Incorporated owners can be liable in public nuisance

Incorporated owners can be liable in public nuisance where they know (or can be presumed to know) that the common parts (or an element of the common parts) are in such a state as to endanger the lives, safety, health, property or comfort of the public or as to obstruct the exercise or enjoyment of rights common to members of the public. They are liable for any foreseeable loss or damage arising from a failure to take such steps to neutralise any such hazard as are within their power. Individual owners and tenants (but not the owners as a collective body) can also be liable in respect of the same hazard if they had sufficient knowledge, control and resources.

In Leung Tsang Hung v Incorporated Owners of Kwok Wing House ([2007] 4 HKLRD 654, CFA) an unauthorised canopy above a balcony protruted from the external wall of a building. The canopy had been poorly constructed and had deteriorated over time. A corner of it fell off and killed a hawker in the street below. The owner accepted liability and the tenant was found to be liable. The question was whether the incorporated owners were also liable. The Court of Final Appeal held that they were. It reviewed the law of public nuisance in general and as it applied to incorporated owners. It held that Incorporated owners can be liable in public nuisance where they know (or can be presumed to know) that the common parts (or an element of the common parts) are in such a state as to endanger the lives, safety, health, property or comfort of the public or as to obstruct the exercise or enjoyment of rights common to members of the public. They are liable for any foreseeable loss arising from a failure to take such steps to neutralise any such hazard as are within their power. Individual owners and tenants (but not the owners as a collective body) can also be liable in respect of the same hazard if they had sufficient knowledge, control and resources.

The external walls were common parts. The owners had duties under the DMC not to convert common parts to private use, not to place things on common parts and to keep the structure and exterior in repair. The incorporated owners had the control needed for public nuisance since they had the power to monitor and enforce these duties. They could be presumed to know of the hazard and the danger it posed to the public. They had access to the resources needed to neutralise the hazard. They were therefore liable.

Section 16 of the Building Management ordinance does not preclude incorporated owners from being liable alongside individual owners and tenants. It only prevents a simultaneous action against the incorporated owners and the owners as a collective body.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: