Did Incorporated Owners have a right to install new pipes in exclusive area?

In Cogi Enterprises Ltd v IO of Malahon Apartments ([2011] HKEC 883, CA) the Incorporated Owners had (without Cogi’s knowledge) installed pipes serving the building as a whole in the area owned by Cogi. This had happened after the time when exclusive use of the relevant area had been assigned. The Incorporated Owners claimed that the Deed of Mutual Covenant gave them a right to do so. The DMC reserved to the Incorporated Owners the right to use pipes and so on ‘which now are or may at any time hereafter be in under or passing through the said lands.’ The Court of Appeal rejected the Incorporated Owners’ claim that the word ‘hereafter’ and the fact that the pipes in question served the whole building meant that the right to install new pipes in exclusive use areas fell within the terms of the reservation. This was not, the Court held, what the developer and first owner had intended.

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4 Responses to “Did Incorporated Owners have a right to install new pipes in exclusive area?”

  1. Kathy Says:

    No. The Owners claimed that they did NOT install these pipes. The same people behind Cogi(P1) and Speedy Gainer (P2)was already in the building when it was built, and there after ran and over saw the sales and management of the building for many years after. Documents show that they had closed up the light well and sold the premises with more floor space than it’s original state (currently Wellcome super market(P3)). It is very possible that they when COGI closed up the light well to make more floor space, they moved the pipes from the light well to the new ceiling they created. Because NO ONE in the entire building nor anyone from the current IO has a clue to who had installed the pipes INSIDE the private premises.

  2. thenakedlistener Says:

    What Kathy said above is a correct summation of the situation. None of the current I.O. members nor the current landlords of individual units nor non-owner residents have any clue as to who, when and how the drainage pipes were installed.

    Given the fact that the building itself was constructed in 1967, the pipes should have been made of cast iron. The pipes in the present state are made of PVC (plastic), so they must have been replaced at some unknown point in time by parties unknown.

    The current IO members are being sued by the plaintiffs for contempt of court for not complying with official orders to dismantle the drainage pipes. The IO have done everything humanly possible to comply, but realistically cannot comply because removing the drainage pipes mean the entire building would not have an outlet for outgoing effluent and waste. It is impossible to comply.

    One of the major problems of the situation is that the portions of the drainage pipes (as an integral component of the building’s common-use facilities) actually run through areas of private property (shop spaces) owned by other landlords. These landlords have objected to (or not responded to request for access) to fix the matter of the drainage pipes. Their reticence is entirely understandable. Their shop spaces affected by the pipes ultimately mean a physical size reduction to their owned premises, thereby affecting their livelihood. If I personally owned property like that, and being asked to provide access to the IO like that, and ultimately meaning loss of my paid-for premises, I wouldn’t consent to such access. In other words, the whole bunch of lawsuits are stuck in never-never land in favour of the plaintiffs.

    The principal plaintiffs (COGI and Speed Gainer) [should reasonably] know well enough what took place in the matter of the drainage pipes – their directors or principal officers were connected or otherwise actually resident in Malahon Apartments since 1967. It’s just that the current IO is in the unenviable position of being unable to prove anything otherwise. The construction blueprints that might or might not have shown the existence of the drainage pipes’ original installation are now lost or otherwise non-existent. The original IO members at the time of the original events have either died from old age or have gone elsewhere, so the current IO are left holding the baby and the bathwater, so to speak.

    To the post’s author: I would welcome your response, if only to have an inkling that I’m on the right track or off-base.

    • Kathy Says:

      Thank you Michael. Just to add a few notes. As to the pipes being of uPVC, my views are should these pipes be the original pipes, they could have been cast iron pipes which were replaced. It was never explained how these 4 gigantic pipes mysteriously pass through the lobby of the building, it’s structural beams, before entering 2 separate private premises of the plaintiff.

      • thenakedlistener Says:

        And it can never be explained how the pipes got to be routed that way – because there’s nobody left in the building or the IO who had anything remotely resembling first- or even second-hand knowledge or experience of when the pipeworks have been carried out.

        The parties who have (even speculatively speaking) a better picture of the circumstances surrounding the pipes situation than anybody else are – you guessed it – COGI and Speed Gainer.

        This is a source of extreme frustration for the current IO chairman and officers, and the lawyers they hired.

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