Archive for the ‘illegal structures’ Category

Illegal structure: blot on title?

June 24, 2013

In More Alliance Ltd v Shing Samuel ([2013] HKEC 629, CFI) V agreed to sell property to P. P refused to complete contending that a number of requisitions had not been satisfactorily answered and that V had not shown good title. P successfully sought an order confirming his right to rescind and to recover the deposits paid under the preliminary and formal agreements.

In 2008, an order had been made against the property under section 24(1) of the Buildings Ordinance requiring the demolition of a structure on the roof of the property. V made no attempt to respond to P’s requisition calling for evidence that the order had been discharged / released. This was a blot on title since V had done nothing to show beyond reasonable doubt that the order did not create a risk of a successful claim against P. Thus, V had failed to give good title ([35]). The argument that the order had been registered before the contracts and that the property was sold ‘as is’ did not help V ([31]).

The agreements had been signed by V’s mother pursuant to an undated power of attorney. P promptly raised a requisition seeking evidence as to the date of execution and this was never properly dealt with. Later, outside the contractual timetable for raising requisitions, V’s mother claimed that she was in possession and was the beneficial owner. P raised a requisition in this regard and, again, this was not fully answered. It was held that as the requisition concerning ownership went to the root of title and P had shown due diligence in raising requisitions, the contractual timetable could not be held against him. A simple denial that V’s mother had any claim was not sufficient in the circumstances ([55]). This too amounted to a failure to show good title ([56]).

Finally, the title deeds were not in V’s possession and there were genuine doubts as to whether he would be able to deliver them on completion and so give good title.

Michael Lower

Incorporated owners can be liable in public nuisance

September 21, 2011

Incorporated owners can be liable in public nuisance where they know (or can be presumed to know) that the common parts (or an element of the common parts) are in such a state as to endanger the lives, safety, health, property or comfort of the public or as to obstruct the exercise or enjoyment of rights common to members of the public. They are liable for any foreseeable loss or damage arising from a failure to take such steps to neutralise any such hazard as are within their power. Individual owners and tenants (but not the owners as a collective body) can also be liable in respect of the same hazard if they had sufficient knowledge, control and resources.

In Leung Tsang Hung v Incorporated Owners of Kwok Wing House ([2007] 4 HKLRD 654, CFA) an unauthorised canopy above a balcony protruted from the external wall of a building. The canopy had been poorly constructed and had deteriorated over time. A corner of it fell off and killed a hawker in the street below. The owner accepted liability and the tenant was found to be liable. The question was whether the incorporated owners were also liable. The Court of Final Appeal held that they were. It reviewed the law of public nuisance in general and as it applied to incorporated owners. It held that Incorporated owners can be liable in public nuisance where they know (or can be presumed to know) that the common parts (or an element of the common parts) are in such a state as to endanger the lives, safety, health, property or comfort of the public or as to obstruct the exercise or enjoyment of rights common to members of the public. They are liable for any foreseeable loss arising from a failure to take such steps to neutralise any such hazard as are within their power. Individual owners and tenants (but not the owners as a collective body) can also be liable in respect of the same hazard if they had sufficient knowledge, control and resources.

The external walls were common parts. The owners had duties under the DMC not to convert common parts to private use, not to place things on common parts and to keep the structure and exterior in repair. The incorporated owners had the control needed for public nuisance since they had the power to monitor and enforce these duties. They could be presumed to know of the hazard and the danger it posed to the public. They had access to the resources needed to neutralise the hazard. They were therefore liable.

Section 16 of the Building Management ordinance does not preclude incorporated owners from being liable alongside individual owners and tenants. It only prevents a simultaneous action against the incorporated owners and the owners as a collective body.

Removal of illegal structures: seeking leave to appeal

June 3, 2011

In Incorporated Owners of Champion Court v Pang ([2011] HKEC 587, CA) the defendants had added illegal structures  to their property. The deputy District Judge had ordered their removal and the Court of Appeal confirmed this order. The plaintiffs later obtained an order entitling them to have the remedial works carried out at the defendants’ expense. The judge refused leave to appeal. The defendants asked the Court of Appeal for leave to appeal. This required the defendants to show that they had a reasonable prospect of success or that there was some other reason in the interests of justice why the appeal should be heard (District Court Ordinance Cap. 336, s. 63A(2)). The Court of Appeal refused to grant leave to appeal.