Roof voids: common parts or penthouses?

Hong Kong Mansion, Causeway Bay (IO) v Bothlink Ltd ([2012] HKEC 1086, CFI) (later upheld by the Court of Appeal) concerned the ownership of roof voids. The incorporated owners argued that they were common parts and sought to recover them from the defendant who argued that they had been assigned to his predecessor in title. The voids were in the roof space and were the lower portion of a space, the upper portion of which housed the maintenance platform for the lifts. The CFI applied the well-known principles of construction from Jumbo King and found in favour of the incorporated owners.  First, the voids clearly served a functional purpose as part of the lift machine room. They were not penthouses as the defendant argued. Second, on the proper construction of the first assignment of a flat in the building they were common parts; the developer had not reserved the exclusive use of the voids to himself. Nothing in the later DMC qualified or contradicted this. The only arguments that favoured the defendant were that in the first assignment of the flat roofs and external walls to his predecessor, the area being assigned was identified by pink colouring and the contested voids were coloured pink and they were labelled P.H. (an abbreviation of penthouse the defendant suggested). The court found that the colouring and label were mistakes.

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