Archive for the ‘Common parts’ Category

The definition of “common parts” in section 2 of the Building Management Ordinance

February 25, 2011

The definition of ‘common parts’ in section 2 of the Building Management Ordinance has two elements. The Court of Appeal has recently suggested that if an element of a building or complex falls within Schedule 1 of the Ordinance then there would need to be strong evidence in an instrument that it had been designated as being for the exclusive use of an owner.

In Incorporated Owners of Westlands Garden v Oey Chiou Ling ([2011] HKEC 254) the Court of Appeal had to consider whether the internal partition wall dividing two apartments was a common part. This is primarily a question of interpretation of the Deed of Mutual Covenant and of the assignment to the first purchaser of a unit in the development. The Court of Appeal (in the judgment of Tang ACJHC) turned to the definition of  ‘common parts’ in the Building Management Ordinance for guidance.

Section 2 defines ‘common parts’ to mean:

‘(a) the whole of the building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of  the owner; and

(b) unless so specified or designated, those parts specified in Schedule 1.’

Schedule 1 lists building elements that are common parts and includes, for example, external and load-bearing walls. This definition seems to offer two alternative routes under which an element of a building or complex might be deemed to be a common part: it can either be clear that it is part of the building that has not been designated as being for exclusive use or it can fall within Schedule 1.

In the present case, the Court of Appeal decided the question essentially without relying on section 2. It did, however, suggest that parts (a) and (b) of the section 2 definition might be inter-connected. Tang ACJHC suggested that if a building element is identified in schedule 1 then this might create a presumption in cases of doubt that it had not been designated in an instrument as being for exclusive use. On the facts of this case, however, the Court of Appeal decided that internal partition walls did not fall within schedule 1 and so this ‘presumption’ did not come into play.

Are non-load-bearing walls between neighbouring units common parts?

February 17, 2011

Non-load-bearing-walls dividing units are common parts unless the right to the exclusive use of the wall has been granted to any owner (or owners) in an instrument registered in the Land Registry. Parts (a) and (b) of the definition of ‘common parts’ in section 2 of the Building Management Ordinance are to be read disjunctively.

In Incorporated Owners of Westlands Garden v Oey Chiou Ling ([2010] 5 HKLRD 150) two sisters owned neighbouring flats. They removed the partition wall separating the flats. The Incorporated Owners brought proceedings seeking reinstatement of the partition wall on the grounds that it was a common part. The Lands Tribunal agreed. There was no instrument registered in the Land Registry that gave exclusive use of the wall to any owner. The owners had only a right to use the surface of the walls but did not have exclusive use of the location of the wall. Thus, the partition wall fell within part (a) of the definition of ‘common parts’ in section 2 of the Building Management Ordinance. It did not matter that it was not one of the elements in part (b) of the definition. Parts (a) and (b) were to be  read disjunctively. Removal of the wall thus amounted to the conversion of a common part to private use in breach of section 34I(1)(a) of the Building Management Ordinance. It was also a breach of the latter part of Sch. 2, clause  4 of the Ordinance.

 

This decision was reversed by the Court of Appeal (see blog entry above)

Can you demolish a partition wall between two flats?

February 14, 2011

Whether a partition wall belongs to the owners of the relevant flats or is a common part is a question of construction of the relevant instruments (the DMC and the assignments). One would expect the allocation of exclusive use of any part of a building to be dealt with expressly in the text of the instrument (rather than being merely an inference from notes on a plan referred to in the instrument). A wall can be structural even if it is not load-bearing.

In Tam Sze Man v Incorporated Owners of Shan Tsui Court ([2011] HKEC 111) the owners of two adjoining flats wanted to demolish the partition wall dividing the two flats. They claimed that they were co-owners of the wall. The Incorporated Owners argued that it was a common part. The CFI noted that the DMC and the assignment did not allocate exclusive use of the wall to the flat owners. An assignment of ‘Flat X’ includes the floor and ceiling surfaces in the Flat and the air space between them (Nation Group Development Ltd v New Pacific Properties Ltd ([2000] 3 HKCFAR 427 at 436G). The fact that the plan of the flat attached to the assignments followed the line of the wall did not help the flat owners’ case. One would not expect exclusive ownership to be inferred solely from notes on a plan. Rather, one would expect it to be dealt with in the text of the instrument (at para. 30). The walls were a common part and did not belong to the owners of the flats.

The term ‘structural alteration’ in a DMC indicates ‘permanent physical alteration to the fabric of the building affecting the common interests of the owners.’ (at para. 43). A wall can be structural even if it is not load-bearing.

Who owns structural walls between two apartments?

December 18, 2010

Whether all or part of a structural wall between two units in a multi-occupied building belongs to the owner of the units in question (or is a common part belonging to neither) is a question of the intention of the parties to the first sale of the units. The terms of the DMC and of the BMO and the policy underlying their treatment of common parts can be important in helping to determine the relevant intention.

In Central Management Ltd v Light Field Investment Ltd ([2010] HKEC 1955, CA) the defendants owned two adjoining units and wanted to remove the wall between them so as to create a single larger unit. The separating wall was partly structural and partly non-structural. The dispute concerned the structural element. The defendants sought to rely on the plan attached to the sale of the first unit in the building as a guide to the intention of the parties to it. This sale is relevant, presumably, because it is made at the time that the DMC is entered into and so establishes the scheme for the whole development. That plan (also used in the assignment of the units in question) indicated the position of the structural walls. A note on the plan stated that such walls could only be moved with the consent of the Building Authority. The defendant invited the court the infer from this that the structural walls were included in the sale to the owners of the units. The Court of Appeal (Cheung JA giving the principal judgment) rejected this. The defendants placed too much weight on the note to a plan. Far more persuasive were the terms of the DMC and its definition of ‘common areas and facilities’ and the definition of ‘common parts’ in section 2 of the Building Management Ordinance. The policy to be inferred from these definitions were that structural walls should be common parts. This is sensible since the interests of all owners of the development are at stake. The common parts had been kept back from the sales of units and ownership had been transferred to the plaintiff. The structural parts of the walls did not belong to the unit owners.