Archive for the ‘Partition wall’ Category

Ownership of internal partition walls

September 28, 2011

In Tam Sze Man v Incorporated Owners of Shan Tsui Court ([2011] HKEC 1259, CA) the Court of Appeal considered the question as to whether non-structural partition walls between adjoining flats were common parts or were in the shared ownership of neighbouring flat owners. Here the appellants owned two adjoining flats and wanted to demolish the partition wall between them. The walls were not structural: as the Court of Appeal put it, alteration would have no structural impact on the building. At first instance, it had been decided that the removal of the wall would be a breach of a provision in the DMC prohibiting structural alterations and also a provision prohibiting interference or damage to common parts. The judge at first instance had decided that the walls were a common part. After the first instance decision had been handed down, the Court of Appeal decided in a similar case Incorporated Owners of Westlands Garden v Oey Chiou Ling that non-structural internal partition walls were not common parts. Was Tam Sze Man different in any relevant respect from Westlands Garden? If not, the conclusion in the latter should be followed. The Court of Appeal decided that Westlands Garden was applicable and the internal partition walls were the property of the flat owners and were not common parts. The Court of Appeal also decided that these walls were not structural. The owners had the right to demolish them. It was relevant to note that; the partition walls were not specified as common parts, other owners had no right of access to them and no reason to use them and that the colouring on the first assignment included the partition wall. It would create strange anomalies if such internal partition walls were regarded as common parts to be repaired at the common expense of all of the owners.

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Ownership of partition walls dividing apartments

February 24, 2011

Whether the partition wall dividing two apartments is a common area or belongs to the owners is to be determined by a search for the intention of the parties to the first sale and purchase and the Deed of Mutual Covenant. This intention is to be found in the instruments which can be interpreted in the light of the factual matrix at the time that they were entered into.

In The Incorporated Owners of Westlands Garden v Oey Chiou Ling and Wong Fung Ling ([2011] HKEC 254) the appellants were two sisters who owned adjoining apartments.  They  wanted to remove the partition wall between their flats so as to create a single larger unit. The Court of Appeal noted that this is not uncommon (para. 54). At first instance (see the blog entry below) it was held that the partition wall was a common area and so the sisters did not have the right to remove it. They brought this appeal. Ownership of the partition wall is significant because, as the sisters argued, it confers control over what is to happen to the wall. It also has implications as to whether repair and maintenance are the responsibility of the incorporated owners or of the neighbours who share the partition wall.

Whether internal partition walls are common areas depends on the intention of the developer and the first purchaser of a unit in the development as expressed in the assignment and DMC construed in the light of the factual matrix at that time.  The intention should be clearly expressed in the Deed of Mutual Covenant and the first assignment  of unit.  If this is not done then the court has to try and make a guess as to what they intended. This is difficult because the parties may well not have thought about the matter at all. The Court of Appeal made the powerful point that it was unlikely that the developer intended, at the time of the first sale, to turn all of the partition walls into common areas. To do have done so would have made it unlawful for it later to redraw the size of units or itself to turn smaller units into larger ones.

This case takes a different line from other Hong Kong judgments that have found an intention in circumstances such as this that the owner of an apartment would only have exclusive use of the air space within an apartment. The Court of Appeal felt that it could distinguish the facts in the earlier case from those in the present case.

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.