Introduction

In the recent case of The Incorporated Owners of Mei Foo Sun Chuen Stage VI v Grandyield Knitters Limited, LDBM 110/2011,the Lands Tribunal has to decide (i) whether the external wall of Mei Foo Sun Chuen Stage VI (the “Building”) is the common parts of the Building; and (ii) whether the Incorporated Owners of the Building (the “IO”) is empowered to request an owner to remove the exhaust unit of a split type air-conditioner (the “exhaust unit”) installed onto the external wall of a flat in the Building (the “Flat”).This article will discuss the definition of common parts in the Deed of Covenant of the Building (the “DMC”) and the Building Management Ordinance, Cap. 344 (the “BMO”) and will examine the powers of the IO under the BMO.

The IO’s case

The applicant is the IO and the respondent is the current owner (the “owner”) of the Flat.The IO applied to the Lands Tribunal for an injunction against the owner, requiring the exhaust unit affixed on the external wall of the Building to be removed since the external wall is part of the common parts of the Building.

The IO took the view that, firstly, the owner is not entitled to convert part of the external wall for their personal use under Section 34I of the BMO by installing the exhaust unit onto the external wall. Secondly, the IO, as the manager of the Building, should be authorized to manage and provide services in respect of the Building according to the DMC and the BMO. Thirdly, the IO relied on the Buildings Ordinance, Cap. 123 (the “BO”) that the exhaust unit and the fittings are building works and prior consent of the Building Authority has to be obtained.

The owner’s case

The owner contended that, firstly, the external wall is not part of the common parts of the Building as defined in the DMC or the BMO and, secondly, the IO has no standing to bring the action.

Are External Walls a Part of the Common Parts?

The definitions of “common parts” were given in the BMO and the DMC respectively.Under Section 2 of the BMO, “common parts” are defined as “(a) the whole of a 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 an owner; and (b) unless so specified or designated, those parts specified in Schedule 1.”In the definition part of the DMC, “common parts” means “all parts of the Building and Section except the Units.”

The Lands Tribunal found that it does not make sense that the wall surrounding the Flat is assigned to the owner.If this was the case, the owner will have the responsibility to maintain the wall. It is impossible for the owner to maintain just one area on the wall as the external of any building is just one structural wall and part of the same building.

The Lands Tribunal further rejected the argument of the owner that the external wall has been assigned to the first purchaser, by referring to the judgment of Nation Group Development Ltd. v. New Pacific Properties Ltd. CACV 160/1999.In that case, the Court of Appeal interpreted the area allotted to the exclusive use and enjoyment of the purchaser to include “the right to the exclusive use of the floor and ceiling surfaces of the First Floor and of the air space between them; and of all the external surfaces of the canopy and flat roof. It does not include any right to any part of the structure of the building.” Therefore, the enjoyment of the owner does not extend to the structure, namely the concrete wall and the floor slab.

To sum up, the Lands Tribunal held that the First Assignment of the Flat (the “First Assignment”) has not assigned the external wall to the first purchaser and, hence, the external wall is a part of the common parts of the Building.

Does the IO Have Standing to Sue?

After reading the First Assignment and the DMC, the Lands Tribunal held that the effect of the documents is to assign one unit to the first purchaser and at the same time create all areas other than the units that have been assigned to various purchasers, which must include the external surface of the walls of the Building, to be common parts, which are to be jointly enjoyed by the first purchaser with other co-owners subject to the terms of the DMC.

As a result, the Lands Tribunal found that the surface of the external wall is part of the common parts of the Building and the IO is entitled to exercise its power to sue the owner.

Any Breaches of the DMC and the BMO?

It was held by the Lands Tribunal that, by maintaining the exhaust unit, the owner is in breach of the DMC and the BMO by converting the common parts of the Building to its own personal use contravening Section 34I of the BMO.The Lands Tribunal also found that the owner contravened Section 34I(1)(b)(ii) of the BMO as the exhaust unit on the external wall caused nuisance or hazard to any person lawfully in the Building.

The Lands Tribunal held that the installation of the exhaustive unit is a structural alteration to the Building and it was satisfied that the alteration is a building work in accordance with Section 2 of the BO. Since the work has been done without consent from the Building Authority, the IO is entitled to demand the owner to remove the exhaustive unit.

Conclusion

Generally speaking, the external wall of a multi-storey building is regarded as common parts of the building.The owner of a unit is not entitled to install any split type air-conditioner or other building works onto the external wall unless the consent from the IO and the prior approval from the Building Authority have been obtained.If the owner fails to comply with any removal directions from the IO, the IO could enforce the DMC of the building and take action against the owner with the power vested in it under the BMO.