

In the present case, the Court of Appeal decided the question essentially without relying on section 2. It did, however, suggest that parts (a) and (b) of the section 2 definition might be inter-connected. Tang ACJHC suggested that if a building element is identified in schedule 1 then this might create a presumption in cases of doubt that it had not been designated in an instrument as being for exclusive use. On the facts of this case, however, the Court of Appeal decided that internal partition walls did not fall within schedule 1 and so this ‘presumption’ did not come into play.

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