Ownership of internal partition walls

In Tam Sze Man v Incorporated Owners of Shan Tsui Court ([2011] HKEC 1259, CA) the Court of Appeal considered the question as to whether non-structural partition walls between adjoining flats were common parts or were in the shared ownership of neighbouring flat owners. Here the appellants owned two adjoining flats and wanted to demolish the partition wall between them. The walls were not structural: as the Court of Appeal put it, alteration would have no structural impact on the building. At first instance, it had been decided that the removal of the wall would be a breach of a provision in the DMC prohibiting structural alterations and also a provision prohibiting interference or damage to common parts. The judge at first instance had decided that the walls were a common part. After the first instance decision had been handed down, the Court of Appeal decided in a similar case Incorporated Owners of Westlands Garden v Oey Chiou Ling that non-structural internal partition walls were not common parts. Was Tam Sze Man different in any relevant respect from Westlands Garden? If not, the conclusion in the latter should be followed. The Court of Appeal decided that Westlands Garden was applicable and the internal partition walls were the property of the flat owners and were not common parts. The Court of Appeal also decided that these walls were not structural. The owners had the right to demolish them. It was relevant to note that; the partition walls were not specified as common parts, other owners had no right of access to them and no reason to use them and that the colouring on the first assignment included the partition wall. It would create strange anomalies if such internal partition walls were regarded as common parts to be repaired at the common expense of all of the owners.


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