‘Common parts’ where the DMC does not expressly identify them

Chung Yuen Mansion (IO) v Fully King Trading Ltd ([2012] HKEC 1228, LT) concerned the ownership of open areas to the side of the flat owned by the respondent. The incorporated owners sought a declaration that they were common parts. The DMC did not expressly identify the common parts and the Tribunal applied the definition in section 2 of the Building Management Ordinance (all areas other than those designated for exclusive use in an instrument registered at the Land Registry). The Tribunal reminded itself of the principles to emerge from the CFA decision in Jumbo King. It looked at the DMC and the first assignment. Only ‘floors’ were identified as being for exclusive use and open areas were not ([54] – [57]). So the open areas remained in common ownership ([59]). This conclusion was supported by the fact that the DMC made the repair and maintenance of external areas the responsibility of all of the owners while internal areas were the responsibility of individual owners ([60]). The DMC and first assignment were the crucial documents.

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