Are external walls common parts?

In Mei Foo Sun Chuen Stage VI v Grand Yield Knitters Ltd ([2012] HKEC 504) a flat owner had installed the exhaust unit for an air conditioner on the external wall of a building. The Incorporated Owners sought an injunction ordering its removal. They contended that the external wall was a common part and that the flat owner’s action amounted to the conversion of a common part to the flat-owner’s private use. The Lands Tribunal agreed. Reading the assignments together with the DMC it did not seem that there was an intention that the wall should be privately-owned by either the flat-owner or the developer. It made sense to think that the parties’ intention would usually be that the external walls would be a common part. Deputy Judge Roy Yu said that the exclusive use area included in an assignment must be:

‘the space surrounded by the external walls and the ceiling and floor slab, with the surfaces of the ceiling, the floor and the inner surfaces of the walls. The enjoyment does not extend to the structure, namely the concrete walls and the floor slab.’

This approach is confirmed by the terms of the Building Management Ordinance.

The Tribunal also held that maintaining the exhaust units on the external wall amounted to a nuisance.

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