Weekly review: 19th – 23rd November

Building Management Ordinance: Deed of Mutual Covenant: duty of manager and incorporated owners

The owners corporation has a duty to keep the common parts in repair. The duty is one of ‘proper management’ (Lee Ming Yueh v Broadway-Nassau Investments Ltd).

If a minority owner can show he has a legitimate complaint regarding the common parts of the building and yet the management committee has chosen to ignore him, he can seek relief from the court. He can seek an injunction compelling the corporation to take action ( See Wah Fan v Ki Tat Garden (Phase I) (IO)).

Deed of Mutual Covenant: acquiescence

Where owners have, over a period of years, paid a greater proportion of the management charges than they were liable to pay under the terms of the DMC, they may not be able to recover the excess payment if they made the payments with notice of the DMC terms and there has been detrimental reliance by the recipient. It might then be unconscionable to allow the excess payments to be recovered (Wong Pun-Man v Tung Fat Industrial Building).

Contracts: construction: interpretation: leases

In the process of contractual interpretation it can be appropriate to disregard the actual words used in a written contract where it is clear that something must have gone wrong with the language used and it is possible to reach a conclusion as to what the parties intended to say (Campbell v Daejan Properties Ltd).

Land Covenants: restrictive covenants

The rule in Tulk v Moxhay only applies to restrictive covenants (Haywood v The Brunswick Permanent Building Society).

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